Thimmarayappa vs State of Karnataka

H.G. Ramesh, J.—Under the provisions of the then City Improvement Trust Board Act, land belonging the petitioners measuring 1.20 acres in Sy. No. 53 situate at Madiwala Village was notified for acquisition during October, 1971 under a preliminary notification. The BDA Rules were framed during 1989 under S. 69 of the BDA Act. The BDA by its resolution -442/1992 has provided for an incentive scheme on 31.10.1992. It is stated, in between 1.7.1992 and 24.11.1992, about 71 cases have been filed for consideration and by an order dated 2.8.1993, a decision has been taken by the BDA and also a sub-committee has been formed on 29.9.1993. The petitioners approached the respondent BDA under the RTI Act, and obtained an endorsement by which it is clear, till now the resolution was not communicated to the petitioners.

The grievance of the petitioners is, that their land has been acquired to the extent of 33 acres by the then CITB. They have also given several representations and also have sought condonation of delay by filing a writ petition. Referring to S. 8(2) of the Karnataka Town & Country Planning Act, it is stated, whenever the government modifies or rescinds the resolution, the beneficiary is entitled for a notice. Stating that government has not passed any order under S. 65(B) of the BDA Act, even while the matter is pending consideration, final notification came to be issued in respect of 33 1/2 acres in the year 1978. Possession was not taken even after thirty five years of final notification as is evident from the resolution dated 31.10.1992. Now the petitioners are before this Court seeking re-conveyance or release of the property in their favour as constructions have come up in the 33 guntas of land.

According to the petitioners, they are owners of property in Sy. No. 53 measuring 1.20 acres situate at Madivala Village, Begur Hobli, Bangalore South Taluk. For the formation of ring road near BTM layout under the Scheme, a preliminary notification dated 26.10.1971 under the provisions of the CITB Act was published. As per S. 19 of the Act, the Scheme has to be implemented within seven years from the date of declaration under S. 18(1)(b) of the CITB Act. Proceedings have continued even after enactment of the BDA Act, 1976 as amended. The grievance of the petitioners is, several survey numbers which are acquired by the BDA for formation of BTM Layout have been denotified. In the petitioners case the compensation awarded has not been withdrawn. Out of 1.20 acres of land acquired, 27 guntas has been utilized for the Scheme and layout has been formed and 33 guntas was left over from the Scheme. By resolution No. 442/1992, BDA ought to have considered the case of the petitioners under the incentive scheme and the same has been placed before the BDA for extension of benefit.

According to the petitioner, annexure R9 clearly indicates that the owners/petitioners are still in possession and the petitioners request has been approved. Despite that, respondent authority never made its mind to re-convey the property or to take a decision to leave out the extent of 33 guntas as incentive. A memo is filed by the petitioners indicating that out of 69 cases put up for consideration including the case of the petitioners, lands of nearly 28 persons have been denotified. According to the petitioner, it is not a question of delay and not even the question of disposal by this Court on the representation, but there is non consideration of the case of the petitioners on part with other 28 persons to whom benefit has been extended by way of denotification.

According to the petitioners, they are in possession of the land and the Scheme has to be treated as lapsed and the land measuring 33 guntas be made available to him. Petitioners rely upon a decision of the Apex Court in the case of Hari Ram and Another Vs. State of Haryana and Others, wherein it is held as a matter of equality of law,... publication of the preliminary notification. In para 16 of the said judgment, the court specifically referring to the fact that prior to 26.10.2007, the State Government did not have uniform policy concerning withdrawal from acquisition and that while releasing the land from acquisition, government has not adhered to any policy as such, it is held that no uniform policy has been framed and followed for the release of land from acquisition and any action or order contrary to law does not confer any right upon any person for similar treatment. It is also observed, where power is exercised under S. 48 of the Act for withdrawal from acquisition in respect of a particular land, land owners who are similarly situate have a right of similar treatment by the State Government. Relying on the above ratio and also emphasizing on the right to equality and right to live, it is contended by the petitioners'' counsel that when a vast portion of land of the petitioners is acquired, their case has not been considered uniformly on par with other persons whose lands have been de-notified.

Addl. Government Advocate submits that already petitioners have filed a writ petition in this regard which came to be dismissed on merits. As such, the case of the petitioners cannot be considered once again as it amounts to res judicata and also there is delay.

Counsel representing the BDA also argued on the same lines.

In Han Ram''s case, the Apex Court referring to the fact of equality and other aspects, mindful of the delay in that case also, has come out with a radical explanation that non-following the principles of equality and non consideration of the right of similarly placed persons is violative of Art. 14 of the Constitution, as such, benefit is extended.

So far as the right of the petitioners is concerned, when the father was there, he challenged, of course it ended in a dismissal. Despite that, 1st petitioner who is the son of Ramaiah Reddy, also filed a writ petition and one of the bone of contention is, they are in possession of the property undisputedly since possession has not been taken and the land belonging to them has been acquired which is a large chunk i.e., 33 guntas and they have also not withdrawn the compensation. In that situation, they seek similar treatment based on consideration of nearly 28 persons whose lands have been denotified. It is also their case, the Scheme has lapsed by virtue of the fact that petitioners'' case has not been considered while considering the case of others and, and the question of right, liberty and also equality which are fundamental aspects cannot be ignored. Time and again, government in power is taking steps to consider such cases - genuine or otherwise, for denotification.

In the case of Union of India (UOI) and Others Vs. Shiv Raj and Others, , wherein certain proceedings have been quashed on the basis of denotification, it is held in respect of a major chunk of land, when the land acquisition proceedings had already been quashed long back and the same had attained finality, it is not conceivable how the scheme of planned development could be executed at such a belated stage in view of the fact that vacant land in a continuous stretch might not be available. Despite the decision being taken earlier by this Court on the petition filed by the father of the 1st petitioner, petitioner is again before this Court for considering his case under the incentive scheme formed for denotification. The land of the petitioner has not been spared to maintain as a matter of uniformity. The latest Land Acquisition Act also provides for substantial compensation and also Schemes have been framed as a matter of law and social change to give one site for 1 acre of land acquired and sharing of the land on 60:40 basis and that would enable the respondents to consider the case of the petitioners to give concession in respect of 33 guntas which is said to be in possession of the petitioners themselves by taking appropriate action according to law. This reconsideration of the representation of the petitioners by the BDA may not amount to res judicata and it would be a matter of need of the hour. The amount so deposited has also not been withdrawn with a ray of hope that they would get back the property to have a shelter as matter of right of residence.

In that view of the matter, petitions are disposed of with a direction to the respondent authorities to reconsider and take a decision, according to law at the earliest.