IN THE HIGH COURT or' KARNATAKA AT BANGALORE
DATED THIS THE 1 1TH DAY OF NOVEMBER
BEFORE
{
K
THE HON'BLE MRJUSTICE 1) A T.
WRIT PETITION Nos. 1O<v924--1A1Og9:2§-5/20O;C?_'.(I;.4\ BDM
BETWEEN: 'V "' A V' M V
1. Smt. Savithramma
Aged about 72 yea1*__s';,
W/0. Rangaiah. " '
2. Sri.R. Subba=Raju -
Aged about §7ears g
S/0. Latefi-.4 F?;a_n_gaigh ._ V
Both R/at '§Jefx1kéiteshéipu1*a~A--
Arabic.gCb11ége.:;PQst,_" "
Bar,iga1o'ree~,560_ j
Both _represeflte'd by. Holder
sr1.K.M. Abdul Hamrr; A
Aged abi;ut"'.74; 'yea-.1;s"~~*"
S/'()" Late KIM,' Mohammed Ismail Saheb
.....
‘ V.Venka.tevfia.rapuram
A VKad§i’gp11da_rig1ha11i
~. ‘Arabic College Post
A Bangalore — 560 045.
— ‘ Sri: Venkateshalu,
n .Aged'”7O years,
, gs/go. Late Subbaiah.
Venkateshpura
Arabic College 130.
” Bangalore — 560 045. …Petitioners.
[By Sri.K. Suman, Adv. for P1 and P2,
Sri. Narasimhan, Adv. for
M / s. Crest Law Partners for P3]
AND:
1. The State of Karnataka
By its Secretary
Urban Development Authority,
l\/LS. Building,
Bangalore — 560 001. .
2. The Commissioner
Bangalore Development Authority,. 2
T. Chowdaiah Road, ”
KP. West,
Bangalore — 560 020.’
3. The Addl. Land Acqiiils-itlionfi tfiffic-etr”,
Bangalore Developmeiit.}?u.1tIr1ority’. ..
T. Chowdaial’:«g..f?.oad:, { ” ~
Bangalore — it A it …Respondents.
[By S_ri,.Venliateshbolddelri, AGA for R-1,
Uttam; for R-2 and R3]
=£==l<=ll==l==l==§=
“rwi’rfie§¥é*;\i.~*£1t Petitions are filed under Articles 226 &
227~._of thefilonstitution of India with a prayer to declare
4 that theacquisition proceedings initiated by the R1 and 2
fag per preliminary notification dated 29.05.1978
._ ‘Cpublished in the Karnataka Gazette dated. 21.09.1978
9 2. Annexure-A and the final notification dated 28.2.1985
vide Annexure–B, in respect of the lands in Sy.No.136,
~»measur1ng 5 acres 10 guntas and Sy.No.I38/4 measuring
1 acre 22 guntas situated at Kadugondanahalli village,
Kasaba Hobli, Bangalore North Taluk, insofar as it relates
S the” petition.
to petitioners concerned only, has lapsed and/ or
abandoned on account of non utilization of the lands by
the BDA for more than three decades.
These Writ Petitions coming on for pvrelliniinary
hearing in ‘B’ group this day, the CouIjt.__I’I1a’de “the
following: —
These Writ petitions are stale
and laches. Petitioners’ clai_rn~…inter’esVt in landj’1neasurir’ig
an extent of 5 acres guntas.in..Sy_i\To..l3€x_and 1 acre 22
guntas in Sy.No. 1 38/ – ‘Kadugondanahalli
Village of Kasapba__I~Ic-‘bVli,S N.o’rth Taluk. Such
lands * acquisition under the
provisions Development Authority Act,
1976,’ {h_ereinavfterireferred to as ‘the BDA Act’) in terms of
notificlation issued under Section 17 (1) and
dated 29.05.1978, copy at AnneXure»~A
to the petition and final notification under Section 19 (1)
the EDA Act, dated 28.04.1985, copy at AnneXure–B to
M
2. It is the case of the petitioners that BDA had passed
a resolution on 30.07.1988, copy at Anr1eXure–C to the
petition, resolving to give up the subject lands
to the petitioners from the scope of
reason that though awards had bee.n__passeld’
these lands also, physical posseslsiorr
by the BDA, from the ownerls:,p:lb_nt was’
received from one said to be
power of attorney holdlerl sii:ch’_»l.rep’resentation and
under such circu_rr_ista5r1ces,:}th-eAlntgtificatilon was denotified
in respect ‘of?.*l_.and,’measuring an extent of 5 acres 16
guntas Sy._No;-1,_3’6__””‘«ai1d 1 acre 22 guntas in
Sy.No;138/ the ‘version of the petitioners that the
fwas followed by a letter addressed to the
8’Secreta1y’*«.__tol.l”Vv’-the Government, Housing and Urban
Dev”elop.rnenlt Department by communicating the same as
the letter dated 28.1.1989 signed by the
— Commissioner, BDA, as per Annexure D to the petition.
5
3. It is the further Version of the petitioners that
though the lands originally stood in the namejrocf one
Rangaiah, on and after his demise on 5.8._..1§t
petitioner — wife and 2nd petitioner —
have pursued the matter before l’
petitioner had been apprised’?.V_’by
Development Authority (BDA)u”thatu_the’reduestv} of the 2nd
petitioner for pern1is”Sii:On’ ‘to ;_ the lands under
“Group Housing. Schen1–e.’7:jvvil1_b_e” fcorisidlered favourably,
after the _ petition.er~s’:« _subrn_i’t 1] necessary material and
records as -.in’..’..cornrnVunication dated 6.02.1997
addressed “to lthe:-mflilfd’-[petitioner by the BDA as per
Annexure E.’ ‘-
i”4._ veontended by the petitioners that the efforts
of the peititioners bore fruits by the Government issuing
.c,.iv:(3oiv_erniT”1ent Order dated 17.11.1995 according approval
.’ ‘the proposal of the BDA and also indicating that
“depending upon the nature of the project to be taken up
6
by the petitioners certain percentage of the land area
should be earmarked for development activity in fav-our of
the Low Income Group persons etc. V
5. However, this aspiration of the petitioners
was short lived, even as narrated; in”tl<3¢ 2
Government Order, which pwas «.
Petition came to be quashed Clourt of V
a public spirited pers.i§pn.iA’ Court
that the BDA could filvresollution nor could
have accordeds_p’approval. as it was not in
their polwer etc; .. ‘
6. In the.__’rnearixvhille,.illpetitioners claim that they were
madefjtlo run from to post for making efforts not only
the lands for the purpose of “Group
but also for making efforts, to get the
‘land released from the purview of acquisition
‘proceedings by the Government issuing the enabling
_.._ll”‘lnoltification under the provisions of section 48 of the Act.
7
7. It is in this background the present writ petitions on
the premise that while such were the developments,
nevertheless, the officials of the 2nd respondent — EDA
have caused interference affecting the interestVV_*o_:fi..Vthe
petitioners in taking possession of the lands,
by high hand action as on 8,/£20095′”‘as*.:’_axrerred
paragraph 17 of the petition which.prea_AdsV asvfoiijows:E”f*–._””1I_’
“17. Under the cireumstanccs,’* there is an
imminent threat'”‘qf’ _fc;rcibZeV; dispossession,
which made ‘it “0-bviouufs by sending
their ~t’1′;_’:f’iCt(_Zl_.l_;f?/€I1_.’:1iT1€€FS is the lands of the
petitioners on 408j.;04′.-2009 ‘to measure the
‘ :;.peti-tioners h.ai_:,e therefore forthwith
filed ‘the, above’ ‘writ petition by invoking the
tvritjurrisdiction “under Articles 226 and 227 of
the Const_itu.toion”—._of« “India, as they have no
alternative .e_[Fica:;ious remedy and urges the
gjiailowing main grounds in support of the
P.T.CiU_€r.” …..
T a ‘q;rieved”vpetitioners have therefore, approached this
Co.tn’~t following prayer.
‘..’i.’7.. to declare that the acquisition proceedings
.. _ in’itiated by the respondents 1 and 2 as per
” V V kpreiiminarg notification bearing No.High
V ‘ –*Court/PE’1’1TIONER/ALAO/ 12/ 78-79 dated
29. 05.1978 published in the Karnataka Gazette
dated 21.09.1978 i.e. Annexure-A and the final
notification No.HUD 567 MNX 84 dated
28.02.1985 published in the Karnataka Gazette
3′
8
on June 6 1985 i.e., Annexure–B, in respect of
the lands in Sy.No.I36, measuring 5 Acres 10
guntas and Sy.No.138/4 measuring 1 Acre 23
Guntas, situated at Kadugondanahalli Village;
Kasaba Hobli, Bangalore North Tatuk,
as it relates to petitioners; are concerned only ”
has lapsed and / or abandoned on acc’o._unt’r~of .,
non utilization of the lands bathe BDA’for’_mo’re” ,
that three decades; 7 .
ii. to award costs andgrant such other-l’-relief(s}°’;
as this Hon’ble Court deenesfit in
the circumstances, of the i”n-the interests of
justice and equity?’
8. Notice of .the.se issued to the
respondents’ –Governme1’1t’Advocate was directed to
take no”tipe’e._ fort’ “if?’–..:tespondent — State and Sn’.
Basavpataj ~VSabarad’;V_l1e’a;rned counsel had been directed
“to motiee forlllfespondent Nos.2 and 3 on the very day.
‘”1slpe.2o09 learned counsel Sri KM. Nataraj,
hadappearanee and henceforth his name was
diteetedvtt) be shown in the eause~1ist.
‘*9, . {:1 the meanwhile, an application Mise.W.9547/2009
impleading appears to have been filed for impleading
9
the applicant as 3″? petitioner, which was entertained and
ordered by this Court on 9.10.2009.
10. Be that as it may, While the interim
20.4.2010 reads as under :-
“HNNDJ:
20/04/201 0
Both the pdrii§§s._pare hfierebyl
to rnaintain stat1.Ls–qt:ov’tillV the”nc3xt’ date of
List these rnti-tiers _irniifLeéiiately after
varration.” * V
No further’ideifciopii:ien’t*tohave taken place and the
15* 1’espo:iide_nt Karnataka, 2nd Respondent —
The C0n:1miéei9’I1er’,— “and 3rd respondent — The Addl.
‘ll'”Land.l:A£;quisitioril’Officer, BDA, have blissfully remained
to file counters either on the factual
situationasnéayerred in the writ petition or to point out any
legal position on the merits of the petition.
it is in this state of affairs the petition is listed today
.bel”ore the Court in ‘B’ Group category of cases. I have
10
heard Sr}. Suman, learned counsel and Sri. Diwakar,
learned counsel appearing for petitioners 1 and 2 and Sr}.
Narasimhan, learned counsel appearing for vppetltioner
No.3, Sri. Venkatesh Dodderi, learned ‘lei
respondent — State and Sri. Uttam, 1ea_rn.ed’v.Vvcoi:insel
respondents 2 and 3.
12. Even after hearing elab:o’r.ate
Sri Suman, learned co–i1.nsel&..fo’i lpet1tione1*’s,’il find these
writ petitions are while’ and laches
are also not eliiciting the’~vdjiscreVf:1on of this Court in
the exercise .ofv=tl1eljnrisdietion under Article 226 of the
Constitutic-.nlo,f it to be dismissed only on the
4. .t groiiiildt delay. ‘ ttttt .. »
0’ learned counsel appearing for
respond_erit0s”‘2 and 3 submits that as per the records of
Jthet_.BD’1–‘i “possession of the subject lands had been taken
2.-fr_oni”‘:the petitioners as on 7.08.2008 in terms of the
0 lvlahazar drawn on that day etc., but no original records is
ll
placed and while that cannot be characterized as a
dereliction of duty, as these writ petitions have nvct___»even
been admitted by issue of rule, the
counters by the 2″” and 3″ respondent is
Many factual averments are made: the V
if it is not countered, it has to
assertions of the petitioner’§,:’.’~. is V the
respondents. Such b3rthelVSupreme
Court in terms of the HINDUSTAN
PETROLEUM “ve3pAmUs SHAPUR
3520, .in situations
where file a counter to deny or
dispute-va factual averinent made even in a writ petition.
Sri Uttam, learned counsel for
and 3, submits that the officials of the
_ respondent-a’uthority had taken physical possession of the
.s:uAb;;ect land even as on 7-8-2008 in terms of the records
l.’_;~1.ai;V:ii1ab1e at the office of the authority [no such records in
“the original are either placed before the court nor has the
12
authority filed any written statements to indicate this
factual position] or to counter the assertion on theppart of
the petitioners that they are still in physicai
the subject land is either wrong or incorrect. it H
15. Submission of Sri Venkateshfiflljodderi,.;vl«leai*ned’l’
appearing for the first responVdent:’statei. even
no counter is filed, it is openl”‘to:”the forth
the authority to is to be
dismissed on the as the
possession of taken over by
BDA, nor any other authority can
rescile from acqufisitiion proceedings and it is because
this Was…_.realized, the principal secretary to
the department of urban development had
addreslsed’a’i._letter to the commissioner. BDA on 23-2-
at Annexure–J to the writ petition], eiiciting
factual information and the View of the
“–fllcporhmissioner to submit the government as to whether the
Lllsubject land and the surrounding lands as indicated in
i
I
13
the sketch have been taken possession of by the BDA and
as to whether a notification had been 1’SSu(3C1V.-‘L_1_l’1Cl€I’
Section 16(2) of the Act for such
information was elicited in the wake of”
representation submitted by Sri
former minister, to the governor
a copy of such a representationajalidpitsVanri’cnure;s’Hetc., for
the purpose of examining to whether
acquisition proceedingsiyyinrespect land can be
16. Howe’verV,d learned AGA is that the
government reply till date, but no reply
has,_b’eenp’1’eVceive’d«Vbyfithe government in response to this
Learned AGA submits that he is not
conversant instructed as to whether the letter had
dli”‘~,.._”~been folloived up by the government for securing a reply
A the commissioner.
~§/
2 Vofficer. *2
14
17. While the manner in which the respondents have
conducted themselves and have responded to the notice
issued by this court calling upon them to respon.d°–.as to
Whether rule can be issued to examine this
leaves much to be desired by them
silent as though both the stated’
development authority are not__.accou!ntableV
the notices issued by this have degree
of irresponsible, factual
averments are .sough,tw–to’= be in terms of
submissionsi’ court by the learned counsel
appearinguforpthepfirstrespcndent–state and respondents 2
and –¢developm’ent’ authority and its land acquisition
VA11″-oral*va.submission to counter a factual assertion
made by petitioners, affirmed and supported by oath
‘cf the povver of attorney holder of the petitioner, is no good
even in terms of the law declared by the Supreme
£2/,
15
19. Added to such irresponsible conduct and n0n~
production of any record before this court, which, at’–least.
could have bailed out the respondents for
the submission made by their counsel,.V__thatfalsod
having been done, though the
this court for the past more than.’/2
respondents remained blissfullydlgdsilentr ‘t«h:is’V’:cori§duct and
attitude only creates ‘a,s»ito.ythe bona fides of
the conduct of the respo.nci_ents such matters
on behalf ofthe authorities in either a
diligent or proper Trnarinelr or even in terms of available
defences”avai1ableto.”the-respondents. It is suffice to say
that ;the con.duct the response of the three
‘~1eavesV”rnuch to be desired and if such is the
tli_ei’:’notices issued by this court, it is rather
_ doub’tful._’:as:”‘to the quality of the governance the state
H K gotresrnrnent is providing to the citizens of the state!
“Even drawing attention of the court by Sri Dodderi.
T learned AGA, to Annexured, in itself speaks a story and
l7
desirous of defending the interest of the state, which is the
highest public body in the state or as to whether they are
more in collusion with the petitioners and such’.
before the court is only to enable the petitio;i1’elrsV~:::t_éiJ H
relief sought for in the writ petition more due. ., 2
the part of the respondents!
23. What is examined ‘petit1jt)nl”‘:,vpi7£}h1le is’
undoubtedly the action._of theandl’its”‘agencies,
which partake the character tstatef the meaning
of Article 12 of..t«he ‘1Constitgu:tionexobf.j§11§i_1§§.’ and it is judicial
review of adn1inistrat.ive’»,act,ion and suspect or gullible
action on ot’Athe::_’lstate government, while can be
.-v..found’-ifauplt an.d”_t.l1e court quashing the same, if so
l’~warrantevd;’*by.issue of a writ of certiorari, it does not mean
that conferred on any person approaching
_ ‘court for relief in writ jurisdiction.
2¥L’.’..p_§etitioners. if have any right, constitutional,
.lsta’_t§utory or otherwise, can only sustain those rights
18
before the court and cannot either augment such rights or
acquire new rights by orders passed in exerci_se_V of
jurisdiction under Articles 226 and
Constitution of India.
25. While the action on the
the conduct on their part anti their” to
some extent favour ‘petit_i’o’n_er~:’fh§p’tVi’c.reatingA avsituation
that the factual’ assertioitpp writ petition,
perhaps, wouidlhhfnave of denial or
counter, the present petitions are one which is
Woefullfphiti by’ , for the simple reason
that the reI’1eef the touchstone of Section 27
V. of the reading «asunder:
to execute the scheme
. -.”_within five years:- Where within a period of
7 jive yearsifrom the date of the publication in the
ism: “gazette of the declaration under sub-
section (1) of Section 19, the authority fails to
V A. eexecute the scheme substantially, the scheme
V Shall lapse and the provisions of Section 36
shall become inoperative.
19
is further based on the ground that the scheme mooted by
the development authority is a failed scheme, in the -“sense,
a scheme which has substantially
implementation and therefore Section
operates. Petitioners have not
the court to indicate that the
failed in its implementation tound
in the petition. On of Sri K
Suman, learned _counsel_for_ is that in so
far as the petitioinersp’V3′-lands are “concerned, the scheme
has failed einiplemevntation, particularly in the
wake of tlrie” asserti”o’11iVon’.’tl1’e part of the petitioners that
they have still rer’r1aine’d possession of the subject land.
’26.VV.’i”W1t;uether_ the petitioners are in possession, as
Vlaslserfted-illfby or as to Whether the respondent
_ authority’ taken possession of the land as claimed by
.their__ learned counsel is a disputed aspect, as even oral
piA*_.su.b’missions are made on behalf of the respondents 2 and
3′”that they have taken possession and on behalf of the
3’zf/
20
first respondent-state, learned AGA is not in a position to
assert one way or the other, in the absence of a specific
reply to the communication under AnneXure~JVV.an:dr._’the
situation or scenario is shrouded in mystery,__ha2y..’_’p_
unclear, it is hazardous for this court to ver1tu:re’t’o r–eco_rd
a finding on such a hotly disputed, vaijit
jurisdiction. 9 V9 V 9 I 9
27. But, more importantly,~p_e’titions vvoefully hit
by delay and laches sought for based
on Section 27 ofithte if it is not
substantially ‘- Within a period of five years
from the of of a declaration by the state
< that"th.e…subject land was required for a public
so the cause of action for invoking Section
27 five years from the date of publication of
dated 28»4««1985 notification, i.e. the cause of
VA for seeking any relief before a court arose five years
‘ad”–llithereafter i.e. on 29-4-1990, these writ petitions filed in
respect of such a cause of action which arose in the year
iv
21
1990 only in the year 2009, i.e. 19 years after the lapse of
the arisal of cause of action, and is therefore wti:efuflgly”‘hit
by delay and laches.
28. Though the learned counsei forathelpetiti-onersl has
submitted that the promise.___ held out
government and the resoiution§lj4ofll.tl1€:_pBI9}X the first
instance that they of the state
government for proceedings
etc., encouraged ailpossible relief at the
hands Estate government and
thereforedid’ to approach this court for
relief and the of the authority going back on
.–‘V.such:”}’3ron1ises ant} precipitating action by interfering with
the subject land by the petitioners in or
around 2009 was the cause for presenting the
9 p.resent*~vvrit petitions, but the relief sought for being based
Vthlejcause of action which definitely arose even as per
H pleadings in the petition in the year 1990, all
._.subsequent events are not of much significance, as the
……Mwwmwmm«
22
petitioners, if at all, are fence sitters and not seeking for
relief at the right time and are definitely carele’s:sj’.o:and
negligent in seeking relief before Writ court.
.1′
29. Writ jurisdiction under Article “tithe
Constitution of India is a r.iis<:_retioi1ary jurilsrjiie.tion and,"
relief in this jurisdiction is atibona fide
person who for a rightful
relief. It is onlyrwheni-a' be granted in
law, one gets and not based on
sympathv…,ed'u:it}f*:or_ ailiedhonsiderations. A writ
petitioner has ground for seeking relief
on the touchstone of fc_oI1s~titutional provisions or statutory
V. provislioris. Relief 'isnot based on other considerations.
of affairs, 1 am of the clear opinion that
_ irrespiectiireolf the conduct or inaction on the part of the
writ petitioners are not entitled for any relief
',1_'in7-theigexercise of discretionary jurisdiction by this court
while this writ petition is only to be dismissed, that
3 23
does not absolve the state government from its inaction,
irresponsible conduct and virtually showing disresp'ec't,.A4to
the notice issued by this court.
31. Such action on the part
strongly depreciated and “it is -onlydfhoped
at least the state governmen’t”«..f’a1id» and its
agencies like a respondent
evince comrriensurate ire-spoinsef issued and
improve thsiri./’iv in an efficient
manner of the state and the
least has the present writ petitions
against having put the petitioners
about one year, is to mulct the
,,,__¢5t.3d..te –. and the second respondent–BDA with
[Rupees twenty five thousand only]
to be paid by Way of exemplary costs levied
“for their gross inaction bordering on possible
..__b”co1lusion with the petitioners to ensure that relief which