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IN THE HIGH COURT OF KARNATAKA AT

BANGALORE

DATED THIS THE 27TH

DAY OF AUGUST 2012

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No.5740 OF 2007 (LA-BDA)

BETWEEN:

1. Smt. Chanchal Bai @

Chanchal Kanwar,

Wife of Late J.Dhanraj Jain,

Aged about 63 years,

2. Sri. D. Jawaharlal,

Son of Late J.Dhanraj jain,

Aged about 43 years,

3. D. Kushal Raj,

Son of Late J.Dhanraj Jain,

Aged about 41 years,

4. D. Ramesh Kumar,

Son of Late J.Dhanraj Jain,

Aged about 39 years,

5. Dr. D.Chandra Prakash,

Son of Late J.Dhanraj jain,

Aged about 37 years,

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6. D. Kamal Chand,

Son of Late J. Dhanraj Jain,

Aged about 34 years,

All are residing at No.45,

Puliyar Koil Street,

Ashoknagar,

Bangalore – 560 025. …PETITIONERS

(By Shri. S. Rajashekar and Shri. R.Ramesh, Advocates for

M/s. Black Coats Law Firm)

AND:

1. The Bangalore Development Authority,

Kumara Park West,

T.Chowdaiah Road,

Bangalore – 560 020.

2. The Bruhat Bangalore Mahanagara Palike,

N.R.Square, J.C.Road,

Bangalore – 560 002,

Represented by its Commissioner.

3. M/s. Hotel Leela Venture Limited,

C/o. Hotel Leela Palace,

Old Airport Road,

H.A.L. 2nd

Stage,

Bangalore – 560 017.

Represented by Managing Director. …RESPONDENTS

(By Shri. Udaya Holla, Senior Counsel for Shri. K. Krishna,

Advocate for Respondent No.1

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Shri. Subramanya, Advocate for M/s. Ashok Haranahalli

Associates for Respondent No.2

Shri. K.G.Raghavan, Senior Counsel for M/s. Dua Associates

for Respondent No.3)

*****

This Writ Petition is filed under Articles 226 and 227 of

the Constitution of India praying to declare that the acquisition

proceedings vide Annexure-M and N dated 28.11.1959 and

19.8.1964 respectively in respect of property bearing Sy. No.94,

of Kodihalli Village, Varthur Hobli, Bangalore South Taluk to

the extent of 20 guntas, are lapsed/abandoned on account of

non-utilisation of the land by the first respondent for more than

four decades and etc;

This Writ Petition is coming on for Hearing this day, the

court made the following:

O R D E R

Heard the learned Counsel for the petitioners and the

learned Senior Advocates, Shri Udaya Holla, appearing for the

Counsel for the first respondent and Shri K.G.Raghavan,

appearing for the third respondent, respectively.

2. The facts leading up to this petition are as follows:

It is the claim of the petitioners that the property bearing

Survey No.94 of Kodihalli village, Varthur Hobli, Measuring

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about 20 guntas, was purchased by one J.Dhanraj Jain, under a

registered sale deed dated 13.3.1963. The first petitioner herein

is the widow of Dhanraj Jain and the other petitioners are his

children. It is claimed that Dhanraj Jain was in possession of

the said extent of land as on 13.3.1963 and had constructed a

house with a compound wall and he was residing therein with

his family. Jain is said to have died on 2.9.1976. The

petitioners are his sole legal representatives, who have

succeeded to his estate.

It is also the case of the petitioners that the very land in

Survey no.94 was notified for acquisition by the erstwhile City

Improvement Trust Board (Hereinafter referred to as the

‘CITB’, for brevity), of which the Bangalore Development

Authority (hereinafter referred to as 'the ‘BDA', for brevity) is

the successor-in-interest, for the formation of the HAL II Stage

Residential Layout, under the provisions of the City of

Bangalore Improvement Act, 1945 (hereinafter referred to as

the 'CBI Act' for brevity) and a Preliminary Notification dated

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28.11.1959 and a Final Notification dated 19.8.1964 were

issued in respect of the acquisition proceedings. However, the

land in Survey No.94 and adjoining survey numbers were later

found not required for the said purpose and as such,

possession of the lands were never taken by the erstwhile

CITB. It is in that background that late Dhanraj Jain is said to

have applied for conversion of land use and sought for

regularisation of unauthorised construction that had been put

up. It transpires that the Assistant Commissioner for

Prevention of Unauthorised Construction, Bangalore Taluk, by

a Memorandum dated 28.11.1966 permitted conversion of the

land for non-agricultural purposes and the construction put up

by Dhanraj Jain was regularised by levying a penalty of

`2,000/- per acre towards the conversion fine, in favour of

Dhanraj Jain.

3. There were also proceedings under the Urban Land

Ceiling Act,1976 (hereinafter referred to as the 'ULC Act' for

brevity), in respect of the land in question, whereby the Special

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Deputy Commissioner, Urban Land Ceiling, Bangalore, had

issued an endorsement to the effect, that on an inquiry, it was

found that the land in question was not covered under the

provisions of the said Act.

It is the case of the petitioners that a Preliminary

Notification under Section 4(1) of the Land Acquisition Act,

1894 (Hereinafter referred to as the ‘LA Act', for brevity) , was

issued by the CITB, Bangalore in the Mysore Gazette on

11.2.1960, proposing to acquire 2 acres 7 guntas of land in

survey No.94 of Kodihalli. Pursuant to which, a declaration

under Section 6(1) of the LA Act, was issued on 19.8.1964,

which was duly published in the Official Gazette. It is pointed

out that in terms of Section 19 of the CBI Act, CITB was

required to execute any scheme within 7 years from the date of

final notification, failing which, the scheme would lapse. It is

the case of the petitioners that no action was taken by CITB

towards the implementation of the scheme in respect of the land

in question even up to the date of the petition. On the other

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hand, from the date of purchase by Dhanraj Jain on 13.3.1963,

Dhanraj Jain and after him, these petitioners, who claim under

him, have continued in possession and they were never

deprived of such possession and since the scheme had lapsed

as early as in the year 1971 and since to the knowledge of the

petitioners, there were no further steps taken to take possession

of the land in question, even if the acquisition proceedings

were taken to their logical conclusion, the petitioners are

highly aggrieved by the subsequent acts of the present

respondent – BDA in the following circumstances :

4. It is the allegation of the petitioners that the property,

which was earlier assessed to tax by the HAL Sanitary Board,

was later brought under the jurisdiction of the Bruhat Bengaluru

Mahanagara Palike (hereinafter referred to as ‘BBMP’, for

brevity), the second respondent herein and the petitioners had

approached the BBMP, seeking registration of the khata in

favour of the petitioners and since there was delay in

processing the application, on an inquiry, it was learnt that the

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BBMP had sought clarification from the BDA as regards the

status of the land in question before effecting khata in favour of

the petitioners and it is pursuant to these proceedings, that

without a warning, the BDA through its demolition squad, had

arrived at the premises of the petitioners early in the morning

on 17.3.2007 and the petitioners were taken unawares of the

huge task force, which landed with men and machinery and

proceeded to demolish the residential property of the

petitioners, after driving them out of the house and the entire

building was razed to the ground within a matter of hours and

the petitioners were left without any remedy whatsoever in

respect of the high-handed action of the first respondent. This

was widely publicized in the daily newspapers and within a

week thereafter, the first respondent had published an

advertisement, calling upon builders and developers to

participate in a proposed public auction and the property in

question was brought to sale by public auction, whereby the

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third respondent claims to have purchased the property at the

said auction.

It is that which is sought to be questioned in the present

writ petition.

5. Though in the first instance, the petitioners had

questioned the notification for auction sale, since this court

had passed an interim order holding that the auction, if any,

shall be subject to the result of the writ petition and thereafter

the third respondent having purchased the property at a public

action that was held, an amended writ petition was filed

incorporating the challenge to the auction sale. The learned

Counsel for the petitioners would address this court at length

insofar as the sequence of events and the manner in which the

respondents have acted in depriving the petitioners of their

property.

6. The learned Counsel for the petitioners would submit

that it is not in dispute that the sale deed, under which the

property was purchased by late Dhanraj Jain was executed

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subsequent to the acquisition proceedings having been notified

and the BDA was fully aware of the construction on the land as

is evident from the Award, which is at Annexure –F, wherein

there is a specific finding to the effect that the Additional Land

Acquisition Officer had inspected the land in question on

21.3.1973 and that there were two building measuring 45’x

25’ and that the structures may have come into being after the

Preliminary Notification, within one year from the date of the

Award. Further, it is also recorded in the Award that Dhanraj

Jain and Mithalal Jain were holding the land in question.

Mithalal Jain was holding 1 acre and Dhanraj Jain was

holding 20 guntas. The learned Counsel would therefore seek

to draw sustenance from the said finding to hold that even from

the year 1973, the BDA was fully aware of the possession of

the petitioners or their predecessors– in-title and by virtue of

which, it could be said that the petitioners and their

predecessors had exercised uninterrupted possession to the

knowledge of the BDA and even assuming that the land in

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question had vested in the BDA by virtue of the acquisition

proceedings, since the petitioners and their predecessors had

continued in possession undisturbed, it would lead to a position

where they were in settled possession of the land in question

and the law of the land is clear that even in respect of

acquired land, if a person can establish settled possession, his

possession cannot be disturbed, otherwise than under due

process of law. In the case on hand, it would require the BDA

to either initiate proceedings under the Karnataka Public

Premises (Eviction of Unauthorised Occupants) Act, 1971

(hereinafter referred to as the 'KPPEUO Act' for brevity) or to

file a civil suit for recovery of possession and in that view of

matter, the petitioners having been summarily dispossessed in

the high handed manner that the BDA had adopted, it should

follow that the entire action of the BDA be declared as arbitrary

and illegal and the possession of land should be restored to the

petitioners. That apart from approaching this court, there is no

other alternative remedy available to the petitioners.

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7. In this regard, the learned Counsel would place strong

reliance on several judgments of this court, especially, on the

case of John B James vs. Bangalore Development Authority,

2001(1) Kar.LJ 364 and would draw attention to several

paragraphs of the said judgment, to reiterate that if once settled

possession has been demonstrated, the BDA would have no

authority to disturb the possession of any person in settled

possession and since the only manner in which the BDA could

have recovered possession was as indicated therein, the action

of the BDA would have to be declared as being illegal and

appropriate directions be issued to put the petitioners in the

same position as they were immediately preceding the writ

petition.

8. On the other hand, the learned Senior Advocate, Shri

Udaya Holla, appearing for the Counsel for the BDA would

contend that the petitioners have no locus standi to prefer this

writ petition. When the BDA is vested with the power under

Section 38 of the BDA Act, to recover the land vested in it, if

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it is occupied by any person, there is no illegality or

irregularity that can be alleged against the BDA. Secondly, the

petitioners claiming to have purchased the land after the land

was duly notified for acquisition, there is no vested right in the

petitioners in filing the present writ petition. Therefore, the

petition would have to be dismissed in limine. Further, the

settled possession that is sought to be claimed by the petitioners

in the alternative would have to be established as a fact. The

reference to the award and the indication that there were illegal

structures on the land in question and that they were in the

occupation of the predecessors of the petitioners, is not

forthcoming, as is sought to be canvassed. The vague reference

to any illegal structures or the occupation thereof by any

Dhanraj Jain and the petitioners claiming as his legal

representatives cannot be addressed in this writ petition and no

findings of fact can be recorded on the basis of the reference to

the findings in the award, which are passing references and

cannot be said to be categorical findings in favour of either the

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petitioners or late Dhanraj Jain. Therefore, the learned Senior

Advocate would submit that at this remote point of time, when

the petitioners are not in a position to challenge the acquisition,

any indirect relief sought to be claimed of the petitioners being

put back in possession of the land, can only be with reference to

the acquisition proceedings and when the petitioners are not in

a position to challenge the acquisition proceedings, no relief

can be granted indirectly, when it cannot even be considered

directly and hence, he would submit that the petition be

dismissed. Insofar as the case law that is sought to be referred

to, it is asserted that it would not aid the petitioners and on the

other hand, several observations therein and the law laid down,

would clearly be a bar to the present petition and therefore,

would submit that the petition be dismissed.

9. While the Senior Advocate K.G.Raghavan appearing

for the counsel for the third respondent would submit that the

petitioners are not entitled to any relief, unless the petitioners

elect the status under which relief is claimed. It is pointed out

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that if the petitioners claim settled possession, the petitioners

must first admit that the land stands vested in the State and it is

then for them to aver and plead the fact that they have remained

in continuous possession, adverse to the interest of the State or

the BDA and then claim settled possession. If, on the other

hand, the petitioners seek to question the acquisition itself, on

the basis of a sale deed, the admitted position that the sale

deed has been executed in favour of Dhanraj, under whom the

petitioners claim, subsequent to the notification of the lands for

acquisition, they are placing themselves in a position, which

cannot be reconciled with the first stance on the basis of alleged

settled possession. Therefore, the petitioners are between the

devil and the deep sea, as it were, and are not in a position to

manouvre on either side, as the inconsistent pleas would not

enable them to make out any case at all. The learned Senior

Advocate would submit that the wild allegations against the

third respondent that the third respondent has been

instrumental in provoking the BDA, to take the extreme step of

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demolishing the property of the petitioners and thereafter,

bringing the property to auction, is not supported by any

material evidence on record nor are there any pleadings to that

effect and hence, are unfair and are totally irrelevant. The third

respondent has purchased the property at a public auction in

the manner known to law. The motives behind the sale or the

manner in which it has been conducted, are not subject to

challenge through the petitioners, who cannot claim any vested

right and in the light of the fact that they claim under a sale

deed, which has been executed pursuant to the notification. In

this regard, he would rely on a recent judgment of the apex

court in the case of Vasanth Shreedhar Kulkarni vs. State of

Karnataka,(2012) 1 SCC 138, where in relation to the very

BDA Act, the apex court has reiterated the law laid down in

Sneh Prabha vs. State of U.P., (1996)7 SCC 426, that any

person who purchases land after publication of the notification

under Section 4(1), does so at his or her own peril. The object

of publication of the notification under Section 4(1) is notice

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to everyone that the land is needed or likely to be needed for a

public purpose and the acquisition proceedings point out an

impediment to anyone to encumber the land acquired

thereunder. It authorises the designated officer to enter upon

the land to do preliminaries, etc. Therefore, any alienation of

the land after the publication of the notification under Section

4(1), does not bind the Government or the beneficiary under the

acquisition. On taking possession of the land, all rights, title

and interest in land stand vested in the State under Section 16

of the Act free from all encumbrances and thereby absolute title

in the land is acquired therein. This view having been

reiterated in several other judgments, the apex Court has

affirmed the settled position in law. The learned Senior

Advocate would therefore submit that there is absolutely no

ground on which the present petition can be sustained.

10. He would also place reliance on an unreported

decision of this court in a writ petition in WP 45044/2011

dated 11.6.2012, wherein, this court, insofar as possession of a

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person who has acquired the land subsequent to a notification

for acquisition is concerned, has again relied on the judgment

of the apex Court in Sneh Prabha, supra, and the position

having been reiterated, he would submit that there is no scope

for the writ petition to be entertained.

11. By way of reply, the learned Counsel for the

petitioners, would again submit that the mala fides are writ

large in the action of the BDA and the candid submission by

the learned Senior Advocate during his submissions on behalf

of the BDA, that the entire record pertaining to the case is no

longer available, is nothing but an indication of the gross

suppression of facts by the BDA, as to the manner in which it

has proceeded. It is because BDA has not proceeded in

accordance with law that such a stand is taken. It is therefore

evident that it is a fit case for this court to intervene as the

petitioners have suffered at the hands of a statutory body,

which has certainly acted beyond the scope of the Act, as is

evident from the statement now made before the court that the

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entire records pertaining to the acquisition are not available

with the BDA . He would further submit that the proceedings

also indicate that there was no formation of sites in respect of

the land in question, for it is only if the land had been acquired

and formed into sites, that it was possible for it to be brought to

auction and since the entire parcel of land without there being

any sites formed over it, has been summarily auctioned in

favour of respondent no.3. The unholy nexus between

respondent no.3 and the BDA is also apparent. Therefore, the

petitioners being called upon to seek reliefs by recourse to a

civil suit for damages, or otherwise, is redundant. It is an

appropriate case where this court, in its extraordinary

jurisdiction, should come to the aid of the petitioners, in

seeking appropriate reliefs and the learned Counsel would again

reiterate that the petitioners were in settled possession and the

law is clear insofar as a person in settled possession being

entitled to protection in law, notwithstanding that the land in

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question may have been the subject matter of acquisition

proceedings.

12. Given the above facts and circumstances and the state

of the law, the admitted position that the land in question has

been acquired by Dhanraj Jain, under whom the petitioners

claim, subsequent to the notification of the land for acquisition,

would straight away weaken the case of the petitioners in

seeking the relief. As rightly contended by the respondents, the

petitioners would not have any vested right in seeking to

challenge the acquisition directly or indirectly. The very claim

that they were in settled possession is a question of fact. This

would have to be addressed by this court with reference to

material evidence. The only evidence that is sought to be relied

upon and from which sustenance is sought to be drawn, is the

findings or the observations made by the Special Land

Acquisition Officer, at Annexure-F to the writ petition. That by

itself would not be sufficient to enable the petitioners to claim

settled possession, as it is understood by this court, and as

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indicated in the judgment of John B James, supra, and other

decisions of this court as well as the apex Court. Therefore, to

consider the relief which the petitioners claim, even if such

relief is capable of being granted, is not possible, without a

finding that the petitioners were in settled possession of the

land in question as on the date of the cause of action sought to

be made out in the present writ petition. Since the petitioners

have been dispossessed from the land, the next question that

would arise is the nature of relief that can be granted to the

petitioners. This can at best be by way of damages, if at all,

there are illegal acts on the part of the BDA, as there is no

record placed before the court as to the BDA having acted in

accordance with law. Even to arrive at the relief that can be

granted to the petitioners, assuming that there have been illegal

acts on the part of the BDA , since they have not been able to

substantiate that the BDA had acted in accordance with law,

except a presumption in favour of the BDA to that effect, to

arrive at the quantum of damages, can only be on the basis of

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facts that need to be averred and proved in considering the

quantum of damages, which the petitioners may claim. In any

event, that is not the relief that is sought for before this court.

Therefore, even if the petitioners are in a position to establish

that there has been illegal dispossession of the petitioners from

the property, the only relief that they may possibly be entitled

to in the BDA having overreached, if that can be found as a

fact, is compensation in respect of such high-handed acts on

the part of the BDA, if and when it is established. Therefore,

this court would not be in a position to address that aspect of

the matter at this point of time. Hence, it is an appropriate case

where the petitioners ought to have sought for appropriate relief

at the earliest point of time by recourse to a civil suit. If the law

permits, such a remedy may still be available to the petitioners.

It is therefore for the petitioners to work out their remedy,

appropriately.

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In the light of the above facts and circumstances, the

petition is dismissed.

Sd/-

JUDGE

nv