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IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 22 ND DAY OF MARCH, 2017

BEFORE

THE HON’BLE MR.JUSTICE B.S.PATIL

W.P.Nos.19457-460/2016 (LA-RES)

BETWEEN :

1. Sri N.Nanjundappa, S/o late Chikkananjappa, Since deceased, rep. by his LRs.

(a) Sri Vasanthappa.N., S/o late N.Nanjundappa, Aged 62 years, R/at No.493, Kodigehalli, Post, Bengaluru – 560 092.

(b) Sri K.N.Manjunath, S/o late N.Nanjundappa, Aged 58 years, R/at No.2152/16, Sri Manjunatha Nilaya, ‘D’ Block, Sahakara Nagar, Water Tank Road, Bengaluru – 560 092.

(c) Sri Umesh.N., S/o late N.Nanjundappa, Aged 53 years, R/at Flat No.G-6, ‘B’ Block, Nipuna Heritage Apartment, No.213/16, 11 th ‘B’ Cross,

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Virupakshapura Kodigehalli, Bengaluru – 560 097.

2. Sri N.Rama Raju, S/o late Chikkananjappa, Aged 85 years, R/at Kodigehalli Village, Sahakaranagara, Bengaluru – 560 092. ..PETITIONERS

(By Sri M.V.Seshachala, Sr. Counsel for Sri Aravind V.Chavan, Adv.)

AND :

1. Ministry of Power, Government of , Shram Shakti Bhavan, New Delhi – 110 001, Represented by its Secretary.

2. The Southern Regional Electricity Board, No.29, Race Course Road, Bengaluru – 560 009, Represented by its Secretary.

3. The Special Land Acquisition Officer, Visveswaraiah Centre, 3rd Floor, Podium Block, Dr. Ambedkar Veedhi, Bengaluru – 560 001.

4. The Prl. Secretary to Government of Karnataka, Revenue Department, Vikasa Soudha, Bengaluru – 560 001. ..RESPONDENTS

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(By Sri Prabhulinga K.Navadgi, ASG for Smt. Sandhya Rao, CGSC for R-1 & R-2; Sri Venkatesh Dodderi, AGA for R-3 & R-4)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THAT THE ACQUISITION PROCEEDINGS INITIATED UNDER LA ACT, 1894 IN RESPECT OF 32 GUNTAS IN SY. NO.14/1 WRONGLY NOTIFIED AS SY. NO.17/1, 32 GUNTAS KODIGEHALLI VILLAGE, HOBLI, BENGALURU NORTH TALUK, IN ANNEX-D & E, DATED 19.09.1985 AND 27.02.1986 OVER WHICH COMPENSATION AWARDED HAS NOT BEEN PAID OR ACTUAL PHYSICAL POSSESSION HAS NOT BEEN TAKEN IN ACCORDANCE WITH SEC. 24(2) OF THE NEW ACT, 2013 AND CONSEQUENTLY ACQUISITION PROCEEDINGS HAS LAPSED.

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.01.2017, COMING ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

1. Petitioners have approached this Court making a grievance regarding the acquisition proceedings pertaining to 32 guntas of land comprised in Sy. No.14/1, but notified as part of

Sy. No.17/1 measuring 32 guntas situated at Kodigehalli village, Yelahanka Hobli, Bengaluru North Taluk. He has sought for a declaration that the acquisition proceedings have lapsed as neither compensation awarded has been paid nor actual possession has been taken over. Such a relief is sought by the petitioners in the light of Section 24(2) of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short, ‘New Act’).

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2. It is the case of the petitioners that Sy. No.14 of

Kodigehalli village totally measured 13 acres 35 guntas. It was owned by Mr. Byanna and Smt. Akkayyamma. They sold part of

Sy. No.14 measuring 2 acres 10 guntas in favour of

D.Narayanappa as per sale deed dated 20.02.1950, who inturn sold it on 24.11.1953 in favour of Munishamappa. By sale deed dated 15.03.1954, Munishamappa sold it to Chikkananjappa.

Deceased petitioner No.1 – N.Nanjundappa and petitioner No.2

– N.Rama Raju are the children of late Chikkananjappa.

Petitioners have produced the sale deed dated 15.03.1954 at

Annexure-A, whereunder father of petitioners 1 & 2 – late

Chikkananjappa has purchased 2 acres 10 guntas of land comprised in undivided Sy. No.14. A perusal of the schedule mentioned in the sale deed makes it clear that the land purchased measuring 2 acres 10 guntas was bounded on the

East by – Sy. No.17 and Subbaiah’s land; West by – Marappa’s land; North by – Battappa’s land within Byatarayanapura jurisdiction; and South by – Road.

3. It is relevant to notice that while effecting mutation entry based on the sale deeds executed in favour of the predecessor in title of the petitioners - Chikkananjappa, the entries were

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recorded as 1 acre 11 guntas in Sy. No.14/1 and 39 guntas in

Sy. No.17/1. This is evident from the mutation register bearing

MR.No.58 & 59 produced at Annexure-B. So far as RTC extract is concerned, the sub-division of the survey number was not shown. It continued to reflect as Sy. No.14 measuring 14 acres

3 guntas. The name of N.Nanjundappa was entered in respect of 2 acres 10 guntas as is evident from the RTC extracts of the year 1966-69 and thereafter. The RTC extracts have been produced and marked as Annexure-C.

4. Acquisition proceedings were initiated as per preliminary notification dated 19.04.1985 under Section 4(1) of the Land

Acquisition Act (for short, ‘the Act’), proposing to acquire the land bearing Sy. No.17/1 measuring 2 acres 35 guntas for the purpose of constructing staff quarters for the benefit of

Southern Regional Electricity Board, Bengaluru. In the column pertaining to Khatedar, the name of Muniyappa S/o

Subbahanumaiah was shown and in the column pertaining to the name of Anubhavadar, the name of Muniyappa S/o

Subbahanumaiah along with petitioner No.1 – N.Nanjundappa was shown. Final declaration was issued on 26.02.1986 under

Section 6 of the Act. The same was published in the Karnataka

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Gazette on 08.05.1986 depicting the name of petitioner No.1 along with Muniyappa in respect of 2 acres 35 guntas in Sy.

No.17/1. Award was passed on 30.10.1986.

5. In the course of enquiry, the Land Acquisition Officer has found that petitioner No.1 though notified of the proceedings of the award under Section 9 of the Act did not produce any documentary evidence to prove his title in respect of Sy.

No.17/1 measuring 32 guntas out of 3 acres 4 guntas. So far as the remaining extent of land comprised in Sy. No.17/1,

Khatedar and Anubhavdar of the said land – Muniyappa S/o

Subba Hanumaiah through his son Mr. M.Krishnappa, has claimed compensation and the Land Acquisition Officer while passing the award, copy of which is produced at Annexure-F, has specifically stated that out of the award amount of

Rs.2,12,000.75 in respect of 2 acres 3 guntas, a sum of

Rs.1,51,820/- has been paid to Muniyappa S/o Subba

Hanumaiah and the remaining amount has been deposited in the Treasury. Indeed, this aspect of the matter is confirmed by the learned Additional Government Advocate who submits, on instructions from the officer present in the court, that the compensation payable in respect of 32 guntas of land was not

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paid to anybody nor was it deposited before the Civil Court by referring the matter under Section 30 of the Act, but the Land

Acquisition Officer having found that there was dispute regarding the entitlement of compensation in respect of 32 guntas, has ordered for depositing the said amount in the

Treasury.

6. It is the case of the petitioners that possession of the land was not taken over. In this regard, he has urged that no mahazar in accordance with law was drawn evidencing taking over possession. He points out by referring to Annexure-P – notification dated 27.02.1986 that only 2 acres 3 guntas in Sy.

No.17/1 and 9 guntas of phut kharab was taken over as per

LAC No.641/1985-86 and he also points out that as is apparent from Annexure-Q – official memorandum dated 02.01.1998, in respect of 32 guntas of land, as there was dispute regarding possession between Muniyappa and N.Nanjunadappa, the

Special Land Acquisition Officer requested the Assistant

Commissioner, Bengaluru Sub-Division to enforce compensation in respect of 32 guntas by resorting to Section 47 of the Act, and therefore, the Assistant Commissioner,

Bengaluru Sub-Division, directed the Tahsildar, Bengaluru

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North Taluk, to take over possession in respect of 32 guntas of

Sy. No.17/1 and hand over the same to the Special Land

Acquisition Officer, Bengaluru. Thereafter, it is urged by the

Counsel for the petitioners that the Tahsildar did not take possession nor did he hand over the same to the beneficiary. It is pointed out by referring to Annexure-R – proceedings regarding taking over possession drawn up by the Revenue

Inspector, Yelahanka Hobli, on 21.03.1988,that the Tahsildar who was personally authorized and directed to enforce possession did not discharge the said duty nor the Revenue

Inspector who has drawn the mahazar has done it in the presence of any witnesses, and therefore, possession of the land was not taken over. It is urged that possession of the land continued to be with the petitioner – N.Nanjudappa as regards

32 guntas in Sy. No.17/1.

7. Petitioners have filed an application seeking permission to produce certain additional documents while raising additional grounds on the basis of Section 24(2) of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short, ‘New Act of 2013’) stating that acquisition proceedings stood lapsed. The

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documents produced are two photographs at Annexures-AK &

AL. As can be seen from these two photographs, the property belonging to the petitioners which is used for Chairman’s Club and Resort and the adjoining property which is stated to have been utilised by the respondent - Southern Regional Electricity

Board for constructing quarters/buildings has been separated by a clear boundary mark including compound wall. The vacant portion found in the photographs is apparently in possession and enjoyment of the Chairman’s Club and Resort.

The two photographs which depict the picture taken from an elevated level demonstrates this factual position.

8. In the statement of objections filed by respondents 1 & 2

– Government of India and the Southern Regional Electricity

Board, Bengaluru, respectively, they have contended that 3 acres 4 guntas of land including 9 guntas of kharab comprised in Sy.No.17/1 of Kodigehalli Village was acquired and in the notification in anubavadar’s column, Muniyappa and

Nanjundappa’s names had been shown in respect of 32 guntas in Sy.No.17/1; that Nanjundappa appeared before the Special

Land Acquisition Officer and claimed that he had right over 32 guntas in Sy.No.17, but failed to provide any documentary

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evidence. It is specifically stated in paragraph 4 of the statement of objections that Nanjundappa indeed asserted that the said Sy.No.17/1 measuring 32 guntas had been wrongly notified and that indeed, 32 guntas was part of Sy.No.14/1. It is further stated therein that the Special Land Acquisition

Officer held that the amount would be apportioned and paid to

Muniyappa or Nanjundappa on either party producing proof of title in respect of 32 guntas in Sy.No.17/1 and as khatedar

Muniyappa or anubavadar Nanjundappa did not come to hand over the remaining 32 guntas of land, Section 47 of the Land

Acquisition Act was invoked so as to take over possession and upon the order of jurisdictional Sub-divisional Magistrate dated

02.01.1988, Section 47 was invoked and the Revenue Inspector handed over possession of the land to the Special Land

Acquisition Officer on 21.03.1988 and the Special Land

Acquisition Officer in turn handed over possession to respondent No.2 on 05.04.1988. Reference is also made to the writ petition filed in W.P.No.16846/1988 challenging the notification which was dismissed on 26.02.1992 and

O.S.No.6989/1992 filed by the petitioners seeking permanent injunction against respondent No.2 was also dismissed holding that the land had been acquired for the benefit of respondent

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No.2. The said judgment in the suit having attained finality on the dismissal of MFA.No.1621/1993, it was not open for the petitioners to contend that they were in possession. In paragraph 7 of the statement of objections, respondents have contended that petitioners had encroached upon 32 guntas of land in Sy.No.17/1 and it transpired that they had no title over the said property and were trying to grab the said land which belonged to respondent No.2 taking advantage of the proximity of the acquired land to Sy.No.14/1 which belonged to the petitioners. Respondent No.2 has tried to brush aside the mutation entry effected in the year 1983–84 in respect of 32 guntas in the name of the petitioners by showing the same as part of Sy.No.17/1 based on the registered Sale Deed stating that it was only a stray entry in the mutation register and it was not a conclusive proof in respect of title of the property by the petitioners. Respondents have also brushed aside the decree passed in O.S.No.6749/1992 by the City Civil Court,

Bengaluru, against Krishnappa and others from interfering with their possession in respect of Sy.No.14/1 measuring 1 acre 11 guntas and Sy.No.17/1 measuring 32 guntas stating that respondent No.2 was not made a party to the same. This judgment has been produced and marked as Annexure-AC.

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Respondents have indeed admitted in paragraph 11 of statement of objections that compensation in respect of 32 guntas of land continued with the Special Land Acquisition

Officer and the amount was not disbursed as there was nothing to show that whether petitioners were entitled to the same or

Muniyappa as there was dispute regarding entitlement of compensation. It is mainly urged by the respondents that

Section 24 of the New Act of 2013 was not applicable because possession of the land had not been taken over. The assertion made by the petitioner that they have been running a Club by name Chairman’s Club in the disputed land is denied as misleading.

9. Upon hearing the learned counsel for all the parties and on careful scrutiny of the entire pleadings and records, what emerges is petitioners claim right in respect of 32 guntas comprised in Sy.No.17/1 contending that it was part of 2 acres

10 guntas of land purchased by them. In this regard, they have placed strong reliance on the mutation entry based on the Sale

Deeds executed in favour of Chikkananjappa – predecessor-in- title of the petitioners. This mutation entry is produced at

Annexure-B. It discloses that Chikkananjappa had purchased

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1 acre 11 guntas of land in Sy.No.14/1 and 39 guntas of land in Sy.No.17/1 which was subsequently surveyed for the purpose of phodi and sub-division. In the column pertaining to the orders of the Enquiry Officer found in the mutation register produced at Annexure-B, it has been clearly recorded that

Chikkananjappa had purchased this property and as per

MR.Nos.58 & 59, the land purchased was phoded and assigned

14/1 to an extent of 1 acre 11 guntas and 17/1 to an extent of

39 guntas. It is also evident that this mutation was certified and accepted vide MR.No.58/83-84. It is in this background that in respect of Sy.No.17/1 to an extent of 32 guntas, the name of Nanjundappa was entered as anubavadar and was notified as such while issuing the final declaration. Noticing this right of Nanjundappa over the land, he was issued with notice under Sections 9 & 10 of the Land Acquisition Act before passing the award. Admittedly, Nanjundappa has appeared and filed his claim urging his absolute right over the said extent of 32 guntas. It is because of this right asserted by

Nanjundappa for 32 guntas of land, while passing the award and paying compensation, the Land Acquisition Officer has paid compensation in respect of rest of the land comprised in

Sy.No.17/1 totally measuring 2 acres 35 guntas by excluding

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32 guntas. Even if there was any doubt regarding the absolute title of the petitioners in respect of 32 guntas of land comprised in Sy.No.17/1, the Land Acquisition Officer ought to have referred the matter under Section 30 of the Land Acquisition

Act to the City Civil Court for apportionment of compensation if there were rival claimants and ought to have deposited the amount of compensation before the Civil Court. Admittedly, he has not taken recourse to the said mandatory legal requirement. The compensation amount for 32 guntas was neither paid to the petitioners, nor deposited before the Civil

Court. There is nothing to show that Muniyappa had made any claim for awarding compensation in respect of 32 guntas of land. Indeed, he had made a claim only in respect of 2 acres 3 guntas of land for which he was paid compensation in a sum of

`1,51,820/-. He had even sought for reference regarding enhancement of compensation only in respect of the said extent of 2 acres 3 guntas. It is further evident from the decree passed by the Civil Court in O.S.No.6749/1992 that defendant –

Krishnappa or for that matter, sons of late Muniyappa were not in possession of the suit property i.e., Sy.No.17/1 measuring 32 guntas described in Schedule-2 in the decree and that it was the plaintiff – petitioners herein who were in possession of the

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same. In paragraph 13 of the said judgment produced at

Annexure-C, the Civil Court has recorded a finding that the defendants therein had already filed suit O.S.No.2076/1985 for possession and cancellation of the Sale Deed, which itself demonstrated that they were not in possession of the suit schedule property. Though respondent No.2 herein – Southern

Regional Electricity Board is not a party to this suit, this judgment and decree makes it very clear that the claim made by the petitioners that they were entitled for possession of the property and not Krishnappa or the sons of Muniyappa becomes very clear. Had the Land Acquisition Officer referred the matter under Section 30 of the Land Acquisition Act, petitioners would have been in a position to establish their claim. The dismissal of suit O.S.No.6989/1992 or filing of other suits in O.S.No.368/2008 or O.S.No.6027/2010 having nothing to do with the question that has fallen for consideration in this writ petition. As per the notification issued under

Section 6 of the Land Acquisition Act, petitioners were shown as anubavadar of the land and were interested persons in seeking compensation. They have indeed lodged their claim, their name was mutated in respect of 32 guntas of land in

Sy.No.17/1 as per certified mutation entry of the year 1982-83

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which was well prior to the date of initiation of acquisition proceedings. That being so, it was the mandatory duty of the

Land Acquisition Officer to refer the claim regarding adjudication of the right of the petitioners for payment of compensation by depositing the award amount to the said extent before the Civil Court. Admittedly, award amount has not been deposited. Section 24 of the New Act of 2013 reads as under:

“24. Land acquisition process under Act No.1 of 1984 shall be deemed to have lapsed in certain cases: - (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), -

(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

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(2) Notwithstanding anything contained in sub- section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of the Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

10. It is, therefore, clear that if the amount is not paid or deposited, the acquisition proceedings stand lapsed. In this case, the factual position as are emerging from the stand taken by respondent No.2 in the statement of objections shows that according to them they had taken possession of the land, but subsequently, petitioners have trespassed into the same by

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encroaching 32 guntas of land in Sy.No.17/1. No material is produced to probablise this assertion that petitioners had encroached into Sy.No.17/1 measuring 32 guntas. If the petitioners had indeed trespassed into the land, respondent

No.2 could not have kept quiet without lodging police complaint and initiate any action to recover possession. It is stated in the statement of objections that Section 47 of the Land Acquisition

Act was resorted to enforce possession of acquired land and the

Assistant Commissioner passed an order invoking the said provision directing Tahsildar to take over possession of the land. There is no mahazar produced to show that possession was indeed taken by the Tahsildar. The revenue documents produced before the Court and which are also found in the original record disclose that Revenue Inspector, Yelahanka

Hobli, Bengaluru North Taluk, took over possession and handed over the same on 21.03.1988. The order dated

02.01.1988 passed under Section 47 of the Land Acquisition

Act clearly states as under:

“…… As per powers vested in me under Section 47 of the Land Acquisition Act, I, K.Sudhakar, the Sub- Divisional Magistrate, Sub-Division, Bangalore, do hereby direct Sri G.Gurubasappa, the Tahsildar, Bangalore North Taluk, to enforce

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possession of 32 guntas of land in Sy.No.17/1 of Kodigehalli, Bangalore North Taluk and hand over the same to the Special Land Acquisition Officer, Bangalore…..”

11. It is thus clear that the direction was issued to the

Tahsildar by his name to take over possession and hand it over the same to the Special Land Acquisition Officer, Bangalore.

There is no mahazar anywhere found in the original records which are made available for the perusal of the court drawn by the Tahsildar to show that he had taken over possession of this land. The mahazar has to be drawn in the presence of witnesses and the signature of the witnesses has to be taken.

There is no such material. In addition, two photographs produced by the petitioners at Annexures-AK & AL amply demonstrate that the property continues to be in possession of one of the petitioners. Indeed, the fact that the petitioners have been in possession is not denied by respondent No.2. But, respondent No.2 has tried to assert that the petitioners have trespassed into the land measuring 32 guntas comprised in

Sy.No.17/1. This assertion is made in paragraph 7 of the statement of objections filed by respondents 1 & 2. The dismissal of the earlier writ petitions filed by the petitioners

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challenging the acquisition cannot come in the way of the petitioners seeking a declaration that the acquisition proceedings have lapsed on account of the provisions contained under Section 24 of the New Act of 2013. Section 24 of the New

Act of 2013 which has come into effect from 01.01.2014 clothes the petitioners with a right to seek such declaration. Therefore, petitioners are entitled for the relief sought.

12. In the result, these writ petitions are allowed. It is declared that the acquisition proceedings in respect of 32 guntas of land comprised in Sy.No.17/1 of Kodigehalli Village,

Yelahanka Hobli, Bengaluru North Taluk as per preliminary and final notifications dated 19.04.1985 and 27.02.1986 respectively have stood lapsed.

Sd/- JUDGE

KK