BANGALORE DEVELOPMENT AUTHORITY vs. DODDALAKKAPPA

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY W.A. NO.3855 OF 2010 (BDA) IN W.P. NOS.26011-015 OF 1999 BETWEEN: BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST BANGALORE-20. REP. BY ITS ESTATE OFFICER.

... APPELLANT (BY MR. JAYKUMAR S. PATIL, SR. COUNSEL FOR MR. K. KRISHNA, ADV.) AND: 1. SRI. DODDALAKKAPPA

SON OF LATE KALLODI

MUNISWAMAPPA

AGE MAJOR. 2. SRI. KEMPANNA

S/O DODDALAKKAPPA

AGE MAJOR. 3. SRI. MUNISWAMI

S/O DODDALAKKAPPA

AGE MAJOR.

2 4. SRI. MUNIRAJU

S/O DODDALAKAPPA

AGE MAJOR. 5. SRI. MUNOSOMBAIAH

S/O LATE MUNIYAPPA

AGE MAJOR. 6. SRI. RAMANNA

S/O MUNOSOMBAIAH

AGE MAJOR. 7. SRI. JAYAPPA

S/O LATE MUNIYAPPA

AGE MAJOR. 8. SMT. CHENNAMMA

W/O LATE GUNDA

AGE MAJOR. 9. SRI. RAJAPPA

S/O LATE GUNDA

AGE MAJOR. 10. SRI. NARAYANASWAMY

S/O LATE GUNDA

AGE MAJOR. 11. SRI. RAYAPPA

S/O LATE KEMPAIAH

AGE MAJOR. 12. SMT. BACCHAMMA

W/O LATE LAGHUMAIAH

AGE MAJOR. 13. SMT. RATHNAMMA

W/O LATE MUNIYAPPA

AGE MAJOR. 14. SRI. KRISHNAMURTHY

S/O LATE MUNIYAPPA

AGE MAJOR.

3 15. SMT. NARAYANAMMA

W/O MUNOSOODAIAH

AGE MAJOR. 16. SRI. LAGHUMANNA

S/O MUNOSOODAIAH

AGE MAJOR. 17. SRI. KANTHRATI MUNIYAPPA

S/O KEMPAIAH

AGE MAJOR. 18. SRI. GIRIYAPPA

S/O LATE KEMPAIAH

AGE MAJOR. 19. SRI. MUNISWAMY

S/O LATE KEMPAIAH

AGE MAJOR. 20. SMT. CHENNAMMA

W/O LATE GUNDAPPA

AGE MAJOR. 21. SRI. RAJA

S/O LATE GUNDAPPA

AGE MAJOR. 22. SRI. NARAYANASWAMY

S/O LATE GUNDAPPA

AGE MAJOR. 23. SRI. RAMAKRISHNA

S/O LATE GUNDAPPA

AGE MAJOR. 24. SMT. HANUMAKKA

W/O MUNISOMBAIAH

AGE MAJOR. 25. SRI. RAJAMUNISOMBAIAH

S/O LATE KEMPAIAH

AGE MAJOR.

4 26. SRI. MUNIYAPPA

S/O LATE KEMPAIAH

AGE MAJOR. 27. SRI. KEMPAIAH

S/O LATE KEMPAIAH

AGE MAJOR. 28. SRI. JAYAPPA

S/O LATE KEMPAIAH

AGE MAJOR. 29. SRI. RAMANNA

S/O MUNISOMBAIAH

AGE MAJOR. 30. SMT. UDAMMA

W/O LATE SALLAPURI

AGE MAJOR. 31. SRI. RAJAPPA

S/O LATE KEMPAIAH

AGE MAJOR. 32. SRI. MUNIRAJU

S/O MUNISOMBAIAH

AGE MAJOR. 33. SRI. KRISHNA

S/O MUNISOMBAIAH

AGE MAJOR.

RESPONDENTS 1 TO 33 ARE

R/AT. KOTHANUR VILLAGE, UTTARAHALLI

HOBLI, BANGALORE SOUTH TALUK

REP. BY THEIR POWER OF ATTORNEY

SRI. K. SHANTARAJU

S/O D. KRISHNAPPA, MAJOR

R/AT. S S NURSERY, 12TH CROSS

J.P. NAGAR, V. PHASE, BANGALORE-560 078. 34. STATE OF KARNATAKA

BY ITS SECRETARY

DEPT. OF REVENUE

M.S.BUILDING

BANGALORE-560001. 35. STATE OF KARNATAKA

BY ITS SECRETARY

DEPT. OF URBAN DEVELOPMENT

M.S. BUILDING, DR. AMBEDKAR VEEDHI

BANGALORE-560001. 36. THE DEPUTY COMMISSIONER

BANGALORE URBAN DISTRICT

BANGALORE.

... RESPONDENTS (BY MR. UDAYA HOLLA, SR. COUNSEL FOR MR. JAYAPRAKASH R.V. ADV., FOR R1-R3 MR. JEEVAN J. NEERALGI, AGA FOR R34-R36 R4 TO R33 ARE SERVED) - - - THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.26011 TO 26015/1999 (BDA) DATED 26.08.2010. THIS W.A. COMING ON FOR FURTHER HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: JUDGMENT In this intra court appeal under Section 4 of the Karnataka High Court Act, 1961 (hereinafter referred to as 'the Act' for short) the appellant has assailed the validity of the order dated 26.08.2010 passed by the learned single judge, by which writ petition preferred by respondent Nos.1 to 3 / owners of land has been allowed by placing reliance division bench decision

6 rendered by this court in K.B.GURUMURTHY REDDY AND OTHERS VS. STATE OF KARNTAKA AND OTHERS, (2005) 2 KCCR 1100 and the Notifications dated 23.03.1988 and 05.04.1999 issued under Section 17(1) and 19(1) of the Bangalore Development Act, 1976 (hereinafter referred to as 'the 1976 Act' for short) insofar as it pertains to land of respondent Nos.1 to 3 have been quashed. In order to appreciate the appellant's grievance, few facts need mention, which are stated hereinafter. 2. The respondent Nos.1 to 3 are the owners of the land bearing Sy.No.157/1, 157/2, 157/3 and 158 of Kothanur Village, Uttarahalli Hobli, Bangalore. The Deputy Commissioner, Bangalore Urban District issued preliminary Notification for acquisition of land including the property of the respondent Nos.1 to 3 on behalf of Amar Jyothy House Building Cooperative Society under Section 4(1) of the Land Acquisition Act, 1894 an thereafter, a declaration under Section 6(1) of the 1894

7 Act was issued, which was challenged before this court and the proceedings were quashed in NARAYANA REDDY VS. STATE OF KARNATAKA, ILR 1991 KAR 2248. The decision of this court was affirmed by Supreme Court in HMT HOUSE BUILDING COOPERATIVE SOCIETY VS. SYED KHADER AND ORS., (1995) 2 SCC 677 with a direction that the land should be restored to owners subject to payment of compensation by them. During the pendency of the aforementioned acquisition Notifications and prior to decision of the Supreme Court in HMT HOUSE BUILDING COOPERATIVE SOCIETY supra, a preliminary Notification on 23.03.1988 was issued under Section 17(1) of the 1976 Act for acquisition of several lands including the land of the respondents. A Notification was issued on 19.10.1994 under Section 19(1) of the 1976 Act. The said Notification under Section 19(1) of the Act was quashed by this court in writ petition filed by Amar Jyothy House Building

8 Cooperative Society in W.P.No.4180/1995 on the ground that the approval as required under Section 18(3) of the Act has not been obtained. Thereafter, the Bangalore Development Authority (hereinafter referred to as 'the Authority' for short) issued a Notification on 05.04.199 under Section 19(1) of the 1976 Act for acquisition of the lands including the lands of respondent Nos.1 to 3. 3. The respondent Nos.1 to 3 challenged the aforesaid Notifications in W.P.No.26011-26015/1999. The learned Single Judge by an order dated 26.08.2010 by placing reliance rendered by division bench of this court on K.B.GURUMURTHY REDDY AND OTHERS VS. STATE OF KARNTAKA AND OTHERS, (2005) SCC ONLINE KAR 198, quashed the preliminary as well as final Notification under which lands of respondent Nos.1 to 3 were sought to be acquired. In the aforesaid factual background, this appeal has been filed by the authority. 4. Learned Senior counsel for the Authority

9 submitted that findings recorded in para 11 as well as para 13 of the decision rendered by division bench of this court in K.B.GURUMURTHY REDDY AND OTHERS supra do not apply to facts of the instant case and acquisition of land for Amar Jyothy House Building Cooperative Society was not questioned by the owners. It is further submitted that judgment rendered by the division bench can be distinguished in view of law laid down by Supreme Court in OFFSHORE HOLDINGS PRIVATE LIMITED VS. BANGALORE DEVELOPMENT AUTHORITY AND OTHERS, (2011) 3 SCC 139 and 1976 Act is a self contained code and provisions of Section 11A of the 1894 Act cannot be applied to the 1976 Act. It is further submitted that in any case, the division bench decision of this court requires re- consideration, therefore, the matter be referred to a larger bench. 5. On the other hand, learned Senior counsel for respondent Nos.1 to 3 submitted that in

10 K.B.GURUMURTHY REDDY AND OTHERS supra division bench of this court dealt with land bearing Sy.No.172/3 of Kothanur Village and under the same Notification, the lands of the respondents are sought to be acquired and the lands of the respondents bearing Sy.No.157/1, 157/2, 157/3 and 158 situate at Kothanur village, Uttarahalli Hobli, Bangalore. It is further submitted that the Authority accepted the correctness of the decision in K.B.GURUMURTHY REDDY AND OTHERS supra and did not challenge the same. Thus, the aforesaid order has attained finality. It is further submitted that similar acquisition Notifications have been quashed by learned Single Judge in W.P.No.16985/2007 and W.P.No.22759/2013 but the authority has consciously chosen not to challenge the same and the pick and choose method adopted by the authority tantamount to violation of Article 14. It is further submitted that in the light of law laid down by decisions of the Supreme Court and division bench of

11 this court in COMMISSIONER OF INCOME TAX VS. NARENDAR DOSHI, (2004) 2 SCC 801 AND COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, COCHIN VS. ALSTHONTND TRANSFORMERS LTD., (2005) 12 SCC 419 AND BANGALORE DEVELOPMENT AUTHORITY VS. STATE OF KARNATAKA, ILR 2018 KAR 2144, the writ appeal is liable to be dismissed. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. From perusal of the record, it is evident that similar acquisition Notifications are quashed by learned Single Judge in W.P.No.16985/2007 and W.P.No.22759/2013. Against the aforesaid decisions admittedly, the authority has not filed any appeal. Thus, the authority has consciously chosen not to challenge the same. Under the same Notification, the land of respondent Nos.1 to 3 was sought to be acquired which has already been quashed by a division bench of this

12 court in K.B.GURUMURTHY REDDY AND OTHERS supra, which has also been accepted by the authority and has been allowed to attain finality. Therefore, we do not find any justification for the authority to single out respondent No.3 and choose to file an appeal in their case specially when respondents are similar placed as that of adjoining land owners in whose cases the authority has accepted the order and has not challenged the same. We agree with the view taken by division bench of this court in Bangalore Development Authority supra. Therefore, the appeal preferred by the authority is liable to dismissed. Accordingly, the same is dismissed. Sd/- JUDGE Sd/- JUDGE SS