KAMALAMMA Vs. STATE OF KARNATAKA
HIGH COURT OF KARNATAKA
STATE OF KARNATAKA
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ARAVIND KUMAR -
(1.)Petitioners in W.P. Nos. 29048/2014 and 29180-81/2014 have challenged the order dated 13.01.2015 passed in said writ petitions in this intra-court appeal whereunder prayer to declare the proceedings for acquisition initiated by third respondent under Section 4(1) of the Land Acquisition Act, 1894 (for short 'Act' or 'Old Act') by issuance of notification dated 22.02.1985 and final notification issued under Section 6(1) of the Act dated 27.02.1986, on the ground it had lapsed under the provisions of 'The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013' (for short '2013 Act' or 'New Act') has been negatived and writ petitions came to be dismissed.
(2.)The gist of petitioners case is as under:
2.1. The lands bearing Sy. No. 53, 55/1, 59/1 and 59/2 of Nayandahalli Village, Kengeri Hobli, Bengaluru South Taluk, measuring 3 acres 24 guntas, 37 guntas and 31 guntas respectively (hereinafter referred to as 'Schedule Property') originally belonged to Sri. K. Siddaiah namely husband of first petitioner and father of petitioners 2 to 7. He is said to have executed a Deed of Conditional Sale dated 08.03.1973 in favour of one Sri. Lingaiah. It was further contended that on the same day said Sri. Lingaiah executed a registered deed of reconveyance in favour of Sri. K. Siddaiah agreeing to reconvey the schedule property.
2.2. A preliminary notification dated 22.02.1985 under Section 4(1) of the Act came to be issued for acquiring several lands including schedule property for and on behalf of ITI Employees Home Building Cooperative Society Ltd., (for short 'Society') fifth respondent herein, followed by final notification dated 28.02.1986 issued under Section 6(1) of the Act. An award came to be passed on 05.05.1987 and notification under Section 16(2) of the Act also came to be issued taking possession of the schedule lands.
2.3. Above said Sri. K. Siddaiah challenged the acquisition proceedings before the learned Single Judge in W.P. No. 7667/1989 which came to be dismissed on the ground he had no locus-standi to challenge the acquisition proposed as he had already sold the schedule lands. On the strength of a suit O.S. No. 476/1981 filed by late Sri. K. Siddaiah, his wife and children against Sri Lingaiah for specific performance of the deed of reconveyance, suit came to be decreed on 27.03.2003 against which an appeal was filed by Sri Lingaiah in RFA No. 564/2003 which ended in dismissal and Special Leave Petition (Civil) No. 266/2004 filed before the Hon'ble Apex Court also came to be dismissed on 04.10.2016 and as such they claimed that they have continued to be in physical possession of the schedule lands. In other words, it was contended that notwithstanding the notifications issued under Section 4(1), 6(1) and 6(2) of the Act, they were not divested of physical possession of the lands. By relying upon the annexures appended to the writ petitions and contending inter alia that they are in actual physical possession of the schedule lands, they sought for declaring the proceedings for acquisition as having lapsed by deeming fiction of Section 24(2) of 2013 Act. Petitioners also sought to rely upon the acquisition proceedings initiated by Bangalore Development Authority to acquire the schedule lands and suit filed by the petitioners, which ended in a compromise whereunder BDA had agreed to allot one site to the petitioners. Hence, contending these developments would indicate the petitioners are in uninterrupted continued physical possession of the schedule lands and as such they are entitled to the protection available under sub-section (2) of Section 24 of 2013 Act, they sought for quashing of the notifications and acquisition proceedings. It was further pleaded in the writ petition that award amount has not been paid to them and as such reliefs prayed for in the writ petition ought to be granted.
2.4. Fifth respondent-Society filed its statement of objections and denied the averments made in the writ petition. It was contended that writ petition was not maintainable as it is barred by res judicata, since husband/father of petitioner had challenged the acquisition on the ground that he did not have notice of acquisition; as on date of final notification schedule lands were standing in the name of Sri. Lingaiah in whose favour husband/father of petitioner had already sold the schedule lands and said Lingaiah had unsuccessfully challenged the acquisition proceedings. It was also contended that ingredient of Section 24(2) of 2013 Act was not present in the instant case and even if possession of the lands continued with petitioner after issuance of notification under Section 16(2) of the Act, it would amount to trespass. Fifth respondent further contended that husband/father of petitioner had received monies from the Society and had consented for acquisition and had also participated in the award proceedings. On these amongst other grounds urged, pleas advanced and contentions raised in its statement of objections, fifth respondent sought for dismissal of the writ petition.
2.5. Learned Single Judge after having considered the rival contentions raised at the bar has held that in view of notification dated 16.02.1995 (Annexure-E) issued under Section 16(2) of the Act, which has also been gazetted, it would clearly demonstrate possession of the schedule lands had been taken and therefore no further proof with regard to possession was required to be produced. It has been further held that notification issued under Section 16(2) would be conclusive proof of taking over possession of the land acquired and any other interpretation would be contrary to the spirit and object of Section 16(2) of the Old Act. Learned Single Judge has further held that documents in respect of schedule lands, which has been produced by the petitioners cannot have any supervening effect, particularly when they have come into existence subsequent to taking possession. On these amongst other reasons assigned learned Single Judge has held petitioners are attempting to take undue advantage of sub-section (2) of Section 24 of 2013 Act and it is an abuse of process of law and in disguise they are challenging the acquisition proceedings yet again and hence, by imposing costs, writ petitions came to be dismissed. Hence, this intra court appeal.
(3.)We have heard the arguments of Sri. Udaya Holla, learned Senior Counsel appearing for appellants, Sri. S.S. Mahendra, learned AGA appearing for respondent Nos. 1 to 4 and Sri. G.L. Vishwanath, learned counsel appearing for respondent No. 5. We have perused entire records including the original files made available by learned Government Advocate.
CONTENTIONS OF APPELLANTS' (WRIT PETITIONERS) COUNSEL:
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