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BDA& CONTRACTOR CANNOT VIOLATE ANY FRESH FINAL NOTIFICATION OF LAND ACQUISITION FOR ANY REASONS

 
 
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BDA& CONTRACTOR CANNOT VIOLATE ANY FRESH FINAL NOTIFICATION OF LAND ACQUISITION FOR ANY REASONS
by System Administrator - Tuesday, 7 April 2015, 2:02 PM
 

BDA is not learning any lessen even though in similar case in the high court of Karnataka at Bangalore in its order dated 14 th day of February 2014 bythe honourable MR. JUSTICE ANAND BYRAREDDYin WRIT PETITION NOS. 12962-12970 of 2012 (LA-BDA) had allowed WP and following exracts of important point can be read and they are sufficient to open the eys of BDA. Extract of the orders” It is claimed that in view of several other order s passed in other writ petitions of land owners, the BDA had, afterconsideringrepresentations made by several land owners, a fresh final notification dated 16.9.1997 came to be issue d. It is contended that the lands of the petitioners did not find place in the said notification. Pursuant to the judgment in WA 4950/1998, the government is said to have issued yet another final notification dated 7.10.1999. Even this notification, it is claimed, did not include the lands of the petitioners. Either way, the lands of the petitioners are not included in that final notification. If that were to be so, the question of the lands of the petitioners being included in any approved Scheme of the BDA does not arise. However , the petitioners have been threatened time and again by the BDA by making it appear as if, the lands of the petitioner s were already acquired under the final notification dated 9.5.1984. By way of reply, the learned counsel for the petitioner would reiterate that the possession of the land was never taken in accordance with the law. On the other hand the BDA has admittedly abandoned the implementation of the Scheme as originally envisaged in the formation of the layout . The large extent of land sought to be acquired was whittled down to the extent of the petitioner's lands only. It is thereof ore claimed that the BDA has failed to substantially implement the Scheme and hence the rigour of Section 27 is attracted and the Scheme lapses. Assuming that the Scheme pertaining to Banashankar i V Stage Layout was duly sanctioned - Section 19 of the BDA Act would permit alteration of the Scheme if an improvement could be made in any part of the Scheme. However, the pres ent situation would indicate that the BDA has utilised the land for an entirely independent project, while restricting the acquisition to the extent of the petitioners' lands. This would be wholly without authority of law. Viewed from that point of view, the acquisition proceedings stand vitiated. Delay and laches are not relevant having regard to the changed circumstances. It is also to be seen that the BDA has plunged ahead with the project and erected building even during the pendency of this petition - unconscious of its folly or may be even brash indifference as to the consequences if any. As any consequent loss is borne by the public exchequer. It is not in doubt that the petitions, however, would succeed in the light of the above infirmity and are accordingly allowed. The acquisition proceedings in so far as the petitioners' lands in terms of the impugned annexures are concerned, are quashed. The respondents are directed to put the petitioners in possession oflands of similar nature and extent as were the subject matter of acquisition”.It is also to be seen that the BDA has plunged ahead with the project and erected building even during the pendency of this petition - unconscious of its folly or may be even brash indifference as to the consequences if any. It is not in doubt that the petitions, however, would succeed in the light of the above infirmity and are accordingly allowed. The BDA was directed to put the petitioners in possession of lands of similar nature and extent as were the subject matter of acquisition. This case should open the eyes of BDA. The learned counsel for the petitioners would contend that the lands of the petitioners do not form the subject matter of the second final notification dated 16.9.1997 or the third final notification dated 7.10.1999. The lands of the petitioners have evidently not been acquired by the BDA or Government. In this view of the matter, the action of the BDA in attempting to put up construction illegally in the lands of the petitioners or their earlier attempts to auction the property, are illegal and without the authority of law. The Mahazar, if any, sought to be drawn , is by a Revenue Inspector and obviously, as has been the routine, some strange signatures said to be those of villagers, without any particulars, would be vaguely found in any such Mahazar prepared in the office of the BDA, to falsely claim that BDA has taken possession. Moreover, when the lands of the petitioners do not form the subject matter of any final notification legally or factually, the question of the BDA passing any award or claiming that they have taken possession of the said lands, does not arise.

M.Mahesh s/o Late Mahadevaiah is fighting case against BDA afresh as BDA has got an high court order in 40011/2002 by fraud and suppressing final gazette notification UDD -629-MNX-97 DATED 06-10-1997 which prominently did not include the land in S.No 101/2BValgerahalli Kengeri Hobli Bangalore South Taluka . Hence it is not a BDA Property.Resjudicata not applicable to the orders obtained by fraud: If an advocate is damaging the case by suppressing the facts and getting adverse order by fraud such order does not become Resjudicata and such order can be challenged in the court of law again by putting in all facts and orders can be reviewed and fresh orders can be passed by judiciary. Courts have held that "The earlier writ petitions got dismissed on making factually incorrect submissions by the learned Counsel who appeared for the fourth respondent's society. That apart, this Court has not gone into the merits of the earlier writ petitions. Therefore, dismissal of earlier writ petitions of the petitioners do not come in the way of maintainability of these writ petitions.”.It is worthwhile to extract the relevant paragraphs of the above decisions of the Apex Court as the same, with all fours, applicable to the fact situation in support of the case of the petitioners.."7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case. Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and to prove it by true evidence". The principle of 'finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest, litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands, we are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.