Bangalore Development Authority vs The State Of Karnataka

CIVIL APPEAL NOS. 7661­63 OF 2018 [Arising out of S.L.P. (C) Nos.10216­10218/2018]

BANGALORE DEVELOPMENT AUTHORITY & ANR. … APPELLANTS VERSUS

THE STATE OF KARNATAKA & ANR. … RESPONDENTS

WITH

C.A. No.7664/2018 @ S.L.P. (C) No. 10219/2018, C.A. Nos… 7750­58/2018 @ S.L.P. (C) Nos. 10186­10194/2018, C.A. Nos.7759­61/2018 @ S.L.P. (C) Nos. 10182­10184/2018, C.A. NO.7762/2018 @ S.L.P. (C) No. 10168/2018, C.A. Nos.7668­ 69/2018 @ S.L.P. (C) Nos. 10198­10199/2018, C.A. Nos.7791­ 92/2018 @ S.L.P. (C) Nos. 10339­10340/2018, C.A. NO.7801/2018 @ S.L.P. (C) No. 10329/2018, C.A. NO.7743/2018 @ S.L.P. (C) No. 10097/2018, C.A. Nos.7666­ 67/2018 @ S.L.P. (C) Nos. 10196­10197/2018, C.A. NO.7742/2018 @ S.L.P. (C) No. 10098/2018, C.A. NO.7803/2018 @ S.L.P. (C) No. 10327/2018, C.A. Signature Not Verified

Digitally signed by

NO.7763/2018 @ S.L.P. (C) No. 10181/2018, C.A. Nos.7795­ NEELAM GULATI Date: 2018.08.04 12:38:55 IST Reason:

98/2018 @ S.L.P. (C) Nos. 10332­10335/2018, C.A.

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2 NO.7769/2018 @ S.L.P. (C) No. 10312/2018, C.A. NO.7740/2018 @ S.L.P. (C) No. 10206/2018, C.A. NO.7739/2018 @ S.L.P. (C) No. 10205/2018, C.A. NO.7772/2018 @ S.L.P. (C) No. 10262/2018, C.A. Nos.7746­ 48/2018 @ S.L.P. (C) Nos. 10209­10211/2018, C.A. Nos.7774­ 83/2018 @ S.L.P. (C) Nos. 10263­10272/2018, C.A. NO.7766/2018 @ S.L.P. (C) No. 10273/2018, C.A. NO.7976­ 89/2018 @ S.L.P. (C) No.21100­13/2018 @ Diary No.15906/2018, C.A. NO.7968­75/2018 @ S.L.P. (C) No.21092­ 99/2018 @ DiaryNo.15877/2018, C.A. NO.7954­67/2018 @ S.L.P. (C) No.21078­99/2018 @ Diary No.15938/2018, C.A. NO.7934­53/2018 @ S.L.P. (C) No.21058­77/2018 @ Diary No.15857/2018, C.A. NO..7929­33/2018 @ S.L.P. (C) No.21053­57/2018 @Diary No.15872/2018, C.A. NO.7918­ 28/2018@ S.L.P.(C) Nos. 21042­52/2018@Diary No.15866/2018, C.A. NO.7908­17/2018 @ S.L.P. (C) No.21032­ 41/2018 @Diary No.15900/2018, C.A. NO.7889­7907/2018 @ S.L.P. (C) No.21012­30/2018 @ Diary No.15952/2018, C.A. NO.7818­88/2018 @ S.L.P. (C) No.20940­21010/2018 @Diary No.15928/2018, C.A. NO.7993/2018 @ S.L.P. (C) No. 16905/2018, C.A. Nos.8015­16/2018 @ S.L.P. (C) Nos. 16930­ 31/2018, C.A. NO.8004/2018 @ S.L.P. (C) No. 16914/2018, C.A. NO.7994­8000/2018 @ S.L.P. (C) Nos.16906­12/2018, C.A. NO.8005/2018 @ S.L.P. (C) No. 16915/2018, C.A. NO.8003/2018 @ S.L.P. (C) No. 16913/2018, C.A. Nos.8001­ 02/2018 @ S.L.P. (C) Nos.16917­18/2018, C.A. NO.8006/2018 @ S.L.P. (C) Nos.16916/2018 and C.A. Nos.8007­14/2018 @ S.L.P. (C) Nos.16919­26/2018.

3 J U D G M E N T

ARUN MISHRA, J.

1. Delay condoned.

2. Leave granted.

3. The Bangalore Development Authority (for short, “the

BDA”) has questioned the orders passed by the Division Bench

of the High Court dismissing writ appeals vide judgment and

order dated 28.04.2017, confirming the order passed by the

Single Bench. The appeals have also been filed against the

orders of the Single Bench directly before this Court as Division

Bench has already dismissed the writ appeals arising out of the

same scheme/orders.

4. The BDA is Town Planning Authority for the city of

Bangalore, State of Karnataka and a notified developer. It is

entrusted with the task of preparation of city development

schemes and its execution. Section 15 of the Bangalore

Development Authority Act, 1976 (for short referred to as “the

BDA Act”) confers power to draw up the development schemes.

Section 16 of the BDA Act provides for the particulars to be

4 included in the development scheme. The same is required to

be published in terms of provisions contained in Section 17 of

the BDA Act in the official gazette and in the manner

prescribed therein. On 30.12.2008 the BDA published a

scheme and notification under Section 17 of the BDA Act for

the formation of the layout at as "Dr. K. Shivaram Karanth

Layout” including link roads.

5. The scheme was approved by Government of Karnataka

vide its orders dated 3.12.2008. 45% of the land covered under

the scheme was to be used for the civic amenities, playgrounds,

roads etc., and the residential sites would be formed by

utilizing the remaining 55% of the land. Out of this 55%

developed residential area i.e. 40% of 55% will be offered as

compensation to the farmers as specified in the scheme and the

remaining 60% of 55% will be the share of BDA. The farmers

were also given the option to accept either the developed eligible

residential land or opt for compensation as per the Land

Acquisition Act, 1894 (for short “the LA Act”). Notice to that

effect was thereby given to all concerned in accordance with the

provisions of sub­Sections 1 and 3 of Section 17 of the BDA Act

and in accordance with Section 36 of the BDA Act. The Special

5 Land Acquisition Officer, Bangalore Development Authority,

Bangalore, his staff, and workmen were authorized to exercise

the powers conferred under Section 4(2) of the LA Act and

section 52 of the BDA Act. Objections were also invited from

the interested persons to be filed within 30 days of the

publication of the notification. It was also mentioned that any

sale, mortgage, assignment, exchange or otherwise of any

layout or improvements made therein without sanction of the

Deputy Commissioner (Land Acquisition), Bangalore

Development Authority, Bangalore after the date of publication

of the notification shall under Section 24 of the LA Act be

disregarded by the Officer assessing compensation for such

parts of the said lands as will be finally acquired.

6. The BDA has to consider the objections to the preliminary

notification and submit them to the Government as required

under the BDA Act. Under section 18(3) of the BDA Act it is for

the Government to sanction the scheme and under Section 19

of the said Act, it is for the Government to make a final

declaration and publication.

7. The BDA received a large number of objections. State

Government also issued a direction to withdraw the acquisition 6 of the land to the extent of 257 acres and 20 guntas from

various villages. Representations for deletion were also

favourably considered for 446 acres and 7 guntas of the land.

In the year 2012, with regard to the withdrawal of acquisition of

446 acres and 7 guntas, and action of State Government

questions were raised in the Assembly and the State

Government ultimately ordered an inquiry to be held in the

year 14.11.2012 and yet another inquiry was ordered by the

State Government into the matter pertaining to the same

acquisition on 19.01.2013.

8. The writ petitions were then filed on the ground that

Government and the BDA had not taken any steps to issue a

final notification or to develop the land for the last 5 years. The

BDA refused to give permission to develop the land on the

ground of preliminary notification under Section 17 of the BDA

Act. Thus, right to enjoy the property has been taken away

without finalizing the acquisition. It was submitted that the

preliminary notification shall be deemed to have lapsed. Now,

Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 has

come into force. Therefore, it was urged that the impugned

7 notification issued under Section 17(1) and 17(3) of the BDA

Act was liable to be quashed, and a prayer was made to direct

the respondents to give permission to develop the land.

9. It was contended on behalf of the BDA that while the Land

Acquisition Officer was considering the representations under

Sections 18(3) of the BDA Act, the State Government has

directed the BDA to withdraw to the extent of 270 guntas of

land from various villages. In view of the large number of

representations filed under Section 18(1) of the BDA Act, time

has been consumed. Ultimately deletion of 446 acres 7 guntas

of land was favourably considered. In the meanwhile, the Board

of BDA ordered an in­house inquiry to consider the findings of

the Special Land Acquisition Officer regarding exclusion of

land. The State Government also initiated suo moto inquiry

vide Government Order dated 24.11.2012 and 19.1.2013 and

constituted a Committee consisting of Additional Chief

Secretary and Development Commissioner, based on the

newspaper reports and questions raised at the Assembly

pertaining to illegal and discriminatory proposals for

withdrawal/deletion of the land from the acquisition. It was

learnt that the Committee has completed the inquiry and issue

8 was before the State Government. In view of the pendency of

the inquiry report before the State Government and in view of

the practical difficulty, final notification under Section 19 of the

BDA Act could not be issued on time.

10. It was also contended by the BDA that notice dated

3.5.2014 was issued to the landowners as there was the need

for fresh inquiry. Therefore, the further process would be taken

pursuant to the notification. Thus, it was contended by the

BDA that no interference was called for in the writ petitions.

11. The Single Bench allowed the writ application and

quashed the notification with respect to the lands of the

appellants. The Single Judge in Writ Petition No.9640 of 2014

decided on 26th November 2014 along with other writ

applications has observed that the Division Bench of the High

Court in the case of H.N. Shivanna and Ors. vs the State of

Karnataka, Department of Industries and Commerce, Bangalore,

and Anr. (2013) 4 KCCR 2793 (DB) considering similar aspect

held that, even though under Karnataka Industrial Area

Development Act, no time limit has been prescribed, the period

9 of two years would be appropriate for the purpose of completing

acquisition. The Single Judge observed that:

“8. On the legal position as to whether the provisions as contained in the Land Acquisition Act insofar as the time period as fixed therein for passing the final notification and the award thereof could be imported into the BDA Act which has been raised by the respondents, a detailed consideration would not be necessary. This is due to the fact that the Hon'ble Division Bench of this Court while considering the matter in the case of Sri H.N. Shivanna and Others vs. State of Karnataka, Department of Industries and Commerce, Bangalore and Another reported in 2013 (4) KCCR 2793 (DB) has elaborately considered this aspect of the matter while taking note of the acquisition process which was being done under the KIAD Act wherein also no time limit has been prescribed. The Hon'ble Division Bench having accepted the position that there is no time limit fixed under the special enactment has also taken into consideration the observations made by the Hon'ble Supreme Court in the earlier cases under different circumstances and has declared the position that even though a time frame is not fixed in the special enactment under which the acquisition is being made, the reasonableness of the delay should be considered in the facts of a case and in that circumstance, a decision is to be taken, but unreasonable delay would not be permitted. While stating so, the Hon'ble Division bench has also kept in view the fact that the Land Acquisition Act prescribes a specific time frame even for the enactments, roughly the period of two years would be appropriate. Hence, on the legal aspect, the said decision would settle the issue. In the light of the judgment as rendered by the Hon'ble Division Bench, the explanation

10 as put forth in the instant case needs to be taken into consideration.”

12. Being aggrieved by the aforesaid decision, the writ appeal

was filed before the Division Bench, which has been dismissed.

The Division Bench of the High Court in the writ appeal,

observed thus:

“3. Being aggrieved by the order Dt.26.11.2014 passed by the Hon’ble Learned Single Judge in Writ Petition No.9640/ 2014 the appellants beg to prefer this appeal.

4. It is respectfully submitted that the respondent no.2 who was the appellant, filed the writ petition challenging the Preliminary notification issued by the Bangalore Development Authority for the formation of the “Dr. K. Shiarama Karanth Layout”.

5. The Petitioner was amongst the notified Khatedars of Sy. No.15 of and Sy.No.31 of Veerasagara Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore. It was contended that after issuance of the Preliminary notification by the Bangalore Development Authority for the formation of the layout no steps have been taken by the Bangalore Development Authority for the completion of the acquisition proceedings. It was contended that their right to enjoy the property has been curtailed by the issuance of the Notification by the Bangalore Development Authority. It was contended that the action of Bangalore Development Authority in not proceeding further amounts to an abandonment of the acquisition proceedings and hence the preliminary Notification was sought to be quashed

11 in so far as the property of the petitioner was concerned."

13. Aggrieved by the aforesaid decisions, the appeals have

been preferred by the BDA in this Court. The decisions of the

Division Bench in H.N. Shivanna (supra) has been followed by

the Single Judge.

14. The BDA in the appeals has urged that decision of the

Constitution Bench of this Court interpreting the provisions of

Bangalore Development Authority Act, 1976 has been totally

ignored and overlooked. This Court has decided the same issue

in Offshore Holdings Private Limited v. Bangalore Development

Authority and Others (2011) 3 SCC 139, after consideration of

the previous judgments of this Court in Munithimmaiah v. State

of Karnataka (2002) 4 SCC 326 and Bondu Ramaswamy v.

Bangalore Development Authority & Ors. (2010) 7 SCC 129. It

was held that the BDA Act is a self­contained code and the time

frame of two years provided under Section 11A of the Land

Acquisition Act is not applicable to the BDA Act. The High

Court has failed to consider the judgment. This Court has held

that the period of five years as prescribed under Section 27 of

12 the BDA Act start from the date of publication of the

declaration under sub­Section (1) of Section 19 of the BDA Act

in the Official Gazette. The High Court has grossly erred in law

in holding otherwise. The learned counsel appearing on behalf

of the BDA has relied upon the Constitution Bench decision of

this Court in the case of Offshore Holdings (supra). The High

Court has totally ignored the said decision and had flouted the

same. In the facts and circumstances of the case, there was no

delay as a large number of objections were filed. The Land

Acquisition Officer considered deletion of certain land in an

illegal manner. The Government had also issued a direction in

regard to approx. 257 acres of the land. Ultimately, there was

a question raised about the proposed exclusion of the land in

an illegal manner, in the Assembly and the State Government

has ordered an inquiry in the year 2012. Yet another inquiry

was ordered in January, 2013. The in­house inquiry was also

conducted by the BDA and ultimately notice was issued in May

2014 that the entire matter has to be considered afresh.

Thereafter, the writ petitions were filed to quash the initial

notification and the notification was illegally quashed by the

High Court. Writ appeals were also dismissed. They have also

13 been illegally dismissed by a laconic order without considering

the decision of this Court and also the facts and circumstances.

The land was required for the planned development of

Bangalore city. Thus, the impugned orders are liable to be

quashed.

15. It was contended on behalf of the landowners that there

was undue delay in completion of the land acquisition

procedure, as for more than five years the final notification was

not issued. The writ petitions were filed. There was an undue

delay, even if the period of two years of time frame provided

under the LA Act, does not apply for issuance of final

notification under Section 19, there cannot be undue delay in

taking the steps. The acquisition could not have been kept in

lurch for such an unreasonable period as done in the instant

case. Thus, the High Court was fully justified in quashing the

final notification. When no time has been fixed under the BDA

Act to complete the issuance of final notification under Section

19, it would not mean that with an unreasonable delay such

steps can be taken, as there was restraint put upon the owners

by issuance of initial notification under Section 17. Right to

enjoyment of the property could not have been denied for an

14 unreasonable period. As there was a proposal to exclude the

land, and after High Court has quashed the preliminary

notification, certain developments have been made and the

property has exchanged hands. Thus, it would not be

appropriate to interfere in the matter owing to the delay on the

part of the BDA in approaching before the High Court as well as

this Court.

16. First, we take up the question as to whether the High

Court was legally justified on merits in quashing the

preliminary notification issued under Section 17. The

Constitution Bench of this Court in Offshore Holdings (supra)

has decided the question affirmatively. The BDA has issued

preliminary notification for acquisition of the lands. Non­

finalization of the acquisition proceedings resulted in the filing

of the writ petitions before the High Court of Karnataka by the

owners in the year 1987. Certain lands were de­notified and the

permission which was granted earlier was withdrawn. The de­

notification of the land was also withdrawn. It was urged that

the timeframe which was prescribed under section 6 and 11A of

the LA Act would form an integral part of the BDA Act. This

15 Court considered the scheme under the BDA Act and has

observed thus:

“33. The provisions of the Land Acquisition Act, which provide for timeframe for compliance and the consequences of default thereof, are not applicable to acquisition under the BDA Act. They are Sections 6 and 11A of the Land Acquisition Act. As per Section 11A, if the award is not made within a period of two years from the date of declaration under Section 6, the acquisition proceedings will lapse. Similarly, where declaration under Section 6 of this Act is not issued within three years from the date of publication of notification under Section 4 of the Land Acquisition Act [such notification being issued after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of Central Act 68 of 1984] or within one year where Section 4 notification was published subsequent to the passing of Central Act 68 of 1984, no such declaration under Section 6 of the Land Acquisition Act can be issued in any of these cases.

xxx xxx xxx

35. Be that as it may, it is clear that the BDA Act is a self­contained code which provides for all the situations that may arise in planned development of an area including acquisition of land for that purpose. The scheme of the Act does not admit any necessity for reading the provisions of Sections 6 and 11A of the Land Acquisition Act, as part and parcel of the BDA Act for attainment of its object. The primary object of the State Act is to carry out planned development and acquisition is a mere incident of such planned development.

The provisions of the Land Acquisition Act, where the land is to be acquired for a specific public

16 purpose and acquisition is the sum and substance of that Act, all matters in relation to the acquisition of land will be regulated by the provisions of that Act. The State Act has provided its own scheme and provisions for acquisition of land.

xxx xxx xxx

50. Applying the above principle to the facts of the case in hand, it will be clear that the provisions relating to acquisition like passing of an award, payment of compensation and the legal remedies available under the Central Act would have to be applied to the acquisitions under the State Act but the bar contained in Sections 6 and 11A of the Central Act cannot be made an integral part of the State Act as the State Act itself has provided specific time­frames under its various provisions as well as consequences of default thereto. The scheme, thus, does not admit such incorporation.

xxx xxx xxx

55. The principle stated in Munithimmaiah's case (supra) that the BDA Act is a self­contained code, was referred with approval by a three Judge Bench of this Court in the case of Bondu Ramaswamy (supra). The Court, inter alia, specifically discussed and answered the questions whether the provisions of Section 6 of the Land Acquisition Act will apply to the acquisition under the BDA Act and if the final declaration under Section 19(1) is not issued within one year of the publication of the notification under Section 17(1) of the BDA Act, whether such final declaration will be invalid and held as under:

“79. This question arises from the contention raised by one of the appellants that the provisions of Section 6 of the Land Acquisition Act, 1894 ("the LA Act", for short) will apply to the acquisitions under the BDA Act and consequently if the final declaration

17 under Section 19(1) is not issued within one year from the date of publication of the notification under Sections 17(1) and (3) of the BDA Act, such final declaration will be invalid. The appellants' submissions are as under: the notification under Sections 17(1) and (3) of the Act was issued and gazetted on 3­2­2003 and the declaration under Section 19(1) was issued and published on 23­2­2004. Section 36 of the Act provides that the acquisition of land under the BDA Act within or outside the Bangalore Metropolitan Area, shall be regulated by the provisions of the LA Act, so far as they are applicable. Section 6 of the LA Act requires that no declaration shall be made, in respect of any land covered by a notification under Section 4 of the LA Act, after the expiry of one year from the date of the publication of such notification under Section 4 of the LA Act. As the provisions of the LA Act have been made applicable to acquisitions under the BDA Act, it is necessary that the declaration under Section 19(1) of the BDA Act (which is equivalent to the final declaration under Section 6 of the LA Act) should also be made before the expiry of one year from the date of publication of notification under Sections 17(1) and (3) of the BDA Act [which is equivalent to Section 4(1) of the LA Act].

80. The BDA Act contains provisions relating to acquisition of properties, up to the stage of publication of final declaration.

The BDA Act does not contain the subsequent provisions relating to completion of the acquisition, that is, issue of notices, enquiry and award, vesting of land, payment of compensation, principles relating to determination of compensation, etc. Section 36 of the BDA Act does not make the LA Act 18 applicable in its entirety, but states that the acquisition under the BDA Act, shall be regulated by the provisions, so far as they are applicable, of the LA Act. therefore it follows that where there are already provisions in the BDA Act regulating certain aspects or stages of acquisition or the proceedings relating thereto, the corresponding provisions of the LA Act will not apply to the acquisitions under the BDA Act. Only those provisions of the LA Act, relating to the stages of acquisition, for which there is no provision in the BDA Act, are applied to the acquisitions under the BDA Act.

81. The BDA Act contains specific provisions relating to preliminary notification and final declaration. In fact the procedure up to final declaration under the BDA Act is different from the procedure under the LA Act relating to acquisition proceedings up to the stage of final notification. therefore, having regard to the scheme for acquisition under Sections 15 to 19 of the BDA Act and the limited application of the LA Act in terms of Section 36 of the BDA Act, the provisions of Sections 4 to 6 of the LA Act will not apply to the acquisitions under the BDA Act. If Section 6 of the LA Act is not made applicable, the question of amendment to Section 6 of the LA Act providing a time­limit for issue of final declaration, will also not apply.” We may notice that, in the above case, the Court declined to examine whether the provisions of Section 11A of the Central Act would apply to the acquisition under the BDA Act but categorically stated that Sections 4 and 6 of the Central Act were inapplicable to the acquisition under the BDA Act.

19

xxx xxx xxx

123. Accepting the argument of the appellant would certainly frustrate the very object of the State law, particularly when both the enactments can peacefully operate together. To us, there appears to be no direct conflict between the provisions of the Land Acquisition Act and the BDA Act. The BDA Act does not admit reading of provisions of Section 11A of the Land Acquisition Act into its scheme as it is bound to debilitate the very object of the State law. The Parliament has not enacted any law with regard to development the competence of which, in fact, exclusively falls in the domain of the State Legislature with reference to Entries 5 and 18 of List II of Schedule VII.

124. Both these laws cover different fields of legislation and do not relate to the same List, leave apart the question of relating to the same Entry. Acquisition being merely an incident of planned development, the Court will have to ignore it even if there was some encroachment or overlapping. The BDA Act does not provide any provision in regard to compensation and manner of acquisition for which it refers to the provisions of the Land Acquisition Act. There are no provisions in the BDA Act which lay down detailed mechanism for the acquisition of property, i.e. they are not covering the same field and, thus, there is no apparent irreconcilable conflict. The BDA Act provides a specific period during which the development under a scheme has to be implemented and if it is not so done, the consequences thereof would follow in terms of Section 27 of the BDA Act. None of the provisions of the Land Acquisition Act deals with implementation of schemes. We have already answered that the acquisition under the Land Acquisition Act cannot, in law, lapse if vesting has taken place. therefore, the question of applying

20 the provisions of Section 11A of the Land Acquisition Act to the BDA Act does not arise. Section 27 of the BDA Act takes care of even the consequences of default, including the fate of acquisition, where vesting has not taken place under Section 27(3). Thus, there are no provisions under the two Acts which operate in the same field and have a direct irreconcilable conflict.

125. Having said so, now we proceed to record our answer to the question referred to the larger Bench as follows:

For the reasons stated in this judgment, we hold that the BDA Act is a self­contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of the BDA Act but with a specific exception that the provisions of the Land Acquisition Act in so far as they provide different time frames and consequences of default thereof, including lapsing of acquisition proceedings ,cannot be read into the BDA Act. Section 11A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under the provisions of the BDA Act.” (emphasis supplied)

17. This Court has emphasized that the primary object of the

BDA Act is to carry out planned development. The State Act

has provided its own scheme. The time constraints of the land

acquisition are not applicable to the BDA Act. Making

21 applicable the time frame of Section 11A of LA Act would

debilitate very object of the BDA Act. It is apparent that the

decision of the Single Judge as well as the Division Bench is

directly juxtaposed to the decision of Five Judge Bench of this

Court in Offshore Holdings (supra) in which precisely the

question involved in the instant cases had been dealt with. By

indirect method by making applicable the time period of two

years of 11A of LA Act mandate of BDA Act has been violated.

However, it is shocking that various decisions have been taken

into consideration particularly by the Single Judge, however,

whereas the decision that has set the controversy at rest, has

not even been noticed even by the Single Judge or by the

Division Bench. If this is the fate of the law of the land laid

down by this Court that too the decision by the Constitution

Bench, so much can be said but to exercise restraint is the best

use of the power. Least said is better, the way in which the

justice has been dealt with and the planned development of

Bangalore city has been left at the mercy of unscrupulous

persons of Government and the BDA.

18. It is apparent from the fact that the Single Judge has

relied upon the decision in H.N. Shivanna (supra) in which it

22 was observed by the Division Bench that scheme to be

completed in 2 years otherwise it would lapse. It was precisely

the question of time period which was dwelt upon and what

was ultimately decided by this Court in Offshore Holdings

(supra) has been blatantly violated by the Single Judge and

that too in flagrant violation of the provisions and intendment

of the Act.

19. It is also apparent from the facts and circumstances of the

case that there were a large number of irregularities in the

course of an inquiry under Section 18(1) of the BDA Act.

Government had nothing to do with respect to the release of the

land at this stage, as the stage of final notification had not

reached but still the landowners in connivance with the

influential persons, political or otherwise, managed the

directions in respect of 251 acres of the land and Special Land

Acquisition Collector also considered exclusion of 498 acres of

the land against which the question was raised in the Assembly

and eyebrows were raised in public domain. Two inquiries were

ordered on 24.11.2012 and 19.1.2013 by the State Government

and based upon that inquiry, it was ordered and a public notice

was issued on 3rd May, 2014 that the BDA will consider the

23 entire matter afresh. In the aforesaid backdrop of the facts, the

writ petitions came to be filed, it would not be termed to be the

bona fide litigation, but was initiated having failed in attempt to

get the land illegally excluded at the hands of Special Land

Acquisition Collector and the State Government and after the

inquiries held in the matter and the notice was issued to start

the proceedings afresh. At this stage, the writ petitions were

filed. In the aforesaid circumstances, it was not at all open to

the High Court to quash the preliminary notification issued

under Section 17, as the land owners, State Government and

BDA were responsible to create a mess in the way of planned

development of the Bangalore city.

20. The scheme which was framed was so much benevolent

scheme that 40% of the 55% of the land reserved for the

residential purpose was to be given to the landowners at their

choice and they were also given the choice to obtain the

compensation, if they so desire, under the provisions of the LA

Act. Thus, it was such a scheme that there was no scope for

any exclusion of the land in the ultimate final notification.

21. It is apparent from the circumstances that the matter

cannot be left at the mercy of unscrupulous authority of the 24 BDA, the State Government or in the political hands.

Considering the proper development and planned development

of Bangalore city, let the Government issue a final notification

with respect to the land which has been notified in the initial

notification and there is no question of leaving out of the land

in the instant case as option has been given to land owners to

claim the land or to claim the compensation under the relevant

LA Act which may be applicable in the case.

22. It was contended on behalf of the landowners that certain

developments have taken place after the orders were passed

regarding exclusion of the land and when Section 27 provides a

limitation of five years after final notification, in case

development was not undertaken within five years, even the

final scheme would lapse. Thus, the principle enunciated in

Section 27 should be followed by this Court with respect to the

lapse of preliminary notification as well. We find that there is a

vast difference in the provisions and action to be taken

pursuant to the preliminary notification and the final

notification under Section 19. In the instant case, the facts

indicated that it was in the interest of the public, landowners,

BDA and State Government. The scheme had prior approval of

25 State Government however at the cost of public interest yet

another scheme was sought to be frustrated by powerful

unforeseen hands and the issuance of final notification had

been delayed. Three inquiries were ordered, two by the State

Government and one by the BDA as the release of the land was

being proposed in an illegal manner. Hue and cry has been

raised about their illegalities in the Assembly as well as in the

public. Thus, for the delay, owners cannot escape the liability,

they cannot take the advantage of their own wrong having

acted in collusion with the authorities. Thus, we are of the

considered opinion that in the facts of the case the time

consumed would not adversely affect the ultimate development

of Bangalore city. The authorities are supposed to carry out the

statutory mandate and cannot be permitted to act against the

public interest and planned development of Bangalore city

which was envisaged as a statutory mandate under the BDA

Act. The State Government, as well as Authorities under the

BDA Act, are supposed to cater to the need of the planned

development which is a mandate enjoined upon them and also

binding on them. They have to necessarily carry it forward and

no dereliction of duty can be an escape route so as to avoid

26 fulfilment of the obligation enjoined upon them. The courts are

not powerless to frown upon such an action and proper

development cannot be deterred by continuing inaction. As the

proper development of such metropolitan is of immense

importance, the public purpose for which the primary

notification was issued was in order to provide civic amenities

like laying down roads etc. which cannot be left at the whim or

mercy of the concerned authorities. They were bound to act in

furtherance thereof. There was a clear embargo placed while

issuing the notification not to create any charge, mortgage,

assign, issue or revise any improvement and after inquiry, it

was clear that the notice had been issued in May, 2014, thus,

no development could have been made legally. Notification

dated 3rd May, 2014 was issued that re­inquiry was necessary

in the matter. The development made, if any, would be at the

peril of the owners and it has to give way to larger welfare

schemes and the individual interest and cannot come in the

way of the larger public interest. The acquisition was for the

proper and planned development that was an absolute

necessity for the city of Bangalore.

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23. In the circumstances, we have no hesitation in condoning

the delay. Though, it is apparent that the authorities had come

with certain delay, in the certain matters and the writ appeals

were also filed belatedly with the delay in the High Court,

however, considering the provisions of the scheme and the

method and manner wrong has been committed, it has

compelled us not only to condone the delay but also to act in

the matter so as to preserve the sanctity of the legal process

and decision of this Court in Offshore Holdings (supra).

24. We, therefore, direct the State Government as well as the

BDA to proceed further to issue final notification without any

further delay in the light of the observations made in the order.

The impugned orders passed by the Single Judge and the

Division Bench are hereby quashed and set aside. The scheme

and notification under Section 17 of the BDA Act are hereby

upheld with the aforesaid directions.

25. As noticed above, the Land Acquisition Officer proposed

exclusion of 251 acres of land from acquisition on being asked

by the Government after the preliminary notification was

issued. The Land Acquisition Officer, has considered another

28 498 acres of land to be excluded from being acquired. In

connection to this, several questions were raised in the

Karnataka Legislative Assembly, as a result of which two

inquiries were ordered by the State Government i.e on

24.11.2012 and 19.01.2013. However, result of the inquiry is

not forthcoming. Further, it appears that the exclusion of the

lands from acquisition was proposed in connivance with

influential persons; political or otherwise. We are of the view

that the BDA and the State Government have to proceed with

the acquisition of these lands. We are also of the view that it is

just and proper to hold an inquiry for fixing the responsibility

on the officials of the BDA and the State Government for trying

to exclude these lands from acquisition.

26. Therefore, we appoint Hon'ble Mr. Justice K.N.

Keshavanarayana, former Judge of the Karnataka High Court

as the Inquiry Officer for fixing the responsibility on the officials

of the BDA and the State Government who were responsible for

the aforesaid. The Commissioner, BDA is hereby directed to

consult Inquiry Officer and pay his remuneration. Further, we

direct BDA to provide appropriate secretarial assistance and

logistical support to the Inquiry Officer for holding the inquiry.

29 In addition, we authorize the Inquiry Officer to appoint

requisite staff on temporary basis to assist him in the inquiry

and to fix their salaries. Further, the BDA is directed to pay

their salaries. The State Government and the BDA are directed

to produce the files/documents in relation to the aforesaid

lands before the Inquiry Officer within a period of four weeks

from today. We request the Inquiry Officer to submit his report

to this Court as expeditiously as possible.

27. The State Government and the BDA are further directed to

proceed with the acquisition of the aforementioned lands

without excluding land from acquisition and submit a report to

this Court the steps taken by them in this regard within a

period of three months from today.

28. In addition, it was submitted at the Bar that several cases

where similar orders of exclusion in relation to lands notified

for acquisitions for the formation of ‘Dr. K. Shivarama Karantha

Layout’ have been passed by the High Court and that BDA has

failed to challenge those orders in connivance with the

landowners and influential persons. We hereby direct the BDA

to challenge all such orders/seek review of the said orders in

30 accordance with law within a period of three months from

today.

29. The appeals are disposed of in the aforesaid terms leaving

the parties to bear their own costs.

..……………………J. (Arun Mishra)

New Delhi; ….………………...J. August 3, 2018. (S. Abdul Nazeer)

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