N.A.L. Layout Residents Association vs Bangalore Development Authy .

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.9790­9791 OF 2017 (ARISING OUT OF SLP(C) NOS.5911­5912 of 2010)

N.A.L. LAYOUT RESIDENTS ASSOCIATION ...APPELLANT(S)

VERSUS

BANGALORE DEVELOPMENT AUTHORITY & ORS ...RESPONDENT(S)

WITH

CIVIL APPEAL NOS.9792­9793 OF 2017 (ARISING OUT OF SLP(C) NOS.29553­29554 OF 2011)

P.M. ANUPKUMAR ...APPELLANT(S)

VERSUS

BANGALORE DEVELOPMENT AUTHORITY & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

1. The issue raised in these two appeals centres

around the Notification dated 12.04.2001, issued by Signature Not Verified

State Government, withdrawing Survey No.50, area 6 Digitally signed by NIDHI AHUJA Date: 2017.08.09 17:56:50 IST Reason:

acres, 20 guntas from the acquisition made by the 2

State Government by Notification under Section 4

dated 19.09.1977 and declaration under Section 6

dated 07.02.1978 of the of the Land Acquisition Act,

1894 (hereinafter referred to as “Act 1894”).

2. All the appeals have been filed against the

Division Bench judgment dated 11.12.2008 dismissing

the Writ Appeal filed against the judgment dated

30.03.2007 in Writ Petition No.13404 of 2005. Writ

Petition No.13404 of 2005 was filed by the land

owners challenging the Notification dated 22.03.2005

issued by the State Government by which the State

Government had withdrawn the earlier Notification

dated 12.04.2001. The learned Single Judge had

allowed the Writ Petition, setting aside the

Notification dated 22.03.2005 and restoring the

earlier Notification dated 12.04.2001 by which

Survey No.50 was withdrawn from acquisition.

3. Land acquisition proceeding for acquisition of

various plots including Survey No.50(which is the

subject matter of dispute) has a chequered history. 3

It is necessary to note the series of events and

various litigations undertaken by the parties and

their predecessors before we consider the issues

raised in these appeals.

4. The Bangalore Development Authority framed a

Scheme for formation of layout known as BTM layout

which was sanctioned by State of Karnataka. For the

above purpose the State of Karnataka decided to

acquire land to the extent of 1703­10 acres. A

Notification under Section 4 dated 19.09.1977 was

published on 29.09.1977. Declaration under Section 6

dated 07.02.1978 was issued, which was published on

09.03.1978, acquiring large extent of land. The

acquired land included Survey No.50, 51 and 52 of

the Tavarekere Village. Notice under Section 9 of

the Act was published on 05.06.1978. Land owners

filed W.P.Nos.21097­21107 of 1983, praying for

quashing the Notification dated 19.09.1977 under

Section 4 and Notification dated 07.02.1978 under

Section 6. The Writ Petitions were dismissed by

the High Court vide its judgment and order dated 4

10.02.1984. Writ Appeal Nos.271­281 of 1984,

challenging the judgment of the Single Judge were

also dismissed. The award was passed on 08.02.1984,

which was approved by the competent authority on

19.03.1984. On 23.03.1984, the possession of Survey

No.50 at Tavarekere Village was taken and handed

over to the Bangalore Development Authority by going

on to the spot and preparing a Mahazer. Compensation

for Survey No.50 was also deposited in the Civil

Court. A Notification dated 07.05.1985 under Section

16(2) of the Act was also published in the Karnataka

Gazette on 24.10.1985 notifying the taking of

possession of the land.

5. The Writ Petition No.5508 of 1984 was filed by

Munivenkatappa, one of the co­land owners,

challenging Notification under Section 4 to 6. The

Writ Petition was dismissed by Karnataka High Court

vide its judgment dated 14.12.1984. The High Court

in its judgment also held that the development plan

has been completed by the Bangalore Development

Authority and the Scheme is in process of 5

implementation. N.A.L. Employees Co­operative

Housing Society Ltd. had made a request to Bangalore

Development Authority for allotment for forming a

housing colony. BDA passed a resolution dated

17.11.1982, allotting an area of 8 acres of land for

forming a housing colony. The Sale Deed dated

09.05.1985 was executed by BDA in favour of NAL

Employees Co­operative Housing Society Ltd. which

included land in Survey Nos.50, 51 and 52. In spite

of sale, in favour of N.A.L. Employees Co­operative

Housing Society Ltd.(hereinafter referred to as

'Society'), family members of the owners attempted

to interfere in the possession of the society.

Hence, the OS No.1492 of 1985 was filed for

permanent injunction. Trial Court granted a

temporary injunction, which was confirmed by the

order dated 04.01.1986. Munivenkatappa also filed OS

No.2294 of 1988, claiming that he was in possession

of the land, which was sold to society, which suit

came to be dismissed. Allotment in favour of

society was unsuccessfully challenged by 6

Munivenkatappa by filing a W.P. No.18360 of 1988

which too was dismissed.

6. The daughter of Munivenkatappa, namely, Papamma

filed a W.P. No.4042 of 1998, praying that

respondents be directed not to proceed with the

acquisition in respect of Survey No.50. It was

claimed in the Writ Petition that recommendation

dated 30.06.1981 by the Special Land Acquisition

Officer has been sent for de­notifying the

acquisition of 6 acres and 20 guntas of Survey

No.50. In the said Writ Petition, it was submitted

by the respondent that possession of the land was

taken and Notification under Section 16(2) has

already been issued on 07.05.1985. The High Court,

noticing the aforesaid facts held that the

acquisition proceeding has become final and the

possession has already been taken as early as in

23.03.1984, the Writ Petition has no merit and was

dismissed on 16.03.1998.

7. Further, W.P. Nos.14779­14781 of 2000 were 7

filed by one S.M.Bhimanna @ Subbanna, S/o

Munivenkatappa and two others, seeking a direction

to respondents to consider the representation of

the petitioners to drop the acquisition proceedings

in respect of land in Survey No.50. In the said

representation, it was contended on behalf of the

BDA that after issuance of final Notification in

1978, the award was passed and possession was taken

by publishing a Notification under Section 16(2),

hence, the petitioners are not entitled to any

relief. After considering the submission of the

parties, the Writ Petition was dismissed by this

Court vide its judgment and order dated 16.08.2000.

8. One K.R.Rajakumar proprietor of M/s Veeranjeya

Auto Engineering Works, claiming to be a lessee vide

Lease Deed dated 08.04.1985 from land owners of

Survey Nos.50, 51 and 52, filed an OS No.5511 of

1995 for injunction against the land owners as well

as the society, which was impleaded as defendant

No.7. In the suit, defendant No.7 pleaded that

possession of land was taken in the year 1984. 8

Acquisition has become final. The suit for

injunction was dismissed. R.F.A.No.58/99 was filed

by Shri K.R.Rajakumar against the society which too

was dismissed by Karnataka High Court vide its order

dated 07.03.2000.

9. It appears that land owners having failed to

obtain any favourable order against acquisition

proceeding from the High Court or any order from the

Civil Court approached the State Government by

filing a representation, praying for withdrawal of

acquisition in respect of Survey No.50. The State

Government issued a Notification dated 12.04.2001,

exercising its power under Section 48 of the Act,

withdrawing Survey No.50 from acquisition. The

Bangalore Development Authority which was not

informed prior to issuance of order dated

12.04.2001, immediately, brought to notice of the

State Government that possession of land has already

been taken in the year 1984, no order can be passed

under Section 48. The State Government immediately,

issued another order on 09.05.2001, cancelling the 9

Notification dated 12.04.2001.

10. Land owners challenged the order dated

09.05.2001 by filing a W.P. No.37577 of 2002, Shri

Bhimanna @ Subbanna S/o Munivenkatappa vs. State of

Karnataka. The Writ Petition was allowed by learned

Single Judge vide its judgment dated 04.11.2003 on

the ground that the State Government before taking a

decision on 09.05.2001 has not issued a notice to

the petitioner for whose benefit Notification under

Section 48(1) dated 12.04.2001 was issued. On the

above ground, the Notification dated 09.05.2001 was

set aside and Writ Petition against the said order

was allowed. Subsequent to the judgment of learned

Single Judge dated 04.11.2003, the State Government

issued notice to land owners and after taking into

consideration the material on record issued a

Notification dated 22.03.2005, withdrawing/

cancelling the Notification dated 12.04.2001.

11. Land owners filed a Writ Petition No.13404 of

2005, challenging the Notification dated 22.03.2005 10

issued by the State Government in which Writ

Petition the allottees of society, namely,

respondent Nos.3 to 21 got impleaded. The Writ

Petition, after hearing the parties was allowed by

the learned Single Judge vide its judgment and order

dated 30.03.2007. The Bangalore Development

Authority filed a Writ Appeal against judgment of

learned Single Judge, which was dismissed by

Division Bench of the Karnataka High Court vide

dated 11.12.2008 against which judgment all the

above Civil Appeals have been filed.

12. Civil Appeal arising out of SLP(C) Nos.29553–

29554 of 2011 has been filed by the appellant, who

claimed allotment of a part of land of Survey No.50

in public auction conducted on 30.07.2003. Appellant

claimed to have paid the entire sale consideration

of Rs.24,41,775/­. But the Sale Deed has yet not

been executed in favour of appellant. Appellant

claimed to have filed applications for impleadment

i.e. I.A.Nos.3­4 of 2010 in SLP(C) Nos.20190­20191

of 2009 filed by Bangalore Development Authority in 11

which notices were issued by this Court and order of

status quo was granted. However, the said SLP(C)

Nos.20190­20191 of 2009 have been withdrawn on

02.03.2011. Hence, the appellant has filed these

appeals, questioning the judgment of the Division

Bench dated 11.12.2008, affirming the judgment of

the Single Judge dated 30.03.2007, quashing the

notification dated 22.03.2005.

13. Civil Appeals filed by the P.M. Anoop Kumar

refer to similar facts and grounds, challenging the

judgments of the Karnataka High Court. Reference of

pleadings and judgments in Civil Appeal

Nos.9790­9791 of 2017 (arising out of SLP(C)

Nos.5911­5912 of 2010) shall be sufficient for

deciding all the Civil Appeals.

14. Shri B. H. Marlapalle, senior counsel appearing

for the appellant submits that the appeal filed by

appellant is fully maintainable and the appellant

has locus standi to file this appeal, this Court has

already granted permission to file SLP by its order 12

dated 15.02.2010. BDA had allotted the land to

N.A.L. Employees Co­operative Housing Society, the

predecessors in interest of appellant. For espousing

the cause of its members the appellant has ample

locus standi to challenge the judgment of High

Court, restoring the Notification dated 12.04.2001.

It is submitted that the W.P. No.13404 of 2005 filed

by Muniamma, the widow of late Bhimanna who was one

of the three sons of Munivenkatappa, was not

maintainable on the ground of doctrine of stare

decisis and doctrine of res judicata. Further, there

was delay and laches and non­joinder of necessary

parties in the Writ Petition. The writ­petitioners

never challenged the Notification dated 07.05.1985

issued under Section 16(2) of the Land Acquisition

Act (Karnataka amendment). Hence, it was not open

for the writ­petitioners to contend that possession

of land was not taken over by the State. It is

submitted that in W.P. No.4042 of 1998 filed by the

Papamma, daughter of Munivenkatappa this Court,

while dismissing the Writ Petition has held that 13

acquisition proceedings having reached finality by

taking possession of the land in March, 1984.

Further, same finding of possession was taken in the

year, 1984 was rendered by this Court in W.P. Nos.

14779­14781 of 2000.

15. The appellant was necessary party in the Writ

Petition since, land in favour of the society was

allotted by the BDA on 18.05.1985. The appellant is

registered Association of members who have been

allotted land in the above land and has sufficient

interest to be necessary party, pertaining to any

litigation of land in question.

16. Learned counsel further contends that learned

Single Judge committed an error in holding that

actual possession was not taken by the State in

March, 1984. It is submitted that possession was

taken by Special Land Acquisition Officers of the

State by going on to the spot on 23.03.1984. Learned

counsel for the appellant, referring to Mahazer

contends that it has been specifically recorded in 14

the Mahazer that owners of the land and building

were present and they refused to hand over the land

and building. Learned counsel further relied on

judgment of this Court in Balwant Narayan Bagde vs.

N. B. Bhagwat & Ors. (1976) 1 SCC 700, Balmokund

Khatri Educational and Industrial Trust, Amritsar

vs. State of Punjab, (1996) 4 SCC 212, Tamilnadu

Housing Board vs. A Wiswam (1996) 8 SCC 259,

Sitaram Bhandar Society, New Delhi vs. Lieutenant

Governor, Government of NCT, Delhi & Ors (2009) 10

SCC 501 and Hubli ­Dharwad Urban Development

Authority vs. Shekharagowda Chennabasannagowda

Phakirgowdar, (2016) 9 SCC 13.

17. Learned counsel for the appellant has further

attacked the Survey Report dated 01.04.2017 filed by

the BDA, which was prepared in pursuance of the

order dated 22.02.2017 passed in this appeal. He

submits that the allegation that society has

encroached 5 guntas in Survey No.50, in excess of

what was allotted to it, is incorrect. It is

submitted that Survey Nos.50, 51 and 52 were 15

included in the registered Sale Deed dated

09.05.1985. The BDA cannot be allowed to make

submission that appellant does not have any land in

Survey No.50.

18. Shri K.V.Vishwanathan, senior counsel appearing

for respondent Nos.2(a) to 2(g), refuting the

submission of the learned counsel for the appellant

contends that the appeals filed by the appellant are

neither maintainable nor appellant has locus standi

to challenge the judgment of the High Court. It is

submitted that original allottee was N.A.L Employees

Co­operative Housing Society which is a registered

Society having a separate and distinct identity from

the appellant. In any view of the matter the

appellant cannot espouse the cause beyond 8 acres

of land which was originally allotted to Housing

Society. Referring to Survey conducted by BDA on

22.03.2017 and its report, learned counsel submits

that the appellant Association is in enjoyment of 8

acres 24 guntas as has been reported, which is

against the sanctioned allotment of 8 acres. It is 16

further submitted that BDA which was the beneficiary

of acquisition having itself withdrawn the SLP(C)

Nos.20190­20191 of 2009, the appellant cannot claim

to be on better footing to challenge the impugned

judgment. The Association having themselves

wrongfully encroached upon the land no interference

of this Court is called for in exercise of its

jurisdiction under Article 136. Learned Single Judge

after perusing the original records has returned the

findings that physical possession was not taken by

the State which findings have been affirmed by the

Division Bench. When the physical possession was

never taken by the State, there was no impediment in

exercise of power under Section 48 of the Act, 1894.

Both learned Single Judge and Division Bench have

held that the symbolic/paper possession taken under

Section 16 of the 1894 was not in conformity with

Karnataka Amendment, where it is Deputy Commissioner

to take possession and notify the same in the

Official Gazette.

19. Learned counsel further submits that the 17

learned Single Judge has also recorded a finding

regarding discriminatory treatment to the land

owners since various Survey Nos. which were acquired

by the same acquisition Notifications were released

from acquisition under Section 48 of Act, 1894

whereas respondent land owners were not extended the

same benefit. Learned Counsel further contends that

after issuance of Notification under Section 48(1)

dated 12.04.2001, the said Notification could not

have been withdrawn by the State. It is contended

that Section 21 of General Clauses Act, 1897 was not

applicable in the present case, so as to, empower

the State to issue Notification dated 09.05.2001. It

is submitted that at the time of the conducting the

auction on 26.09.2002, 30.7.2003, 14.08.2003 and

26.08.2003, the Notification dated 12.04.2001 was in

subsistence, hence, there is no legal sanctity to

any of the acts of auction of the sites.

20. Replying the submission of the learned counsel

for the appellant in Civil Appeals filed by P.M.

Anupkumar, it is submitted that there is already an 18

order dated 22.05.2009 in W.P. No.5814 of 2008,

directing the BDA to execute the Sale Deed in favour

of Anupkumar in respect of site No.58 and in view of

the Survey No.50 being de­notified, the said order

in W.P. No.5814 of 2008 cannot be implemented, by

the BDA. It is further submitted that in the Writ

Petition of Anupkumar answering respondents were not

parties, the Special Leave Petitions filed by

Anupkumar and SLP deserves to be dismissed.

21. Respondent Nos.3 to 21 have supported the

submissions made by learned counsel for the

appellant. Respondent No.21 who has appeared in

person, has also adopted the submission made by

learned counsel for the appellant. Respondent No.3

to 21 have further submitted that a joint memo in

W.P. No.13404 of 2005 was filed by land owners and

respondent Nos.3­21 wherein, it was agreed between

the land owners and respondent Nos.3­21 that the

rights and title of respondent Nos.3­21 shall not be

affected in any manner and the land owners have

recognized the rights of respondent Nos.3­21, who 19

were auction purchaser of sites after investing the

huge amount. It is submitted that learned Single

Judge while disposing of the Writ Petition on

30.03.2007 has already held that right, title and

interest acquired by respondent Nos.3­21 could not

be affected by any of the observations made in the

Writ Petition and the Writ Petition was disposed of

in terms of the joint memo entered into between the

writ­petitioner(land owners) and the respondent

Nos.3­21(auction purchasers). It is thus submitted

that in any view of the matter rights of the

respondent Nos.3–21 are safe and protected. It is

submitted that BDA has already executed Sale Deed in

favour of the respondent Nos.3­21 and BDA has also

issued a Possession Certificate in their favour.

Residential Plots sold in public auction by the BDA

in favour of respondent Nos.3 to 21 are all part of

Survey No.50 and they are clearly demarcated as per

the Allotment Plan prepared by the BDA.

22. We have considered the submissions of both the

parties and have perused the record. 20

23. From the facts, as noted above following facts

emerge:

(i) The Notification dated 19.09.1977 was

issued under Section 4 of the Land Acquisition

Act, proposing to acquire large chunk of land

including Survey No.50, a declaration under

Section 6 dated 07.02.1978 was issued

acquiring the land for Bangalore Development

Authority, including Survey No.50.

(ii) The State Government proceeded to take

possession of Survey No.50 on 23.03.1984 and

after taking over possession, handed over the

same to Bangalore Development Authority.

(iii) The Land owners filed several Writ

Petitions, challenging the Notification under

Section 4 & 6, which were dismissed by this

Court on 10.02.1984 and 14.12.1984.

(iv) The Society filed Suit No.1492 of 1984,

seeking permanent injunction against the owners

in which temporary injunction was confirmed and

Suit decreed.

21 (v) A Civil Suit No.2294 of 1988 was filed by

Munivenkatappa, a co­owner of the land,

claiming to be in the possession, which was

subsequently dismissed.

(vi) W.P.No.4042 of 1998 was filed by daughter

of Munivenkatappa, seeking a direction to BDA

not to proceed with the acquisition proceeding

on the ground that an application before the

Government for de­notifying the 6 acres 20

guntas of Survey No.50 had been made on which

favourable recommendations have been obtained

on 30.06.1981. The W.P. was dismissed on

16.03.1998.

(vii) Another W.P.Nos.14779­14781 of 2000

were filed by Munivenkatappa and another

co­owners praying for a direction to the State

to consider representation of land owners for

dropping the acquisition proceedings with

regard to Survey No.50. The Writ Petitions were

dismissed on 16.08.2000.

(viii) A representation was submitted by the 22

land owners in the year 2001 before the State

Government. Notification under Section 48 of

the Act dated 12.04.2001 was issued withdrawing

Survey No.50 from acquisition without giving

any notice or opportunity to the BDA for whose

benefit the land was acquired.

(ix) On the State Government having been

apprised about the correct fact by the BDA that

acquisition has already been finalized and

possession taken in the year 1984, the State

Government, immediately, withdrew the

Notification dated 12.04.2001 vide Notification

dated 09.05.2001

(x) W.P. NO.37577 of 2002 was filed by land

owners, challenging the Notification dated

09.05.2001, which was allowed on 04.11.2003 by

the High Court on the ground that before

issuing the Notification dated 09.05.2001, no

notice was given to the land owners.

(xi) The state Government after giving notice

to the land owners issued another Notification 23

on 22.03.2005 withdrawing the Notification

dated 12.04.2001. The State Government thus,

refused to withdraw the Survey No.50 from

acquisition in exercise of power under Section

48.

(xii) The Writ Petition No.13404 of 2005 was

filed by land owners, challenging the

Notification dated 22.03.2005, which was

allowed by learned Single Judge on 30.03.2007.

Writ appeal filed by BDA was dismissed on

11.12.2008.

24. The sum total of aforesaid events indicate that

acquisition of Survey No.50 was challenged by land

owners in several rounds which were repelled by the

High Court.

25. The State Government initially issued an order

on 12.04.2001, withdrawing Survey No.50 from the

acquisition which order itself was withdrawn after

notice to the land owners on 22.03.2005. The State

Government thus, refused to withdraw Survey No.50 24

from the acquisition.

26. The learned Single Judge allowed Writ Petition,

quashing the order dated 22.03.2005. Basically, two

reasons have been given by learned Single Judge for

quashing the Notification dated 22.03.2005. Firstly,

the possession of Survey No.50 was not taken by the

State Government in accordance with law and

secondly, although, the State Government has

withdrawn various survey numbers on the

representation made by owners of the land, whereas,

petitioners have been discriminated by refusing to

give similar and equal treatment.

27. Shri K.V.Vishwanathan learned counsel appearing

for land owners has challenged the maintainability

of the appeals as well as locus of appellant to file

the appeals. Hence, it is necessary to consider the

above preliminary submissions at the very outset.

The appeals have been filed with the leave granted

under Article 136 of Supreme Court of India.

Although, the appellant was not party in the writ 25

proceeding before the Karnataka High Court but this

Court in its discretion by order dated 15.02.2010

granted permission to the appellant to file S.L.P.

and this Court has granted leave on 25.07.2017. The

Constitution did not for best of reasons choose to

fetter or circumscribe the power exercisable under

Article 136 in any way. The jurisdiction of this

Court under Article 136 is discretionary and

equitable in nature. Article 136 begins with non

obstante clause “notwithstanding anything“. The

words ‘notwithstanding anything’ in Chapter IV of

Part V are words of overriding effect and clearly

indicate the intention of the framers of the

Constitution that it is a special jurisdiction and

residuary power unfettered by any statute or other

provisions of Chapter IV of Part V of the

Constitution. We thus do not find any substance in

the arguments of the learned counsel for the

respondent, questioning the maintainability of the

appeals.

28. Now, we come to the submissions raised by the 26

counsel for the respondent, questioning the locus of

appellant to file the appeal. The appellant

Association is a registered Association with

Registration No.753/2003­04. As noted above,

Bangalore Development Authority auctioned various

sites in the year 2002­03 in the acquired land. The

N.A.L. Employees Co­operative Housing Society after

allotment of 8 acres land in Survey Nos.50, 51 and

52 has formed the layout which layout was sanctioned

by the BDA on 15.06.1998. After the sites were

auctioned to various individuals, they formed the

appellant Association to espouse the cause of

residents. The appellant has been espousing cause of

its members, which has also been reflected from the

various actions taken by it in the interest of

members of the Association. In this context

reference is made to the letter dated 06.07.2009,

Annexure P.16 to the appeals filed by the

Association, where Association has written to the

Commissioner, BBMP, bringing in notice of the

Commissioner regarding the health hazard due to 27

inaction of the BBMP Officials.

29. The Association which has been espousing the

cause of its members, who are allottees of different

sites thus has sufficient locus to file this appeal.

It is further relevant to note that against the

judgment of the Division Bench, BDA has also filed

SLP(C) Nos.20190­20191 of 2009. SLP(C) Nos.5911­5922

of 2010 were tagged with these vide order dated

15.02.2010. SLPs filed by BDA have been withdrawn on

02.03.2011. We thus find sufficient justification to

accept the locus of the appellant to file the

present appeal. We thus do not find any substance in

preliminary objections raised by the learned counsel

for the respondents.

30. Another submission raised by K.V. Vishwanathan

learned senior counsel for the respondents needs to

be considered. It is submitted by Shri K.V.

Vishwanathan that after issuance of Notification

dated 12.04.2001 under Section 48 of the Act, 1894,

the State Government had no jurisdiction to withdraw 28

such Notification. He contends that Section 21 of

the General Clauses Act, 1897 is not applicable. He

submits that under Section 48 land vested already in

the land owners, hence, recourse under Section 21 of

the General Clauses Act to withdraw the Notification

under Section 48 cannot be taken. Section 21 of

General Clauses Act, 1897 provides as follows:

“21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye­laws.­Where, by any [Central Act] or Regulations a power to [issue notifications,] orders, rules or bye­laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any [notifications,] orders, rules or bye­laws so [issued].”

31. According to Section 21 power to issue

Notification conferred by any Central Act includes

the power, exercisable in the like manner and

subject to like sanctions and conditions, if any, to

add to, amend, vary or rescind any Notification so

issued. Although, Section 48 does not refer to the

issuance of any Notification, however, this Court 29

has laid down in Larsen & Toubro Ltd. versus State

of Gujarat and Others, (1998) 4 SCC 387 that

withdrawal from acquisition has to be notified.

Following was stated in Para 30 & 31:

“30. It was submitted by Mr. Salve that Section 48 of the Act did not contemplate issue of any notification and withdrawal from the acquisition could be by order simpliciter. He said that Sections 4 and 6 talked of notifications being issued under those provisions but there was no such mandate in Section 48. It was thus contended that when the statute did not require to issue any notification for withdrawal from the acquisition, reference to Section 21 of the General Clauses Act was not correct. Section 21 of the General Clauses Act is as under:

“21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye­laws.—Where by any Central Act, or Regulation, a power to issue notifications, orders, rules, or bye­laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rules 30

or bye­laws so issued.”

Mr Salve said that Section 21 expressly referred to the powers being given to issue notifications etc. under an Act or Regulation and under this that power included power to withdraw or rescind any notification in a similar fashion. It was therefore submitted that when Section 48 did not empower the State Government to issue any notification and it could not be read into that provision that withdrawal had to be issued by a notification. His argument, therefore, appeared to be that on correct interpretation of Section 21 of the General Clauses Act before reaching the stage of Section 48, the State Government could withdraw notifications under Sections 4 and 6 of the Act by issuing notifications withdrawing or rescinding earlier notifications and that would be the end to the acquisition proceedings. We do not think that Mr Salve is quite right in his submissions. When Sections 4 and 6 notifications are issued, much has been done towards the acquisition process and that process cannot be reversed merely by rescinding those notifications. Rather it is Section 48 under which, after withdrawal from acquisition is made, compensation due for any damage suffered by the owner during the course of acquisition proceedings is determined and given to him. It is, therefore, implicit that withdrawal from acquisition has 31

to be notified.”

“31....Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken. An owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. Rights of the owner are well protected by sub­section (2) of Section 48 of the Act and if he suffered any damage in consequence of the acquisition proceedings, he is to be compensated and sub­section (3) of Section 48 provides as to how such compensation is to be determined.....”

32. Applicability of Section 21 cannot be denied to

any Central Act as defined in Section 3(7) of

General Clauses Act, 1897. Section 3(7) is as

follows:

”3. In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,­ 32

*** *** ***

“(7). “Central Act” shall mean an Act of Parliament, and shall include­

(a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and

(b) an Act made before such commencement by the Governor General in Council or the Governor General, acting in a legislature capacity;

*** *** *** ”

33. The Land Acquisition Act, 1984 clearly falls

within the definition of Central Act. The

applicability of Section 21 of the General Clauses

Act was considered by this Court in State of Madhya

Pradesh and Others versus Vishnu Prasad Sharma and

Others, AIR 1966 SC 1593, where it is held that in

a case where under Section 9 Notification has not

been issued the Government can cancel the

Notification under Section 4 and Section 6 by virtue 33

of Section 21 General Clauses Act. It is useful to

extract following observations made in paragraph

20:

“20. Then reliance is placed on Section 48 which provides for withdrawal from acquisition. The argument is that Section 48 is the only provision in the Act which deals with withdrawal from acquisition and that is the only way in which the Government can withdraw from the acquisition and unless action is taken under Section 48(1) the notification under Section 4(1) would remain (presumably for ever). It is urged that the only way in which the notification under Section 4(1) can come to an end is by withdrawal under Section 48(1). We are not impressed by this argument. In the first place, under Section 21 of the General Clauses Act, (10 of 1897), the power to issue a notification includes the power to rescind it. Therefore it is always open to government to rescind a notification under Section 4 or under Section 6, and withdrawal under Section 48(1) is not the only way in which a notification under Section 4 or Section 6 can be brought to an end. Section 48(1) confers a special power on the government of withdrawal from acquisition without canceling the notifications under Sections 4 and 6, provided it has not taken possession of the land covered by 34

the notification under Section 6. In such circumstances the Government has to give compensation under Section 48(2)......”

34. The applicability of Section 21 in exercise of

particular power granted by Central Act can be

negated only when the statute in question itself

expressly or implicitly indicates so. As noted

above, this Court in Larsen & Toubro has rejected

the submission of learned counsel that Notification

under Section 4 and 6 with aid of Section 21 of

General Clauses Act can be cancelled at any time.

This Court held that when Notifications under

Section 4 and 6 are issued and much has been done

towards the acquisition process and that process

cannot be reversed merely by rescinding this

Notification.

35. However, when the State has exercised its power

under Section 48(1) by withdrawing from acquisition

there is nothing in the Land Acquisition Act, 1894

to indicate that such Notification cannot be amended

varied or rescinded by issuing a notification in 35

like manner. In the event, it is accepted that

after issuance of Notification under Section 48,

there is no power to amend, vary or rescind any such

Notifications, it may cause undue hardship. Take an

example of simple mistake whereby Notification under

Section 48 has been issued where acquisition has

been completed in all respects and acquired land had

already been utilized. We are thus of the opinion

that there may be several circumstances where

Notifications under Section 48 may be required to be

amended, modified or rescinded. As observed above,

there is nothing in the Act, which indicates that

after exercising power under Section 48, the State

Government exhaust its jurisdiction to vary, amend,

modify or rescind the notification. Thus, the

applicability of Section 21 of General Clauses Act

in exercise of power under Section 48 of Act 1894 by

a Notification cannot be denied.

36. The discussion of the learned Single Judge, in

its judgment mainly centred around to the claim of

taking possession by the State Government on 36

23.03.1984. What is the procedure of taking

possession of the land under the provisions of Land

Acquisition Act, 1894 has to be first looked into.

37. The State is empowered to take possession under

Section 16 of the Act. There is State amendment in

Section 16, in so far as, the State of Karnataka is

concerned by Act No.17 of 1961 w.e.f. 24.08.1961 by

which Section 16 has been renumbered as sub Section

(1) and after sub Section (1), sub Section (2) has

been added. Thus, Section 16 as applicable in State

of Karnataka is as follows:

“Section 16. Power to take possession:

(1)When the Deputy Commissioner has made award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances.

(2)The fact of such taking possession may be notified by the Deputy Commissioner in the official Gazette, and such Notification shall be evidenced of such fact.”

38. In the present case, the award was passed on 37

08.02.1984 by Land Acquisition Officer, which was

approved by the competent authority on 19.03.1984.

The award was prepared, after issue of notice unless

Section 9 and after considering the objections filed

by the land owners, in reference to Notification

dated 19.09.1977 and 17.2.1978. After the award was

passed, possession was claimed to be taken on

23.03.1984 by the State Government, which was also

handed over to the BDA on the same date.

39. Notification dated 07.5.1985 was published in

the Gazette on 24.10.1985, as contemplated by

Section 16(2). The possession was taken by the

authorities by going on the spot and preparing a

Mahazer.

40. Learned Single Judge, has quoted the entire

Mahazer dated 23.03.1984 in his judgment and order

which is to the following effect:

“Office of the Spl. Land Acquisition Officer, Bangalore Development Authority. In the presence of the Revenue Inspector.

Mahazar written by gathering on 38

Sy. No. 50, Tavarekere Village, Begur Hobli, Bangalore South Taluk.

Read the Order of the Spl. Land Acquisition Officer dated 19.8.1984 in LAC No. 266/78­79 passed for the purpose of making over possession to the Bangalore Development Authority in respect of Sy. No. 50 of Tavarekere Village to an extent of 6 acres 20 guntas which has been acquired for the purpose of formation of Byrasandra Tavrekere Madivala Layout and in respect of which compensation is already awarded.

Today, BDA Officers of the Engineering Department have accompanied the Revenue Inspector and with assistance of Revenue Surveyor they have inspected the land. The Surveyor has measured the land and shown the boundaries to the Officers of the Engineering Department. Presently, the following buildings, malkies are existing on the land and people are residing in the buildings. Some merchants have also started shops therein and doing business.

Malkies:

1) Allahabad Guava : 30 2) Pannarale Trees : 8 3) Jackfruit Trees : 8 4) Tamrind Trees : 16 5) Coconut Trees : 18 6) Mango Trees : 63 7) Custard Apple Trees: 15 8) Nerale Trees : 7 9) Hippe Trees : 1 10) Chigare Trees : 1 11) Sweet Tamarind : 6 39

12) Chelli Trees : 3

Stone Walled Wells : 2

Unauthorised Constructions

1) Touring Talkies : 1 2) Mosaic Tiles Factory : 1 3) Car Garage : 1 4) Lorry Garage : 1 5) RCC Buildings :3(about4­7 height) 6) Stone boundary Wall:

The above buildings are currently in use and amongst them, wood shop, kerosene godown, etc are present. Orders are passed in OS. No. 849/84, 850/84, 851/84, 852/84, on 20.03.1984 restraining Bangalore Development Authority from demolishing the buildings. That apart stay has been granted by the Hon. High Court of Karnataka in W.P. No. 5010/84 on 15.03.1984. The land owners were present at the land and the owners of the buildings and land owners have refused to hand over possession of both land and buildings.

Therefore, without any other recourse the possession of the land is taken under Section 16 of the Land Acquisition Act and handed over to the Engineering Department.

Therefore, from now on, the said Sy.

No. 50 has been handed over to the possession of the Bangalore Development Authority as evidenced by this Mahazer.

Read over and certified to be correct” Taken possession Sd/­Narayan Reddy 40

Sd/­ sd/­Daval Khan (HG Hanumaiah sd /­Kanayaka Naidu Assistant Executive sd/­ Kaleemulla Engineerl, 2, South Sub, Dn. BDA, Bangalore – 90 Before Me Sd/­R.I. Spl. LAO, BDA”

41. The Land Acquisition Act does not provide any

manner or procedure of taking possession of the

acquired land. The question as to how the possession

of acquired land is to be taken under the Land

Acquisition Act came for consideration before this

Court in large number of cases.

42. The Three Judge Bench in Balwant Narayan Bhagde

versus M.D.Bhagwat And Others, (1976) 1 SCC 700, had

occasion to consider the said issue. Justice

Untwalia's view at Para 25 in the above case, is as

follows:

"25. When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the 41

occupant of the land is not required. The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in taking possession. On publication of the notice under section 9(1) claims to compensation for all interests in the land has to be made ; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under section 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of section 16 or 17(1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. But the question is what is the mode of taking possession ? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking, of possession is not necessary. No further notice beyond that under section 9(1) of 42

the act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government.”

43. Bhagwati, J. by giving a concurring opinion on

his behalf and on behalf of Justice A. C. Gupta had

laid down the following in para 27:

“27....We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on 43

the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.”

44. In Balmokand Khatri Educational And Industrial

Trust, Amritsar versus State Of Punjab and Others,

(1996) 4 SCC 212, this Court had laid down that 44

normal mode of taking possession is drafting the

Panchnama in presence of Panches and taking

possession and giving delivery to the Officials.

Para 4 of the judgment is as follows:

“4.....It is now well­settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.”

45. In Banda Development Authority, Banda versus

Moti Lal Agarwal and Others, (2011) 5 SCC 394, this

Court has considered the question of taking up

possession of acquired land after noticing all

earlier judgments of this Court. This Court culled

out the principles in Para 37 of the judgment, which

is quoted as below:

“37. The principles which can be culled out from the abovenoted judgments are:

45 I) No hard­and­fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.

iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

iv) If the acquisition is of 46

a large tract of the land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3­A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.”

46. In the present case Notification under Section

16(2) dated 07.05.1985 was published in the

Karnataka Gazette of 24.10.1985. Publication in the

Gazette is evidence of the fact that possession has

been taken as is statutorily provided by Section 16 47

(2). This Court has occasion to consider Section

16(2) (as amended in Karnataka in P.K. Kalburqi

versus State of Karnataka and Others, (2005) 12 SCC

489. This Court considered the relevance of

Notification under Section 16(2) and held that such

Notification could be evidence of fact that

possession was taken, though not conclusive and in

absence of such notification, the Court can consider

the other fact on record which has a bearing on this

question. Following is stated in Para 9:

“ 9. A plain reading of the said section would indicate that the power conferred on the Deputy Commissioner is enabling in nature, and if such a notification is issued it shall be evidence of the fact that possession was taken, though not conclusive. Such a notification would be a piece of evidence which may establish that possession of the lands was in fact taken. It is not as if in the absence of such a notification the Court cannot consider the other evidence on record which has a bearing on this question. We are, therefore, satisfied that the High Court was right in coming to the conclusion that possession of the lands was taken by the State and there was therefore no authority in the State 48

Government to issue a notification denotifying the lands under Section 19(7) of the Karnataka Urban Development Authorities Act, 1987.”

47. The present is a case where on the land various

trees were standing, which has been noted in the

Mahazer. Certain other constructions, as referred to

in the Mahazer as unauthorised construction were

also noticed. The Mahazer further noticed that land

owners and owners of the building were also present

at the land and land owners and owners of building

refused to hand over the possession of land and

building. The Mahazer was signed by Revenue

Inspector, Special LAO, Engineer of BDA as well as

four other persons.

48. Present is a case where land was acquired for a

public authority and Bangalore Development Authority

has prepared the BMT Scheme layout which was

sanctioned. Society was allotted the land on

18.05.1985 and the society also got its allotment

sanctioned.

49 49. It is useful to notice as to what was recorded

by High Court on 14.12.1984 while dismissing the

Writ Petition filed by land owners being W.P.

No.5508 of 1984. While dismissing the above Writ

Petition, High Court has held the following, in the

aforesaid judgment:

“....Though he has taken a specific contention that the land in question was not covered by the development scheme prepared by the BDA, the records produced by the learned counsel for BDA show that the land bearing S. Nos. 50, 51 and 52 form part and parcel of the BDA Scheme. This scheme covers a very large extent of land and the lands of a number of persons had been acquired under the said scheme and the acquisition proceedings regarding these lands have become final. The development plan has been completed by the BDA and the scheme is in the process of implementation.

In the circumstances and for the reasons stated by this court in the order in the aforesaid writ petitions, this petition fails and accordingly it is rejected at the stage of preliminary hearing....”

50. One of the main submissions, which has been

pressed by counsel for the appellant is that in 50

different Writ Petitions filed by the land owners

themselves, this Court has accepted the contention

of the BDA that possession of the land was already

taken on 23.03.1984 and the land has vested in the

BDA.

51. It is contended that there being findings

recorded in judgment of this Court in earlier

litigation between the parties, learned Single

Judge in the judgment dated 30.03.2007 could not

have recorded different findings regarding the

possession. The possession having taken over by the

State Government, which was handed over to BDA the

land vested in the State Government free from all

encumbrances and power under Section 48 could not

have been invoked. For appreciating the aforesaid

submission, it is necessary to look into the

judgment of the High Court where it is claimed that

with regard to possession, finding has already been

returned that possession had been taken by the

State in the year 1984.

51 52. In above context following judgments of the

High Court need to to be specifically noted:

(a) The W.P. No.18360 of 1988 was filed by Shri

S.M.Bhimanna @ Subbanna and two others,

challenging the order passed by the Minister

for Urban Development, dismissing the Writ

Petition by which, allotment in favour of

society was sought to be cancelled. This Court

after noticing the earlier judgment of High

Court in W.P.No.5508 of 1984 dated 14.12.1984

made the following observations:

“The order made in W.P. No. 5508/83 has become final as far as the legality of the acquisition proceedings is concerned.

Accordingly the land in question became vested in the Bangalore Development Authority. It is for the Bangalore Development Authority to allot the land in accordance with the provisions framed under the Bangalore Development Authority Act.....” (underlined by us)

(b) The Writ Petition No.4042 of 1998 Smt.

Papamma versus The Special Land Acquisition

Officer, was filed seeking a direction to the 52

respondents not to proceed with the

acquisition in respect to Survey No.50.

Following was stated in Para 8:

“8. I do not find any merit in this petition. This petition is liable to be rejected on every one of the grounds urged by the learned counsel for the Respondents. As noticed by me earlier, the notification under subsection(1) of Section 17 of the Act was issued on 19th September 1987 and Notification under subsection(1) of Section 19 of the Act was issued on 9th March 1978 and award was passed on 8th February 1984 and a Notification evidencing taking possession of the said land on 19th March 1984 came to be issued on 7th May 1985 as per Annexure­R1. In this petition, the Petitioner has not challenged the correctness of the said notifications. On the other hand the prayer of the Petitioner is for a direction to the Respondents not to proceed with the acquisition proceedings. The narration of facts stated above clearly shows that the acquisition proceedings have become final and the possession of the land th was taken as back as 19 March 1984. Under these circumstances, I am unable to understand as to how the Petitioner can seek for a direction to the Respondents not to proceed with the acquisition proceedings without challenging the acquisition proceedings without challenging the acquisition proceedings and more 53

particularly the Notifications issued under Section 17(1) and 19(1) of the Act. On this short ground alone this petition is liable to be dismissed. Further, as rightly pointed out by Sri Hegde, the acquisition proceedings having reached finality by taking possession of the said land on 19th March, 1984, the Petitioner cannot be, at this stage, permitted to challenge the acquisition proceedings.” (underlined by us)

53. The above two Writ Petitions were filed by Writ

Petitioners where the Special LAO as well as BDA

both were parties to the proceedings. In Writ

Petition filed by S.M.Bhimanna, the State of

Karnataka as well as Society(N.A.L.) was also

respondents.

54. The Court after considering the submissions of

the parties and material on record has returned the

finding that possession of land has been taken in

the year 1984 and land has absolutely vested in the

State.

55. The learned Single Judge in its judgment dated 54

30.03.2007 has not given due weight to the aforesaid

findings. The learned Single Judge in its judgment

dated 30.03.2007 could not have returned a contrary

finding that possession has not been taken from the

petitioners. The learned Single Judge, in its

judgment has referred to earlier judgment of the

High Court in W.P. No.4042 of 1998, Smt. Papamma

versus Special Land Acquisition Officer in which

judgment, a finding was returned by the High Court

that possession has already been taken.

56. The High Court has discarded the finding

returned in the above judgment of this Court dated

16.03.1998 by making following observations:

“33.......Copy of the judgment in Writ Petition No.4042 of 1998 is perused. At Paragraph­8 while discussing with regard to validity of acquisition a reference was made to a notification dated 07.05.1985 evidencing taking possession of the said land on 19.03.1984. The learned judge opines narration of facts clearly shows that the acquisition proceedings have become final and the possession of the land was taken over as on 19.03.1984. This observation was made by Court without reference 55

to any of the records but only based on the contentions of the parties. At that point of time, there was neither de­notification of the land from acquisition nor withdrawal of the order of de­notification. As a matter of fact, petitioner did contend being in possession and enjoyment of the land all through.”

57. The observation of the learned Single Judge

that observation in judgment dated 16.03.1998 was

made by Learned Judge without reference to any of

the record but only based on the contention of the

parties is incorrect and unfounded. The finding

recorded by the High Court was on the basis of

submissions of the parties based on the pleadings

and materials which were placed on the record as

well as on the notification dated 07.05.1985 issued

under Section 16(2) evidencing taking of possession

of land on 23.03.1984. Notification dated 07.05.1985

published in official Gazette on 24.10.1985 under

Section 16(2) of the Act 1894(as amended in

Karnataka) was an evidence rightly relied by High

Court for coming to the conclusion that possession

was taken as notified in the notification. The 56

Judgment of High Court dated 16.03.1998 was fully in

accordance with the provisions of Section 16(2) of

Act 1894, which provision has not even adverted to

either by learned Single Judge or the Division Bench

in the impugned judgment. The findings recorded in

the judgment dated 16.03.1998 could not have been

discarded in such slipshod manner by learned Single

Judge.

58. We are thus of the view that in earlier

judgments of the High Court between the parties

regarding the acquisition in question a finding was

returned that possession was taken from the land

owners in the year 1984.

59. High Court in subsequent Writ Petition filed

by land owners, even though, arising out of a

Notification by the State, by which it had cancelled

earlier Notification withdrawing from the

acquisition, the said finding in earlier proceeding

regarding delivery of possession could not have been

ignored or discarded. Learned Single Judge 57

committed error in proceeding to re­examine the

issue with regard to which finding was recorded in

earlier proceeding that possession was already taken

by the State in the year 1984 and the land

absolutely vests in the State.

60. High Court lost sight of the fact that

Notification dated 12.04.2001 was issued after 16

years of taking of the possession. In the meantime,

BDA has proceeded with the development of the land.

Roads were constructed and society's allotment was

also passed in the year 1985 itself, layout

sanctioned in the year 1988 itself.

61. Thus, we are of the opinion that High Court

instead of relying on the earlier findings recorded

by the High Court as noted above that the possession

of land has already been taken by the State and

handed over to the BDA in the year 1984, gave a

contrary finding that possession was not taken,

which is unsustainable. The issue as to whether

possession of Survey No.50 was already taken by 58

the State and handed over to BDA in the year

1984 which was directly and substantially in

issue in the earlier writ proceedings initiated

by the land owners, especially in W.P. No.4042

of 1998 and W.P. Nos.14779­14781 of 2000 where

land owners were seeking a direction to withdraw

Survey No.50 from acquisition on the ground that

they are still in possession. The dismissal of

aforesaid writ petitions and finding to the

effect that acquisition proceedings have become

final and possession of the land was taken back

in the year 1984 shall operate as res­judicata

in subsequent W.P. No.13404 of 2005 filed by the

land owner. The findings of Karnataka High Court

that possession of the land has already been

taken in the year 1984 as recorded in writ

petitions as noted above precluded the learned

Single Judge in W.P. No.13404 of 2005 to take a

contrary decision. We thus find that submission

of learned counsel for the appellant that the 59

decision on the issue of taking possession by

the State as rendered in earlier writ petitions

filed by land owners shall operate as

res­judicata in subsequent writ petition filed

by land owner being W.P. No.13404 of 2005 and

judgment of learned Single Judge as affirmed by

the Division Bench deserves to be set aside on

this ground.

62. There is one other reason due to which the

judgment of the High court cannot be sustained. The

land owners had filed W.P. No.4042 of 1998 where a

direction was sought for BDA not to proceed with the

acquisition proceeding on the ground that an

application before the Government for de­notifying

Survey No.50 has been filed. The copy of the

judgment dated 16.03.1998 in the aforesaid Writ

Petition has been brought on the paper­book at page

No.96 to 105. The opening part of the judgment is as

follows:

“This writ petition is filed under 60 articles 226 and 227 of the Constitution of India praying to direct the Respondents not to proceed with the acquisition in respect of Sy. No.50 of Tavarekere Village, Bangalore South Taluk and etc...”

63. The High Court has also in the same judgment

noticed the claim of petitioner that a communication

was issued on 30.06.1981 by Special LAO to the State

Government praying for de­notification of Survey

No.50 and the prayer of the petitioner that State be

directed to de­notify the land. The said facts have

been noticed in Para 2 which are to the following

effect:

“2. In this petition, the Petitioner has sought for a direction to the Respondents not to proceed with the acquisition in respect of the said land. Sri Suresh Joshi, Learned counsel for the Petitioner made two submissions. Firstly, he submitted that since the Petitioner was not served with the notice and was not heard in the course of Section 5A enquiry and also at the stage of passing of the award, the Respondents have no authority in law to proceed with the acquisition proceedings; and therefore the entire acquisition proceedings are required to be declared as illegal.

61 Secondly, he submitted since a communication was issued to the Petitioner on 30th June 1981, a copy of which has been produced as Annexure­C stating that the recommendations were made by the 2nd Respondent to the State Government to de­notify 6 acres and 20 guntas of land in Sy.No.50 where structures and garden are existing, the Respondents must be directed to de­notify the land in question from the acquisition proceedings. According to the learned counsel the recommendation made by the 2nd Respondent as per Annexure­C is pending consideration before the State Government. He further submitted that under similar circumstances, the Government has de­notified the lands of several others recently. In support of this plea he relied upon the Circular dated 15th November 1978 and 1st January 1987, copies of which have been produced as Annexures­B and D respectively wherein the Government has notified that wherever the land proposed to be acquired by the Bangalore Development Authority consists of garden and nursery, the said lands should be dropped from acquisition proceedings.”

64. The High Court has dismissed the above Writ

Petition in which following was observed:

"....the narration of facts stated above, clearly shows that the acquisition proceedings have become 62

final and the possession of the land was taken as back as 19.03.1984. Under these circumstances, I am unable to understand as to how the petitioners can seek for a direction to the respondents, not to proceed with the acquisition proceedings...."

(underlined by us)

The Writ Petition seeking direction to the

State Government to withdraw from acquistion with

regard to Survey No.50 was thus dismissed.

65. Similarly, another Writ Petition

Nos.14779­14781 of 2000, S.M. Bhimanna versus

Bangalore Development Authority was also filed where

following reliefs were claimed:

"(a) a direction to respondents to consider their representations and drop the acquisition proceedings in respect of land measuring 6 acres 20 guntas in Sy. No. 50 of Tavarkere Village, Begur Hobli, Bangalore, South Taluk.

(b) a direction to second respondent not to demolish the structures in the petition schedule property pending consideration of their applications for regularization 63

(Annexure­E, E1 and E2 dated 30.04.1994.”

66. The aforesaid Writ Petition was contested by

BDA by pleading that possession of the land was

already taken in the year 1984 and a Notification

under Section 16(2) has been published on 24.10.1985

and the land absolutely vested in the State.

Noticing the aforesaid contention ultimately, the

Writ Petition was dismissed by Division Bench of

Karnataka High Court vide judgment dated 16.08.2000.

67. Thus, land owners have filed two Writ

Petitions, seeking a direction to the State to

de­notify the land i.e. Survey No.50 i.e. By

exercising power under Section 48. Both the above

Writ Petitions were dismissed. After dismissal of

the aforesaid Writ Petitions where relief of

withdrawing from the acquisition of the Survey No.50

was refused, land owners without disclosing the

relevant facts approached the State Government in

the year 2001 by submitting a representation that 64

they are in possession and acquisition of Survey

No.50 be withdrawn.

68. When the Writ Petitions, praying for similar

relief i.e. withdrawal of Survey No.50 from

acquisition have been dismissed by the Karnataka

High Court, as noticed above, the petitioners could

not have approached the State Government praying for

same relief.

69. Both the judgments of the High Court i.e.

judgment dated 16.03.1998 in W.P. No.4042 of 1998 as

well as judgment dated 16.08.2000 in Writ Petition

Nos.14779­14781 of 2000 were not brought into notice

of the State Government by the land owners and they

succeeded obtaining a Notification on 12.04.2001

which was cancelled within one month.

70. Thus, when the two Writ Petitions as noted

above, filed by land owners for same relief have

been dismissed by the Karnataka High Court, we fail

to see how the petitioners could have approached the 65

State Government by representation thereafter

praying the State Government to exercise its power

under Section 48 to withdraw Survey No.50 from

acquisition. Thus, the entire excercise by the land

owners of approaching the State Government to

withdraw from acquisition of Survey No.50 was

uncalled for and was not permissible in view of the

dismissal of their Writ Petitions by Karnataka High

Court where the same relief was prayed and refused.

71. Learned Single Judge vide its judgment dated

30.03.2007 has not adverted to the aforesaid two

judgments of High Court dated 16.03.1998 and

16.08.2000 which was passed in the Writ Petition

filed by the land owners itself where same relief

for withdrawl of Survey No.50 from acquisition was

refused. The Division Bench has also not adverted to

the aforesaid aspects of the matter while dismissing

the Writ Appeal.

72. It has to be noted that in the Writ Petition 66

the land owners before learned Single Judge has also

pleaded that State has withdrawn acquisition with

regard to various Survey Nos. whereas

writ­petitioner has been discriminated by refusing

to give similar and equal treatment.

73. Be as it may, when the High Court in earlier

proceedings has already held that possession was

taken up by the State Government and land vested in

the State free from any encumbrances, power under

Section 48 could not have been exercised by the

State. Hence, it is not necessary for us to dwell on

the aforesaid reasons given by the learned Single

Judge any further.

74. We are thus of the view that State Government

having withdrawn the Notification dated 12.04.2001

and having refused to withdraw Survey No.50 from

acquisition which had already become final sixteen

years ago, when the possession was taken by the

State and handed it over to BDA in the year 1984, 67

which fact was notified in the official Gazette on

24.10.1985, Learned Single Judge committed an error

in allowing the Writ Petition by quashing order of

the State Government dated 22.03.2005.

75. Division Bench also did not advert to the

relevant aspects and committed error in confirming

the judgment of the learned Single Judge.

76. This Court vide its order dated 22.02.2017 has

directed learned counsel for the BDA to inform the

Court as to how much land is allotted to the

appellant­Society by the BDA and how much land is

in actual possession. BDA in pursuance of the order

of this Court conducted a survey and submitted its

report dated 01.04.2017. In the Survey Report, it

has been mentioned that total allotment of land in

favour of N.L.A. Co­operative Society was 8 acres

and members of the appellant­Society are in

possession of more area then allotted to it. It is

not necessary for us to consider or express any 68

opinion in the above regard. In the event members of

the appellant­Society are in possession of any

excess area, it is always open for the BDA to take

such steps as permissible in law.

77. In result, Civil Appeals Nos.9790­9791 of 2017

arising out of SLP(C) Nos.5911­12 of 2010 are

allowed. Judgment of Division Bench dated 11.12.2008

as well as judgment of the learned Single Judge

dated 30.03.2007 are set aside and W.P. No.13404 of

2005 is dismissed.

78. For the above reasons, Civil Appeal

Nos.9792­9793 of 2017 arising out of SLP(C)

Nos.29553­29554 of 2011 are also allowed.

...........................J. ( A.K. SIKRI )

...........................J. ( ASHOK BHUSHAN ) NEW DELHI AUGUST 09,2017.

69

ITEM NO.1501 COURT NO.7 SECTION IV-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal Nos. 9790-9791/2017

N.A.L. LAYOUT RESIDENTS ASSOCIATION Appellant(s)

VERSUS

BANGALORE DEVELOPMENT AUTHORITY & ORS. Respondent(s)

WITH

C.A. No. 9792-9793/2017

Date : 09-08-2017 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Mr. Rajesh Mahale, AOR

M/s. Khaitan & Co., AOR

For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv.

Mr. Navin Prakash, AOR

Ms. N. Annapoorani, AOR

Mr. S. J. Amith, Adv.

Dr. (Mrs. ) Vipin Gupta, AOR

Ms. Anitha Shenoy, AOR

Mr. Raghavendra S. Srivatsa, AOR

Mr. S. K. Kulkarni, Adv.

Mr. M. Gireesh Kumar, Adv.

Mr. Ankur S. Kulkarni, AOR

Respondent-in-person

Mr. R. Gopalakrishnan, AOR 70

Mr. Joseph Aristotle S., Adv. Ms. Priya Aristotle, Adv. Mr. Ashish Yadav, Adv. Ms. Romsha Raj, Adv.

Hon'ble Mr. Justice Ashok Bhushan

pronounced the judgment of the Bench comprising Hon'ble Mr. Justice A. K. Sikri and His Lordship.

The appeals are allowed in terms of the signed reportable judgment.

(NIDHI AHUJA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

[Signed reportable judgment is placed on the file.]