BANGALORE DEVELOPMENT AUTHORITY & ANR. versus THE STATE OF KARNATAKA & ANR.
[2018] 9 S.C.R. 441, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Issues
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BANGALORE DEVELOPMENT AUTHORITY & ANR.
v.
THE STATE OF KARNATAKA & ANR.
(Civil Appeal Nos. 7661-7663 of 2018)
AUGUST 03, 2018
[ARUN MISHRA  AND S. ABDUL NAZEER, JJ.]
Bangalore Development Authority Act, 1976 – In 2008
Bangalore Development Authority (BDA) published a scheme and
preliminary notification u/s.17 of the BDA Act acquiring lands for
providing civic amenities like roads etc. – Writ petitions filed in
2014 on the ground that the State Government and the BDA did not
take any steps to issue final notification or to develop the land for
5 years – Single Bench allowed the writ petitions and quashed the
notification with respect to the lands of the appellants – Writ appeals,
dismissed – On appeal, held: Primary object of the BDA Act is to
carry out planned development – State Act has provided its own
scheme – Time constraints of the land acquisition are not applicable
to the BDA Act – Making applicable the time frame of s.11A of  the
LA Act would debilitate very object of the BDA Act – Further, in the
present case there were a large number of irregularities – 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 to withdraw acquisition in respect
of 251 acres of the land – Land Acquisition Officer considered
another 498 acres of land to be excluded from
being acquired,
against which hue and cry was raised in the Assembly as well as in
the public – Three inquiries were ordered, two by the State
Government and one by the BDA – Owners cannot escape the
liability  for the delay, they cannot take the advantage of their own
wrong having acted in collusion with the authorities – Time consumed
would not adversely affect the ultimate development of Bangalore
city – Impugned orders passed by the Single Judge and Division
Bench are  quashed and set aside – Scheme and notification u/s. 17
are upheld – State Government as well as the BDA to proceed further
to issue final notification without any further delay – Further, for
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fixing the responsibility on the officials of the BDA and the State
Government trying to exclude the lands from acquisition, former
Judge of the Karnataka High Court appointed as the Inquiry Officer
and requested to submit his report to Supreme Court as expeditiously
as possible – Land Acquisition Act, 1894 – s.11A.
Disposing of the appeals, the Court
HELD: 1.1 The primary object of the Bangalore
Development Authority Act, 1976 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 applicable the time frame of Section 11A of
Land Acquisition Act, 1894 would debilitate very object of the
BDA Act. By making applicable the time period of two years of
11A of LA Act mandate of BDA Act has been violated.
[Para 17] [457-B-D]
1.2  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 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
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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.
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.  [Paras 19, 20] [457-G-H;
458-A-E]
1.3  It is apparent from the circumstances that the matter
cannot be left at the mercy of unscrupulous authority of the 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. 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 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 was 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,
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 courts are not powerless to
frown upon such an action and proper development cannot be
BANGALORE DEVELOPMENT AUTHORITY & ANR. v. STATE
OF KARNATAKA & ANR.
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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 re-inquiry 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. [Paras 21, 22] [458-F-G; 459-A-H;
460-A]
1.4  The State Government as well as the BDA is directed
to proceed further to issue final notification without any further
delay. 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. 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 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. The BDA and the State
Government have to proceed with the acquisition of these lands.
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. Therefore, Hon’ble Mr.
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Justice K.N. Keshavanarayana, former Judge of the Karnataka
High Court is appointed 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 Inquiry
Officer to submit his report to this Court as expeditiously as
possible. [Paras 24-26] [460-C-H; 461-B]
1.5  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
Supreme Court of the steps taken by them. [Para 27] [461-C]
Offshore Holdings Private Limited v. Bangalore
Development Authority and Others (2011) 3 SCC 139 :
[2011] 1 SCR 453 – followed.
Munithimmaiah v. State of Karnataka (2002) 4 SCC
326 : [2002] 2 SCR 825 ; Bondu Ramaswamy v.
Bangalore Development Authority & Ors. (2010) 7 SCC
129 : [2010] 6 SCR 29 ; H.N. Shivanna and Ors. v. The
State of Karnataka, Department of Industries and
Commerce, Bangalore, and Anr. (2013) 4 KCCR 2793
(DB) – referred to.
Case Law Reference
(2013) 4 KCCR 2793 (DB)  referred to
Para 11
[2011] 1 SCR 453
       followed
Para 14
[2002] 2 SCR 825
       referred to
Para 14
[2010] 6 SCR 29
       referred to
Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.7661-
7663 of 2018.
From the Judgment and Order dated 28.04.2017 of the High Court
of Karnataka at Bengaluru in Writ Appeal No.252 of 2017 (LA-BDA)
and Writ Appeal Nos.2270-2271 of 2017 respectively
WITH
Civil Appeal Nos.7664, 7750-7758, 7759-7761, 7762, 7668-7669,
7791-7792, 7801, 7743, 7666-7667, 7742, 7803, 7763, 7795-7798, 7665,
7799-7800, 7749, 7670-7736, 7744-7745, 7764, 7802, 7794, 7765, 7813,
BANGALORE DEVELOPMENT AUTHORITY & ANR. v. STATE
OF KARNATAKA & ANR.
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7810-7812, 7805-7806, 7804, 7814,  7807-7809, 7790, 7767, 7787-7789,
7784-7786, 7768, 7815-7817, 7741, 7771, 7793, 7738, 7773, 7770, 7737,
7769, 7740, 7739, 7772, 7746-7748, 7774-7783, 7766, 7976-7989,
7968-7975, 7954-7967, 7934-7953, 7929-7933, 7918-7928, 7908-7917,
7889-7907, 7818-7888, 7993, 8015-8016, 8004, 7994-8000, 8005, 8003,
8001-8002, 8006, 8007-8014 of 2018.
Ms. Shashi Kiran Shetty, Vikas Singh, Sanjay R. Hegde, Sr. Advs.,
S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Shree Prakash
Sinha, Rakesh Mishra, Ashutosh Kapoor, Nawalendra Kumar, Ms. Mohua
Sinha, Shanthkumar V. Mahale, Abdul Rahiman, Rajesh Mahale, Pai
Amit, Sharan Thakur, Mahesh Thakur, Vipasha Singh, Vijay Kumar
Pardesi, V.N. Raghupathi, Parikshit Angadi, Shailesh Madiyal, Sudhanshu
Prakash, D.K. Devesh, Hitesh Vats, V.P. Singh, Trideep Pais, G.V.
Chandrashekar,  N.K. Verma, Ms. Anjana Chandrashekar, Balaji
Srinivasan, Ms. Palavi Sengupta, M.A. Chinnasamy, Ms. C. Rubavathi,
V. Senthil Kumar, P. Raja Ram, Sharanagouda Patil, Ms. Supreeta
Sharanagouda, Ms. Preeti Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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
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
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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 sub-Sections 1 and
3 of Section 17 of the BDA Act and in accordance with Section 36 of
the BDA Act. The Special 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 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
BANGALORE DEVELOPMENT AUTHORITY & ANR. v. STATE
OF KARNATAKA & ANR. [ARUN MISHRA, J.]
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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 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 in-house 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 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.
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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 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
BANGALORE DEVELOPMENT AUTHORITY & ANR. v. STATE
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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 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 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.
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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 self-contained 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 the BDA Act start from the
date of publication of the declaration under sub-Section (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 in-house 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 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
BANGALORE DEVELOPMENT AUTHORITY & ANR. v. STATE
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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 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
de-notified 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 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
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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.
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35. Be that as it may, it is clear that the BDA Act is a self-contained
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 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.
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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 time-
frames under its various provisions as well as consequences of
default thereto. The scheme, thus, does not admit such
incorporation.
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55. The principle stated in Munithimmaiah’s case (supra) that the
BDA Act is a self-contained 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
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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 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 3-2-2003 and the declaration under Section
19(1) was issued and published on 23-2-2004. 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 applicable in its
entirety, but states that the acquisition under the BDA Act,
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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 time-limit 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.
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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.
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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 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 self-contained 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
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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 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 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
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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
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 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
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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 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
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 re-inquiry 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
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acquisition was for the proper and planned development that was an
absolute necessity for the city of Bangalore.
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 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
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pay his remuneration. Further, we direct BDA to provide appropriate
secretarial assistance and logistical support to the Inquiry Officer for
holding the inquiry. 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 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.
Divya Pandey
                                         Appeals disposed of.
BANGALORE DEVELOPMENT AUTHORITY & ANR. v. STATE
OF KARNATAKA & ANR. [ARUN MISHRA, J.]