AI Drafter 
TaxTMI 
TaxTMI 
2010 (5) TMI 867
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.... Kalkal, Parag Goyal, Satish D., Kh. Nobin Singh, Nataraj R., Rajesh Mahale, Radhananda, Raghavendra S. Srivatsa, K.N. Manjunath, Jagjit Singh Chhabra, K.H. Soma Shekar, Prakash Kr. Singh, Priya Kashyap, Nikhil Nayyar, Ankit Singhal, Vivekananda, V.N. Raghupathy, G.V. Chandrashekhar (for Anjana Chandrashekhar), R.B. Phookan (for J.S. Bhatia), S. Balaji, S. Srinivasan, Madhusmita Bora, S.R. Sharma, M.A. Chinnasamy, K. Krishna Kumar, B.B. Chauhan, Sanjay Parikh, M. Qamaruddin, M. Qamaruddin (for Ambar Qamaruddin), S.K. Kulkami, Anukur S. Kulkarni, Nirnimesh Dube, M. Gireesh Kumar, S.J. Aristotle, Vijay Kumar, Sanjay R. Hegde, Anil K. Mishra, Vikrant Yadav, Rajesh Srivastava, Shashi Kiran Shetty, Pradeep K. Bakshi and Sharan Dev Singh Thakur, Advs. JUDGMENT R.V. RAVEENDRAN, J 1. Leave granted. These appeals relate to the challenge of acquisition of lands for formation of Arkavathi layout on the outskirts of Bangalore by the Bangalore Development Authority [for short Bda'] Under The Bangalore Development Authority Act, 1976 (BDA Act' or Act' for short). 2. On 2.1.2001 the Executive Engineer (North) of BDA submitted a scheme report with detailed estimates for for....
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.... considered and rejected. The Authority decided to seek the sanction of the government for the acquisition of 2750 acres of land, after deleting 1089 A 12 G acres of land from the proposed scheme. On 3.2.2004, the authority passed a resolution to obtain the approval of the state government for implementation of the Arkavathi layout under Section 15(2) of BDA Act and requesting sanction for acquisition of 2750 acres for formation of 28600 sites of different dimensions. The scheme as modified at an estimated cost of Rs. 981.36 crores (in view of the reduction of the area to 2750 acres), along with the draft final notification and relevant records was forwarded by the BDA to the State Government, under cover of letter dated 13.2.2004. After securing certain clarification, by Government Order dated 21.2.2004, the State government accorded sanction for the scheme under Section 18(3) of the Act. In pursuance of it, the final declaration dated 23.2.2004 was issued by the State Government, under section 19(1) of the Act (published in the Karnataka Gazette on the same day) stating that sanction had been granted for the scheme and declaring that the lands specified in the Schedule thereto in....
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....9; by the Authority to consider the objections to the acquisition was not fair, reasonable or in compliance with the principles of natural justice. (viii) The action of BDA in forming sites for allotment, even before issuing a notification under section 16(2) of the LA Act (as amended in Karnataka), declaring that possession has been taken, was bad in law. (ix) The amendment to BDA (Allotment of Sites) Rules, 1984, removing the restrictions on the allottee in regard to alienation/use, had the effect of reducing BDA, a statutory development authority, into a mere dealer/estate agent in real estate. (x) Deletion of lands similar to and contiguous to the lands of the appellants, while acquiring their lands, amounts to hostile discrimination violative of Article 14 of the Constitution. 5. Feeling aggrieved, the BDA filed writ appeals which were allowed by a division bench of the High Court, by a common judgment dated 25.11.2005 and upheld the acquisition. The Division Bench however affirmed the finding of discrimination in acquisition of some lands while deleting similarly placed adjacent lands and gave liberty to land owners to file appl....
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....the formation of Akravathi Layout is upheld subject to the following conditions: (a) In so far as the site owners are concerned they are entitled to the following reliefs: (i) These site owners/writ petitioners shall register themselves as applicants for allotment under the Bangalore Development Authority (Allotment of Site) Rules 1984 within a period of two months from today (extendable by another one month by BDA, if sufficient cause is shown). Petitioners will have to pay the registration fee. They need not pay initial deposit as their sites have been acquired and they have agree not to receive compensation in regard to the sites under this arrangement. (ii) The petitioners shall file applications for allotment of sites to BDA within three months from today in the prescribed form stating that they are applicants who were the petitioners in these writ petitions. Petitioners shall file their documents with BDA within a period of two months to enable BDA to verify the same. (iii) BDA will treat them as applicants entitled to priority in allotment and allot each of them a site measuring 30 x 40 in Arkavathi layout or in any other....
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.... their respective lands are concerned, on the ground that (a) their lands are situated within green belt area; (b) they are totally built up; (c) properties wherein there are buildings constructed by charitable, educational and/or religious institutions (d) nursery lands; (e) who have set up factories (f) their lands are similar to the lands which are adjoining their lands but not notified for acquisition at all, are permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within one month from the date of this order. It is made clear that the BDA shall consider such request keeping in mind the status of the land as on the date of preliminary notification and to exclude any developments, improvements, constructions put up subsequent to the preliminary notification and they decided whether their cases as similar to that of the land owners whose lands, are notified for acquisition, notified and whose objections were upheld and no final notification is issued. In the event of BDA comes to the conclusion that the lands of those persons are similarly placed, then to exclu....
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....mendment to section 6 of the LA Act requiring the final declaration to be issued within one year from the date of publication of the preliminary notification is applicable to the acquisitions under the BDA Act; and whether the declaration under section 19(1) of BDA Act, having been issued after the expiry of one year from the date of the preliminary notification under section 17(1) and (3) of BDA Act, is invalid. (v) Whether the provisions of sections 4, 5A, 6 of LA Act, would be applicable in regard to acquisitions under the BDA Act and whether non- compliance with those provisions, vitiate the acquisition proceedings. (vi) Whether the development scheme and the acquisitions are invalid for non-compliance with the procedure prescribed under sections 15 to 19 of the BDA Act in regard to: (a) absence of specificity and discrepancy in extent of land to be acquired; (b) failure to furnish material particulars to the government as required under section 18(1) read with section 16 of the BDA Act; and (c) absence of valid sanction by the government, under section 18(3) of the BDA Act. (vii) Whether the de....
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.... (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent." By the Constitution (Forty Fourth Amendment) Act, 1978, the right to property was deleted from the list of fundamental rights by omitting sub-clause (f) of clause (1) of Article 19. Simultaneously, Article 31 was also deleted with effect from 20.6.1979 by the Constitution (Forty Fourth Amendment) Act, 1978. It is no doubt true that the BDA Act received only the assent of the Governor and was neither reserved for the assent of the President nor received the assent of the President. As clause (3) of Article 31 provided that a law providing for acquisition of property for public purposes, would not have effect unless such law received the assent of the President, it was open to a land owner to contend that the provisions relating to acquisition in the BDA Act did not come into effect for want of President's assent. But once Article 31 was omitted from the Constitution on 20.6.1979, the need for such assent disappeared and the impediment for enforcement of the provisions in the BDA Act relating to acquisition also disap....
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....em unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the view that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within the competence but repugnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment." 11. The appellants relied upon the f....
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....l be deprived of his property save by authority of law. As we are examining the validity of a law made by the state legislature having competence to make such law, there is no violation of Article 31(1). Clause (2) of Article 31 provided that no law shall authorise acquisition unless it provided for compensation for such acquisition and either fixed the amount of compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and given. BDA Act, does not fix the amount of compensation, but Section 36 thereof clearly provides that the acquisition will be regulated by the provisions of the Land Acquisition Act, 1894 so far as they are applicable. Thus the principles on which the compensation is to be determined and the manner in which the compensation is to be determined set out in the LA Act, become applicable to acquisitions under BDA Act. Thus there is no violation of Article 31(2). Article 31(3) merely provides that no law providing for acquisition shall have effect unless such law has received the assent of the President. Article 31(3) does not specify any fundamental right, but relates to the procedure for making a law providin....
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....duct of elections. (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women". 13. We may first refer to the provisions of Part IX in brief. Clause (d) and (e) of Article 243 define Panchayat' and Panchayat area'. Article 243B deals with constitution of Panchayats, Article 243C deals with composition of Panchayats. Article 243D relates to reservation of seats. Article 243E stipulates the duration of Panchayats. Article 243F prescribes the disqualification for membership. 243G refers to powers, authorities and responsibilities of Panchayats. Article 243H refers to power to impose taxes by Panchayats and funds of the Panchayats. Article 243I directs the constitution of Finance Commissions to review the financial position. Article 243J relates to audit of accounts of Panchayats. Article 243K relates to election to Panchyats. Article 243M enumerates the areas to which the part will not apply. Article 243N provides for continuance of existing laws and Panchayats. 14. Similarly, in Part IX-A relating to Municipalities, the ter....
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....ban area; (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:" xxx xxx xxx "243W. Powers, authority and responsibilities of Municipalities, etc.--- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow- (a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to- (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters lis....
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....area by agencies of the Government of India and of the Government of the State and other available resources whetherfinancial or otherwise; (b) consult such institutions and organisations as the Governor may,by order, specify. (4) The Chairperson of every Metropolitan Planning Committee shallforward the development plan, as recommended by such Committee, to the Government of the State. "243ZF. Continuance of existing laws and Municipalities.- Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in th....
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....e committee, as may be specified by the Government shall be elected in the prescribed manner by, and from amongst, the elected members of the Corporations, the Municipal Councils and Town Panchayats, and the Adhyakshas and Upadhyakshas of Zila Panchayats, Taluk Pachayats and Grama Panchayats in the metropolitan area in proportion to the ratio between the population of the city and other municipal area and that of the areas in the jurisdiction of Zilla Panchayat, Taluk Panchayat and Grama Pachayat; (b) such number of representatives of - (i) The Government of India and the State Government as may be determined by the State Government, and nominated by the Government of India or as the case may be, the State Government; (ii) such organisations and institutions as may be deemed necessary for carrying out of functions assigned to the committee, nominated by the State Government; (3) All the members of the House of the People and the State Legislative Assembly whose constituencies lie within the Metropolitan area and the members of the Council of State and the State Legislative Council who are registered as electors in such area shall be perm....
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.... it which in course of time will become part of the city. For the speedy implementation of the above said objects as also the 20-point programme and for establishing a co-coordinating Central Authority, urgent action was called for. Moreover, the haphazard and irregular growth would continue unless checked by the Development Authority and it may not be possible to rectify or correct mistakes in the future." Section 3 of BDA Act relates to constitution and incorporation of the Bangalore Development Authority. It provides for the State Government, by notification, constituting an Authority for the Bangalore Metropolitan Area, to be called as Bangalore Development Authority. Section 2(c) of the BDA Act defines Bangalore Metropolitan Area' as follows: "Bangalore Metropolitan Area" means the area comprising the City of Bangalore as defined in the City of Bangalore Municipal Corporation Act, 1949 (Karnataka Act 69 of 1949), the areas where the City of Bangalore Improvement Act, 1945 (Karnataka Act 5 of 1945) was immediately before the commencement of this Act in force and such other areas adjacent to the aforesaid as the Government may from time to time by ....
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.... (c) drainage, water supply and electricity ; (d) the reservation of not less than fifteen percent of the total area of the layout for public parks and playgrounds and an additional area of not less than ten percent of the total area of the layout for civic amenities. (2) may, within the limits aforesaid, provide for,- (a) raising any land which the Authority may consider expedient to raise to facilitate better drainage ; (b) forming open spaces for the better ventilation of the area comprised in the scheme or any adjoining area ; (c) the sanitary arrangements required ; [(d) x x x [omitted by Act 17 of 1984]. (3) may, within and without the limits aforesaid provide for the construction of houses". Section 17 lays down the procedure on completion of scheme and is extracted below:- "17. Procedure on completion of scheme.- (1) When a development scheme has been prepared, the Authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of....
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....After publication of the scheme and service of notices as provided in section 17 and after consideration of representations, if any, received in respect thereof, the Authority shall submit the scheme, making such modifications therein as it may think fit, to the Government for sanction, furnishing,- (a) a description with full particulars of the scheme including the reasons for any modifications inserted therein ; (b) complete plans and estimates of the cost of executing the scheme; (c) a statement specifying the land proposed to be acquired ; (d) any representation received under sub-section (2) of section 17; (e) a schedule showing the rateable value, as entered in the municipal assessment book on the date of the publication of a notification relating to the land under the section 17 or the land assessment of all land specified in the statement under clause(c) ; and (f) such other particulars, if any, as may be prescribed. (2) Where any development scheme provides for the construction of houses, the Authority shall also submit to the Government plans and estimates for the cons....
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....ty to draw up any development scheme. 19. Any statute or provision thereof which is inconsistent with any constitutional provision will be struck down by courts. Consequently, if BDA Act or any provision of the BDA Act is found to be inconsistent with any provision of Part IXA of the Constitution, it will be struck down by courts as violative of the constitution. In regard to any provision of any law relating to municipalities, Article 243ZF suspends such invalidity or postpones the invalidity for a period of one year from 1.6.1993 to enable the competent Legislature to remove the inconsistency by amending or repealing such law relating to municipalities to bring it in consonance with the provisions of Part IXA of the Constitution. Article 243ZF is a provision enabling continuance of any provision of a law relating to municipalities in spite of such provision being inconsistent with the provisions of Part IXA of the Constitution for a specified period of one year. It does not extend the benefit of continuance to any law other than laws relating to municipalities; it also does not provide for continuance of a law for one year, if the violation is in respect of any constitutional ....
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....es. Part IX-A seeks to strengthen the democratic political governance at grass root level in urban areas by providing constitutional status to Municipalities, and by laying down minimum uniform norms and by ensuring regular and fair conduct of elections. When Part IX-A came into force, the provisions of the existing laws relating to municipalities which were inconsistent with or contrary to the provisions of Part IX-A would have ceased to apply. To provide continuity for some time and an opportunity to the concerned State Governments to bring the respective enactments relating to municipalities in consonance with the provisions of Part IX-A in the meanwhile, Article 243ZF was inserted. The object was not to invalidate any law relating to city improvement trusts or development authorities which operate with reference to specific and specialised field of planned development of cities by forming layouts and making available plots/houses/apartments to the members of the public. 22. To enable the municipalities (that is municipal corporations, municipal councils and Nagar Panchayats) to function as institutions of self-government, Article 243W authorises the legislature of a state to....
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.... is "carrying out of building, engineering or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment" (vide Section 2(j) of BDA Act. Therefore, the purpose is to make lay outs, construct buildings or carry out other operations in regard to land. Municipalities are not concerned with nor entrusted with functions similar to those entrusted to BDA under the BDA Act, that is building, engineering or other operations by forming layout of plots with all amenities, construction of houses and apartments, as a part of any scheme to develop a city. Municipalities are concerned with the overall economic development providing social justice (urban poverty alleviation and slum improvement) regulating land use and constructions, providing amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops, public conveniences), promoting education and culture etc. Neither urban town planning nor regulation of land use and construction, is similar to the development' as contemplated in BDA Act, that is carrying out building, engineering operations in or over or under land. It would thus be seen ....
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....anning Committee for preparing a draft development plan for the Bangalore Metropolitan Area and therefore the Bangalore Development Authority can no longer function as an authority for development of metropolitan area, nor can it draw development schemes therefor. Development scheme to be drawn up by the BDA for development of Bangalore Metropolitan Area is specific i.e. acquisition of land, laying out or re-laying plots, formation of roads, construction of buildings, providing drainage, water supply and electricity and allot them to members of the public. On the other hand, the development plan for the metropolitan area as a whole, to be prepared by Metropolitan Planning Committee constituted under the KMC Act involves making a plan for overall development with reference to the various functions enumerated in the twelfth Schedule, that is, plans for economic and social justice, planning for economic and social development, slum improvement and upgradation, urban poverty alleviation, and providing several urban amenities and facilities referred to in the twelfth Schedule. It would thus be seen that the development scheme' formulated for Bangalore Metropolitan Area by BDA has no....
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....onstitution; that no law can entrust powers and responsibilities referred to in Article 243W including those relating to matters listed in Twelfth Schedule to an authority other than an authority having popular mandate; and that therefore the BDA Act entrusting such powers and responsibilities to a non-elected authority ceases to be in force. 27. While it is true that BDA is not an elected body like the municipality, it has several elected representatives as members. Section 3 relates to the Constitution of the Authority and provides that the Authority shall consist of 22 members and made up as follows: Six officers of the BDA viz., The Chairman, The Finance Member, The Engineering Member, The Town Planning Member, The Commissioner and Secretary of the Authority. (All of them are full-time employees, three of them are specialists in finance, engineering and town planning. Four elected representatives, that is, two members of state legislature assembly and two counsellors of Bangalore Municipal Corporation. One representative of the state government and four representatives of statutory corporations, that is, the Commissioner of Bangalore Municipal Corp....
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.... Area. Bangalore Metropolitan Area is defined in section 2(c) as the area comprising (i) the City of Bangalore as defined in the City Bangalore Municipal Corporation Act, 1949; (ii) the areas where the City of Bangalore Improvement Act, 1945 was immediately before the commencement of this Act was in force; (iii) such other areas adjacent to the aforesaid areas as the government may from time to time by notification specify. The areas in which the City of Bangalore Improvement Act, 1945 was in force immediately before the commencement of BDA Act was the City of Bangalore and other areas adjoining the city specified by the state government from time to time by notification (vide section 1(2) of the said Act). 30. The Government of Karnataka issued a notification dated 1.11.1965, under section 4A (1) of the Town Planning Act' declaring the area comprising the City of Bangalore and other areas (218 villages) enumerated in Schedule I thereto to be the Local Planning Area' for the purposes of the said Act to be called as the Bangalore City Planning Area and the limits of the said planning area were as described in Schedule II thereto. All the 16 villages in which the lands wer....
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....3.1984, to be the areas for the purpose of the said clause. The contention of the petitioner is that the notification dated 1.3.1988 only specifies the villages indicated in the notification dated 13.3.1984 as Bangalore Metropolitan area; that therefore, the areas that were earlier declared as a local planning area under the notification dated 1.11.1965, were not part of Bangalore Metropolitan area; and that as all the 16 villages which were the subject matter of the impugned acquisition, were part of the local planning area declared under notification dated 1.11.1965, but not part of the local planning area declared under the notification dated 13.3.1984, the said 16 villages do not form part of the Bangalore Metropolitan Area for the purpose of section 2(c) of the BDA Act; and consequently, BDA cannot execute any development scheme in regard to the said 16 villages under section 15 of the BDA Act. 34. A careful reading of the notification dated 1.3.1988 would show that the clear intention of the state government was to declare the entire area declared under the notification dated 1.11.1965 and the notification dated 13.3.1984, together as the Bangalore Metropolitan Area. The n....
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.... 13.3.1984 and did not form part of the notification dated 1.3.1988. There is therefore no doubt that the intention of the state government was to include the entire area within the boundaries described in Schedule II, that is the area declared under two notifications dated 1.11.1965 and 13.3.1984, as the Bangalore Metropolitan Area. 36. In fact ever since 1988, everyone had proceeded on the basis that the Bangalore Metropolitan Area included the entire area within the boundaries mentioned in Schedule II to the notification dated 13.3.1984. Between 1988 and 2003, BDA had made several development schemes for the areas in the first concentric circle around Bangalore City (that is, in the 218 village described in I Schedule to the notification dated 1.11.1965) and the state government had sanctioned them. None of those were challenged on the ground that the area was not part of Bangalore Metropolitan Area. 37. It is true that the wording of the notification is clumsy and ambiguous. It refers to the villages indicated in Schedule I and it also refers to villages within the boundaries of Schedule II. It also states that the area stated in the notification is the area for the purpo....
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....ntin and Ors. - 1988 (4) SCC 419, and S.R. Bommai and Ors. v. UOI and Ors. - 1994 (3) SCC 1 and several decisions following them, to contend that the court cannot, in interpreting a provision, supply any casus omissus. The doctrine of casus omissus was explained thus in American Jurisprudence, 2nd Series Vol. 73 at page 397: "It is a general rule that the court may not by construction insert words or phrases in a statute or supply a casus omissus by giving force and effect to the language of the statute when applied to a subject about which nothing whatever is said, and which, to all appearances, was not in the mind of the legislature at the time of the enactment of law". But the position will be different where the language is ambiguous and an intelligible interpretation would require addition of words particularly when the intention of the State Government is clear and evident and it is reiterated by the State Government and the BDA. Justice G.P. Singh in his Principles of Statutory Interpretation (2008 Edition - Page 65) expresses the view that when the object or policy of a statute can be ascertained, imprecision in its language should not be readily allowed in the ....
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....mprovement Act 1945 are already included in the Bangalore Metropolitan Area and the interpretation put forth by the appellants would have the effect of excluding those areas from the Bangalore Metropolitan Area. As stated above, the core area or the inner circle area, that is Bangalore City, is a part of Bangalore Metropolitan Area in view of the definition under Section 2(c). The 218 villages specified in the notification dated 1.11.1965 are the villages immediately surrounding and adjoining Bangalore city and it forms the first concentric circle area around core area of Bangalore city. The 325 villages listed in I Schedule to the notification dated 13.3.1984 are situated beyond the 218 villages and form a wider second concentric circle around the central core area and the first concentric circle area of 218 villages. That is why the notification dated 1.3.1988 made it clear that the Bangalore Metropolitan Area would be the area within the boundaries indicated in II Schedule to the notification dated 13.3.1984. It would mean that the three areas, namely, the central core area, the adjoining 218 villages constituting the first concentric circle area and the next adjoining 325 villa....
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....A Act. As the provisions of LA Act have been made applicable to acquisitions under BDA Act, it is necessary that the declaration under Section 19(1) of 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 BDA Act (which is equivalent to Section 4(1) of LA Act). 43. BDA Act contains provisions relating to acquisition of properties, up to the stage of publication of final declaration. 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 BDA Act does not make the LA Act applicable in its entirety, but states that the acquisition under BDA Act, shall be regulated by the provisions, so far as they are applicable, of 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 LA Act will....
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....nd development authorities. It is unnecessary to enter into the controversy whether the amendments to LA Act inserting Section 11A would apply to acquisitions under Town Planning Laws or City Improvement/Development Laws, as that issue does not arise here. As noticed above, when section 6 of the LA Act itself is inapplicable to acquisition under BDA Act, the question whether amendment to Section 6 will apply will not arise. We accordingly hold that the final declaration dated 23.2.2004 does not suffer from any infirmity on account of the same having been published a few days beyond one year from the date of publication of the preliminary notification under sections 17 (1) and (3) of the BDA Act. Question (v) - Re: Applicability of sections 4, 5A and 6 of LA Act 45. The appellants contend that the provisions of sections 4, 5A and 6 of LA Act apply to the acquisitions under the BDA Act and the acquisition is liable to be quashed, as being in violation of the said provisions. Different appellants have raised two distinct and somewhat inconsistent contentions to say that sections 4 to 6 of LA Act are applicable. 46. The first contention is as follows: The BDA Act relates to de....
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.... schemes does not provide for acquisition is erroneous. Sections 15 to 19 of the BDA Act contemplate drawing-up of a development scheme or additional development scheme for the Bangalore Metropolitan Area, containing the particulars set down in section 16 of the said Act, which includes the details of the lands to be acquired for execution of the scheme. Section 17 requires the BDA on preparation of the development scheme, to draw-up and publish in the Gazette, a notification stating that the scheme has been made, showing the limits of the area comprised in such scheme and specifying the lands which are to be acquired. The other provisions of section 17 make it clear that the BDA has to furnish a copy of the said notification and invite a representation from the Bangalore City Corporation, affix the notification at conspicuous places in various offices, and serve notice on every person whose land is to be acquired. Thus, the notification that is issued under section 17(1) and published under section 17(3), is a preliminary notification for acquiring the lands required for the scheme under the Act. Section 17(5) and section 18 (1) requires BDA to give an opportunity to landowners to....
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....ng law with respect to a matter (Entry 42) enumerated in the Concurrent List. BDA Act providing for acquisition of property is a law made by the State Legislature under Entry 42 of the Concurrent List. Article 254 of the Constitution provides that if there is any repugnancy between a law made by the State Legislature (BDA Act) and an existing central law in regard to a matter enumerated in the Concurrent List (LA Act), then subject to the provisions of clause (2) thereof, the existing Central law shall prevail and the State law, to the extent of repugnancy, shall be void. Clause (2) of Article 254 provides that if the law made by the State Legislature in regard to any matter enumerated in the Concurrent List, contains any provision repugnant to an existing law with respect to that matter, then, the law so made by the State Legislature, if it had been reserved for the consideration of the President and has received his assent, shall prevail in that State. It is contended that the provisions of section 19 of the BDA Act are repugnant to the provisions of section 6 of the LA Act; and as BDA Act has not been reserved for consideration of the President and has not received his assent, s....
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....f List III of the Seventh Schedule, the field in respect of which is already occupied by the Central Act, as amended from time to time. This Court held that if at all, BDA Act, so far as acquisition of land for its developmental activities is concerned, in substance and effect will constitute a special law providing for acquisition for the special purposes of BDA and the same will not be considered to be a part of the LA Act. The fallacy in the contention of the appellants is that it assumes, erroneously, that BDA Act is a law referable to Entry 42 of List III, while it is a law referable to Entry 5 of List II. Hence the question of repugnancy and Section 6 of the LA Act prevailing over Section 19 of BDA Act would not at all arise. 50. We may next refer to the argument that there is no enquiry as contemplated under section 5A of the LA Act. The assumption that a final declaration under section 19 has to be preceded by an inquiry, similar to what is contemplated under section 5A of LA Act, is without any basis. Section 5A of LA Act relates to hearing of objections. Sub-section (1) thereof provides that any person interested in any land which has been notified under section 4(1) a....
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....received. No personal hearing or enquiry' is contemplated. Therefore, it is impermissible to import the requirement of section 5A of LA Act in regard to acquisitions under the BDA Act. 51. In view of the above, the contention that the BDA Act has to yield to LA Act and consequently, the provisions of sections 4, 5 and 6 of LA Act will be applicable and have to be complied with for acquisitions under the BDA Act, does not have any merit and the same is rejected. Question (vi) - Re: Non-compliance with section 15 to 19 of the BDA Act. 52. The appellants contend that a clear and specific development scheme is fundamental pre-requisite for an acquisition and in the present case there was no such scheme before the acquisition was initiated. It is submitted that sanction of the Government to the development scheme is a condition precedent for publication of a declaration under Section 19(1) of the Act. It is submitted that the requirement of a sanction has been reduced to an empty formality, firstly by BDA not placing the necessary material before the Government, secondly, by government by rushing through the entire process without proper application of mind and thirdly by t....
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....i, Byrathi Khare, Thanisandra, K. Narayanapura, Rachenahalli, Sriramapura, Venkateshpura, Sampigehalli, Amruthahalli, Dasarahalli, and Jakkur). It contemplated the execution of the development in three stages: laying 4524 sites in 300 acres in the first stage, 12817 sites in 850 acres in the second stage and 7539 sites in 500 acres in the third stage, in all 24880 sites. It also gave the detailed working of the cost of the development scheme and the amount expected to be realised by allotment/sale of plots and made it clear that it will be a self-financing scheme. 55. On receipt of the said scheme report, the Surveyors of BDA made a survey and reported that about 3000 acres of land will be available in 14 villages, that is, the twelve villages mentioned in the report dated 2.1.2001 and two other villages namely Kempapura and Challakere. Therefore, the Addl. Land Acquisition Officer placed a note, reporting that surveyors had located about 3000 acres of land and suggesting that the layout may be named as Arkavathi layout instead of Hennur Devanahalli Road layout. The Commissioner agreed with the proposal on 8.10.2002 and placed the scheme before the Authority. The Authority consi....
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....o other villages were also added to provide better access to the layout will not be in violation of the scheme. Such additions were all made by the Authority prior to the issue of preliminary notification. The fact that there were changes in extent does not make the scheme vague or uncertain. Necessarily a preparation of a development scheme would contemplate survey and ascertainment of suitable available land for acquisition and preparation of a scheme. Before the scheme is finalised there will necessarily be modifications and changes. Even publication of a notification under sections 17(1) and (3) of the Act stating that the scheme has been made and specifying the lands which are proposed to be acquired is subject to a revision on consideration of representations/objections and deletions warranted. Therefore the mere fact that there were some modifications from time to time between 2001 when the initial proposal was mooted till the issue of the notification under Sections 17(1) and (3) or that some lands were omitted/deleted in the declaration under Section 19(1) will not effect the validity of the scheme. In fact deletion of some items of land or reducing the extent proposed to ....
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....) The Bangalore Development Authority has obtained the approval of the General Body to procure the sanction of the Government to the Arkavathi Layout Scheme and to procure issuances of a final notification under Section 19(1) of the Bangalore Development Authority Act, 1976 for the purpose of formation of the layout over available 2750 acres of land as per the No.43/2004 in the meeting of the Authority dated 2.3.2004. As per the approval of the General Body, the Authority has in the letters referred to above put forward a proposal seeking for the sanction of the Government for the Arkavathy Layout Scheme as well as for the issuance of the Final Notification. The Authority has informed that it will meet out of its coffers the entire expenditure that would be incurred for the proposed scheme. After executing 589 acres 12 guntas from the total extent of 3339 acres 12 guntas notified in the preliminary notification, the proposal for sanction of the scheme as per Section 18(3) of the Bangalore Development Authority Act, 1976 for the Arkavathy Layout Scheme in 2750 acres of land involving the following scheme particulars have been considered. Sy. No. Name of the Layout mate Appr....
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....ation, that is, the Authority will bear the entire expenses for Akravathi layout project from its own sources, it also noted that the BDA had informed that the preparation of the project map was at the final stage and will be furnished after completion thereof. This of course shows that the project map was not ready either on 17.2.2004 when the BDA sent its reply to the letter dated 17.2.2004 or at the time the Government granted sanction on 21.2.2004. But what is relevant to be noticed is that the project map was not one of the documents that had to be furnished by the BDA while seeking sanction of the scheme. We have already referred to the documents and particulars to be furnished by the BDA. The project map was not one of the items that had to be furnished. In fact the scheme report had been submitted by the Executive Engineer, North Division of BDA to the Engineer Member on 5.2.2004 itself and that had been made available to the Government. The Government in its reply stated that whatever particulars that were required to be furnished, had been furnished and they were satisfied that the scheme required to be sanctioned. It is only thereafter sanction was granted. We therefore ....
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.... project out of its source its self hence the necessity of getting ratification of the Finance Department for this proposal does not arise. (12) According to Rule 15 of Government of Karnataka (Execution of Business) Rules 1977, the ratification of the Cabinet is required for the expenses of project works which is more than 500 lakh rupees. On this background, the ratification of Cabinet has to be obtained for the below mentioned points: (a) To issue Government's approval for the Arkavathi Layout extension project approximately of Rs. 981.36 crores under section 18(3) of Bangalore Development Authority Act. (b) To publish final notification under section 19(1) of Bangalore Development Authority Act for the available 2750 acres land for construction of Arkavathi layout extension (page 138-1212). It may be requested Hon'ble Chief Minister for according ratification before tabling the file for ratification of the Cabinet. xxxxxxxx Chief Minister, PSCM 1180/2004/20.2.2004 (14) Pending ....
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....n 21.2.2004 in the name of the Governor granting sanction under section 18(3) of the BDA Act. The State Government also issued a final declaration under Section 19(1) of BDA Act. It is thus evident that the State Government proceeded on the basis that the order of approval of the Chief Minister for the sanction, was sufficient for grant of sanction. Even if it is to be assumed that such approval was irregular as it was made subject to ratification, as the ratification was subsequently made, the challenge for want of proper approval of the Cabinet for the sanction cannot be accepted. Question (vii): Re: Discrimination, malafides and arbitrariness: 64. We may start with the following preliminary facts: Date Stage Area proposed to be acquired (i) 2.1.2001 Initial proposal by the Executive Engineer (North) 1650 Acres (12 villages) (ii) 10.12.2002 Resolution of Bangalore Development Authority to issue a preliminary notification under sections 17(1) and (3) of the Act 3000 Acres (14 villages) (iii) 3.2.2003 Area notified in the preliminary notification under section 17(3) of BDA Act 3339 acres 12 guntas (in 16 villages) (iv)....
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....fter preliminary Notification : 1089 acres 12 guntas (iii) Extent of government lands acquired as per final notification : 459 acres (iv) Extent of private land acquired as per final notification : 2291 acres 2750 acres Another statement furnished to us shows 500 acres have been deleted under the heading "religious institutions". 66. The appellants contended that the deletion of as much as 1089 acres 12 guntas from out of 3839 acres 12 guntas proposed to be acquired under the preliminary notification would mean that more than 28% was deleted. Several deletions formed islands within the acquired areas. Some of the deletions in some villages were of such a magnitude that what remained of the acquisition in those villages were small and negligible islands completely surrounded by acquired/deleted lands making it difficult or impossible to effectively use such remaining land for development. Such an extensive deletion can lead to the following two inferences: (i) that there was total non application of mind when the proposal was made and without proper survey and by completely ignoring the ground realities about the constructed areas, suitability an....
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....ention by producing such evidence as was available with them. 69. The BDA does not seriously dispute the fact that there were some amount of arbitrariness and discrimination in the matter of inclusions and exclusions. Apart from that we find that even in this court the BDA has not come up with true and correct position. As noticed above the break up of deletions and the reasons for such deletions have not been disclosed. The extent of deletion without explanation has jumped from 589.12 acres to 1089 acres 12 guntas. The BDA has not chosen to explain the exact extent of the government land involved. 70. Even the map produced showing the 2750 acres of acquired land and 1089 acres 12 guntas of deleted area contains several discrepancies. For example, in regard to Sampigehalli, the map produced before us shows that the entire extent of the village has been acquired except the village proper (Abadi) and survey Nos.10 and 11. But we find that survey Nos.10 and 11 are not in fact deleted and the declaration shows those survey nos. as acquired. In the same village a perusal of the preliminary notification and final declaration shows that Survey Nos.38/2A, 44/10, 44/11, 44/13, 44/14, ....
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....e Road bisecting the village) is free from acquisition (except part of Sy. No.17). Even in the southern portion of the village, there are haphazard deletions. (ii) In Srirampura village, quite a few lands (Sy. No.2, 3, 7(Part), 13, 62, 64, 65) were not included in the preliminary notification even though all the surrounding areas had been notified. Further, out of total area of 196A.35G notified in the preliminary notification, only 94A.13G find a place in the final declaration and the remaining 102A.22G (more than 52% of what was notified) were deleted. The acquired lands of 94A.13G are not in a contiguous block, but in eleven odd shaped pockets. The deletions and initial omissions make it impossible to have orderly development in regard to acquisition in this village. Some of the pockets are of such odd shape and size that BDA proposes to leave them as stand alone parks/open spaces/community centres, without any development. 73. We find the haphazard and arbitrary exclusions are in several other villages also, though not to the extent in Kempapura and Sriramapura. We may refer to some of them: (i) Venkateshapura is a comparatively small village. All the....
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....velopments, about 30% to 35% of the total area is used to provide broad and adequate roads and footpaths, drains etc., and at least another 10% to 15% of the land is earmarked for parks, playgrounds and community development or civic amenities (schools, hospitals, police stations, post offices, mini markets, community halls etc). Further the layout will have adequate provision for drainage of rain water as well as sewerage water, adequate water supply and electricity, well laid metalled roads which properly connect the layout to Main Roads and other surrounding areas, by providing approaches and linkages. But in an unauthorised or illegal development, the roads are narrow and minimal, virtually no open spaces for parks and playgrounds, and no area earmarked for civic amenities. There will be no proper water supply or drainage; and there will be a mixed use of the area for residential, commercial and industrial purposes converting the entire area into a polluting concrete jungle. The entries and exits from the layouts will be bottlenecks leading to traffic jams. Once such illegal colonies come up with poor infrastructure and amenities, it will not be possible to either rectify and c....
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....o be the answer for orderly development. No small developer can develop a good township in a few acres of land. It was also thought that developers will be mainly profit motivated and will try to minimise the roads, open spaces and community areas. It is therefore that legislature constituted statutory development authorities to undertake large scale developments without any profit motive. 75. If authorities like BDA notify 3000 acres of land for development and then delete from the proposed acquisition several pockets which aggregate to about 1000 to 1500 acres, then the result is obvious. There will be no integrated development at all. What was intended to be a uniform, contiguous and continuous layout of 3000 acres will get split into small pockets which are not connected with the other pockets or will be intersected by own illegal pockets of private colonies thereby perpetuating what was intended to be prevented, that is haphazard growth without proper infrastructure. It will then not be possible to provide proper road connections and drainage and impossible to provide appropriate parks, playgrounds and civic amenities of appropriate and adequate size and situation. When a d....
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.... allotments and help them to resettle and not to continue the illegal and haphazard pockets merely on the ground that some temporary structure or a dilapidated structure existed therein. A development authority should either provide orderly development or should stay away from development. It cannot act like unscrupulous private developers//colonisers attempting development of small bits of land with only profit motive. When we refer to private developers/colonisers by way of comparison, our intention is not to deprecate all private developers/colonisers. We are aware that several private developers/colonisers provide large, well planned authorized developments, some of which are even better than developments by development authorities. What is discouraged and deprecated is small unauthorized layouts without any basic amenities. Be that as it may. 77. What do we say about a development', where with reference to the total extent of a village, one-third is not notified at all, and more than half is deleted from proposed acquisition of the remaining two-third and only the remaining about 20% to 30% area is acquired, that too not contiguously, but in different parcels and pocket....
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....y situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult ....
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....e irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been discrimination". In State of Haryana v.....
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....acres; and when the land owners apply' or approach' the Authority, 1000 acres of lands are released. Or take a case where a project required 1000 acres of contiguous land for a development project, and preliminary notice is accordingly issued for acquisition of a compact contiguous extent of 1000 acres; but thereafter without any logical explanation or perceivable reason, several large areas in the midst of the proposed layout, are denotified or deleted making it virtually impossible to execute the development scheme, as proposed. In the absence of satisfactory explanations in such a case, it may be necessary to presume that there was misuse or abuse of the acquisition process. Be that as it may. 82. We may illustrate the principle relating to positive and negative equality with reference to following notional acquisition cases: (i) Where a petitioner's land and his neighbour's land are of similar size and have similar structures and are similarly situated, and the policy of the Development Authority is to withdraw the acquisition in respect of lands which are constructed', if the neighbour's land is deleted from the proposed acquisition on....
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.... petitioners can contend that the very purpose of acquisition had been rendered infructuous by deletion of the majority of lands from the proposed acquisition, and the project or the scheme has ceased to exist and cannot be executed only with reference to their lands. In such a case, relief can be granted not on the ground that there has been discrimination, but on the ground that the proposed development scheme became non- existent on account of most of the lands being deleted from acquisition. Therefore, a land owner is not entitled to seek deletion of his land from acquisition, merely on the ground that lands of some others have been deleted. He should make out a justifiable cause for deleting his land from acquisition. If the Rules/Scheme/Policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the Rules or Scheme or policy for deletion, his land is not eligible for deletion, his land cannot be deleted merely on the ground that some other land similarly situated had been deleted (even though that land also did not fall under any category eligible to be deleted), as that would am....
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....ispossessed. The intention is that the land-loser will immediately be able to draw compensation and purchase some other suitable land or make appropriate arrangements for his livelihood. But in practice the Collectors (LAOs) seldom make reasonable offers. They tend to err on the safer' side and invariably assess very low compensation. Such meagre awards force the land-loser to seek reference to civil court for increase in compensation in regard to almost every award made by the LAO. In fact, many a time, even the reference courts are conservative in estimating the market value and it requires further appeals by the land-loser to the High Court and Supreme Court to get just compensation for the land. We can take judicial notice of the fact that in several States the awards of the reference court or the judgments of the High Court and this court increasing the compensation, are not complied with and the land-losers are again driven to courts to initiate time consuming execution process (which also involves considerable expense by way of lawyers fee) to recover what is justly due. Resultantly the land-losers seldom get a substantial portion of proper compensation for their land in....
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.... litigation cost during the course of prolonged litigation. At the end of the legal battle, he is hardly left with any money to purchase alternative land and by then the prices of land would have also increased manifold, making it impossible to purchase even a fraction of the land which he originally possessed. Illiteracy, ignorance, and lack of counselling add to his woes and the piecemeal compensation is dissipated leaving him with neither land, nor money to buy alternative land, nor any means of livelihood. In short, he is stripped of his land and livelihood." 84. Frequent complaints and grievances in regard to the following five areas, with reference to the prevailing system of acquisitions governed by Land Acquisition Act,1894, requires the urgent attention of the state governments and development authorities: (i) absence of proper or adequate survey and planning before embarking upon acquisition; (ii) indiscriminate use of emergency provisions in section 17 of the LA Act; (iii) notification of areas far larger than what is actually required, for acquisition, and then making arbitrary deletions and withdrawals from the acquisitions; (iv) ....
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....he fact that the planned development of cities and towns is itself in public interest. At present, irrespective of the purpose, in all cases of acquisition, the landloser gets only monetary compensation. Acquisitions of the first kind, does not normally create any resistance or hostility. But in acquisitions of the second kind, where the beneficiaries of acquisition are industries, business houses or private sector companies and in acquisitions of the third kind where the beneficiaries are private individuals, there is a general feeling among the land-losers that their lands are taken away, to benefit other classes of people; that these amount to robbing Peter to pay Paul; that their lands are given to others for exploitation or enjoyment, while they are denied their land and their source of livelihood. When this grievance and resentment remains unaddressed, it leads to unrest and agitations. The solution is to make the land-losers also the beneficiaries of acquisition so that the land-losers do not feel alienated but welcome the acquisition. 87. It is necessary to evolve tailor-made schemes to suit particular acquisitions, so that they will be smooth, speedy, litigation free an....
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.... part and retain a part or put it to other beneficial use. We may give by way of an illustration a model scheme for large scale acquisitions for planned urban development by forming residential layouts: Out of the total acquired area, 30% of the land area can be earmarked for roads and footpaths; and 15% to 10% for parks, open spaces and civic amenities. Out of the remaining 55% to 60% area available for forming plots, the Development Authority can auction 10% area as plots, allot 15% area as plots to urban middle class and allot 15% area as plots to economically weaker sections (at cost or subsidised cost), and release the remaining 15% to 20% area in the form of plots to the land-losers whose lands have been acquired, in lieu of compensation. (The percentages mentioned above are merely illustrative and can vary from scheme to scheme depending upon the local conditions, relevant Bye-laws/Rules, value of the acquired land, the estimated cost of development etc.). Such a model makes the land-loser a stake-holder and direct beneficiary of the acquisition leading to co-operation for the urban development scheme. 88. In the preceding para, we have touched upon matters that may be co....
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....harmony among the villagers, dividing them on the lines of those who can influence and get their lands deleted' and those who cannot'. Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number to citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition. 90. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many landlosers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those f....