ORDER
Chandrashekaraiah, J.
1. The petitioners in this Writ Petition have sought for quashing of the award in LAC.No. 411/78-79 dated 29.9.1994 and also for a mandamus directing the respondents to forbear from acquiring the land in survey No. 80 belonging to the petitioners. The petitioners have also sought for quashing of the preliminary notification dated 19.9.1977 and final notification dated 7.2.1978 issued under Section 17(1)(3) and 19(1) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as ‘the BDA Act’), in the application filed for amendment of the prayer in the Writ Petition. The said application was allowed by me on 12.7.1996.
2. The brief facts of the case are as follows:-
The first petitioner is a society and the second petitioner is the Hospital run by the 1st petitioner society. The 1st petitioner society is the owner of the land measuring 11 acres 5 guntas in survey No. 80 of Tavarekere village, Begur Hobli, Bangalore South Taluk. The said land was proposed for acquisition by the Bangalore Development Authority ( hereinafter referred to as ‘the Act’) in a notification dated 19.9.1977 issued under Section 17(1) and (3) of the BDA Act. The said notification was followed by a final notification dated 7.2.1978 issued under Section 19(1) of the BDA Act. Pursuant to the said notifications the petitioners for the first time received the notices issued under Section 9 and 10 of the Land Acquisition Act, 1894 (for short ‘the LA Act‘) in the year 1978-79. Immediately after the receipt of the said notices the petitioner-society filed its objections objecting the acquisition and requesting for dropping of the acquisition proceedings. It is also the case of the petitioners that after the filing of the objections they were assured that no further action would be taken to acquire the land in survey No. 80. Therefore, the petitioners bona fide believed that the acquisition proceedings in respect of the land in survey No. 80 have been dropped. It appears the 2nd respondent-BDA in order to form a road from the Hosur road to Sudduguntapalya running along the periphery of the petitioner’s property including the property in survey No. 80 requested the petitioners to hand over land measuring 600 mtrs.x100 mtrs by its letter dated 26.3.84. The petitioners agreed to the said request and surrendered the land by executing a relinquishment deed dated 26.11.1984. The petitioners’ society has submitted a plan which includes survey No. 80 to the BDA for approval in order to develop the said land for the purpose of Hospital and for other activities. On the said request the BDA called upon the petitioners to pay a sum of Rs. 2,00,372/- towards the developmental charges in respect of the property belonging to the petitioners-society which includes survey No. 80 also, it is stated in the petition that in the year 1995 there were some attempts by the officials of the BDA to interfere with the petitioners’ possession of land in question. At that time the officials of the BDA informed the petitioners that the land in question has been acquired. Thereafter the petitioners applied for certified copies of the award. But the respondents did not furnish the certified copy of the award as sought for. It is stated that the Land Acquision Officer has passed the award in respect of the land of the petitioners on 29.9.1994 determining the market value. After the passing of the said award no notice has been served on the petitioners under Section 12(2) of the LA Act.
3. On the abovesaid facts the petitioners have challenged the acquisition proceedings firstly on the ground that the award has been passed beyond the period as prescribed under Section 11-A of the LA Act, and alternatively it is contended that even assuming that Section 11-A of the LA Act is applicable the acquisition proceedings are vitiated as there has been an unreasonable delay on the part of the authorities in passing the award.
4. The BDA in its statement of objections has contended that in response to the notice issued to the petitioners under Section. 9 and 10 of the LA Act, the petitioners have not filed any claim petition and it is stated that even though the final notification was issued on 9.3.1978 due to administrative reasons award could not be passed immediately thereafter. At the time of spot inspection by the Special Land Acquisition Officer, though the land measuring 28 acres 18 guntas was notified for acquisition only 10 acres of land was found vacant and in respect of this vacant land, award was passed on 29.9.1994. Further, it is also stated that after passing of the award as nobody was willing to receive the notice issued under Section 12(2) of the LA Act, the notice was notified on the land in question on 9.12.1994 and possession of the land was taken on 15.12.1994. It is further stated that as the provisions of the LA Act, are not applicable to the acquisition under the BDA Act, the time limit specified under Section 11-A of the Land Acquisition Act, has no application.
5. The Learned Counsel for the BDA submitted that there is delay on the part of the petitioners in challenging the acquisition proceedings and therefore the Writ Petition is liable to be dismissed on the ground of delay and laches.
6. On these rival contentions and in the context of their submissions, the following points arise for consideration:-
1. Whether Section 11-A of the L.A.Act is applicable in respect of the lands acquired pursuant to the notifications issued under the BDA Act?
2. Assuming that Section 11-A of the L.A.Act, has no application in respect of the lands acquired pursuant to the notifications issued under the BDA Act, is that the acquisition bad on ground of unreasonable delay on the part of the authorities in passing the impugned award?
3. Is the Writ Petition liable to be dismissed on the ground of delay and laches?
7. In order to appreciate the rival contentions I feel it necessary to refer to certain provisions of the L.A.Act, and that of the BDA Act and other similar enactments.
Section 4 of the L.A.Act, provides for publication of the preliminary notification proposing to declare the land for a public purpose. Section 6 of the LA Act, provides for a declaration that the land proposed in the preliminary notification is required for a public purpose. Sub-Section 3 of Section 6 of the LA Act, reads thus:-
“3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing.”
Section 7 of the LA Act, reads as follows:-
“7. After declaration Collector to take order for acquisition. -Whenever any land shall have been so declared to be needed for a public purpose or for a Company, the appropriate Government or some officer authorised by the appropriate
Government in this behalf, shall direct the Collector to take order for the acquisition of the land.”
Section 9 of the L.A. Act, provides for notice to persons interested in passing award. Section 11 of the L.A. Act, confers power on the Collector/Deputy Commissioner to pass as award determining the market value in respect of the lands declared to be needed for public purpose. Section 11-A of the LA Act, prescribes a time limit to pass an award. Section 16 of the LA Act, confers power on the Collector/ Deputy Commissioner to take possession of the land and consequently it also provides that on taking possession the land vests absolutely in the Government free from all encumbrances.
8. A reading of the above sections it is clear that the declaration made under Section 4 of the LA Act, is only a proposal to the effect that the land is required for a public purpose. A declaration under Section 6 of the LA Act, is a declaration to the effect that the land so notified in the preliminary notification is required for a public purpose. The said notifications issued under Section 4(1) and 6(1) of the LA Act, are only to the effect that the lands are required for a public purpose. The said facts are dear by a reading of Sub-section (3) of Section 6 and Section 7 of the LA Act. In Section 6(3) of the LA Act, it is stated that after making such declaration the appropriate Government may acquire the land in manner hereinafter appearing. Section 7 of the L.A. Act, makes it clear that whenever the land is so declared to be needed for a public purpose the appropriate Government shall direct the Collector to take order for acquisition of the land. ‘Acquisition’ means procuring of property or the taking of it permanently or temporarily. In view of the provisions referred to above mere declaration that the land is required for a public purpose does not amount to acquisition. From the reading of the abovesaid provisions it is clear that the acquisition takes place only after passing of the award and after taking possession as the said land thereupon absolutely vests in the State Government.
9. Section 17 of the BDA Act, provides for proposal to acquire the lands for the purpose of implementation of the scheme framed by the BDA. Section 19 of the BDA Act, provides for a declaration that the lands proposed to be acquired by the authority for the purpose of the implementation of the scheme is required for a public
purpose. Similar provisions are also found in the Karnataka Improvement Boards Act, 1976 (for short ‘the Act of 1976’) and the Karnataka Urban Development Authorities Act, 1987 (for short ‘Act of 1987’).
10. Section 17 of the BDA Act, takes the place of the notification under Section 4(1) of the L.A.Act, and Section 19 of the BDA Act, takes the place of the notification under Section 6(1) of the L.A.Act, that is, Section 17 and 19 of the BDA Act, are equated with that of Sections 4 and 6 of the L.A.Act for the purpose of declaring that the land is required for a public purpose. The BDA Act and other similar enactments referred to above do not provide for acquisition of land. The said Acts, only provide for declaration that the land is required for a public purpose. For the purpose of acquisition in respect of the land so declared for a purpose under the BDA Act, the provisions of the L.A.Act are made applicable by reference under Section 36 of the BDA Act. Section 36(1) of the BDA Act, reads as under:-
“36(1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable of the Land Acquisition Act, 1894.”
Section 35 of the Act of 1976, and Section 36 of the Act of 1987 are also identical to Section 36(1) of the BDA Act. Now the question for consideration is – Whether the provisions of the L.A.Act, in view of the Sections referred to above which are made applicable in respect of the acquisition of the land pursuant to the declaration issued under the BDA Act, and other similar enactments was by way of incorporation or reference.
11. Sri. B.V. Acharya, learned Senior Counsel appearing for the petitioners contended that by a reading of a Section 36 of the BDA Act, it is clear that the provisions of the Land Acquisition Act, are made applicable by reference and not by incorporation. It is his submission that the procedure provided for acquisition of the land under the LA Act are applicable in respect of the lands acquired pursuant to the notification issued under the BDA Act, as amended from time to time as there is no provision providing for acquisition under the BDA Act. In support of this contention he relied upon the decision of the Supreme Court in THE LAND ACQUISITION OFFICER, CITY IMPROVEMENT TRUST BOARD, BANGALORE v. H. NARAYANAIAH AIR 1S75 SC 2403 . In the said decision, the Supreme Court had an occasion to consider the provisions of the City of Bangalore Improvement Act, 1945 (for short ‘Act of 1945). Section 27 of the Act of 1945 reads thus:-
“27. The acquisition otherwise than by agreement of land within or without the City under this Act shall be regulated by the provisions, so far as they are applicable, of the Mysore Land Acquisition Act, 1894, and by the following further provisions, namely:-”
Considering the above said section, the Supreme Court in the abovesaid case has held as follows:-
“22. There was some argument on the meaning of the words “so far as they are applicable”, used in Section 27 of the Bangalore Act. These words cannot be changed into “in so far as they are specifically mentioned” with regard to the procedure in the Acquisition Act. On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g Section 16) corresponding with that found in the Acquisition Act (e.g. Section 4(1). These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation.”
The Supreme Court in the case of THE SPECIAL LAND ACQUISITION OFFICER, CITY IMPROVEMENT TRUST BOARD, MYSORE v. P. GOVINDAN
considered Section 23 of the City of Mysore Improvement Act, 1903, with reference to an amendment introduced to the LA Act, 1894 by Amendment of Act 1927, to the effect that the relevant date for the purpose of determination of the
market value is the date of notification under Section 4(1) of the LA Act, has held as follows:-
“7. If the procedure that the market value should be determined with reference to Section 6 of the Acquisition Act, had been replaced by an amendment of 1927, by the provision that the relevant date will be the date of notification under Section 4(1) of the Acquisition Act, we will really have to determine what is the equivalent in the Mysore Act of proceedings under Section 4(1) of the Acquisition Act. The provision relating to determination of compensation with reference to Section 6 having disappeared was no longer available to be applied at all on the date of the acquisition with which we are now concerned. Hence, to argue that the equivalent of Section 6 notification under the Acquisition Act should govern even proceedings commenced after the amendment would be to apply what had ceased to exist long before the proceedings commenced. The amendment of Section 23(1) of the Acquisition Act meant a legally valid substitution of the notification under Section 4(1) for the one under Section 6 of the Acquisition Act. This implied an effective repeal and replacement. In such a situation, according to Section 6 of the Mysore General Clauses Act, only proceedings commenced before the repeal would be governed by the unamended procedure. We think that the language of Section 23 of the Mysore Act applies the provisions of the Acquisition Act to acquisitions under the Mysore Act, except to the extent of express deviation by the Mysore Act from the general procedure in the Acquisition Act as amended from time to time. The procedure contained in the Acquisition Act, for the time being, did not need to be expressly applied once again after each amendment of the Acquisition Act, as the Mysore High Court seems to have opined. It was enough to lay down, as Section 23 of the Mysore Act does, that the general procedure found in the Acquisition Act will apply except to the extent it was inapplicable. This means that amendments of the procedure in the Acquisition Act will apply if it is capable of application.” (emphasis supplied.)
Section 23 of the City of Mysore Improvement Act, 1903 reads thus:-
“The acquisition otherwise than by agreement of land within or without the city under this Act, shall be regulated by the
provisions so far as they are applicable to the L.A.Act, 1894 and
by the following two further provisions.”
In the abovesaid decision, the amendment introduced to the L.A.Act, applied for the purpose of awarding compensation in respect of the land declared as land required for public purpose under the Mysore Act, considering Section 23 of the said Act which is identical with that of Section 36 of the BDA Act.
12. The decisions rendered in H. Narayanaiahs and P. Govindan’s cases are referred to by the learned Judges of the Supreme Court in their separate Judgments with approval in the case of GAURI SHANKAR GAUR AND ORS. 1904(1) SCC 92 v. STATE OF U.P. AND ORS., wherein His Lordship Justice K. Ramaswamy with reference to the above referred cases has stated as follows at para-25 of the Judgment:-
“25. In Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah, Section 27 of the City of Bangalore Improvement Act, 1945 enables the Officer to apply the procedure in the Land Acquisition Act, to the Acquisition therein except to the extent the Bangalore Act, provided different procedure. It was contended that L.A. Act, was applicable by incorporation. Considering the scope and purpose of this Act, this Court held it to be by reference and applied Section 23 of the Land Acquisition Act to determine the market value. In Special Land Acquisition Officer City Improvement Trust Board, Mysore v. P. Govindan, a Full Bench of the Mysore High Court held that the date of the determination of the compensation under Section 23(1) of the L.A. Act was the date of the notification under Section 18 of the local Act which corresponds to Section 6 of the declaration of the Land Acquisition Act. This Court held that Section 23 of the Mysore Act provided that compensation for acquisition shall be governed by the Land Acquisition Act as they exist on the date of a particular acquisition proceedings “except to the extent to which a different procedure is expressly laid down in the Mysore Act.” No such different procedure was provided therein. In that background it was held that the L.A.Act was applied only by reference and the date to determine the market value was the date of the notification under Section 16 of the Mysore Act,
corresponding to Section 4(1) of L.A. Act. At this stage it is relevant to notice that this Court laid emphasis that Section 23 of the Mysore Act declared that “the general procedure provided in the Land Acquisition Act will apply except to the extent it was inapplicable.” That would mean that “amendment of the procedure in the Acquisition Act will apply if it is capable of application”. The emphasis laid by the counsel was that, the departure from the generally accepted procedure which regulates acquisition and compensation for it has to be something more explicit, express and substantial than mere date of the enactment of the Mysore Act”. The emphasis pointed out must be considered in the light of the language used in that Act…..”
37. …….Therefore, compulsory acquisition is only incidental to the main purpose. It is seen that in Narayanaiah and Govindan cases this Court emphasised that the Improvement Act has provided a special procedure for improvement of the city of Bangalore and urban areas. There is no express incorporation in those Acts of the Land Acquisition Act. Therefore, by reference they are made applicable.”
13. His Lordship Justice R.M. Sahai J, in para-44 of the abovesaid Judgment has stated as follows:-
“Special Land Acquisition Officer City Improvement Trust Board, Mysore v. P. Govindan was a case where this Court applied subsequent amendment in L.A. Act, adopted by the City Improvement Act Mysore, as the provision relating to compensation was a matter of procedure and any law dealing with procedure is retrospective in operation.”
From a reading of the abovesaid passages from the decision in the case of Gauri Shankar Gaur, it is dear that the provisions of Section 27 of the City of Bangalore Improvement Act, 1945 and Section 23 of the City of Mysore Improvement Act, 1903 provides for application of the provisions of the LA Act, by reference.
14. Relying on these decisions, it is contended by the Learned Counsel for the petitioners that Section 11-A of the L.A. Act, is applicable in respect of the land acquired pursuant to the notifications issued under the BDA Act. Since the Supreme Court considering the provisions which are similar and identical with that of Section 36
of the BDA Act, has held that the provisions of L.A.Act, are adopted into the local Act, by way of reference, it is further contended that in the case on hand as the award not having been passed within two years from the date of declaration of the final notification the entire acquisition proceedings have lapsed.,
15. Sri T.S. Ramachandra and Sri P. Krishnappa, Learned Counsel who assisted the Court also supported the case of the petitioners on the line of the arguments advanced by Sri B.V. Acharya.
16. Sri H.B. Datar, learned Senior Counsel for the BDA., submitted that the LA Act has been adopted under Section 36 of the BDA Act, by incorporation and therefore the provisions pf the LA Act are applicable as on the date the BDA Act came into force (which came into force on 20.12.1975) and any such amendment introduced to the LA Act, thereafter has no application and accordingly the Learned Counsel submitted that the time limit specified under Section 11-A of the LA Act is not applicable for the purpose of passing an award by the LAO in respect of the land acquired pursuant to the notifications issued under the BDA Act. In support of this contention he relied on a decision of this Court in the case of KRISHNAMURTHY v. BANGALORE DEVELOPMENT AUTHORITY, wherein this Court has held as follows:-
“The next ground urged on behalf of the appellant that Section 11A of the Land Acquisition Act, is applicable to the facts of the case is not at all tenable in view of the decision of this Court in WA.321-322/1989 disposed of on 6.10.1989 wherein it was held that Section 36 does not enable to hold that Section 11A of the Land Acquisition Act which was introduced into that Act in 1984 would govern the acquisition under the BDA Act. Identical view has been taken by the supreme Court in STATE OF MAHARASHTRA AND ANR. v. SANT JOGINDER SINGH KISHAN SINGH AND ORS., AIR 1995 SC 218. It is stated therein that the plea that since the award has not been made within 2 years from the date of publication under the Maharashtra Act under Section 126(2) thereof by operation of Section 11A of the Central Act, the Notification published under Section 125 of the Act shall be deemed to have been lapsed and the authorities are devoid of jurisdiction to proceed further is not tenable. The rationale adopted
by Their Lordships is that wherever the Legislature intended to apply specific procedure or the fetters in exercising the power under the Central Act, it did no specifically. After the Central Act 68/1984 came into force no steps had been taken by the State Legislature to amend the Act introducing or incorporating Section 11A of the Central Act as part of the Act. Since the Legislature has incorporated specific provisions of the Central Act, the necessary conclusion is that Legislature did not intend to un-specify the provisions of the Central Act for exercise of power under the Act. If the Legislature would have merely adopted the Central Act, subsequent amendment to that Act made under 68/ 1984 Act would have been applicable per se. That is not the position in this case.”
The Division Bench of this Court in the aforesaid decision have held that Section 11-A of the LA Act, is not applicable holding that after the amendment Act 68/1984 came into force, no steps have been taken by the State Legislature to amend the Act, introducing or incorporating Section 11-A of the LA Act, as a part of the BDA Act. This decision has been rendered without reference to the decisions of the Supreme Court in H. Narayanaiah, P. Govindan and Gauri Shankar Gaur and Ors. (supra), but the Division Bench following the decision in the case of STATE OF MAHARASHTRA AND ANR. v. SANT JOGINDER SINGH KISHAN SING AND ORS. AIR 1995 SC 218
proceeded to hold that Section 11-A of the LA Act, is not applicable to the acquisition pursuant to the notifications issued under the BDA Act.
17. In Sant Joginder Singh (supra) the Supreme Court has held that Section 11-A of the Central Act has no application in respect of the acquisition under the Maharashtra Regional and Town Planning Act, 1966, since under Section 128 of the Maharashtra Act, only Sections 16, 17 and 24 of the Central Act are incorporated as part of the Maharashtra Act, whereas in the case of the BDA Act, the entire provisions of the LA Act, insofar as it relates to the acquisition are made applicable by way of reference. The Judgment rendered by the Division Bench of this Court in Krishnamurthy’s case (supra) is without any reference to the decisions of the Supreme Court referred to above, interpreting the provisions which are identical with that of Section 36 of the BDA Act.
18. Sri H.B. Datar, learned Senior Counsel relied on another decision of this Court rendered in Writ Appeals. 321-322 of 1989 disposed of on 6.10.1989 WA 321-2/1989:DD:6.10.1989, wherein similar view is taken relating to application of Section 11-A of the LA Act on the ground that as against the said decision a Special Leave Petition has been dismissed by the Supreme Court in G. NARAYANASWAMY REDDY v. GOVT. OF KARNATAKA
.
19. After going through the abovesaid decision of the Supreme Court, I am of the view that the Special Leave Petition has been dismissed by the Supreme Court not on the ground that Section 11-A of the LA Act has no application in respect of the lands acquired under the BDA Act, but on the ground of suppression of material facts. The Supreme Court in the abovesaid case has proceeded on the assumption that Section 11-A of the LA Act, is applicable even in respect of the lands acquired under the BDA Act. The said Judgment reads as follows:-
“2. The petitioners were the owners of certain lands which were acquired by the respondents under the provisions of Sections 17 and 19 of the Bangalore Development Act, 1976 (hereinafter referred to as “the Bangalore Act“). Under the provisions of Section 36 of the Bangalore Act, where the acquisition is otherwise than by agreement, it will be regulated by the provisions, as far they are applicable, of the Land Acquisition Act, 1894 (hereinafter referred to as “the Land Acquisition Act“). Section 11-A of the Land Acquisition Act, which section was included in the said Act in 1984 as set out hereinafter, very briefly stated, provides that the Collector must make his award within two years from the date of the publication of the declaration and that if no award is made within that period, the entire proceedings for acquisition of the land shall lapse. Under the Explanation to the first proviso to Section 11-A, “the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded”. It was, inter alia, contended by the petitioners that as the awards in these cases have not been made within two years of the notification making the declaration under Section 4 of the Land Acquisition Act, the entire acquisition proceedings had lapsed. That contention
was repelled along with certain other contentions in the judgment of the High Court which is sought to be impugned before us. The relevant dates which have to be borne in mind in this connection are as follows:
The notification making the declaration under Section 4 of the Land Acquisition Act in respect of the lands in question was made on September 20, 1977. On September 20, 1984, Section 11-A which introduced into the Land Acquisition Act, by the Land Acquisition (Amendment) Act, 1984, was brought into force. Under the first proviso to Section 11-A it was prescribed that where the said declaration (under Section 4 of the Land Acquisition Act) has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award must be made within a period of two years from such commencement. Thus, the award should have been made within two years from September 20, 1984. On September 11, 1985, the petitioners obtained an interim order from this Court directing status quo with regard to the possession of the lands in question in Special Leave Petition No. 294 of 1985 preferred against the order of the Karnataka High Court dated August 14, 1984, with which we are not directly concerned here. The said Special Leave Petition No. 294 of 1985 was dismissed on April 29, 1987. On December 16-17, 1987 two Writ Petitions were filed by the respective petitioners in the Karnataka High Court challenging the acquisition on the ground that the awards were not made within the stipulated time. In these two Writ Petitions, the Karnataka High Court granted interim stay of further proceedings in respect of the acquisition of the said lands. These petitions were dismissed by the learned single Judge of that High Court on November 29, 1988. Appeals against the decision of a learned single Judge were dismissed by the Karnataka High Court on October 6, 1989, by a Division Bench of that High Court. The petitioners preferred these Special Leave Petitions, namely, S.L.P.Nos. 823 and 824 of 1990 against the decision of the Division Bench of that High Court, and obtained an interim stay of dispossession therein. Whatever the ultimate effect of the stay orders, in view of the provisions of Section 11-A of the Land Acquisition Act, to which we have already referred earlier, it is beyond dispute that the fact of the stay orders was highly material in the determination of these Special Leave Petitions. Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know
about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions.” The reading of the above decision it is dear, as stated earlier that the Supreme Court even in Narayanswamy Reddy’s case (supra) has proceeded on the assumption that Section 11-A of the LA Act, is applicable in respect of the lands acquired under the BDA Act.
20. It is in the submission of Sri H.B. Datar, learned Senior Counsel that the provisions that are inserted to the L.A.Act, by Amendment Act, 68 of 1984, including Section 11-A have no application in respect of acquisition, pursuant to the Notification issued under the BDA Act, and consequently the proceedings of Acquisition would not lapse. If this submission is accepted it would lead to absurd results as it results in discrimination in the matter of awarding compensation.
21. Section 11-A of the LA Act, was introduced by Amendment Act 68 of 1984. By the abovesaid Amendment Act, certain other provisions are also introduced to the L.A.Act, under which the land owner is entitled to get higher solatium, additional market value and higher rate of interest. After the Amendment Act of 1984 came into force the land owner is entitled for higher solatium, additional market value and higher rate of interest in addition to the market value. If Section 11-A of the LA Act has no application in respect of lands acquired pursuant to the notifications issued under the BDA Act, on the ground that there is no corresponding amendment to the BDA as held by this Court in Krishnamurthy’s case, the other provisions under which higher solatium and other benefits have been given also have no application since the said provisions are inserted into Central LA Act along with Section 11-A by Amendment Act 68 of 1984. In that event it would result in discrimination in the matter of awarding compensation because if the land is acquired under the LA Act, the landowner is entitled for higher solatium, higher rate of interest and additional market value, whereas if the land is acquired under the BDA Act, the land owner will not be entitled to any of the abovesaid statutory benefits.
22. Now the question for my consideration is whether the decision rendered by the Division Bench of this Court in the case of Krishnamurthy (supra) is to be treated as given per incuriam in view of the decisions of the Supreme Court interpreting similar provisions as that of Section 36 of the BDA Act. The Supreme Court in the case of H. Narayanaiah P. Govindan and Gauri Shankar Gaur (supra) has dearly stated that the provisions of the LA Act, are made applicable by way of reference.
23. The Supreme Court in the case of MUNICIPAL CORPORATION OF DELHI v. GURNAM KAUR
has held as follows:-
“11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das’ case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incurium when it is given in ignorance of the terms of a statute or a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn, explains the concept of sub silentio at p. 153 in these words:
“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome the decision is not an authority on point B. Point B is said to pass sub silentio”
This Court in the case of CHURCH OF SOUTH INDIA TRUST ASSOCIATION v. SAMPANGIRAMAN 1979(1) KLJ 85
has held as follows:-
“The learned Advocate appearing for the respondent-tenant, however, strenuously argued that the decision rendered by the Division Bench of this Court in the case of Govindaswamy v. Pannalal (1), has, by some inadvertance, not noticed the positive provision made in the Act under Section 21 and further that the Division Bench had ignored a direct decision of the Supreme Court on the point in the case, Bhaiya Punjalal v. Dave Bhagawatprasad (2), Thus, he submitted that it is a decision given per in curiam and hence, could not be a binding precedent At best, it could be construed as binding on the parties to the proceeding in that case.
A decision is given per in curiam when the Court has acted in ignorance of a previous decision of its own or of any Court of co-ordinate jurisdiction which covered the case before it or when it has acted in ignorance of a decision of the superior Court and if it is a decision given per in curiam ignoring by inadvertence a decision of the Supreme Court on the point, it is obvious that the decision cannot be a binding precedent as the view taken by the Supreme Court on a question of law binds all Courts under Article 141 of the Constitution of India.”
In view of the above decisions I hold that the decision rendered in Krishnamurthy’s case is given per in curiam as there is no reference or consideration of the decisions of the Supreme Court referred to
above. The decision of the Supreme Court is binding on this Court and therefore following the decision of the Supreme Court referred to above, I hold that Section 11-A of the LA Act, is applicable in respect of acquisition pursuant to the notifications issued under the BDA Act.
24. Incidentally, it is contended that the time limit specified in the proviso to Section 6(1) of the LA Act, is applicable in respect of the notifications to be issued under Section 19(1) of the BDA Act. Under the BDA Act, there are specific provisions for the purpose of declaring that the land is required for implementation of the scheme, that is, for a public purpose. The Supreme Court in the case of H. Narayanaiah, has held that the notification issued under Section 18 of the City of Bangalore Improvement Act, is equated with that of Section 6 of the LA Act, and Section 16 of the Bangalore Act is equated with that of Section 4 of the LA Act. In the instant case also Section 17(1) of the BDA Act, is equated with Section 4(1) of the LA Act and Section 19(1) of the BDA Act is equated with Section 6(1) of the LA Act. When there are specific provisions for a declaration to the effect that the land is required for public purpose under the BDA Act, the provisions of the LA Act have no application. Therefore, it cannot be said that the time limit specified under the proviso to Section 6(1) of the LA Act, for the purpose of issuing a final notification are applicable for the purpose of issuing the notification under Section 19(1) of the BDA Act.
25. At the same time it cannot be said that the authorities are at liberty to issue final notification as and when they desire. When once power is conferred on the authorities under a Statute, it must be exercised within a reasonable time. If the power so conferred is not exercised within the reasonable time it amounts to unreasonable exercise of power. The Supreme Court in the case of RAM CHAND v. UNION OF INDIA 1994(1) SCC 45
, has held as follows:-
“14. The Parliament has recognised and taken note of the inaction and non-exercise of the statutory power on the part of the authorities, enjoined by the provisions of the Act to complete the acquisition proceedings within a reasonable time and because of that now a time limit has been fixed for making of the award,
failing which the entire proceeding for acquisition shall lapse. But, can it be said that before the introduction of the aforesaid amendment in the Act, the authorities were at liberty to proceed with the acquisition proceedings, irrespective of any schedule or time-frame and to complete the same as and when they desired? It is settled that in a statute where for exercise of power no time-limit is fixed, it has to be exercised within a time which can be held to be reasonable.”
As held by the Supreme Court in the abovesaid decision, the authorities are expected to exercise their power within the reasonable time. The inaction or non-exercise of the statutory power under the BDA Act or under other similar enactments has made the land owners to suffer substantial damage and injury. I take judicial notice of certain facts that on account of unreasonable delay on the part of the authorities in issuing the final notification, the land owners presuming that the authorities have abandoned the acquisition proceedings moved the authorities for permission to use their land for non-agricultural purpose and thereafter obtained licences under the relevant enactments and established the Industries. In some cases the Government itself after the publication of the preliminary notification permitted the land owners to utilize the land for Group Housing Schemes. Under the LA Act, the land owner is not entitled for compensation for the developments made subsequent to the preliminary notification since the relevant date for determining the market value is the date of preliminary notification. Further, the delay in issuing the final notification also came in the way of land owners in enjoying their property in the manner in which they want to enjoy as they could not develop the property subsequent to the issuance of preliminary notification.
26. For the reasons stated above and also in order to avoid the injury that may be caused to the land owners on account of the unreasonable delay in issuing the final notification I propose to specify the time limit for issuing final notification. As per proviso to Section 6(1) of the L.A. Act, one year time is specified for issuing the final notification from the last date of the publication of the notification under Section 4(1) of the LA Act, with a view to complete the acquisition proceedings as early as possible. The one year period so specified under the L.A. Act, cannot be said to be a reasonable time so as to specify the same time limit in respect of similar notification to be issued under the BDA Act and other similar enactments in the State of Karnataka. Section 17(1) of the BDA Act, is little different from Section 4(1) of the L.A. Act. In Section 4(1) of the LA Act, the last date of publication of the notification is the date for the purpose of calculating one year period. There is no such date mentioned or provided for in Section 17(1) of the BDA Act, for the purpose of calculating the period. The extent of lands required under the enactments providing for development of Cities and Towns may be much more than the lands acquired under the L.A. Act. Therefore, taking into consideration all these facts, I find that three years time as reasonable for the purpose of issuing the final notification from the date of the publication of the preliminary notification in the official gazette in respect of the lands required for public purpose under the BDA Act, or under any other enactment in the State of Karnataka which provide for acquisition of land for a public purpose, excluding the period during which any action or proceedings to be taken in pursuance of the preliminary notification is stayed by any order of a Court. I am conscious of the fact that the Court cannot legislate law. But the time limit specified by me as stated above does not amount to introducing something into the enactment, but only declaring as to what is the reasonable time to exercise statutory power in the context of the Acquisition proceedings. The time limit so specified by me in this regard is to be applied prospectively because of the fact that the authorities till now were guided by the decision of the Courts in issuing final notifications. Further, this specification of time if it is to be applied retrospectively, it would come in the way of implementation of the scheme so framed by the authorities and also it would defeat the object of the acquisition of land for a public purpose wherever acquisition proceedings are completed. The observation that this order is applicable prospectively, will not come in the way of examining the reasonableness on the part of the authorities in exercising its power in issuing the final notification with reference to the facts of each case.
27) Point No 2:-
As I have held that Section 11-A of the L.A. Act, is applicable for the purpose of passing the award in respect of the land declared to be required for a public purpose under the BDA Act, there is no reason to consider the point No. 2 raised for determination in this Writ Petition. However, I find it necessary to consider whether the exercise of statutory power by the Authorities in passing the award beyond reasonable time, results in vitiating the Acquisition proceedings, alternatively in view of the decision of the Supreme Court in Ramchand’s case (supra).The Supreme Court in the said case has held as follows:-
“26. There appears to be some force in the contention of the petitioners that the object of respondents was to peg the price of the lands acquired from the different cultivators to a distant past and not to proceed further because if the awards had been made soon after the declaration under Section 6, respondents had to pay or tender the compensation to the claimants, which for some compulsion, respondents were not in a position to pay or tender them. But nonetheless, the exercise of power in the facts and circumstances of the cases by the respondents has to be held to be against the spirit of the provisions of the Act, tending towards arbitrariness. In such a situation this Court in exercise of power under Article 32 and the High Court under Article 226, could have quashed the proceedings”.
In the instant case the final notification was issued in the year 1978, whereas the award has been passed in the year 1994, that is, almost after about 16 years. The BDA has assigned no reasons for the delay in passing the award except stating that the delay is due to administrative reasons. Thus, it is clear that there is no acceptable explanation by the BDA for the delay in passing the award. For these reasons I hold that the proceedings of acquisition of the land which is the subject matter of the award are vitiated.
28) Point No. 3:-
The Learned Counsel for the BDA contended that the Writ Petition is liable to be dismissed on the ground of delay and laches. It is true that the present petition has been filed after a long period of 16 years from the date of final notification. After the issuance of the final notification the petitioner-society submitted a layout plan in respect of the lands which include the land bearing survey No. 80 with a view to develop the said land. The BDA has approved the plan and called upon the petitioner to pay the developmental charges.
Thereafter the BDA has not taken any steps to pass the award even though objections were filed pursuant to the notice issued under Sections 9 and 10 of the LA Act, in the year 1978-79. The land even according to the BDA has not been utilised for any developmental activities. When such being the case it is not proper for this Court to reject the petition solely on the ground of delay and laches. The Supreme Court in Ramchand’s case (1994(1)SCC 45), while considering the question of delay has held as follows:-
“According to us, the question of delay in invoking the writ jurisdiction of the High Court under Article 226 or of this Court under Article 32, has to be considered along with the inaction on the part of the authorities, who had to perform their statutory duties. Can the statutory authority take a plea that although it has not performed its duty within a reasonable time, but it is of no consequence because the person, who has been wronged or deprived of his right, has also not invoked the jurisdiction of the High Court or of this Court for a suitable writ or direction to grant the relief considered appropriate in the circumstances? The authorities are enjoined by the statute concerned to perform their duties within a reasonable time, and as such they are answerable to the Court why such duties have not been performed by them, which has caused injury to claimants. By not questioning, the validity of the acquisition proceedings for a long time since the declarations were made under Section 6, the relief of quashing the acquisition proceedings has become inappropriate, because in the meantime the lands notified have been developed and put to public use. The lands are being utilised to provide shelter to thousands and to implement the scheme of a planned city, which is a must in the present set-up”.
“25….. But, taking into consideration that in most of the cases the Delhi Administration and Delhi Development Authority have taken possession of the lands and even developments have been made, it shall not be proper exercise of discretion on the part of this Court to quash the proceedings because, in that event, it shall affect the public interest. Moreover, third party interests created in the meantime are also likely to be affected and such third parties are not impleaded. The relief of quashing the acquisition proceeding having become inappropriate due to the subsequent events, the grant of a modified relief, considered appropriate in the circumstances, would be the proper course to adopt. The High Court or this Court, can grant a modified relief taking into consideration the injury caused to the claimants by the inaction on the part of respondents and direct payment of any additional amount, in exercise of power under Article 226 of Article 32 of the Constitution.”
A reading of the above it is dear that the Supreme Court declined to grant the relief of quashing the proceedings as the lands notified have been developed and put to public use and also because of the fact that third parties interests created in the meantime. In the case on hand, the land has not been utilised for development and it continues to be vacant and no third parties interests are involved. Therefore, I am of the opinion that the delay if any on the part of the petitioner in approaching this Court will not come in the way of granting relief in favour of the petitioners under Article 226 of the Constitution.
29. Accordingly, Writ Petition is allowed;
a) The Award in LAC No. 411/78-79, dated 29.9.1994 (Annexure-A) is quashed;
b) The notifications dated 19.9.1977 issued under Section 17(1)&(3) and 7.2,1978 under Section 19(1) of the BDA Act, are declared as vitiated insofar as it relates to the land measuring 10 acres in survey No. 80 of Tavarekere Village, Begur Hobli, Bangalore South Taluk.
c) The Authorities conferred with the power of issuing declaration, requiring the land for public purpose, under the BDA Act, or under any other enactment in the State of Karnataka are directed to issue final notification within three years from the date of the publication of the preliminary notification published in the official gazette excluding the period during which any action or proceedings to be taken in pursuance of the preliminary notification is stayed by way of order of a Court. Any declaration contrary to this direction, vitiates the acquisition proceedings. This direction is prospective in its application.
