Non-reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6662-6670 OF 2002
Vasanth Sreedhar Kulkarni and others ......Appellants
Versus
State of Karnataka and others ......Respondents
With
CIVIL APPEAL NOS. 6671-6676 OF 2002
Mumtaz Begum Imam Husen
Maribalkar and others ......Appellants
Versus
State of Karnataka and others ......Respondents
J U D G M E N T
G.S. Singhvi, J.
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1. Whether Vasanth Sreedhar Kulkarni, Eshwar Gouda Burma
Gouda Patil and Ms. Mehrunnisa Mahazuz Husen Maniyar (appellants
in C.A. Nos. 6662-6670/2002) had the locus to question the allotment
of sites to the private respondents from land bearing survey Nos. 533/1,
534A and 534B of village Kanabargi, Belgaum despite the fact that the
writ petitions filed by Vasanth Sreedhar Kulkarni and Eshwar Gouda
Burma Gouda Patil had been dismissed by the High Court in 1996 and
also the fact that they claim to have sold the acquired land and whether
the purchasers were entitled to contest writ petitions filed by the
allottees of the acquired land are the questions which arise for
consideration in these appeals filed against judgments dated 14.12.1999
and 04.04.2000 of the Division Benches of the Karnataka High Court.
2. In 1976, the Legislature of the State of Karnataka enacted the
Karnataka Improvement Boards Act, 1976 to provide for constitution
of Improvement Trust Boards in some cities with powers and duties for
ensuring regulated development of urban areas. The Belgaum City
Improvement Trust Board, which was one among several Trust Boards
constituted by the State Government framed Scheme Nos. 35, 43 and
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43A for formation of residential and commercial layouts in Kanabargi
village, Belgaum. For implementation of Scheme No. 43, notification
dated 6.11.1987 was issued. However, before further steps could be
taken in the matter, the State Legislature enacted the Karnataka Urban
Development Authorities Act, 1987 (for short, `the 1987 Act’) which
envisaged the establishment of Urban Development Authorities for the
planned development of major and important urban areas in the State.
The Belgaum Urban Development Authority (for short, `the BDA’)
was constituted under Section 3 of the 1987 Act. After some time, the
BDA undertook the task of implementing Scheme Nos. 35, 43 and 43A
of Kanabargi covering an area measuring 336 acres 6 guntas by
involving revenue survey Nos. 529, 531 to 549, 553P, 556 to 562, 564
to 570, 571P, 572 to 677 at an estimated cost of Rs.25.35 crores.
Notification dated 16.8.1991 was issued under Section 17(1) of the
1987 Act in respect of land comprised in survey Nos. 533/1, 534/A and
534/B owned by Vasanth Sreedhar Kulkarni, Kashibai Patil and
Eshwar Gouda Burma Gouda Patil respectively for implementing
Scheme No.43. By an order dated 9.6.1994, the State Government
accorded sanction under Section 18(3) of the 1987 Act for formation of
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4065 sites from the aforesaid survey numbers. The relevant portions of
the English translation of that order, which has been made available by
learned counsel for the State of Karnataka are extracted below:
“Belgaum Urban Development Authority, Belgaum
informed the Government that, by preparing Scheme
No.35,43,43 A of Kanabargi it would form totally 4065 in
an area measuring 336 acres and 06 gunthas by involving
R.S. Nos. 529, 531 to 549, 553P, 556 to 562, 564 to 570,
57IP, 572 to 677, and the estimated cost of the Scheme in
Rs. 25.35 Crores and from the Scheme the income to the
Authority is Rs. 27,88,84,000.00, and the net income to
the Authority would be Rs. 2,53,81,000.00, and this is self
economically aided scheme and the Authority would not
claim any assistance from the Government. It is further
stated that in this scheme 20 x 30 sites have reserved for
economically weaker sections and a provision has been
made for water supply, drainage and electricity the
estimated cost of the scheme and area is reserved for
garden, playground and Civic Amenity sites, as per Sub
Section (c) and (d) of Section 16 of the Karnataka Urban
Development Authorities Act 1987. Hence, requested for
according administrative approval for the said scheme.
Government Order in No.HUD/446/MIB, Bangalore,
Dated 9th June 1994.
After considering the proposal of the letter the
Commissioner,
Belgaum Urban Development Authority, Belgaum in the
above read, the sanction is accorded under section 18(3)
of the Karnataka Urban Development Authorities Act
1987, for formation of 4065 sites at a cost of Rs. Rs. 25.35
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Crores to the Kanabargi Scheme No.35, 43, 43A of
Belgaum Urban Development Authority, Belgaum in
lands measuring 336 gunthas, subject to the following
conditions.
xxxx xxxx xxxx”
3. Thereafter the State Government issued Notification under
Section 19(1), which was published in Karnataka State Gazette dated
1.9.1994 in respect of survey No.533/1 measuring 5 acres 7 guntas
belonging to Vasanth Sreedhar Kulkarni and survey Nos. 534/A and
534/B measuring 3 acres and 22 guntas belonging to Smt. Kashibai
Patil and Eshwar Gouda Burma Gouda Patil. The Special Land
Acquisition Officer, BDA, who was appointed by the State
Government to exercise the powers of the Deputy Commissioner under
Section 3(c) of the Land Acquisition Act, 1894 (for short, `the 1894
Act’) issued public notice dated 16.9.1994 and informed the
landowners and persons having interest in the land that various survey
numbers including survey Nos. 533/1, 534A and 534B have been
included in Scheme Nos. 35, 43 and 43A.
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4. The award prepared by the Special Land Acquisition Officer was
approved by the State Government vide order dated 11.12.1995 and
was published on 13.12.1995. On the next date i.e., 14.12.1995, notice
was issued to the landowners under Section 12(2) of the 1894 Act. The
possession of land comprised in survey No.534/A+C was taken on
1.1.1996 and name of the BDA was mutated in the revenue records.
5. In the meanwhile, Vasanth Sreedhar Kulkarni and Eshwar Gouda
Burma Gouda Patil filed Writ Petition Nos. 30236 and 30237 of 1994
questioning the notifications issued under Sections 17(1) and 19(1) of
the 1987 Act. Smt. Kashibai Patil and one Shri Malappa also filed
similar writ petition bearing Nos. 30927/1994 and 30928/1994. All the
writ petitions were dismissed by the learned Single Judge on 19.4.1996.
The applications filed by the writ petitioners under Order IX Rule 13
read with Section 151 CPC for recalling that order on the ground that
their counsel could not appear on the date of hearing were dismissed by
the learned Single Judge vide order dated 18.6.1996 by observing that
the writ petitions had been dismissed on merits.
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6. After dismissal of the writ petitions, possession of land
comprised in survey Nos. 533/1 and 534/B was also taken by the
competent authority and entries were made in the record of rights in the
name of the BDA, which then formed 112 sites, carried out
development works like construction of roads at a cost of Rs.43 lacs
and allotted 82 sites to the eligible persons between 31.3.1997 and
20.3.1999. 45 of the allottees executed lease-cum-sale agreement by
depositing the entire amount. 8 allottees also started construction of the
houses. 17 allottees took steps for execution of lease-cum-sale
agreement and the remaining 22 allottees made partial payment of the
cost of land.
7. After the issuance of notifications under Sections 17(1) and 19(1)
of the 1987 Act, the landowners entered into some clandestine
transactions with Allahuddin Khan, who was described as their General
Power of Attorney and the latter created large number of documents on
ten rupees stamps showing sale of small parcels of land to Smt.
Mumtaz Begum and others.
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8. After taking possession of the acquired land and making the
allotment of sites, the BDA demolished unauthorized constructions
made by some of those to whom small parcels of land are said to have
been sold by Allahuddin Khan. At that juncture, Allahuddin Khan and
others made representation dated 27.2.1998 to the Commissioner, BDA
for release of land comprised in survey Nos. 533/1, 534/A and 534/B
by stating that 120 persons belonging to weaker sections of the society
have constructed houses after taking loan and even the scheme
sanctioned by the State Government envisages allotment of 52% plots
to the persons belonging to backward classes and weaker sections of
the society.
9. The then Chairman and three other members of the BDA made
spot inspection on 12.3.1998 and prepared a report with the suggestion
that land measuring 8 acres 29 guntas, which had been unauthorisedly
sold by the landowners to the poor persons on ten rupees stamp papers
may be deleted in favour of the purchasers by collecting development
charges. The matter was then considered in the meeting of the BDA
held on 16.3.1998 and despite the strong opposition by the
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Commissioner, it was decided to recommend regularization of the
transfers made by the landowners by deleting survey Nos. 531/1, 534/A
and 534/B from the notifications issued under Sections 17(1) and 19(1)
of the 1987 Act. The resolution of the BDA was forwarded to the
State Government vide letter dated 3/4.6.1998. After about 3 months,
the Commissioner sent D.O. letter dated 2.9.1998 to the Principal
Secretary, Urban Development Department, State Government
detailing the reasons for not deleting land comprised in 3 survey
numbers. He pointed out that the plots have already been carved out
and allotted to different persons at a price of Rs.1,73,56,000/-.
However, the State Government accepted the recommendations
contained in the resolution dated 16.3.1998 and issued notification
dated 24.3.1999 under Section 19(7) of the 1987 Act.
10. Within few days of deleting three survey numbers from the
process of acquisition, Shri Shankar M. Buchadi took over as Chairman
of the BDA and under the leadership of new Chairman, the
Commissioner, BDA sent letter dated 3.4.1999 to the Secretary to the
State Government for cancellation of notification dated 24.3.1999. The
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matter was also considered in the meeting of BDA held on 15.4.1999
and a resolution was passed to make a request to the State Government
to withdraw notification dated 24.3.1999. The same reads as under:
“The meeting of the Authority discussed regarding the
problem that has arisen on account of deletion of the land
measuring 08 Acres – 29 Gs out of R.S. No. 533 & 534A &
B of Kanbargi village from the Kanbargi Scheme of
Belgaum Urban Development Authority, Belgaum under
Govt. Notification No.NA.A.E./172/BEMPRA VI/98,
dated:24.03.1999.
In the said lands, already 112 sites have been formed out of
which, 82 sites have been allotted & out of 82 sites, 45
allottees have got executed Lease-cum-Sale Agreement by
depositing entire amount and 08 allottees have undertaken
the work of construction of houses by expending
Rs.3,00,000/- and 17 allottees are under the stage of
execution of the Lease-cum-Sale Agreements by depositing
entire amount @ 22 allottes have deposited the partial value
of the site and this aspect has been considered in the
meeting. The meeting opined that, the Authority has to face
the critical position on account of deletion of the said land
from the Scheme of the Authority as this stage by the Govt.
Apart from this, the meeting considered the fact that, the
erstwhile owners of the said lands, tried to get their names
entered in the village records illegally and without
knowledge the Authority. Further, the meeting also
considered the fact regarding refund of Rs.1.00 Crore to 82
Allottees, who have deposited the site value & the
Authority is unable to make arrangement of allotment of
sites to the allottees and now, the Authority is unable to
bear this financial burden. The meeting also opined that, it
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is not possible to the Authority to bear the expenditure of
Rs.20.00 lakhs incurred for construction of house by the
allottees and to refund the amount incurred by 45 allottees
for Registration of Lease-cum-Sale Agreements. The
meeting also noted that the Authority has to bear the loss of
Rs.43.00 lakhs already incurred for Developmental Works,
apart from this, the allottees may approach the Courts
against the Authority. Hence, it has been resolved to submit
detailed report to the Govt, to withdraw the D’Notification
of the acquired lands from the Scheme of the Authority in
the interest of public at large.”
11. The new Chairman also wrote letter dated 17.4.1999 to the
Karnataka Minister for Urban Development for cancellation of
notification dated 24.3.1999. The relevant portions of that letter are
extracted below:
“In Government Notification No.UDD 172 BEMPRA
VI/98, dated: 24.3.1999 the lands of Kanbargi village
bearing R.S. No. 533, 534A and 534B measuring 8 acres 29
guntas have been deleted from the scheme of the Authority.
In this already 82 sites. In the meeting of the authority
dated: 15.4.1999 it has been discussed in detail regarding
the problem arose on account of this notification. In the
said meeting it was considered the fact regarding formation
of 112 sites, allotment of 82 sites, execution of lease cum
sale agreement in respect of 45 sites, constructions of
houses by 7 allottees by incurring Rs.3 lakhs, 17 allottees
about to get the lease cum sale agreement and deposit of
part of value of the sites by 20 allottees.
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Under these circumstances, it is submitted that, in the area
of the said lands, 113 sites of different sizes have been
formed, out of the same already 82 sites have been
distributed to the public, out of these 82 sites, 62 persons
have deposited full value of the sites, out of these lease-
cum-sale agreements in respect of 45 sites have been got
executed 20 persons then deposited part of value of the
sites, as per rules there is scope for depositors the amount
out of 45 allottees who have got executed the lease-cum-
sale agreements, 6 persons have obtained the building
person for construction of the building over the sites, and in
these the work of construction of houses is under progress.
These 6 houses have been constructed up to slab level and
the Engineer of the Authority has estimated the cost of
construction of Rs.5,50,000/- per house. Apart from this,
the Authority has already formed roads in these lands by
incurring expenditure about Rs.11,00,000/- and about
Rs.24,00,000/- worth electrification and the work of
formation of pacca gutter is under progress and
Rs.5,05,000/- is incurred under land acquisition.
Notwithstanding, since the lands are deleted by the
Government from the scheme, 82 persons who have
already been allotted the sites have sustained loss. Apart
from this, it is not possible to the Authority to make
alternative arrangement to them and it would be difficult to
cancel the lease-cum-sale agreement in respect of the sites.
In this background, the Authority has to face the severe
objections from public allottees, and there may be the
possibility of facing Court litigations. Therefore, from the
public point of view and in the interest of the Authority it is
suitable to cancel the said notification by reconsidering the
notification issued by the Government by already deciding
to delete these lands from the scheme. Hence, kindly
considering these facts, it is requested immediate action for
cancelling the notification.”
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12. In the meanwhile, some of the allottees of sites carved out by the
BDA filed Writ Petition Nos. 16003-16008/1998 for quashing
notification dated 24.3.1999 by asserting that the State Government did
not have the jurisdiction to issue notification under Section 19(7) of the
Act. They pleaded that after dismissal of the writ petitions filed by the
landowners, the BDA had carried out development and allotted sites to
eligible persons some of whom had paid full price and started
construction. They further pleaded that with a view to frustrate the
scheme, the landowners executed power of attorney in favour of
Allahuddin Khan who, in turn, sold the plots on stamp papers of
Rs.10/- obtaining permission from the competent authority and that the
State Government had illegally denotified the acquired land by relying
upon the recommendations made by the BDA which was headed by a
political person. As a counter blast, Vasanth Sreedhar Kulkarni and
two others filed Writ Petition Nos. 19264-19266/1999 questioning the
allotment of sites by the BDA by asserting that the Commissioner had
no authority to allot any site carved out of survey Nos. 533, 534A and
534B because the BDA had already passed resolution dated 16.3.1998
for deleting those survey numbers from the notifications issued under
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Sections 17(1) and 19(1) of the 1987 Act and the State Government had
issued notification under Section 19(7) of that Act.
13. During the pendency of the writ petitions, Smt. Mumtaz Begum
and 50 others filed an application in Writ Petition Nos. 16003-
16008/1998 for impleadment as parties. The learned Single Judge
disposed of all the writ petitions by common order dated 16.7.1999. He
first dealt with the application for impleadment and rejected the same
by making the following observations:
“Before taking up this writ petition on merits, it is also
necessary to notice that by means of IA.II as many as 51
persons wants to come on record as contesting respondents
to the writ petition. The interest claimed by them is “that all
of them pursuant to an agreement of sale executed by the
land owners of the acquired property, were put in
possession and they have raised permanent construction.
Therefore, have an interest”.
It is not disputed that these alleged “agreement of sale”
were executed by the land owners subsequent to the
dismissal of the writ petitions challenging the acquisition
proceedings. Hence, on the day or dates when the land
owners alleged to have executed the agreement of sale, they
had no legal right to sell the property and therefore these
applicant cannot be said to have acquired any interest
known to law in the property. Even otherwise, the right of
an agreement holder is only to sue for specific performance
or to enforce the contract. It cannot be said that he would
be having any right to property. Looking from any angle,
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these applicants cannot be said to have any interest in the
property to come on record and contest the writ petitions.
Hence, the application IA.II is rejected.”
14. The learned Single Judge then considered the question whether
the State Government had the power to denotify the acquired land.
After adverting to the grounds on which the allottees had questioned
notification dated 24.3.1999, the learned Single Judge held that power
to denotify the acquired land can be exercised only before possession
thereof is taken and as the BDA had already taken possession, the State
Government could not have issued notification dated 24.3.1999. The
learned Single Judge then referred to Section 19(7) and held that the
power to denotify or reconvey land included in the scheme can be
exercised only by the Authority and not by the State Government. The
learned Single Judge also declared that the erstwhile landowners do not
have the locus to challenge the allotment of sites because the writ
petitions filed by them questioning the notifications issued under
Sections 17(1) and 19(1) of the 1987 Act had been dismissed and the
acquired land had vested in the BDA.
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15. The writ appeal filed by Vasanth Sreedhar Kulkarni and two
others was dismissed by the Division Bench, which agreed with the
learned Single Judge that the State Government did not have the power
to denotify the acquired land by issuing notification under Section
19(7). Writ Appeal Nos. 1711-1716/2000 and 2450-2454/2000 filed by
Mumtaz Begum and others were dismissed by another Division Bench
by relying upon order dated 14.12.1999 passed in the writ appeals filed
by Vasanth Sreedhar Kulkarni and two others.
16. Before this Court several interlocutory applications were filed by
the parties. I.A. Nos. 20-28/2010 were filed by appellants Vasanth
Sreedhar Kulkarni and two others for placing on record xerox copies of
notice dated 4.9.1996 issued by the Special Land Acquisition Officer,
BDA under Section 16(2) of the 1894 Act read with Karnataka
(Amendment) Act, 1961 and letter dated 25.10.2008 written by the
Special Land Acquisition Officer to Shri Vasheemkhan stating therein
that there is no mention in the record of the BDA of compensation
amount regarding survey Nos. 533/1 and 534/B. Two I.As. including
I.A. Nos. 56-64/2010 have been filed by Vasanth Sreedhar Kulkarni
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and two others for permission to urge additional grounds. They have
also filed copies of the writ petitions, order dated 14.10.1980 passed by
the State Government vide HUD.172/1979, English translation of
newspaper – Tarun Bharat dated 29.9.1994 and application filed under
Section 151 CPC before the High Court. I.A. Nos. 38-46 and 47-55 of
2010 have been filed on behalf of the BDA for permission to file
documents marked Annexures R2/2 to R2/23.
17. In compliance of the direction given by the Court, learned
counsel appearing for the State filed an affidavit dated 23.9.2010 of
Shri Shambhu Dayal Meena, Secretary to the Government of
Karnataka, Urban Development along with copies of the gazette
notifications dated 7.11.1991, 1.9.1994 and 24.3.1999, order dated
9.6.1994 passed by the State Government under Section 18(3) of the
1987 Act, the panchnamas and other documents evidencing taking of
possession of various parcels of land including survey Nos. 533/1,
534A and 534B and entries made in favour of the BDA in the record of
rights.
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18. The first and foremost argument advanced by Shri Pallav
Shishodia, learned senior counsel appearing for the appellants is that
notwithstanding dismissal of Writ Petition Nos. 30236 and 30237 of
1994 filed by Vasanth Sreedhar Kulkarni and Eshwar Gouda Burma
Gouda Patil, the notifications issued by the BDA and the State
Government under Sections 17(1) and 19(1) respectively are liable to
be quashed because the 1987 Act does not provide for the acquisition
of land. Shri Shishodia submitted that the 1987 Act was enacted by the
State Legislature with reference to the subject enumerated in Entry 5 of
List II of the Seventh Schedule of the Constitution and that entry does
not empower the State Legislature to enact law for compulsory
acquisition of land. He further submitted that the State Government
can acquire land only under the 1894 Act, which has been enacted by
Parliament with reference to Entry 42 of List III of the Seventh
Schedule. Learned senior counsel emphasized that the provisions
contained in the 1987 Act empower the BDA and the State Government
to frame and sanction schemes for development of urban areas and also
earmark/designate the land proposed to be acquired for the execution of
the development schemes, but there is no provision in the Act under
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which they can compulsorily acquire the land. He argued that if
Sections 17 and 19 of the 1987 Act are read as enabling the BDA and
the State Government to acquire land for the development schemes, the
same would become vulnerable to the attack of unconstitutionality.
Learned senior counsel also referred to the provisions of Sections 35
and 36 of the Act and submitted that for the purpose of acquisition the
competent authority has to comply with the mandate of Sections 4, 5A
and 6 of the 1894 Act, which has not been done in these cases. He
lastly submitted that the judgment in Bondu Ramaswamy v. Bangalore
Development Authority (2010) 7 SCC 129 requires reconsideration
because the proposition laid down therein on the scope of Sections 17
and 19 of the 1987 Act is contrary to the settled law that compulsory
acquisition of land can be made only after complying with the
provisions of the 1894 Act.
19. Learned counsel for the respondents argued that appellants’
indirect challenge to the notifications issued under Sections 17 and 19
on the ground that the 1987 Act does not provide for the acquisition of
land should not be entertained because no such plea was raised in the
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pleadings of the writ petitions filed in 1994 or 1999, writ appeals filed
against the order of the learned Single Judge and even the memo of
special leave petitions. Shri S.N. Bhat, learned counsel appearing for
the BDA further argued that even on merits, the appellants’ challenge
to the notifications issued under Sections 17(1) and 19(1) should be
negatived because the judgment of three-Judge Bench in Bondu
Ramaswamy’s case has been approved by the Constitution Bench in
Girnar Traders (3) v. State of Maharashtra (2011) 3 SCC 1.
20. For appreciating the rival contentions in a correct perspective, we
may usefully notice Sections 16, 17, 18 and 19 of the 1987 Act. The
same read as under:
“16. Particulars to be provided for in a development
scheme. – Every development scheme under Section 15, –
(1) shall within the limits of the area comprised in the
scheme, provide for, –
(a) the acquisition of any land which in the opinion
of the authority, will be necessary for or
affected by the execution of the scheme;
(b) laying and relaying out all or any land
including the construction and reconstruction of
buildings and formation and alteration of
streets;
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(c) drainage, water supply and electricity;
(d) the reservation of not less than fifteen per cent
of the total area of the layout for public parks
and play grounds and an additional area of not
less than ten per cent 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; and
(d)establishment or construction of markets and other
public requirements or conveniences.
(3) may, within and without the limits aforesaid provide
for construction of houses.
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
the area comprised therein, a statement specifying the land
which is proposed to be acquired and of the land in regard
to which a betterment tax may be levied may be seen at all
reasonable hours.
(2) A copy of the said notification shall be sent to the
local authority, which shall, within thirty days from the
date of receipt thereof, forward to the Authority for
transmission to the Government as hereinafter provided,
any representation which the local authority may think fit
to make with regard to the scheme.
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(3) The Authority shall also cause a copy of the said
notification to be published in two consecutive issues of a
local newspaper having wide circulation in the area and
affixed in some conspicuous part of its own office, the
Deputy Commissioner’s office, the office of the local
authority and in such other places as the authority may
consider necessary.
(4) If no representation is received from the local
authority within the time specified in sub-section (2), the
concurrence of the local authority to the scheme shall be
deemed to have been given.
(5) During the thirty days next following the day on
which such notification is published in the local
newspapers the Authority shall serve a notice on every
person whose name appears in the assessment list of the
local authority or in the land revenue register as being
primarily liable to pay the property tax or land revenue
assessment on any building or land which is proposed to be
acquired in executing the scheme or in regard to which the
Authority proposes to recover betterment tax requiring such
person to show cause within thirty days from the date of the
receipt of the notice why such acquisition of the building or
land and the recovery of betterment tax should not be
made.
(6) The notices shall be signed by or by the order of the
Commissioner and shall be served, –
(a) by personal delivery of, if such person is absent or
cannot be found, on his agent, or if no agent can
be found, then by leaving the same on the land or
the building; or
(b)by leaving the same at the usual or last known
place of abode or business of such person; or
(c) by registered post addressed to the usual or last
known place of abode or business of such person.
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18. Sanction of scheme.- (1) 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 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 construction of
the houses.
(3) After considering the proposal submitted to it to the
Government may, by order, give sanction to the scheme.
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19. Upon sanction, declaration to be published giving
particulars of land to be acquired.- (1) Upon sanction of
the scheme, the Government shall publish in the official
Gazette a declaration stating the fact of such sanction and
that the land proposed to be acquired by the Authority for
the purposes of the scheme is required for a public purpose.
(2) The declaration shall state the limits within which the
land proposed to be acquired is situate, the purpose for
which it is needed, its approximate area and the place
where a plan of the land may be inspected.
(3) The said declaration shall be conclusive evidence that
the land is needed for a public purpose and the Authority
shall, upon the publication of the said declaration, proceed
to execute the scheme.
(4) If at any time it appears to the Authority that an
improvement can be made in any part of the scheme, the
Authority may alter the scheme for the said purpose and
shall subject to the provisions of sub-sections (5) and (6)
forthwith proceed to execute the scheme as altered.
(5) If the estimated cost of executing the Scheme as
altered exceeds by a greater sum than five per cent of the
estimated cost of executing the scheme as sanctioned, the
Authority shall not, without the previous sanction of the
Government, proceed to execute the scheme, as altered.
(6) If the scheme as altered involves the acquisition other
wise than by agreement, of any land other than the land
specified in the schedule referred to in clause (e) of sub-
section (1) of section 18, the provisions of sections 17 and
18 and of sub-section (1) of this section shall apply to the
part of the scheme so altered in the same manner as if such
altered part were the scheme.
25
(7) The Authority shall not denotify or reconvey any
land included in the scheme without the specific orders of
the Government.
(8) The Authority shall not allot any land to any
individual, organization or authority, the civic amenity area
earmarked in the scheme without the orders of the
Government.”
21. The above noted provisions are pari materia to Sections 15, 16,
17 and 19 of the Bangalore Development Authority Act, 1976, which
were interpreted in Bondu Ramaswamy’s case. An argument similar to
the one made before us was rejected by three-Judge Bench by making
the following observations:
“The assumption by the appellants that Chapter III of the
BDA Act relating to development 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 Bangalore City Corporation,
affix the notification at conspicuous places in various
offices, and serve notice on every person whose land is to
26
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 show
cause against acquisition and consider the representations
received in that behalf. Section 18(1) also requires BDA to
furnish a statement of the lands proposed to be acquired to
the State Government for obtaining its sanction for the
scheme including the acquisition. Sub-section (1) of
Section 19 requires the Government to publish a
declaration upon sanctioning the scheme, declaring that
such a sanction has been given and declaring that the “lands
proposed to be acquired by the authority” are required for
public purpose. Sub-section (3) of Section 19 makes it clear
that the declaration published under Section 19(1) should
be conclusive evidence that the land is needed for a public
purpose and that the Authority shall, upon publication of
such declaration, proceed to execute the same. Thus, it is
clear that the acquisition by the Authority for the purposes
of the development scheme is initiated and proceeded with
under the provisions of the BDA Act.
Section 36 of the BDA Act provides that the “acquisition of
land under this Act” shall be regulated by the provisions, so
far as they are applicable of the LA Act. In view of the
categorical reference in Section 36 of the BDA Act to
acquisitions under that Act, there cannot be any doubt that
the acquisitions for BDA are not under the LA Act, but
under the BDA Act itself. It is also clear from Section 36
that the LA Act, in its entirety, is not applicable to the
acquisition under the BDA Act, but only such of the
provisions of the LA Act for which a corresponding
provision is not found in the BDA Act, will apply to
acquisitions under the BDA Act. In view of Sections 17 to
19 of the BDA Act, the corresponding provisions —
Sections 4 to 6 of the LA Act–will not apply to
acquisitions under the BDA Act. We therefore reject the
27
contention that the BDA Act does not contemplate
acquisition and that the acquisition which is required to be
made as a part of the development scheme, should be made
under the LA Act, applying Sections 4, 5-A and 6 of the
LA Act.
The question of repugnancy can arise only where the State
law and the existing Central law are with reference to any
one of the matters enumerated in the Concurrent List. The
question of repugnancy arises only when both the
legislatures are competent to legislate in the same field, that
is, when both the Union and State laws relate to a subject in
List III. Article 254 has no application except where the
two laws relate to subjects in List III (see Hoechst
Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45).
But if the law made by the State Legislature, covered by an
entry in the State List, incidentally touches upon any of the
matters in the Concurrent List, it is well settled that it will
not be considered to be repugnant to an existing Central
law with respect to such a matter enumerated in the
Concurrent List. In such cases of overlapping between
mutually exclusive lists, the doctrine of pith and substance
would apply. Article 254(1) will have no application if the
State law in pith and substance relates to a matter in List II,
even if it may incidentally trench upon some item in List
III. (See Hoechst, Megh Raj v. Allah Rakhia AIR 1947 PC
72, and Lakhi Narayan Das v. Province of Bihar, AIR 1950
FC 59).
Where the law covered by an entry in the State List made
by the State Legislature contains a provision which directly
and substantially relates to a matter enumerated in the
Concurrent List and is repugnant to the provisions of any
existing law with respect to that matter in the Concurrent
List, then the repugnant provision in the State List may be
void unless it can coexist and operate without repugnancy
to the provisions of the existing law. This Court in
M
unithimmaiah has held that the BDA Act is an Act to
28
provide for the establishment of a Development Authority
to facilitate and ensure planned growth and development of
the city of Bangalore and areas adjacent thereto, and that
acquisition of any lands, for such development, is merely
incidental to the main object of the Act, that is,
development of Bangalore Metropolitan Area. This Court
held that in pith and substance, the BDA Act is one which
squarely falls under Entry 5 of List II of the Seventh
Schedule and is not a law for acquisition of land like the
LA Act, traceable to Entry 42 of 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, the 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 the 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 the BDA Act would
not at all arise.”
(emphasis supplied)
22. The proposition laid down in Bondu Ramaswamy’s case was
approved by the Constitution Bench in Girnar Traders (3) v. State of
Maharashtra (supra) (para 178). The Constitution Bench also referred
to the doctrine of pith and substance in the context of challenge to some
of the provisions of the Maharashtra Regional and Town Planning Act,
1966 and observed:
29
“We have already discussed in great detail that the State
Act being a code in itself can take within its ambit
provisions of the Central Act related to acquisition, while
excluding the provisions which offend and frustrate the
object of the State Act. It will not be necessary to create, or
read into the legislations, an imaginary conflict or
repugnancy between the two legislations, particularly,
when they can be enforced in their respective fields without
conflict. Even if they are examined from the point of view
that repugnancy is implied between Section 11-A of the
Land Acquisition Act and Sections 126 and 127 of the
MRTP Act, then in our considered view, they would fall
within the permissible limits of doctrine of “incidental
encroachment” without rendering any part of the State law
invalid.
Once the doctrine of pith and substance is applied to the
facts of the present case, it is more than clear that in
substance the State Act is aimed at planned development
unlike the Central Act where the object is to acquire land
and disburse compensation in accordance with law.
Paramount purpose and object of the State Act being
planned development and acquisition being incidental
thereto, the question of repugnancy does not arise. The
State, in terms of Entry 5 of List II of Schedule VII, is
competent to enact such a law. It is a settled canon of law
that courts normally would make every effort to save the
legislation and resolve the conflict/repugnancy, if any,
rather than invalidating the statute. Therefore, it will be the
purposive approach to permit both the enactments to
operate in their own fields by applying them harmoniously.
Thus, in our view, the ground of repugnancy raised by the
appellants, in the present appeals, merits rejection.
A self-contained code is an exception to the rule of
referential legislation. The various legal concepts covering
30
the relevant issues have been discussed by us in detail
above. The schemes of the MRTP Act and the Land
Acquisition Act do not admit any conflict or repugnancy in
their implementation. The slight overlapping would not
take the colour of repugnancy. In such cases, the doctrine
of pith and substance would squarely be applicable and
rigours of Article 254(1) would not be attracted. Besides
that, the reference is limited to specific provisions of the
Land Acquisition Act, in the State Act. Unambiguous
language of the provisions of the MRTP Act and the
legislative intent clearly mandates that it is a case of
legislation by incorporation in contradistinction to
legislation by reference.”
(emphasis supplied)
23. In view of the law laid down in the aforementioned cases, we
hold that the 1987 Act not only provides for development of urban
areas, but also empowers the BDA and the State Government to
compulsorily acquire land for the purpose of execution/implementation
of the schemes.
24. The second argument of the learned senior counsel for the
appellants is that under Section 19(7) of the 1987 Act, the State
Government is empowered to release the acquired land and the High
Court committed serious error by nullifying notification dated
24.3.1999 at the instance of those to whom sites were allotted by the
31
BDA. Shri Shishodia emphasized that the documents like panchnamas
and record of rights prepared by the Special Land Acquisition Officer
and other revenue officers are evidence only of symbolic taking over of
possession, but the actual possession continued with the landowners,
who carved out plots and sold the same to the members of the weaker
sections and the State Government had rightly taken note of the plight
of the citizens belonging to poor strata of the society and denotified the
land by accepting the recommendations made by the BDA. Shri
Shishodia submitted that Mumtaz Begum and others are innocent
purchasers and the High Court should have rejected the plea taken by
the official respondents that the State Government could not have
issued notification under Section 19(7) of the 1987 Act. Learned
counsel for the State and the BDA submitted that Section 19(7) is
similar to Section 48 of the 1894 Act and the power to denotify the
acquired land cannot be exercised after possession of the acquired land
is taken by the competent authority and, in any case, that power can be
exercised only by the Authority and not by the State Government.
32
25. In our view, there is no merit in the argument of the learned
senior counsel for the appellants. The documents produced before the
High Court and this Court show that possession of land comprised in
survey Nos. 534/A+C was taken on 1.1.1996 and possession of land
comprised in survey Nos. 533/1, 534/B was taken after dismissal of
Writ Petition Nos. 30236/1994 and 30237/1994. After taking of
possession, the name of the BDA was entered in the record of rights.
The appellants have not produced any evidence before the Court to
show that Panchnamas evidencing take over of possession were
fabricated by the Special Land Acquisition Officer and entries in the
record of rights were manipulated by the concerned revenue authorities.
Therefore, the bald statement made by the landowners that they
continued to be in possession of the acquired land cannot be relied
upon for recording a finding that denotification of the acquired land
was valid. In Banda Development Authority, Banda v. Motilal
Agarwal (2011) 5 SCC 394, this Court examined in detail the mode and
manner of taking possession of the land acquired under the 1894 Act,
referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat
(1976) 1 SCC 700, Balmokand Khatri Educational and Industrial Trust,
33
Amritsar v. State of Punjab (1996) 4 SCC 212, P.K. Kalburqi v. State
of Karnataka (2005) 12 SCC 489, National Power Thermal Power
Corporation Ltd. v. Mahesh Dutta (2009) 8 SCC 339, Sita Ram
Bhandar Society v. Government N.C.T. of Delhi (2009) 10 SCC 501
and culled out the following principles:
“(i) No hard-and-fast rule can be laid down as to what act
would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State
authority concerned to go to the spot and prepare a
panchnama will ordinarily be treated as sufficient to
constitute taking of possession.
(iii) If crop is standing on the acquired land or
building/structure exists, mere going on the spot by
the authority concerned will, by itself, be not sufficient
for taking possession. Ordinarily, in such cases, the
authority concerned will have to give notice to the occupier
of the building/structure or the person who has cultivated
the land and take possession in the presence of independent
witnesses and get their signatures on the panchnama. Of
course, refusal of the owner of the land or
building/structure may not lead to an inference that the
possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not
be possible for the acquiring/designated authority to take
physical possession of each and every parcel of the land
and it will be sufficient that symbolic possession is taken
by preparing appropriate document in the presence of
34
independent witnesses and getting their signatures on such
document.
(v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80% of the total
compensation is deposited in terms of Section 17(3-A) and
substantial portion of the acquired land has been utilized in
furtherance of the particular public purpose, then the court
may reasonably presume that possession of the acquired
land has been taken.”
26. By applying clause (ii) of the aforesaid principles, we hold that
possession of the acquired land had been taken by the Special Land
Acquisition Officer in accordance with law and neither the BDA had
the jurisdiction to make a recommendation for denotification of the
acquired land nor the State Government could issue notification under
Section 19(7) of the 1987 Act. It also appears to us that both, the BDA
and the State Government laboured under a mistaken impression that
the power under Section 19(7) of the 1987 Act can be exercised by the
latter. If that was not so and the BDA genuinely felt that a case was
made out for deacquisition of land comprised in survey Nos. 533/1,
534/A and 534/B, then it could have, on its own, issued notification
under Section 19(7) of the 1987 Act.
35
27. The question whether Mumtaz Begum and others who claim to
have purchased small parcels of land from Allahuddin Khan after the
issuance of notifications under Section 17(1) of the 1987 Act should be
allowed to retain the same despite the fact that the BDA had carved out
sites and allotted plots to more than 100 eligible applicants deserves to
be answered in negative in view of the law laid down in Yadu Nandan
Garg v. State of Rajasthan 1996(1) SCC 334, U.P. Jal Nigam, Lucknow
v. Kalra Properties (P) Ltd. (1996) 3 SCC 124, Sneh Prabha v. State of
U.P. (1996) 7 SCC 426, Ajay Krishan Shinghal v. Union of India
(1996) 10 SCC 721, Star Wire (India) Ltd. v. State of Haryana (1996)
11 SCC 698, Jaipur Development Authority v. Daulat Mai Jain (1997)
1 SCC 35, Meera Sahni v. Lt. Governor of Delhi (2008) 9 SCC 177 and
Tika Ram v. State of U.P. (2009) 10 SCC 689.
28. In Sneh Prabha v. State of U.P. (supra), the Court referred to
some of the earlier judgments and held:
“. … It is settled law that any person who purchases land
after publication of the notification under Section 4(1),
does so at his/her own peril. The object of publication of
the notification under Section 4(1) is notice to everyone
that the land is needed or is likely to be needed for public
purpose and the acquisition proceedings point out an
36
impediment to anyone to encumber the land acquired
thereunder. It authorises the designated officer to enter
upon the land to do preliminaries, etc. Therefore, any
alienation of the land after the publication of the
notification under Section 4(1) does not bind the
Government or the beneficiary under the acquisition. On
taking possession of the land, all rights, title and interests in
land stand vested in the State, under Section 16 of the Act,
free from all encumbrances and thereby absolute title in the
land is acquired thereunder.”
The same view has been reiterated in other judgments.
29. In the result, the appeals are dismissed. Appellants – Vasanth
Sreedhar Kulkarni and Eshwar Gouda Burma Gouda Patil shall pay
cost of Rs.1,00,000/- each to the BDA for thrusting unwarranted
litigation upon it. The BDA shall ensure delivery of possession of the
sites to the allottees within 8 weeks from today. However, it is made
clear that this judgment shall not preclude the State Government from
allotting alternative sites to Mumtaz Begum and others, who are said to
have purchased small parcels of land from the landowners through
Allahuddin Khan.
………………………..J.
[G.S. Singhvi]
37
…………………………J.
[Asok Kumar Ganguly]
New Delhi
October 14, 2011.
