{"id":30233,"date":"2011-10-14T00:00:00","date_gmt":"2011-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vasanth-sreedhar-kulkarni-ors-vs-state-of-karnataka-ors-on-14-october-2011"},"modified":"2018-05-27T21:22:29","modified_gmt":"2018-05-27T15:52:29","slug":"vasanth-sreedhar-kulkarni-ors-vs-state-of-karnataka-ors-on-14-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vasanth-sreedhar-kulkarni-ors-vs-state-of-karnataka-ors-on-14-october-2011","title":{"rendered":"Vasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011<\/div>\n
Bench: G.S. Singhvi, Asok Kumar Ganguly<\/div>\n
                                                        Non-reportable\n\n\n               IN THE SUPREME COURT OF INDIA\n\n\n                CIVIL APPELLATE JURISDICTION\n\n                                      \n\n\n             CIVIL APPEAL NOS. 6662-6670 OF 2002\n\n\n\n\nVasanth Sreedhar Kulkarni and others          ......Appellants\n\n\n                                 Versus\n\n\nState of Karnataka and others                 ......Respondents\n\n\n                                    With\n\n\n             CIVIL APPEAL NOS. 6671-6676 OF 2002\n\n\n\n\n\nMumtaz Begum Imam Husen\n\nMaribalkar  and others                        ......Appellants\n\n\n                                 Versus\n\n\nState of Karnataka and others                 ......Respondents\n\n\n\n\n                          J U D G M E N T\n<\/pre>\n
G.S. Singhvi,  J.\n<\/p>\n
\n                                                                                       2<\/span><\/p>\n
1.     Whether   Vasanth   Sreedhar   Kulkarni,   Eshwar   Gouda   Burma <\/p>\n
Gouda Patil and Ms. Mehrunnisa Mahazuz Husen Maniyar (appellants <\/p>\n
in C.A. Nos. 6662-6670\/2002) had the locus to question the allotment  <\/p>\n
of sites to the private respondents from land bearing survey Nos. 533\/1, <\/p>\n
534A and 534B of village Kanabargi, Belgaum despite the fact that the <\/p>\n
writ  petitions filed by Vasanth  Sreedhar  Kulkarni  and  Eshwar Gouda <\/p>\n
Burma Gouda Patil had been dismissed by the High Court in 1996 and <\/p>\n
also the fact that they claim to have sold the acquired land and whether <\/p>\n
the   purchasers   were   entitled   to   contest   writ   petitions   filed   by   the <\/p>\n
allottees   of   the   acquired   land   are   the   questions   which   arise   for <\/p>\n
consideration in these appeals filed against judgments dated 14.12.1999 <\/p>\n
and 04.04.2000 of the Division Benches of the Karnataka High Court.<\/p>\n
2.     In   1976,   the   Legislature   of   the   State   of   Karnataka   enacted   the  <\/p>\n
Karnataka  Improvement  Boards Act,  1976  to provide  for constitution <\/p>\n
of Improvement Trust Boards in some cities with powers and duties for <\/p>\n
ensuring   regulated   development   of   urban   areas.     The   Belgaum   City <\/p>\n
Improvement Trust Board, which was one among several Trust Boards <\/p>\n
constituted by the State Government framed Scheme Nos. 35, 43 and <\/p>\n
                                                                                      3<\/span><\/p>\n
43A for formation of residential and commercial layouts in Kanabargi <\/p>\n
village, Belgaum.   For implementation of Scheme No. 43, notification <\/p>\n
dated   6.11.1987   was   issued.     However,   before   further   steps   could   be <\/p>\n
taken in the matter, the State Legislature enacted the Karnataka Urban <\/p>\n
Development Authorities Act, 1987 (for short, `the 1987 Act’) which <\/p>\n
envisaged the establishment of Urban Development Authorities for the <\/p>\n
planned development of major and important urban areas in the State.  <\/p>\n
The   Belgaum   Urban   Development   Authority   (for   short,   `the   BDA’) <\/p>\n
was constituted under Section 3 of the 1987 Act.  After some time, the <\/p>\n
BDA undertook the task of implementing Scheme Nos. 35, 43 and 43A <\/p>\n
of   Kanabargi   covering   an   area   measuring   336   acres   6   guntas   by <\/p>\n
involving revenue survey Nos. 529, 531 to 549, 553P, 556 to 562, 564 <\/p>\n
to   570,   571P,   572   to   677   at   an   estimated   cost   of   Rs.25.35   crores. <\/p>\n
Notification   dated   16.8.1991   was   issued   under   Section   17(1)   of   the <\/p>\n
1987 Act in respect of land comprised in survey Nos. 533\/1, 534\/A and <\/p>\n
534\/B   owned   by   Vasanth   Sreedhar   Kulkarni,   Kashibai   Patil   and <\/p>\n
Eshwar   Gouda   Burma   Gouda   Patil   respectively   for   implementing <\/p>\n
Scheme   No.43.     By   an   order   dated   9.6.1994,   the   State   Government  <\/p>\n
accorded sanction under Section 18(3) of the 1987 Act for formation of <\/p>\n
                                                                                  4<\/span><\/p>\n
4065 sites from the aforesaid survey numbers.  The relevant portions of <\/p>\n
the English translation of that order, which has been made available by <\/p>\n
learned counsel for the State of Karnataka are extracted below:<\/p>\n
      “Belgaum   Urban   Development   Authority,   Belgaum <\/p>\n
      informed   the   Government   that,   by   preparing   Scheme <\/p>\n
      No.35,43,43 A of Kanabargi it would form totally 4065 in <\/p>\n
      an area measuring 336 acres and 06 gunthas by involving <\/p>\n
      R.S. Nos. 529, 531 to 549, 553P, 556 to 562, 564 to 570, <\/p>\n
      57IP, 572 to 677, and the estimated cost of the Scheme in <\/p>\n
      Rs. 25.35 Crores and from the Scheme the income to the <\/p>\n
      Authority   is   Rs.   27,88,84,000.00,   and   the   net   income   to <\/p>\n
      the Authority would be Rs. 2,53,81,000.00, and this is self <\/p>\n
      economically aided scheme and the Authority would not <\/p>\n
      claim   any   assistance   from   the   Government.   It   is   further <\/p>\n
      stated that in this scheme 20 x 30 sites have reserved for <\/p>\n
      economically   weaker   sections   and   a   provision   has   been <\/p>\n
      made   for   water   supply,   drainage   and   electricity   the <\/p>\n
      estimated   cost   of   the   scheme   and   area   is   reserved   for <\/p>\n
      garden,   playground   and  Civic   Amenity   sites,   as  per   Sub <\/p>\n
      Section (c) and (d) of Section 16 of the Karnataka Urban <\/p>\n
      Development Authorities Act 1987. Hence, requested for <\/p>\n
      according administrative approval for the said scheme. <\/p>\n
      Government   Order   in   No.HUD\/446\/MIB,   Bangalore, <\/p>\n
      Dated 9th June 1994.<\/p>\n
\n      After   considering   the   proposal   of   the   letter   the <\/p>\n
      Commissioner,<\/p>\n
      Belgaum Urban Development Authority, Belgaum in the <\/p>\n
      above  read, the  sanction is accorded under section 18(3) <\/p>\n
      of   the   Karnataka   Urban   Development   Authorities   Act <\/p>\n
      1987, for formation of 4065 sites at a cost of Rs. Rs. 25.35 <\/p>\n
                                                                                       5<\/span><\/p>\n
       Crores   to   the   Kanabargi   Scheme   No.35,   43,   43A   of <\/p>\n
       Belgaum   Urban   Development   Authority,   Belgaum   in <\/p>\n
       lands   measuring   336   gunthas,   subject   to   the   following <\/p>\n
       conditions.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       xxxx                   xxxx                          xxxx”<\/p>\n
3.     Thereafter   the   State   Government   issued   Notification   under <\/p>\n
Section 19(1),  which was published in Karnataka State Gazette  dated <\/p>\n
1.9.1994   in   respect   of   survey   No.533\/1   measuring   5   acres   7   guntas <\/p>\n
belonging   to   Vasanth   Sreedhar   Kulkarni   and   survey   Nos.   534\/A   and <\/p>\n
534\/B   measuring   3   acres   and   22   guntas   belonging   to   Smt.   Kashibai <\/p>\n
Patil   and   Eshwar   Gouda   Burma   Gouda   Patil.     The   Special   Land <\/p>\n
Acquisition   Officer,   BDA,   who   was   appointed   by   the   State <\/p>\n
Government to exercise the powers of the Deputy Commissioner under <\/p>\n
Section   3(c)   of   the   Land   Acquisition   Act,   1894   (for   short,   `the   1894 <\/p>\n
Act’)   issued   public   notice   dated   16.9.1994   and   informed   the <\/p>\n
landowners and persons having interest in the land that various survey <\/p>\n
numbers   including   survey   Nos.   533\/1,   534A   and   534B   have   been <\/p>\n
included in Scheme Nos. 35, 43 and 43A.\n<\/p>\n
\n                                                                                      6<\/span><\/p>\n
4.     The award prepared by the Special Land Acquisition Officer was <\/p>\n
approved   by   the   State   Government   vide   order   dated   11.12.1995   and <\/p>\n
was published on 13.12.1995.  On the next date i.e., 14.12.1995, notice <\/p>\n
was issued to the landowners under Section 12(2) of the 1894 Act.  The <\/p>\n
possession   of   land   comprised   in   survey   No.534\/A+C   was   taken   on <\/p>\n
1.1.1996 and name of the BDA was mutated in the revenue records.  <\/p>\n
5.     In the meanwhile, Vasanth Sreedhar Kulkarni and Eshwar Gouda <\/p>\n
Burma Gouda Patil filed Writ Petition Nos. 30236 and 30237 of 1994 <\/p>\n
questioning the notifications issued under Sections 17(1) and 19(1) of <\/p>\n
the   1987   Act.     Smt.   Kashibai   Patil   and   one   Shri   Malappa   also   filed <\/p>\n
similar writ petition bearing Nos. 30927\/1994 and 30928\/1994.  All the <\/p>\n
writ petitions were dismissed by the learned Single Judge on 19.4.1996. <\/p>\n
The applications filed by the writ petitioners under Order IX Rule 13 <\/p>\n
read with Section 151 CPC for recalling that order on the ground that <\/p>\n
their counsel could not appear on the date of hearing were dismissed by <\/p>\n
the learned Single Judge vide order dated 18.6.1996 by observing that <\/p>\n
the writ petitions had been dismissed on merits.  <\/p>\n
                                                                                    7<\/span><\/p>\n
6.     After   dismissal   of   the   writ   petitions,   possession   of   land <\/p>\n
comprised   in   survey   Nos.   533\/1   and   534\/B   was   also   taken   by   the <\/p>\n
competent authority and entries were made in the record of rights in the  <\/p>\n
name   of   the   BDA,   which   then   formed   112   sites,   carried   out <\/p>\n
development   works   like   construction  of  roads   at   a   cost   of  Rs.43  lacs <\/p>\n
and   allotted   82   sites   to   the   eligible   persons   between   31.3.1997   and <\/p>\n
20.3.1999.     45  of   the   allottees   executed  lease-cum-sale   agreement   by <\/p>\n
depositing the entire amount.  8 allottees also started construction of the <\/p>\n
houses.     17   allottees   took   steps   for   execution   of   lease-cum-sale <\/p>\n
agreement and the remaining 22 allottees made partial payment of the <\/p>\n
cost of land.\n<\/p>\n<\/p>\n
7.     After the issuance of notifications under Sections 17(1) and 19(1) <\/p>\n
of   the   1987   Act,   the   landowners   entered   into   some   clandestine <\/p>\n
transactions with Allahuddin Khan, who was described as their General <\/p>\n
Power of Attorney and the latter created large number of documents on <\/p>\n
ten   rupees   stamps   showing   sale   of   small   parcels   of   land   to   Smt. <\/p>\n
Mumtaz Begum and others.\n<\/p>\n
\n                                                                                8<\/span><\/p>\n
8.    After   taking   possession   of   the   acquired   land   and   making   the <\/p>\n
allotment   of   sites,   the   BDA   demolished   unauthorized   constructions <\/p>\n
made by some of those to whom small parcels of land are said to have <\/p>\n
been sold by Allahuddin Khan.  At that juncture, Allahuddin Khan and <\/p>\n
others made representation dated 27.2.1998 to the Commissioner, BDA <\/p>\n
for release of land comprised in survey Nos. 533\/1, 534\/A and 534\/B <\/p>\n
by stating that 120 persons belonging to weaker sections of the society <\/p>\n
have   constructed   houses   after   taking   loan   and   even   the   scheme <\/p>\n
sanctioned by the State Government envisages allotment of 52% plots <\/p>\n
to  the   persons   belonging  to  backward   classes   and   weaker  sections   of <\/p>\n
the society.\n<\/p>\n<\/p>\n
9.    The then Chairman and three other members of the BDA made  <\/p>\n
spot inspection on 12.3.1998 and prepared a report with the suggestion <\/p>\n
that land measuring 8 acres 29 guntas, which had been unauthorisedly <\/p>\n
sold by the landowners to the poor persons on ten rupees stamp papers  <\/p>\n
may be deleted in favour of the purchasers by collecting development  <\/p>\n
charges.   The matter was then considered in the meeting of the BDA <\/p>\n
held   on   16.3.1998   and   despite   the   strong   opposition   by   the <\/p>\n
                                                                                        9<\/span><\/p>\n
Commissioner,   it   was   decided   to   recommend   regularization   of   the <\/p>\n
transfers made by the landowners by deleting survey Nos. 531\/1, 534\/A <\/p>\n
and 534\/B from the notifications issued under Sections 17(1) and 19(1) <\/p>\n
of   the   1987   Act.       The   resolution   of   the   BDA   was   forwarded   to   the <\/p>\n
State Government vide letter dated 3\/4.6.1998.   After about 3 months, <\/p>\n
the   Commissioner   sent   D.O.   letter   dated   2.9.1998   to   the   Principal <\/p>\n
Secretary,   Urban   Development   Department,   State   Government <\/p>\n
detailing   the   reasons   for   not   deleting   land   comprised   in   3   survey <\/p>\n
numbers.   He pointed out that the plots have already been carved out <\/p>\n
and   allotted   to   different   persons   at   a   price   of   Rs.1,73,56,000\/-. <\/p>\n
However,   the   State   Government   accepted   the   recommendations <\/p>\n
contained   in   the   resolution   dated   16.3.1998   and   issued   notification <\/p>\n
dated 24.3.1999 under Section 19(7) of the 1987 Act.<\/p>\n
10.    Within   few   days   of   deleting   three   survey   numbers   from   the <\/p>\n
process of acquisition, Shri Shankar M. Buchadi took over as Chairman <\/p>\n
of   the   BDA   and   under   the   leadership   of   new   Chairman,   the <\/p>\n
Commissioner, BDA sent letter dated 3.4.1999 to the Secretary to the <\/p>\n
State Government for cancellation of notification dated 24.3.1999.  The <\/p>\n
                                                                                        10<\/span><\/p>\n
matter was also considered in the meeting of BDA held on 15.4.1999 <\/p>\n
and a resolution was passed to make a request to the State Government <\/p>\n
to withdraw notification dated 24.3.1999.  The same reads as under:<\/p>\n
     “The   meeting   of   the   Authority   discussed   regarding   the <\/p>\n
     problem that has arisen on account of deletion of the land <\/p>\n
     measuring 08 Acres – 29 Gs out of R.S. No. 533 & 534A & <\/p>\n
     B   of   Kanbargi   village   from   the   Kanbargi   Scheme   of <\/p>\n
     Belgaum   Urban   Development   Authority,   Belgaum   under <\/p>\n
     Govt.   Notification   No.NA.A.E.\/172\/BEMPRA   VI\/98, <\/p>\n
     dated:24.03.1999.\n<\/p><\/blockquote>\n
\n     In the said lands, already 112 sites have been formed out of <\/p>\n
     which,   82   sites   have   been   allotted   &   out   of   82   sites,   45 <\/p>\n
     allottees have got executed Lease-cum-Sale Agreement by <\/p>\n
     depositing entire amount and 08 allottees have undertaken <\/p>\n
     the   work   of   construction   of   houses   by   expending <\/p>\n
     Rs.3,00,000\/-   and   17   allottees   are   under   the   stage   of <\/p>\n
     execution of the Lease-cum-Sale Agreements by depositing <\/p>\n
     entire amount @ 22 allottes have deposited the partial value <\/p>\n
     of   the   site   and   this   aspect   has   been   considered   in   the <\/p>\n
     meeting. The meeting opined that, the Authority has to face <\/p>\n
     the critical position on account of deletion of the said land <\/p>\n
     from the Scheme of the Authority as this stage by the Govt.<\/p>\n
     Apart   from   this,   the   meeting   considered   the   fact   that,   the <\/p>\n
     erstwhile owners of the said lands, tried to get their names <\/p>\n
     entered   in   the   village   records   illegally   and   without <\/p>\n
     knowledge   the   Authority.   Further,   the   meeting   also <\/p>\n
     considered the fact regarding refund of Rs.1.00 Crore to 82 <\/p>\n
     Allottees,   who   have   deposited   the   site   value   &   the <\/p>\n
     Authority   is   unable   to   make   arrangement   of   allotment   of <\/p>\n
     sites   to   the   allottees   and   now,   the   Authority   is   unable   to <\/p>\n
     bear this financial burden. The meeting also opined that, it <\/p>\n
                                                                                           11<\/span><\/p>\n
       is not possible to the Authority to bear the expenditure of <\/p>\n
       Rs.20.00   lakhs   incurred   for   construction   of   house   by   the <\/p>\n
       allottees and to refund the amount incurred by 45 allottees <\/p>\n
       for   Registration   of   Lease-cum-Sale   Agreements.   The <\/p>\n
       meeting also noted that the Authority has to bear the loss of <\/p>\n
       Rs.43.00 lakhs already incurred for Developmental Works, <\/p>\n
       apart   from   this,   the   allottees   may   approach   the   Courts <\/p>\n
       against the Authority. Hence, it has been resolved to submit <\/p>\n
       detailed report to the Govt, to withdraw the D’Notification <\/p>\n
       of the acquired lands from the Scheme of the Authority in <\/p>\n
       the interest of public at large.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
11.    The   new   Chairman   also   wrote   letter   dated   17.4.1999   to   the <\/p>\n
Karnataka   Minister   for   Urban   Development   for   cancellation   of <\/p>\n
notification   dated   24.3.1999.     The   relevant   portions   of   that   letter   are <\/p>\n
extracted below:\n<\/p>\n<\/p>\n
       “In   Government   Notification   No.UDD   172   BEMPRA <\/p>\n
       VI\/98,   dated:   24.3.1999   the   lands   of   Kanbargi   village <\/p>\n
       bearing R.S. No. 533, 534A and 534B measuring 8 acres 29 <\/p>\n
       guntas have been deleted from the scheme of the Authority. <\/p>\n
       In   this   already   82   sites.     In   the   meeting   of   the   authority <\/p>\n
       dated:   15.4.1999   it   has   been   discussed   in  detail   regarding <\/p>\n
       the   problem   arose   on   account   of   this   notification.     In   the <\/p>\n
       said meeting it was considered the fact regarding formation <\/p>\n
       of 112 sites, allotment of 82 sites, execution of lease cum <\/p>\n
       sale   agreement   in   respect   of   45   sites,   constructions   of <\/p>\n
       houses by 7 allottees by incurring Rs.3 lakhs, 17 allottees <\/p>\n
       about   to   get   the   lease   cum   sale   agreement   and   deposit   of <\/p>\n
       part of value of the sites by 20 allottees.<\/p>\n
                                                                                   12<\/span><\/p>\n<\/blockquote>\n
Under these circumstances, it is submitted that, in the area <\/p>\n
of   the   said   lands,   113   sites   of   different   sizes   have   been <\/p>\n
formed,   out   of   the   same   already   82   sites   have   been <\/p>\n
distributed to the public, out of these 82 sites, 62 persons  <\/p>\n
have   deposited   full   value   of   the   sites,   out   of   these   lease-<\/p>\n
cum-sale   agreements   in   respect   of   45   sites   have   been   got <\/p>\n
executed   20   persons   then   deposited   part   of   value   of   the <\/p>\n
sites, as per rules there is scope for depositors the amount <\/p>\n
out   of   45  allottees   who  have   got   executed   the   lease-cum-<\/p>\n
sale   agreements,   6   persons   have   obtained   the   building <\/p>\n
person for construction of the building over the sites, and in <\/p>\n
these the work of construction of houses is under progress. <\/p>\n
These 6 houses have been constructed up to slab level and <\/p>\n
the   Engineer   of   the   Authority   has   estimated   the   cost   of <\/p>\n
construction of Rs.5,50,000\/- per house.    Apart from this, <\/p>\n
the   Authority   has   already   formed   roads   in   these   lands   by <\/p>\n
incurring   expenditure   about   Rs.11,00,000\/-   and   about <\/p>\n
Rs.24,00,000\/-   worth   electrification   and   the   work   of <\/p>\n
formation   of   pacca   gutter   is   under   progress   and <\/p>\n
Rs.5,05,000\/-   is   incurred   under   land   acquisition. <\/p>\n
Notwithstanding,   since   the   lands   are   deleted   by   the <\/p>\n
Government   from   the   scheme,   82   persons   who   have <\/p>\n
already   been  allotted  the   sites  have   sustained  loss.     Apart <\/p>\n
from   this,   it   is   not   possible   to   the   Authority   to   make <\/p>\n
alternative arrangement to them and it would be difficult to <\/p>\n
cancel the lease-cum-sale agreement in respect of the sites. <\/p>\n
In   this   background,   the   Authority   has   to   face   the   severe <\/p>\n
objections   from   public   allottees,   and   there   may   be   the <\/p>\n
possibility of facing Court litigations.   Therefore, from the <\/p>\n
public point of view and in the interest of the Authority it is <\/p>\n
suitable to cancel the said notification by reconsidering the <\/p>\n
notification issued by the Government by already deciding <\/p>\n
to   delete   these   lands   from   the   scheme.     Hence,   kindly <\/p>\n
considering these facts, it is requested immediate action for <\/p>\n
cancelling the notification.”\n<\/p>\n
\n                                                                                       13<\/span><\/p>\n
12.    In the meanwhile, some of the allottees of sites carved out by the <\/p>\n
BDA   filed   Writ   Petition   Nos.   16003-16008\/1998   for   quashing <\/p>\n
notification dated 24.3.1999 by asserting that the State Government did <\/p>\n
not have the jurisdiction to issue notification under Section 19(7) of the <\/p>\n
Act.  They pleaded that after dismissal of the writ petitions filed by the <\/p>\n
landowners, the BDA had carried out development and allotted sites to <\/p>\n
eligible   persons   some   of   whom   had   paid   full   price   and   started <\/p>\n
construction.     They   further   pleaded   that   with   a   view   to   frustrate   the <\/p>\n
scheme,   the   landowners   executed   power   of   attorney   in   favour   of <\/p>\n
Allahuddin   Khan   who,   in   turn,   sold   the   plots   on   stamp   papers   of <\/p>\n
Rs.10\/- obtaining permission from the competent authority and that the <\/p>\n
State Government had illegally denotified the acquired land by relying <\/p>\n
upon the recommendations made by the BDA which was headed by a <\/p>\n
political   person.     As   a   counter   blast,   Vasanth   Sreedhar   Kulkarni   and <\/p>\n
two others filed Writ Petition Nos. 19264-19266\/1999 questioning the <\/p>\n
allotment of sites by the BDA by asserting that the Commissioner had <\/p>\n
no authority to allot any site carved out of survey Nos. 533, 534A and <\/p>\n
534B because the BDA had already passed resolution dated 16.3.1998 <\/p>\n
for deleting those survey numbers from the notifications issued under <\/p>\n
                                                                                          14<\/span><\/p>\n
Sections 17(1) and 19(1) of the 1987 Act and the State Government had <\/p>\n
issued notification under Section 19(7) of that Act.<\/p>\n
13.    During the pendency of the writ petitions, Smt. Mumtaz Begum <\/p>\n
and   50   others   filed   an   application   in   Writ   Petition   Nos.   16003-<\/p>\n
16008\/1998   for   impleadment   as   parties.     The   learned   Single   Judge <\/p>\n
disposed of all the writ petitions by common order dated 16.7.1999.  He <\/p>\n
first dealt with the application for impleadment and rejected the same <\/p>\n
by making the following observations:\n<\/p>\n<\/p>\n
       “Before   taking   up   this   writ   petition   on   merits,   it   is   also <\/p>\n
       necessary to notice  that by means of IA.II as many as 51 <\/p>\n
       persons wants to come on record as contesting respondents <\/p>\n
       to the writ petition. The interest claimed by them is “that all <\/p>\n
       of them pursuant to an agreement of sale executed by the <\/p>\n
       land   owners   of   the   acquired   property,   were   put   in <\/p>\n
       possession   and   they   have   raised   permanent   construction. <\/p>\n
       Therefore, have an interest”.\n<\/p><\/blockquote>\n
\n       It   is   not   disputed   that   these   alleged   “agreement   of   sale” <\/p>\n
       were   executed   by   the   land   owners   subsequent   to   the <\/p>\n
       dismissal   of   the   writ   petitions   challenging   the   acquisition <\/p>\n
       proceedings.   Hence,   on   the   day   or   dates   when   the   land <\/p>\n
       owners alleged to have executed the agreement of sale, they <\/p>\n
       had no  legal   right   to  sell   the  property  and  therefore   these <\/p>\n
       applicant   cannot   be   said   to   have   acquired   any   interest <\/p>\n
       known to law in the property. Even otherwise, the right of <\/p>\n
       an agreement holder is only to sue for specific performance <\/p>\n
       or to enforce the contract. It cannot be said that he would <\/p>\n
       be having any right  to property. Looking from any angle, <\/p>\n
                                                                                      15<\/span><\/p>\n
       these applicants cannot be said to have any interest in the <\/p>\n
       property to come on record and contest the writ petitions. <\/p>\n
       Hence, the application IA.II is rejected.”  <\/p>\n<\/blockquote>\n
14.    The   learned   Single   Judge   then   considered  the   question   whether <\/p>\n
the   State   Government   had   the   power   to   denotify   the   acquired   land. <\/p>\n
After  adverting  to  the   grounds   on  which  the   allottees  had  questioned <\/p>\n
notification dated 24.3.1999, the learned Single Judge held that power <\/p>\n
to denotify the acquired land can be exercised only before possession  <\/p>\n
thereof is taken and as the BDA had already taken possession, the State  <\/p>\n
Government could not have issued notification dated 24.3.1999.   The <\/p>\n
learned  Single   Judge   then  referred  to  Section  19(7)  and  held  that   the <\/p>\n
power   to   denotify   or   reconvey   land   included   in   the   scheme   can   be <\/p>\n
exercised only by the Authority and not by the State Government.  The  <\/p>\n
learned Single Judge also declared that the erstwhile landowners do not <\/p>\n
have   the   locus   to   challenge   the   allotment   of   sites   because   the   writ <\/p>\n
petitions   filed   by   them   questioning   the   notifications   issued   under <\/p>\n
Sections 17(1) and 19(1) of the 1987 Act had been dismissed and the <\/p>\n
acquired land had vested in the BDA.\n<\/p>\n
\n                                                                                      16<\/span><\/p>\n
15.    The   writ   appeal   filed   by   Vasanth   Sreedhar   Kulkarni   and   two <\/p>\n
others   was   dismissed   by   the   Division   Bench,   which   agreed   with   the <\/p>\n
learned Single Judge that the State Government did not have the power <\/p>\n
to   denotify   the   acquired   land   by   issuing   notification   under   Section <\/p>\n
19(7).  Writ Appeal Nos. 1711-1716\/2000 and 2450-2454\/2000 filed by <\/p>\n
Mumtaz Begum and others were dismissed by another Division Bench <\/p>\n
by relying upon order dated 14.12.1999 passed in the writ appeals filed <\/p>\n
by Vasanth Sreedhar Kulkarni and two others.\n<\/p>\n<\/p>\n
16.    Before this Court several interlocutory applications were filed by <\/p>\n
the   parties.     I.A.   Nos.   20-28\/2010   were   filed   by   appellants   Vasanth <\/p>\n
Sreedhar Kulkarni and two others for placing on record xerox copies of <\/p>\n
notice dated 4.9.1996 issued by the Special Land Acquisition Officer, <\/p>\n
BDA   under   Section   16(2)   of   the   1894   Act   read   with   Karnataka <\/p>\n
(Amendment)   Act,   1961   and   letter   dated   25.10.2008   written   by   the <\/p>\n
Special Land Acquisition Officer to Shri Vasheemkhan stating therein <\/p>\n
that   there   is   no   mention   in   the   record   of   the   BDA   of   compensation <\/p>\n
amount regarding survey Nos. 533\/1 and 534\/B.   Two I.As. including <\/p>\n
I.A.   Nos.   56-64\/2010   have   been   filed   by   Vasanth   Sreedhar   Kulkarni <\/p>\n
                                                                                      17<\/span><\/p>\n
and two others for permission to urge additional grounds.   They have <\/p>\n
also filed copies of the writ petitions, order dated 14.10.1980 passed by <\/p>\n
the   State   Government   vide   HUD.172\/1979,   English   translation   of <\/p>\n
newspaper – Tarun Bharat dated 29.9.1994 and application filed under <\/p>\n
Section 151 CPC before the High Court.  I.A. Nos. 38-46 and 47-55 of <\/p>\n
2010   have   been   filed   on   behalf   of   the   BDA   for   permission   to   file <\/p>\n
documents marked Annexures R2\/2 to R2\/23.\n<\/p>\n<\/p>\n
17.    In   compliance   of   the   direction   given   by   the   Court,   learned <\/p>\n
counsel   appearing   for   the   State   filed   an   affidavit   dated   23.9.2010   of <\/p>\n
Shri   Shambhu   Dayal   Meena,   Secretary   to   the   Government   of <\/p>\n
Karnataka,   Urban   Development   along   with   copies   of   the   gazette <\/p>\n
notifications   dated   7.11.1991,   1.9.1994   and   24.3.1999,   order   dated <\/p>\n
9.6.1994   passed   by   the   State   Government   under  Section  18(3)   of  the <\/p>\n
1987 Act, the panchnamas and other documents evidencing taking   of  <\/p>\n
possession   of   various   parcels   of   land   including   survey   Nos.   533\/1, <\/p>\n
534A and 534B and entries made in favour of the BDA in the record of <\/p>\n
rights.\n<\/p>\n
\n                                                                                     18<\/span><\/p>\n
18.    The   first   and   foremost   argument   advanced   by   Shri   Pallav <\/p>\n
Shishodia,   learned   senior   counsel   appearing   for   the   appellants   is   that <\/p>\n
notwithstanding   dismissal   of   Writ   Petition   Nos.   30236   and   30237   of <\/p>\n
1994   filed   by   Vasanth   Sreedhar   Kulkarni   and   Eshwar   Gouda   Burma <\/p>\n
Gouda   Patil,   the   notifications   issued   by   the   BDA   and   the   State <\/p>\n
Government under Sections 17(1) and 19(1) respectively are liable to <\/p>\n
be quashed because the 1987 Act does not provide for the acquisition <\/p>\n
of land.  Shri Shishodia submitted that the 1987 Act was enacted by the <\/p>\n
State Legislature with reference to the subject enumerated in Entry 5 of <\/p>\n
List II of the Seventh Schedule of the Constitution and that entry does <\/p>\n
not   empower   the   State   Legislature   to   enact   law   for   compulsory <\/p>\n
acquisition   of   land.     He   further   submitted   that   the   State   Government  <\/p>\n
can acquire land only under the 1894 Act, which has been enacted by <\/p>\n
Parliament   with   reference   to   Entry   42   of   List   III   of   the   Seventh <\/p>\n
Schedule.     Learned   senior   counsel   emphasized   that   the   provisions <\/p>\n
contained in the 1987 Act empower the BDA and the State Government <\/p>\n
to frame and sanction schemes for development of urban areas and also <\/p>\n
earmark\/designate the land proposed to be acquired for the execution of <\/p>\n
the   development   schemes,   but   there   is   no   provision  in  the   Act   under <\/p>\n
                                                                                        19<\/span><\/p>\n
which   they   can   compulsorily   acquire   the   land.       He   argued   that   if <\/p>\n
Sections 17 and 19 of the 1987 Act are read as enabling the BDA and  <\/p>\n
the State Government to acquire land for the development schemes, the  <\/p>\n
same   would   become   vulnerable   to   the   attack   of   unconstitutionality. <\/p>\n
Learned  senior  counsel   also  referred  to  the   provisions  of  Sections  35 <\/p>\n
and 36 of the Act and submitted that for the purpose of acquisition the  <\/p>\n
competent authority has to comply with the mandate of Sections 4, 5A <\/p>\n
and  6   of  the   1894   Act,   which  has   not   been  done   in   these   cases.     He <\/p>\n
lastly submitted that the judgment in Bondu Ramaswamy v. Bangalore <\/p>\n
Development   Authority<\/a>   (2010)   7   SCC   129   requires   reconsideration <\/p>\n
because the proposition laid down therein on the scope of Sections 17 <\/p>\n
and 19 of the 1987 Act is contrary to the settled law that compulsory  <\/p>\n
acquisition   of   land   can   be   made   only   after   complying   with   the <\/p>\n
provisions of the 1894 Act.\n<\/p>\n<\/p>\n
19.    Learned   counsel   for   the   respondents   argued   that   appellants’ <\/p>\n
indirect challenge to the notifications issued under Sections 17 and 19 <\/p>\n
on the ground that the 1987 Act does not provide for the acquisition of  <\/p>\n
land should not be entertained because no such plea was raised in the <\/p>\n
                                                                                        20<\/span><\/p>\n
pleadings of the writ petitions filed in 1994 or 1999, writ appeals filed <\/p>\n
against   the   order   of   the   learned   Single   Judge   and   even   the   memo   of <\/p>\n
special leave petitions.   Shri S.N. Bhat, learned counsel appearing for <\/p>\n
the BDA further argued that even on merits, the appellants’ challenge <\/p>\n
to   the   notifications   issued   under   Sections   17(1)   and   19(1)   should   be <\/p>\n
negatived   because   the   judgment   of   three-Judge   Bench   in   Bondu <\/p>\n
Ramaswamy’s   case   has   been   approved   by   the   Constitution   Bench   in <\/p>\n
Girnar Traders (3) v. State of Maharashtra (2011) 3 SCC 1.<\/p>\n
20.    For appreciating the rival contentions in a correct perspective, we <\/p>\n
may usefully notice Sections 16, 17, 18 and 19 of the 1987 Act.   The <\/p>\n
same read as under:\n<\/p>\n<\/p>\n
       “16.    Particulars   to   be   provided   for   in   a   development <\/p>\n
       scheme. – Every development scheme under Section 15, –<\/p>\n
       (1)   shall   within   the   limits   of   the   area   comprised   in   the <\/p>\n
       scheme, provide for, –\n<\/p><\/blockquote>\n
<\/blockquote>\n
               (a)    the acquisition of any land which in the opinion <\/p>\n
                      of   the   authority,   will   be   necessary   for   or <\/p>\n
                      affected by the execution of the scheme;<\/p>\n<\/blockquote>\n
               (b)    laying   and   relaying   out   all   or   any   land <\/p>\n
                      including the construction and reconstruction of <\/p>\n
                      buildings   and   formation   and   alteration   of <\/p>\n
                      streets;\n<\/p><\/blockquote>\n
\n                                                                                         21<\/span><\/p>\n<\/blockquote>\n<\/blockquote>\n
       (c)       drainage, water supply and electricity;<\/p>\n<\/blockquote>\n
       (d)       the reservation of not less than fifteen per cent <\/p>\n
                 of the total area of the layout for public parks <\/p>\n
                 and play grounds and an additional area of not <\/p>\n
                 less   than   ten   per   cent   of   the   total   area   of   the <\/p>\n
                 layout for civic amenities.\n<\/p><\/blockquote>\n
(2)    may, within the limits aforesaid, provide for,-<\/p>\n
       (a) raising any land which the authority may consider <\/p>\n
              expedient to raise to facilitate better drainage;<\/p>\n<\/blockquote>\n
       (b)forming   open   spaces   for   the   better   ventilation   of <\/p>\n
              the area comprised in the scheme or any adjoining <\/p>\n
              area;\n<\/p><\/blockquote>\n
       (c) the sanitary arrangements required; and<\/p>\n<\/blockquote>\n
       (d)establishment or construction of markets and other <\/p>\n
              public requirements or conveniences.\n<\/p><\/blockquote>\n
<\/blockquote>\n
(3)    may, within and without the limits aforesaid provide <\/p>\n
for construction of houses.\n<\/p>\n<\/p>\n
17.  Procedure   on   completion   of   scheme.   –   (1)   When   a <\/p>\n
development scheme has been prepared, the authority shall <\/p>\n
draw up a notification stating the fact of a scheme having <\/p>\n
been made and the limits of the area comprised therein, and <\/p>\n
naming a place where particulars of the scheme, a map of <\/p>\n
the area comprised therein, a statement specifying the land <\/p>\n
which is proposed to be acquired and of the land in regard <\/p>\n
to which a betterment tax may be levied may be seen at all <\/p>\n
reasonable hours.\n<\/p>\n
\n(2)    A   copy   of   the   said   notification   shall   be   sent   to   the <\/p>\n
local   authority,   which   shall,   within   thirty   days   from   the <\/p>\n
date   of   receipt   thereof,   forward   to   the   Authority   for <\/p>\n
transmission   to   the   Government   as   hereinafter   provided, <\/p>\n
any representation which the local authority may think fit <\/p>\n
to make with regard to the scheme.\n<\/p>\n
\n                                                                                 22<\/span><\/p>\n
(3)    The   Authority   shall   also   cause   a   copy   of   the   said <\/p>\n
notification to be published in two consecutive issues of a <\/p>\n
local   newspaper   having   wide   circulation   in   the   area   and <\/p>\n
affixed   in   some   conspicuous   part   of   its   own   office,   the <\/p>\n
Deputy   Commissioner’s   office,   the   office   of   the   local <\/p>\n
authority   and   in   such   other   places   as   the   authority   may <\/p>\n
consider necessary.\n<\/p>\n
\n(4)    If   no   representation   is   received   from   the   local <\/p>\n
authority   within   the   time   specified   in   sub-section   (2),   the <\/p>\n
concurrence   of   the   local   authority   to   the   scheme   shall   be <\/p>\n
deemed to have been given.\n<\/p>\n
\n(5)    During   the   thirty   days   next   following   the   day   on <\/p>\n
which   such   notification   is   published   in   the   local <\/p>\n
newspapers   the   Authority   shall   serve   a   notice   on   every <\/p>\n
person   whose   name   appears   in   the   assessment   list   of   the <\/p>\n
local   authority   or   in   the   land   revenue   register   as   being <\/p>\n
primarily   liable   to   pay   the   property   tax   or   land   revenue <\/p>\n
assessment on any building or land which is proposed to be  <\/p>\n
acquired in executing the scheme or in regard to which the <\/p>\n
Authority proposes to recover betterment tax requiring such <\/p>\n
person to show cause within thirty days from the date of the <\/p>\n
receipt of the notice why such acquisition of the building or <\/p>\n
land   and   the   recovery   of   betterment   tax   should   not   be <\/p>\n
made.\n<\/p>\n
\n(6)   The notices shall be signed by or by the order of the <\/p>\n
Commissioner and shall be served, –\n<\/p>\n<\/p>\n
       (a) by personal delivery of, if such person is absent or <\/p>\n
           cannot be found, on his agent, or if no agent can <\/p>\n
           be found, then by leaving the same on the land or <\/p>\n
           the building; or<\/p>\n<\/blockquote>\n
       (b)by   leaving   the   same   at   the   usual   or   last   known <\/p>\n
           place of abode or business of such person; or<\/p>\n<\/blockquote>\n
       (c) by   registered   post   addressed   to   the   usual   or   last <\/p>\n
           known place of abode or business of such person.<\/p>\n
                                                                                 23<\/span><\/p>\n<\/blockquote>\n
18.    Sanction   of   scheme.-   (1)   After   publication   of   the <\/p>\n
scheme and service of notices as provided in section 17 and <\/p>\n
after   consideration   of   representations   if   any,   received   in <\/p>\n
respect   thereof,   the   authority   shall   submit   the   scheme <\/p>\n
making such modifications, therein as it may think fit to the <\/p>\n
Government for sanction, furnishing,-\n<\/p>\n<\/p>\n
       (a)     a description with full particulars of the scheme <\/p>\n
       including  the   reasons   for  any  modifications  inserted <\/p>\n
       therein;\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (b)     complete   plans   and   estimates   of   the   cost   of <\/p>\n
       executing the scheme;\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (c)     a statement specifying the land proposed to be <\/p>\n
       acquired;\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (d)     any   representation   received   under   sub-section <\/p>\n
       (2) of section 17;\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (e)     a   schedule   showing   the   rateable   value   as <\/p>\n
       entered in the municipal assessment book on the date <\/p>\n
       of the publication of a notification relating to the land <\/p>\n
       under   section   17   or   the   land   assessment   of   all   land <\/p>\n
       specified in the statement under clause (c); and<\/p>\n<\/blockquote>\n
       (f)     such   other   particulars,   if   any,   as   may   be <\/p>\n
       prescribed.\n<\/p><\/blockquote>\n
<\/blockquote>\n
(2)    Where   any   development   scheme   provides   for   the <\/p>\n
construction  of  houses,   the   Authority   shall   also  submit   to <\/p>\n
the Government plans and estimates for the construction of <\/p>\n
the houses.\n<\/p>\n
\n(3)    After considering the proposal submitted to it to the <\/p>\n
Government may, by order, give sanction to the scheme.<\/p>\n
                                                                                   24<\/span><\/p>\n
19.    Upon sanction, declaration to be published giving<\/p>\n
particulars of land to be acquired.- (1) Upon sanction of <\/p>\n
the   scheme,   the   Government   shall   publish   in   the   official <\/p>\n
Gazette a declaration stating the fact of such sanction and <\/p>\n
that the land proposed to be acquired by the Authority for <\/p>\n
the purposes of the scheme is required for a public purpose. <\/p>\n
(2)    The declaration shall state the limits within which the <\/p>\n
land   proposed   to   be   acquired   is   situate,   the   purpose   for <\/p>\n
which   it   is   needed,   its   approximate   area   and   the   place <\/p>\n
where a plan of the land may be inspected.\n<\/p>\n
\n(3)    The said declaration shall be conclusive evidence that <\/p>\n
the land is needed for a public purpose and the Authority <\/p>\n
shall, upon the publication of the said declaration, proceed <\/p>\n
to execute the scheme.\n<\/p>\n
\n(4)    If   at   any   time   it   appears   to   the   Authority   that   an <\/p>\n
improvement   can  be   made   in  any   part   of  the   scheme,   the <\/p>\n
Authority   may   alter   the   scheme   for   the   said   purpose   and <\/p>\n
shall   subject   to   the   provisions   of   sub-sections   (5)   and  (6) <\/p>\n
forthwith proceed to execute the scheme as altered.<\/p>\n
(5)    If   the   estimated   cost   of   executing   the   Scheme   as <\/p>\n
altered exceeds by a greater sum than five per cent of the <\/p>\n
estimated cost  of  executing  the  scheme   as  sanctioned,  the <\/p>\n
Authority   shall   not,   without   the   previous   sanction   of   the <\/p>\n
Government, proceed to execute the scheme, as altered. <\/p>\n
(6)    If the scheme as altered involves the acquisition other <\/p>\n
wise   than   by   agreement,   of   any   land   other   than   the   land <\/p>\n
specified   in   the   schedule   referred   to   in   clause   (e)   of   sub-<\/p>\n
section (1) of section 18, the provisions of sections 17 and <\/p>\n
18 and of sub-section (1) of this section shall apply to the <\/p>\n
part of the scheme so altered in the same manner as if such <\/p>\n
altered part were the scheme.\n<\/p>\n
\n                                                                                         25<\/span><\/p>\n
       (7)    The   Authority   shall   not   denotify   or   reconvey   any <\/p>\n
       land included in the scheme without the specific orders of <\/p>\n
       the Government.\n<\/p>\n
\n       (8)    The   Authority   shall   not   allot   any   land   to   any <\/p>\n
       individual, organization or authority, the civic amenity area <\/p>\n
       earmarked   in   the   scheme   without   the   orders   of   the <\/p>\n
       Government.”\n<\/p>\n<\/p>\n
21.    The above noted provisions are  pari materia  to Sections 15, 16, <\/p>\n
17 and 19 of the Bangalore Development Authority Act, 1976, which <\/p>\n
were interpreted in Bondu Ramaswamy’s case.  An argument similar to <\/p>\n
the one made before us was rejected by three-Judge Bench by making <\/p>\n
the following observations:\n<\/p>\n<\/p>\n
       “The   assumption  by  the   appellants  that   Chapter  III of  the <\/p>\n
       BDA   Act   relating   to   development   schemes   does   not <\/p>\n
       provide   for  acquisition   is  erroneous.  Sections   15  to  19   of <\/p>\n
       the   BDA   Act   contemplate   drawing   up   of   a   development <\/p>\n
       scheme   or   additional   development   scheme   for   the <\/p>\n
       Bangalore Metropolitan Area, containing the particulars set <\/p>\n
       down   in   Section   16   of   the   said   Act,   which   includes   the <\/p>\n
       details   of   the   lands   to   be   acquired   for   execution   of   the  <\/p>\n
       scheme. Section 17 requires the BDA on preparation of the <\/p>\n
       development   scheme,   to   draw-up   and   publish   in   the <\/p>\n
       Gazette,   a   notification   stating   that   the   scheme   has   been <\/p>\n
       made,   showing   the   limits   of   the   area   comprised   in   such <\/p>\n
       scheme and specifying the lands which are to be acquired. <\/p><\/blockquote>\n
       The   other   provisions   of   Section   17   make   it   clear   that   the <\/p>\n
       BDA   has   to   furnish   a   copy   of   the   said   notification   and <\/p>\n
       invite   a   representation   from   Bangalore   City   Corporation, <\/p>\n
       affix   the   notification   at   conspicuous   places   in   various <\/p>\n
       offices, and serve notice on every person whose land is to <\/p>\n
                                                                                     26<\/span><\/p>\n
be   acquired.  Thus,   the   notification   that   is   issued   under <\/p>\n
Section   17(1)   and   published   under   Section   17(3),   is   a <\/p>\n
preliminary notification for acquiring the lands required for <\/p>\n
the scheme under the Act.  Section 17(5) and Section 18(1) <\/p>\n
requires BDA to give an opportunity to landowners to show <\/p>\n
cause   against   acquisition   and   consider   the   representations <\/p>\n
received in that behalf. Section 18(1) also requires BDA to <\/p>\n
furnish a statement of the lands proposed to be acquired to <\/p>\n
the   State   Government   for   obtaining   its   sanction   for   the <\/p>\n
scheme   including   the   acquisition.   Sub-section   (1)   of <\/p>\n
Section   19   requires   the   Government   to   publish   a <\/p>\n
declaration   upon   sanctioning   the   scheme,   declaring   that <\/p>\n
such a sanction has been given and declaring that the “lands <\/p>\n
proposed to be acquired by the authority” are required for <\/p>\n
public purpose. Sub-section (3) of Section 19 makes it clear <\/p>\n
that   the   declaration   published   under   Section   19(1)   should <\/p>\n
be conclusive evidence that the land is needed for a public <\/p>\n
purpose   and   that   the   Authority   shall,   upon   publication   of <\/p>\n
such  declaration,   proceed  to  execute   the   same.   Thus,   it   is <\/p>\n
clear that the acquisition by the Authority for the purposes <\/p>\n
of the development scheme is initiated and proceeded with <\/p>\n
under the provisions of the BDA Act.\n<\/p>\n
Section 36 of the BDA Act provides that the “acquisition of <\/p>\n
land under this Act” shall be regulated by the provisions, so <\/p>\n
far   as   they   are   applicable  of   the   LA   Act.   In   view   of   the <\/p>\n
categorical   reference   in   Section   36   of   the   BDA   Act   to <\/p>\n
acquisitions under that Act, there cannot be any doubt that <\/p>\n
the   acquisitions   for   BDA   are   not   under   the   LA   Act,   but <\/p>\n
under the BDA Act itself.  It is also clear from Section 36 <\/p>\n
that   the   LA   Act,   in   its   entirety,   is   not   applicable   to   the <\/p>\n
acquisition   under   the   BDA   Act,   but   only   such   of   the <\/p>\n
provisions   of   the   LA   Act   for   which   a   corresponding <\/p>\n
provision   is   not   found   in   the   BDA   Act,   will   apply   to <\/p>\n
acquisitions under the BDA Act. In view of Sections 17 to <\/p>\n
19   of   the   BDA   Act,   the   corresponding   provisions   — <\/p>\n
Sections   4   to   6   of   the   LA   Act–will   not   apply   to <\/p>\n
acquisitions   under   the   BDA   Act.   We   therefore   reject   the <\/p>\n
                                                                                27<\/span><\/p>\n
contention   that   the   BDA   Act   does   not   contemplate <\/p>\n
acquisition and that the acquisition which is required to be <\/p>\n
made as a part of the development scheme, should be made <\/p>\n
under  the   LA  Act,   applying  Sections  4,   5-A  and  6  of  the <\/p>\n
LA Act.\n<\/p>\n
The question of repugnancy can arise only where the State <\/p>\n
law and the existing Central law are with reference to any <\/p>\n
one of the matters enumerated in the Concurrent List. The <\/p>\n
question   of   repugnancy   arises   only   when   both   the <\/p>\n
legislatures are competent to legislate in the same field, that <\/p>\n
is, when both the Union and State laws relate to a subject in <\/p>\n
List   III.   Article   254   has   no   application   except   where   the <\/p>\n
two   laws   relate   to   subjects   in   List   III   (see   Hoechst <\/p>\n
Pharmaceuticals Ltd. v. State of Bihar<\/a> (1983) 4 SCC 45). <\/p>\n
But if the law made by the State Legislature, covered by an <\/p>\n
entry in the State List, incidentally touches upon any of the <\/p>\n
matters in the Concurrent List, it is well settled that it will <\/p>\n
not   be   considered   to   be   repugnant   to   an   existing   Central <\/p>\n
law   with   respect   to   such   a   matter   enumerated   in   the <\/p>\n
Concurrent   List.   In   such   cases   of   overlapping   between <\/p>\n
mutually exclusive lists, the doctrine of pith and substance <\/p>\n
would apply. Article 254(1) will have no application if the <\/p>\n
State law in pith and substance relates to a matter in List II, <\/p>\n
even if it may  incidentally trench upon some  item in List <\/p>\n
III. (See Hoechst, Megh Raj v. Allah Rakhia AIR 1947 PC <\/p>\n
72, and Lakhi Narayan Das v. Province of Bihar, AIR<\/a> 1950 <\/p>\n
FC 59).\n<\/p>\n
Where the law covered by an entry in the State List made <\/p>\n
by the State Legislature contains a provision which directly <\/p>\n
and   substantially   relates   to   a   matter   enumerated   in   the <\/p>\n
Concurrent  List and is repugnant to the provisions of any <\/p>\n
existing  law  with  respect  to that   matter in the  Concurrent <\/p>\n
List, then the repugnant provision in the State List may be <\/p>\n
void unless it can coexist and operate without repugnancy <\/p>\n
to   the   provisions   of   the   existing   law.  This   Court   in <\/p>\n
M
\n  unithimmaiah    has   held   that   the   BDA   Act   is   an   Act   to  <\/p>\n
                                                                                          28<\/span><\/p>\n
       provide for the establishment of a Development Authority <\/p>\n
       to facilitate and ensure planned growth and development of <\/p>\n
       the   city   of   Bangalore   and   areas   adjacent   thereto,   and  that <\/p>\n
       acquisition   of  any   lands,   for  such   development,   is  merely <\/p>\n
       incidental   to   the   main   object   of   the   Act,   that   is, <\/p>\n
       development   of   Bangalore   Metropolitan   Area.  This   Court <\/p>\n
       held that in pith and substance, the BDA Act is one which <\/p>\n
       squarely   falls   under   Entry   5   of   List   II   of   the   Seventh <\/p>\n
       Schedule   and  is not  a  law  for  acquisition  of  land  like  the <\/p>\n
       LA   Act,   traceable   to   Entry   42   of   List   III   of   the   Seventh <\/p>\n
       Schedule, the field in respect of which is already occupied <\/p>\n
       by   the   Central   Act,   as   amended   from   time   to   time.  This <\/p>\n
       Court held that if at all, the BDA Act, so far as acquisition  <\/p>\n
       of   land   for   its   developmental   activities   is   concerned,   in <\/p>\n
       substance and effect will constitute a special law providing <\/p>\n
       for   acquisition   for   the   special   purposes   of   BDA   and   the <\/p>\n
       same will not be considered to be a part of the LA Act. The <\/p>\n
       fallacy in the contention of the appellants is that it assumes, <\/p>\n
       erroneously, that the BDA Act is a law referable to Entry <\/p>\n
       42 of List III, while it is a law referable to Entry 5 of List  <\/p>\n
       II. Hence the question of repugnancy and Section 6 of the  <\/p>\n
       LA Act prevailing over Section 19 of the BDA Act would <\/p>\n
       not at all arise.”\n<\/p>\n
                                                           (emphasis supplied)<\/p>\n
22.    The   proposition   laid   down   in   Bondu   Ramaswamy’s   case   was <\/p>\n
approved by the Constitution Bench in Girnar Traders (3) v. State of  <\/p>\n
Maharashtra (supra) (para 178).   The Constitution Bench also referred <\/p>\n
to the doctrine of pith and substance in the context of challenge to some <\/p>\n
of the provisions of the Maharashtra Regional and Town Planning Act, <\/p>\n
1966 and observed:\n<\/p>\n
\n                                                                                      29<\/span><\/p>\n
“We   have   already   discussed   in   great   detail   that   the   State <\/p>\n
Act   being   a   code   in   itself   can   take   within   its   ambit <\/p>\n
provisions of the  Central  Act  related to acquisition,  while <\/p>\n
excluding   the   provisions   which   offend   and   frustrate   the <\/p>\n
object of the State Act. It will not be necessary to create, or <\/p>\n
read   into   the   legislations,   an   imaginary   conflict   or <\/p>\n
repugnancy   between   the   two   legislations,   particularly, <\/p>\n
when they can be enforced in their respective fields without <\/p>\n
conflict. Even if they are examined from the point of view <\/p>\n
that   repugnancy   is   implied   between   Section   11-A   of   the <\/p>\n
Land   Acquisition   Act   and   Sections   126   and   127   of   the <\/p>\n
MRTP   Act,   then   in   our   considered   view,   they   would   fall <\/p>\n
within   the   permissible   limits   of   doctrine   of   “incidental <\/p>\n
encroachment” without rendering any part of the State law <\/p>\n
invalid.\n<\/p>\n
\nOnce   the   doctrine   of   pith   and   substance   is   applied   to   the <\/p>\n
facts   of   the   present   case,   it   is   more   than   clear   that   in <\/p>\n
substance   the   State   Act   is   aimed   at   planned   development <\/p>\n
unlike the Central Act where the object is to acquire land <\/p>\n
and   disburse   compensation   in   accordance   with   law. <\/p>\n
Paramount   purpose   and   object   of   the   State   Act   being <\/p>\n
planned   development   and   acquisition   being   incidental <\/p>\n
thereto,   the   question   of   repugnancy   does   not   arise.   The <\/p>\n
State,   in   terms   of   Entry   5   of   List   II   of   Schedule   VII,   is <\/p>\n
competent to enact such a law. It is a settled canon of law <\/p>\n
that   courts   normally   would   make   every   effort   to  save   the <\/p>\n
legislation   and   resolve   the   conflict\/repugnancy,   if   any, <\/p>\n
rather than invalidating the statute. Therefore, it will be the <\/p>\n
purposive   approach   to   permit   both   the   enactments   to <\/p>\n
operate in their own fields by applying them harmoniously. <\/p>\n
Thus, in our view, the ground of repugnancy raised by the <\/p>\n
appellants, in the present appeals, merits rejection.<\/p>\n
A   self-contained   code   is   an   exception   to   the   rule   of <\/p>\n
referential legislation. The various legal concepts covering <\/p>\n
                                                                                          30<\/span><\/p>\n
       the   relevant   issues   have   been   discussed   by   us   in   detail <\/p>\n
       above.   The   schemes   of   the   MRTP   Act   and   the   Land <\/p>\n
       Acquisition Act do not admit any conflict or repugnancy in <\/p>\n
       their   implementation.   The   slight   overlapping   would   not <\/p>\n
       take the colour of repugnancy. In such cases, the doctrine <\/p>\n
       of   pith   and   substance   would   squarely   be   applicable   and <\/p>\n
       rigours   of   Article   254(1)   would   not   be   attracted.   Besides <\/p>\n
       that,   the   reference   is   limited   to   specific   provisions   of   the <\/p>\n
       Land   Acquisition   Act,   in   the   State   Act.   Unambiguous <\/p>\n
       language   of   the   provisions   of   the   MRTP   Act   and   the <\/p>\n
       legislative   intent   clearly   mandates   that   it   is   a   case   of <\/p>\n
       legislation   by   incorporation   in   contradistinction   to <\/p>\n
       legislation by reference.”\n<\/p>\n<\/p>\n
                                                           (emphasis supplied)<\/p>\n
23.    In   view   of   the   law   laid   down   in   the   aforementioned   cases,   we <\/p>\n
hold   that   the   1987   Act   not   only   provides   for   development   of   urban <\/p>\n
areas,   but   also   empowers   the   BDA   and   the   State   Government   to <\/p>\n
compulsorily acquire land for the purpose of execution\/implementation <\/p>\n
of the schemes.\n<\/p>\n<\/p>\n
24.    The   second   argument   of   the   learned   senior   counsel   for   the <\/p>\n
appellants   is   that   under   Section   19(7)   of   the   1987   Act,   the   State <\/p>\n
Government   is  empowered  to  release   the   acquired  land  and  the   High <\/p>\n
Court   committed   serious   error   by   nullifying   notification   dated <\/p>\n
24.3.1999 at the instance of those to whom sites were allotted by the <\/p>\n
                                                                                          31<\/span><\/p>\n
BDA.  Shri Shishodia emphasized that the documents like panchnamas <\/p>\n
and record of rights prepared by the Special Land Acquisition Officer <\/p>\n
and other revenue officers are evidence only of symbolic taking over of  <\/p>\n
possession,   but   the   actual   possession   continued   with   the   landowners, <\/p>\n
who carved out plots and sold the same to the members of the weaker <\/p>\n
sections and the State Government had rightly taken note of the plight <\/p>\n
of the citizens belonging to poor strata of the society and denotified the  <\/p>\n
land   by   accepting   the   recommendations   made   by   the   BDA.     Shri <\/p>\n
Shishodia   submitted   that   Mumtaz   Begum   and   others   are   innocent <\/p>\n
purchasers and the High Court should have rejected the plea taken by <\/p>\n
the   official   respondents   that   the   State   Government   could   not   have <\/p>\n
issued   notification   under   Section   19(7)   of   the   1987   Act.     Learned <\/p>\n
counsel   for   the   State   and   the   BDA   submitted   that   Section   19(7)   is <\/p>\n
similar   to   Section   48   of   the   1894   Act   and   the   power   to   denotify   the <\/p>\n
acquired land cannot be exercised after possession of the acquired land <\/p>\n
is taken by the competent authority and, in any case, that power can be  <\/p>\n
exercised only by the Authority and not by the State Government.<\/p>\n
                                                                                         32<\/span><\/p>\n
25.    In   our   view,   there   is   no   merit   in   the   argument   of   the   learned <\/p>\n
senior counsel for the appellants.   The documents produced before the <\/p>\n
High Court and this Court show that possession of land comprised in <\/p>\n
survey   Nos.   534\/A+C   was   taken   on   1.1.1996   and   possession   of   land <\/p>\n
comprised   in   survey   Nos.   533\/1,   534\/B   was   taken   after   dismissal   of <\/p>\n
Writ   Petition   Nos.   30236\/1994   and   30237\/1994.     After   taking   of <\/p>\n
possession, the name of the BDA was entered in the record of rights. <\/p>\n
The   appellants   have   not   produced   any   evidence   before   the   Court   to <\/p>\n
show   that   Panchnamas   evidencing   take   over   of   possession   were <\/p>\n
fabricated  by   the   Special   Land  Acquisition   Officer  and  entries  in   the  <\/p>\n
record of rights were manipulated by the concerned revenue authorities. <\/p>\n
Therefore,   the   bald   statement   made   by   the   landowners   that   they <\/p>\n
continued   to   be   in   possession   of   the   acquired   land   cannot   be   relied <\/p>\n
upon   for   recording   a   finding   that   denotification   of   the   acquired   land <\/p>\n
was   valid.     In   Banda   Development   Authority,   Banda   v.   Motilal <\/p>\n
Agarwal<\/a> (2011) 5 SCC 394, this Court examined in detail the mode and <\/p>\n
manner of taking possession of the land acquired under the 1894 Act, <\/p>\n
referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat<\/a> <\/p>\n
(1976) 1 SCC 700, Balmokand Khatri Educational and Industrial Trust, <\/p>\n
                                                                                           33<\/span><\/p>\n
Amritsar v. State of Punjab (1996) 4 SCC 212, P.K. Kalburqi v. State <\/p>\n
of   Karnataka   (2005)   12   SCC   489,   National   Power   Thermal   Power <\/p>\n
Corporation   Ltd.   v.   Mahesh   Dutta<\/a>   (2009)   8   SCC   339,   Sita   Ram <\/p>\n
Bhandar Society v.  Government  N.C.T.  of Delhi  (2009) 10 SCC  501 <\/p>\n
and culled out the following principles:\n<\/p>\n<\/p>\n
      “(i)     No hard-and-fast rule can be laid down as to what act <\/p>\n
      would constitute taking of possession of the acquired land.<\/p>\n<\/blockquote>\n
      (ii)     If   the   acquired   land   is   vacant,   the   act   of   the   State<\/p>\n
      authority   concerned   to   go   to   the   spot   and   prepare   a<\/p>\n
      panchnama   will   ordinarily   be   treated   as   sufficient   to<\/p>\n
      constitute taking of possession.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      (iii)    If   crop   is   standing   on   the   acquired   land   or<\/p>\n
      building\/structure   exists,   mere   going   on   the   spot   by<\/p>\n
      the   authority   concerned   will,   by   itself,   be   not   sufficient<\/p>\n
      for   taking   possession.   Ordinarily,   in   such   cases,   the<\/p>\n
      authority concerned will have to give notice to the occupier <\/p>\n
      of   the   building\/structure   or   the   person   who   has   cultivated <\/p>\n
      the land and take possession in the presence of independent <\/p>\n
      witnesses   and  get   their  signatures  on  the   panchnama.     Of <\/p>\n
      course,   refusal   of   the   owner   of   the   land   or <\/p>\n
      building\/structure   may   not   lead   to   an   inference   that   the <\/p>\n
      possession of the acquired land has not been taken.<\/p>\n<\/blockquote>\n
      (iv)     If the acquisition is of a large tract of land, it may not <\/p>\n
      be   possible   for   the   acquiring\/designated   authority   to   take <\/p>\n
      physical   possession   of   each   and   every   parcel   of   the   land <\/p>\n
      and it  will  be  sufficient   that  symbolic   possession  is taken <\/p>\n
      by   preparing   appropriate   document   in   the   presence   of <\/p>\n
                                                                                       34<\/span><\/p>\n
       independent witnesses and getting their signatures on such <\/p>\n
       document.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (v)     If   beneficiary   of   the   acquisition   is   an <\/p>\n
       agency\/instrumentality   of   the   State   and   80%   of   the   total <\/p>\n
       compensation is deposited in terms of Section 17(3-A) and <\/p>\n
       substantial portion of the acquired land has been utilized in <\/p>\n
       furtherance of the particular public purpose, then the court <\/p>\n
       may   reasonably   presume   that   possession   of   the   acquired <\/p>\n
       land has been taken.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
26.    By applying clause (ii) of the aforesaid principles, we hold that  <\/p>\n
possession   of   the   acquired   land   had   been   taken   by   the   Special   Land <\/p>\n
Acquisition Officer in accordance with law and neither the BDA had  <\/p>\n
the   jurisdiction   to   make   a   recommendation   for   denotification   of   the <\/p>\n
acquired land nor the State Government could issue notification under <\/p>\n
Section 19(7) of the 1987 Act.  It also appears to us that both, the BDA  <\/p>\n
and  the  State  Government  laboured  under a  mistaken impression that <\/p>\n
the power under Section 19(7) of the 1987 Act can be exercised by the <\/p>\n
latter.   If that was not so and the BDA genuinely felt that a case was  <\/p>\n
made   out   for   deacquisition   of   land   comprised   in   survey   Nos.   533\/1, <\/p>\n
534\/A   and   534\/B,   then   it   could   have,   on   its   own,   issued   notification <\/p>\n
under Section 19(7) of the 1987 Act.\n<\/p>\n
\n                                                                                        35<\/span><\/p>\n
27.    The question whether Mumtaz  Begum  and others who claim to <\/p>\n
have purchased small parcels of land from Allahuddin Khan after the <\/p>\n
issuance of notifications under Section 17(1) of the 1987 Act should be <\/p>\n
allowed to retain the same despite the fact that the BDA had carved out <\/p>\n
sites and allotted plots to more than 100 eligible applicants deserves to <\/p>\n
be answered in negative in view of the law laid down in Yadu Nandan <\/p>\n
Garg v. State of Rajasthan<\/a> 1996(1) SCC 334, U.P. Jal Nigam, Lucknow <\/p>\n
v. Kalra Properties (P) Ltd.<\/a> (1996) 3 SCC 124, Sneh Prabha v. State of <\/p>\n
U.P.   (1996)   7   SCC   426,   Ajay   Krishan   Shinghal   v.   Union   of   India<\/a> <\/p>\n
(1996) 10 SCC 721, Star Wire (India) Ltd. v. State of Haryana<\/a> (1996) <\/p>\n
11 SCC 698, Jaipur Development Authority v. Daulat Mai Jain<\/a> (1997) <\/p>\n
1 SCC 35, Meera Sahni v. Lt. Governor of Delhi<\/a> (2008) 9 SCC 177 and <\/p>\n
Tika Ram v. State of U.P. (2009) 10 SCC 689.\n<\/p>\n<\/p>\n
28.    In   Sneh   Prabha   v.   State   of   U.P.   (supra),   the   Court   referred   to <\/p>\n
some of the earlier judgments and held:\n<\/p>\n<\/p>\n
       “. … It is settled law that any person who purchases land <\/p>\n
       after   publication   of   the   notification   under   Section   4(1), <\/p>\n
       does  so   at   his\/her  own  peril.   The   object   of  publication  of <\/p>\n
       the   notification   under   Section   4(1)   is   notice   to   everyone <\/p>\n
       that the land is needed or is likely to be needed for public <\/p>\n
       purpose   and   the   acquisition   proceedings   point   out   an <\/p>\n
                                                                                      36<\/span><\/p>\n
       impediment   to   anyone   to   encumber   the   land   acquired <\/p>\n
       thereunder.   It   authorises   the   designated   officer   to   enter <\/p>\n
       upon   the   land   to   do   preliminaries,   etc.   Therefore,   any <\/p>\n
       alienation   of   the   land   after   the   publication   of   the <\/p>\n
       notification   under   Section   4(1)   does   not   bind   the <\/p>\n
       Government   or   the   beneficiary   under   the   acquisition.   On <\/p>\n
       taking possession of the land, all rights, title and interests in <\/p>\n
       land stand vested in the State, under Section 16 of the Act, <\/p>\n
       free from all encumbrances and thereby absolute title in the <\/p>\n
       land is acquired thereunder.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
The same view has been reiterated in other judgments.<\/p>\n
29.    In   the   result,   the   appeals   are   dismissed.     Appellants   –   Vasanth <\/p>\n
Sreedhar   Kulkarni   and   Eshwar   Gouda   Burma   Gouda   Patil   shall   pay <\/p>\n
cost   of   Rs.1,00,000\/-   each   to   the   BDA   for   thrusting   unwarranted <\/p>\n
litigation upon it.  The BDA shall ensure delivery of possession of the <\/p>\n
sites to the allottees within 8 weeks from today.   However, it is made <\/p>\n
clear that this judgment shall not preclude the State Government from <\/p>\n
allotting alternative sites to Mumtaz Begum and others, who are said to <\/p>\n
have   purchased   small   parcels   of   land   from   the   landowners   through <\/p>\n
Allahuddin Khan.\n<\/p>\n<\/p>\n
                                                         ………………………..J.\n<\/p>\n
                                                           [G.S. Singhvi]<\/p>\n
                                                                                  37<\/span><\/p>\n
                                                                   …………………………J.\n<\/p>\n
                                                     [Asok Kumar Ganguly]<\/p>\n
New Delhi<\/p>\n
October 14, 2011.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011 Bench: G.S. Singhvi, Asok Kumar Ganguly 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-30233","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vasanth-sreedhar-kulkarni-ors-vs-state-of-karnataka-ors-on-14-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011 - 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