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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 16TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ
WRIT APPEAL NO.1053 OF 2007 [LA-BDA]
AND
WRIT APPEAL NO.3732 OF 2011 [LA-BDA]
CONNECTED WITH
WRIT APPEAL NO.1125 OF 2007 [LA-BDA]
AND
WRIT APPEAL NOS.3729 TO 3731 OF 2011 [LA-BDA]
IN WRIT APPEAL NO.1053 OF 2007 AND WRIT APPEAL NO.3732 OF 2011:
BETWEEN:
1. SRI. ANTHONY REDDY,
SON OF THE LATE THOMASAPPA, AGED ABOUT 65 YEARS,
RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST,
BENGALURU-560 045.
R
2
* SINCE DECEASED BY HIS LEGAL REPRESENTATIVES:
1(a). SMT. SUSHEELA AGED ABOUT 65 YEARS
1(b). A JACINTHA
AGED ABOUT 49 YEARS
1(c). RAJ MARY A AGED ABOUT 46 YEARS
1(d). THOMAS KUMAR A
AGED ABOUT 43 YEARS
1(e). JOSEPHINA A AGED ABOUT 40 YEARS
1(f). GEORGE A
AGED ABOUT 38 YEARS
1(g). JAYA PRABHA
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT NO.10, CHURCH MAIN ROAD,
NIRMALA NAGAR (ERANNAPALYA) A.C.POST, BENGALURU-560 045.
(*AMENDED VIDE COURT ORDER DATED 29.05.2013)
2. SRI. JOSEPH THYAGARAJ,
SON OF LATE THOMASAPPA, AGED ABOUT 55 YEARS,
RESIDING AT VEERANAPALYA VILLAGE,
ARABIC COLLEGE POST, BENGALURU-560 045. ... APPELLANTS
3
[BY SRI. B.V.ACHARYA, SENIOR COUNSEL FOR SRI. JANARDHANA G., ADVOCATE]
AND
1. THE STATE OF KARNATAKA, BY ITS SECRETARY TO DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT, M.S. BUILDING, VIDHANA VEEDHI,
DR. AMBEDKAR ROAD, BENGALURU-560 001.
2. THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD,
KUMARA PARK WEST, BENGALURU-560 020.
3. THE ADDITIONAL LAND ACQUISITION OFFICER, BENGALURU DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD, KUMARA PARK WEST,
BENGALURU-560 020. ... RESPONDENTS
[BY SRI. E.S. INDIRESH, ADDITIONAL GOVERNMENT
ADVOCATE FOR R-1 SRI. D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR
SRI. B.LETHIF, ADVOCATE FOR R-2 & R-3]
THESE WRIT APPEALS ARE FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT,1961, PRAYING TO
SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE
4
JUDGE IN WRIT PETITION NO.17935 OF 2002 DATED 12.04.2007.
*****
IN WRIT APPEAL NO.1125 OF 2007 AND WRIT APPEAL NOS.3729-3731 OF 2011:
BETWEEN:
1. SRI. AROGYA REDDY,
SON OF LATE THOMASAPPA, AGED ABOUT 60 YEARS,
RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST,
BENGALURU-560 045.
2. SRI. CHOURI REDDY, SON OF LATE THOMASAPPA,
AGED ABOUT 54 YEARS, RESIDING AT VEERANAPALYA VILLAGE,
ARABIC COLLEGE POST,
BENGALURU-560 045.
3. SRI. CHINNASWAMY REDDY,
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES:
3(a). SRI. ALBERT DAVID,
AGED ABOUT 35 YEARS,
3(b). SRI. PRAKASH PAUL, AGED ABOUT 34 YEARS,
5
BOTH RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST,
BENGALURU-560 045.
... APPELLANTS
[BY SRI. B.V. ACHARYA, SENIOR COUNSEL FOR SRI. JANARDHANA G., ADVOCATE]
AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY TO DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT M.S. BUILDING, VIDHANA VEEDHI,
DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
2. THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK WEST,
BENGALURU-560 020.
3. THE ADDITIONAL LAND ACQUISITION OFFICER, BENGALURU DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK WEST,
BENGALURU-560 020. ... RESPONDENTS
[BY SRI. E.S. INDIRESH, ADDITIONAL GOVERNMENT
ADVOCATE FOR R1; SRI. D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR
SRI. B.LETHIF, ADVOCATE FOR R2 AND R3]
6
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE
JUDGE IN WRIT PETITION NO.17935 OF 2002 DATED 12.04.2007 IN SO FAR AS THE APPELLANTS ARE
CONCERNED.
* * * * *
THESE WRIT APPEALS COMING ON FOR FINAL
HEARING, THIS DAY RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the Order dated 12.04.2007 passed by
the learned Single Judge in Writ Petition No.17935 of 2002
[LA-BDA] in dismissing the writ petition, writ petitioners 1
and 4 have filed Writ Appeal Nos.1053 of 2007 and 3732
of 2011. During the pendency of the appeals, the 1st
petitioner died and his legal representatives were brought
on record. Writ petitioners 2, 5 and 3 have filed Writ
Appeal Nos.1125 of 2007 and 3729 to 3731 of 2011.
2. A common writ petition was filed by all the writ
petitioners. The learned Single Judge considered the writ
petition along with the connected writ petitions and by the
7
common Order dated 12.04.2007, dismissed all the writ
petitions. Hence, these appeals.
3. The parties will be referred to as per their
ranking before the learned Single Judge.
4.(a) The case of the petitioners is as follows:
They are the sons of late Shri. Thomasappa, who
died in the year 1978. That the agricultural land bearing
Survey No.57/1 measures to an extent of 3 acres 28
guntas including 4 guntas of kharab land and Survey
No.57/2 measures 6 acres 39 guntas, including 7 guntas of
kharab land. Both the lands are situated at Nagawara
village, kasaba hobli, Bengaluru North Taluk. The
properties are family properties of their late father. During
his life-time, the properties were partitioned under the
registered Partition Deed dated 24.05.1972. In terms
thereby, the 1st petitioner received a share of 2 acres 4
guntas of land in Survey No.57/1, the 2nd petitioner
received a share of 1 acre 8 guntas of land in Survey
8
No.57/1 and 33 guntas of land in Survey No.57/2. The 3rd
petitioner received a share of 2 acres 1 gunta of land in
Survey No.57/2. The 4th petitioner received a share of 2
acres 1 gunta of land in Survey No.57/2 and the 5th
petitioner received a share of 2 acres 1 gunta of land in
Survey No.57/2 of Nagawara village.
(b) That the 2nd respondent Bangalore
Development Authority [‘BDA’ for short] issued a
Preliminary Notification dated 02.06.1978 under Section
17 of the Bangalore Development Authority Act, 1976
[‘BDA Act’ for short] proposing to acquire 982 acres and 6
guntas of land for a scheme known as ‘Hennur Road and
Bellary Road’ [‘HBR’ for short] III stage layout. The said
notification included the lands of the petitioners.
Objections were filed to the said preliminary notification by
the petitioners. Much thereafter, the 1st respondent State,
issued a Final Notification under Section 19 of the BDA Act,
dated 02.02.1989. The petitioners thereafter filed a suit in
9
Original Suit No.1875 of 1989 before the City Civil Court at
Bengaluru, seeking for a declaration and injunction against
the State and the BDA. An interim order of injunction as
prayed for was granted. Thereafter, the suit was dismissed
on 22.11.1995. In view of the subsequent disturbance by
the respondents, the petitioners once again filed a suit in
Original Suit No.7128 of 1996 for bare injunction. The suit
came to be dismissed as withdrawn in 2001. Thereafter, in
the light of the tender notification dated 20.03.2002 to
form a layout only in Survey Nos. 54 and 57, the
petitioners preferred the instant Writ Petitions Nos. 17935
to 17939 of 2002 before this Hon’ble court.
(c) The respondent BDA entered appearance and
filed their statement of objections disputing the same. No
objections were filed by the State.
(d) On considering the contentions, the learned
Single Judge, by the impugned order, dismissed the writ
10
petitions with costs of Rs.25,000/-. Questioning the said
order, the instant appeals are filed.
5. Sri. B.V. Acharya, the learned Senior Counsel
appearing for the petitioners’ counsel, contends that the
learned Single Judge has failed to consider the material
and contentions placed before him. That there was no real
contest even by the BDA, in sustaining the scheme.
Learned counsel for the BDA had made an erroneous
submission before the learned Single Judge, that an extent
of 102 acres of land acquired, have been put to use. The
same was an incorrect submission on facts. That the
substantial delay in issuing the Final Notification under
Section 19 of the BDA Act, is fatal to the case of the
respondents. That the petitioners continue to be in
possession of the lands in question and they have not been
dispossessed. That the BDA has itself passed a resolution,
not to go ahead with the Scheme. Therefore, it is pleaded
11
that the learned Single Judge has wrongly rejected the writ
petitions.
6. Sri. D.N. Nanjunda Reddy, learned Senior
Counsel appearing for the counsel representing
respondents 2 and 3 (i.e BDA), disputes the same. He
firstly contends that there was only one contention urged
before the learned Single Judge, with regard to lapsing of
the scheme. Therefore, no other contention can be
considered by this court. Secondly, even if it is to be held
that the Scheme has lapsed, that itself will not constitute a
ground to set aside the acquisition. That once the land has
vested with the State or the BDA, the said land cannot be
divested. That there is a substantial delay in challenging
the acquisition proceedings. The Final Notification was
issued in the year 1989, whereas the writ petition was filed
in the year 2002. The delay is huge and unexplained.
Hence, the petition requires to be rejected on that ground
alone. The petitioners have approached the Civil Court on
12
two occasions. It is due to their acts, that the Scheme
could not be completed. Therefore, they cannot take
advantage of their own acts.
7. Even though no objections were filed by the
State before the learned Single Judge or before this Court,
we have heard submissions of the learned Government
Advocate, Sri. E.S. Indiresh, who submits that he adopts
the contentions of the learned Senior Counsel appearing
for the BDA.
8. Heard Learned Counsels.
9.(a) The preliminary objection of the learned
Senior Counsel for the BDA is that, only one ground was
urged for consideration before the learned Single Judge.
He places reliance on para 2 of the order of the learned
Single Judge, wherein it was held that the learned counsel
has urged only one contention, that the Scheme has
lapsed, since there is no substantial compliance within the
13
statutory period of 5 years as contemplated under Section
27 of the BDA Act. That no other contentions have been
advanced. Therefore, the applicants cannot be permitted
to urge grounds they have not pleaded before the learned
Single Judge. Therefore, the learned Single Judge has
considered the sole contention urged by the petitioners.
Furthermore, by relying on the prayer sought for in the
writ petition, he contends that there was no challenge to
the acquisition proceedings.
(b) We are unable to accept the said contention.
The very order of the learned Single Judge at para 5,
would indicate that notwithstanding the contention on
Section 27 of the BDA Act, a contention was raised by the
petitioners, wherein it was pleaded that there being a
delay of close to 15 years in questioning the acquisition,
that should not be held against the petitioners. Therefore,
the contention that there is a delay in issuing the Final
Notification, was not only a ground urged by the
14
petitioners, but also referred to by the learned Single
Judge in para 5 of the order. In the writ petition, prayer
(iii) is for a writ, order or direction in the nature of a
mandamus declaring that the Preliminary Notification
dated 02.06.1978 and the Final Notification published in
the Karnataka Gazette on 02.02.1989, have lapsed and
became null and void and unenforceable. Therefore, a
specific prayer on acquisition, has been made by the
petitioners in the writ petition. In fact, we even noticed
from the statement of objections filed by the respondent/
BDA, that they have specifically objected to the challenge
to the acquisition proceedings. They have also contended
that the petitioners challenge to the acquisition
proceedings on the ground of substantial delay should be
rejected. Therefore, the contentions of the BDA that only
one contention was raised, may not be correct, based on
the order of the learned Single Judge at para 5 as well as
the statement of objections filed by the BDA themselves.
Furthermore, having held in para 2 of the order that what
15
is challenged is only the lapse of the scheme, the learned
Single Judge in para 17 of his order, comes to the
conclusion that the petitioners have successfully thwarted
the acquisition proceedings and therefore they are not
entitled for any of the relief sought for. Therefore, this
reasoning assigned by the learned Single Judge,
necessarily pertains to the acquisition proceedings and not
to the Scheme. For the reasons stated therein, the
learned Single Judge holds, that it is the petitioners who
are responsible for thwarting the acquisition proceedings
and hence, he declines to grant relief to them. Therefore,
the contention of the BDA that there is no ground with
regard to the challenge to the acquisition proceedings,
may not be a true reflection of the records, pleadings,
statement of objections or even the order of the learned
Single Judge. Therefore, the objection of the BDA, on this
issue cannot be accepted.
16
10.(a) It is further contended by the learned
Counsel for the BDA, that the learned Single Judge was
justified in coming to the conclusion that the petitioners
having filed suits, have therefore prevented the BDA from
going ahead with the Scheme. Therefore, the learned
Single Judge came to the conclusion at one stage, that
since the petitioners have thwarted the acquisition
proceedings themselves, they cannot now contend that the
Scheme is not implemented within the statutory period of
5 years and therefore, the same would lapse in terms of
Section 27 of the BDA Act. Therefore, the delay if any in
the implementation of the scheme, cannot be attributed to
the respondents. That right from the publication of the
Final Notification, the petitioners have filed two suits and
obtained an interim order of injunction preventing the
respondents from implementing the scheme. Therefore,
the petitioners themselves are responsible and hence no
relief could be granted to them.
17
(b) What was to be considered by the learned
Single Judge was the contentions of the petitioners, that
the Scheme has not been substantially implemented within
the period of 5 years as contemplated under Section 27 of
the BDA Act. While considering such a contention, the
learned single Judge relied on the submissions made by
the learned counsel for the BDA, that 102 acres of land
have been put to use under the Scheme. On placing
reliance on the submission made by the BDA counsel, it
was held that there was substantial implementation of the
scheme.
11. During the pendency of these appeals, the
Division Bench noticed various anomalies, the error in the
acquisition proceedings, the manner in which the
proceedings have been conducted by the BDA and the
State, the conduct of the respondents etc. The Bench
noticed with anguish that the facts and circumstances
involved in the case show that the respondents have taken
18
nearly 11 years to consider the objections filed to the
preliminary notification and thereafter, issued the final
notification. That the acquisition under the preliminary
notification was to the extent of 982 acres 6 guntas, which
was scaled down to 433 acres 32 guntas, 10 years later by
the final notification and thereafter, award has been
passed only to an extent of 97 acres 7 guntas. The Bench
observed the lack of due diligence on the part of the BDA
in formulating the development Scheme. Even as on the
said date, no layout has been formed and no site has been
allotted to any body. It was therefore held that in order
to decide the appeals in a meaningful manner, certain
facts had to be brought out from the records of the
respondents. Therefore, the respondent / BDA by the
order dated 09.10.2012 were directed to furnish
particulars as raised by the Bench in the aforesaid order,
which reads as follows:
“8. The Bangalore Development
Authority shall state the following particulars in
19
the form of affidavit duly sworn to by a
responsible officer of the BDA;
(1) When 982.06 acres of land was
notified as required for the development
Scheme under Section 17(1) of the Act, why
there was a delay of 11 years in issuing final
notification on 02.02.1989?
(2) Why only 433.32 acres were
notified for acquisition under Section 19(1) of
the Act, whether the authority has undertaken
any survey before drawing up a development
scheme under Section 15 and 16 of the Act. If
so, to furnish particulars by way of annexure to
the affidavit.
(3) If in the scheme formed under
Section 15 and 16 they needed 982.06 acres,
why it was reduced to 433.32 acres at the time
of final notification?
(4) Even after final notification in the
year 1989, when they are able to pass an
award in respect of 107 acres 38 guntas on
20
18.08.1989, why even after 23 years, no
award has been passed in respect of 325.34
acres of land?
(5) What is the difficulty in taking
possession of the land.
(6) In 97 acres 7 guntas of land, the
possession of which is taken, have they formed
any layout. If so, to produce the layout plan.
(7) Whether any denotification has
been done in respect of lands the possession of
which is taken under notification under Section
16(2) of the Act.
(8) In respect of 10 acres 31 guntas of
land, when award is passed, why possession is
not taken.
(9) the Government shall make
available the records pertaining to
denotification containing request for
denotification and ground on which
denotification was granted.
21
(10) The status of litigation and the
lands which are covered under the litigation.
(11) Steps taken by the BDA and the
Government for the speedy disposal of the
cases. Whether Counsel are engaged in all the
cases and what steps the Counsel have taken
for speedy disposal.
(12) Whether the Government or BDA
has any plans to tackle this problem of
litigation by forming a Special Cell for speedy
disposal of cases, which are pending in the
Courts.
(13) What is the average time taken
from the date of the notification under Section
17(1) of the Act till the date of allotment of
sites, in respect of the layouts formed by the
BDA in the past three decades.
(14) In all such cases what is the total
extent of land notified under Section 17(1) of
the Act, Section 19(1) of the Act, the extent of
22
land denotified and the extent of land in which
the layout is formed.
(15) The High Court Registry is directed
place on record the status report of all the
cases referred to in para 7 of the order within a
week from today.
Registry is directed to furnish a copy of this
order both to the learned Counsel appearing
for the BDA as well as the learned Government
Advocate.
Call on 18.10.2012 for compliance.”
12. In pursuance thereof, an affidavit has been
filed by the respondent/BDA on 02.11.2012. In view of
the material placed on record that there was rampant de-
notification made by the State, yet another Order dated
06.11.2012 was passed by the Bench directing the
Government Advocate to produce the De-notification Order
dated 04.01.2010 with respect to Survey Nos.100/1,
100/2, 6/2A, 6/2B, 134 and 136 of the said village. Since
23
the said notification was not produced, by the Order dated
27.02.2013 one more opportunity was granted with a
specific note that if the order of the Bench is not complied
with, the same would result in issuance of a contempt
notice. It is submitted by the learned Government
Advocate, that the said order was complied with on
14.03.2014.
13. The respondent/BDA had filed their statement
on 08.06.2012 with regard to the status of the layout and
why the layout could not be formed. During the course of
hearing of the appeals, as directed, yet another statement
was filed on 09.07.2012. Since a further clarification was
sought for by the Court, yet another statement was filed
by the BDA on 17.09.2012.
14. Therefore, the submissions made by the
learned counsel for the BDA before the learned Single
Judge, runs contrary, not only to the material, but also to
the very affidavits filed by the BDA officials, in the course
24
of these appeals. The affidavits filed in these appeals do
not support the submission on implementation of scheme.
Therefore, the findings of the learned Single Judge being
based on the erroneous submission, the same cannot be
sustained. Based on the material produced by the BDA, the
learned single judge has been misled on facts.
DELAY IN CHALLENGING THE PROCEEDINGS :
15.(a) The contention of the respondent-BDA is that
there is substantial delay in challenging the acquisition
proceedings. That the conduct of the petitioners
themselves, would disentitle them to any relief. In
pursuance whereof, it is contended that the writ petitioners
had filed O.S. No.1875 of 1989 seeking for a declaration
that the preliminary and final Notifications with regard to
Hennur-Bellary Road III Stage is illegal, void for a
permanent injunction, etc. An interim injunction
restraining their dispossession, not to demolish the
25
structures and not to pass any award was granted by the
trial Court. The Suit was dismissed on 22.11.1995.
Thereafter, yet another Suit was filed by the petitioners in
O.S.No.7128 of 1996 for a bare injunction. The Suit was
dismissed as withdrawn in the year 2001. The instant writ
petitions were filed in the year 2002. Hence, there is a
substantial delay in approaching this Court.
(b) The respondent – BDA contend that the delay
has to be reckoned from the date of final Notification up-to
the date of filing the writ petition. The final Notification
was issued in the year 1989, the writ petitions were filed in
the year 2002. Therefore, there is 13 years delay in
challenging the acquisition proceedings.
(c) The same is disputed by the petitioners’
counsel. He contends that the earlier Suit was dismissed
as not maintainable in the year 1995. Thereafter, the
respondent attempted to disturb their possession, which
prompted them to file the second Suit. That Suit was
26
dismissed as withdrawn in view of the fact that the
petitioners were under the impression that since the entire
Scheme had lapsed and the BDA was not proceeding
further with the acquisition, they need not litigate the said
issue. It is only when the BDA again started disturbing
their possession and sought to interfere with their
property, that the instant writ petitions were filed. They
have been consistently protecting their legal rights. They
have not slept over their rights. Therefore, there is no
delay at all in filing the writ petitions.
(d) So far as the relevant dates are concerned, the
first Suit was filed in the year 1989 and dismissed in 1995.
The second suit was filed in 1996 and was dismissed in the
year 2001. The writ petitions were filed within a year
thereafter in the year 2002. Therefore, the material on
record would indicate that the petitioners were prosecuting
their rights before various Courts seeking various reliefs.
Therefore, it cannot be said that they kept quiet without
27
exercising their legal right or that delay has occasioned.
Delay would occur when the right of a litigant is not
exercised by him, within the time frame. That the case of
a litigant, would be hit by delay, if he has slept over his
rights. However, it is not the case herein. They have been
continuously agitating their rights. Whether they were
agitating their rights in an appropriate Court or not, is a
secondary question. What is of importance is that, they
have not slept over the matter. It is not for the first time
that they have woken up and filed the writ petition to
protect their rights. That the Final Notification was issued
in 1989. The first suit was filed in the year 1989 which
was dismissed in 1995. The second suit was filed in 1996
which was dismissed in 2001. Thereafter, the instant writ
petitions were filed in the year 2002. Therefore, it can be
concluded that the petitioners were consistently
prosecuting their rights in a Court of law. Therefore, the
petitioners were vigilant in defending their rights.
28
(e) Therefore, even if the delay is to be considered
it has to be reckoned from the date of dismissal of the
second suit. The second suit was disposed off in 2001.
A year later, the writ petitions were filed. Therefore, the
delay if any is only of the period between 2001 and 2002.
Therefore, there was no delay in challenging the
acquisition proceedings.
(f) The delay as contended by the respondent –
BDA would have been considered provided there were no
proceedings in the intervening period. The material on
record would indicate that consistent proceedings were
initiated commencing from filing of the suit in the year
1989 which was dismissed in 1995. The second suit was
filed in 1996 and dismissed in 2001. Thereafter, the
instant writ petitions were filed in the year 2002.
Therefore, the delay cannot be reckoned from the date of
29
final Notification up-to the date of filing the writ petition.
Since the petitioners were consistently agitating their
rights, it cannot be said that there was delay in challenging
the acquisition proceedings.
(g) Yet another aspect to be considered is that the
challenge in the writ petition is on the ground of lapsing of
the scheme as a result of the inaction by the BDA in
implementing the Scheme. Therefore, every day’s delay in
implementing the scheme, would aid the cause of action.
When the scheme is being challenged on the ground that it
has lapsed due to efflux of time and non-implementation of
the scheme, the delay would accrue to the benefit of the
writ petitioners. Therefore, the delay cannot be held
against them.
(h) The learned counsel for the respondents
submits that when there is delay and laches in
approaching the Court, whether the same has to be
ignored or not, is a question that was referred to a larger
30
Bench in terms of the order dated 27.3.2018 passed by the
Hon’ble Supreme Court in the case of UNION OF INDIA
AND OTHERS –vs- GOPALDAS BHAGWAN DAS AND
OTHERS in CIVIL APPEAL No. 3636 of 2016. Therefore, he
pleads that when the said question would be answered by
the Hon’ble Supreme Court, thereafter it could be made
applicable to the facts of these cases. However, we are of
the view that the said order would not be applicable to the
facts of the case herein. We have categorically held that
there is no delay in filing the writ petitions. The
applicability of the matter referred to a larger Bench of the
Hon’ble Supreme Court, would arise, only in a case where
there is a delay per se in approaching the Court and
consequently as to how and in what manner the delay has
to be construed. Since a finding is recorded herein, that
there is no delay in approaching this Court, we are of the
view that referral of the said matter to a larger bench
would not be of any avail to the respondent.
31
REGARDING VESTING OF THE PROPERTY:
16.(a) In support of his contention, the learned
counsel for the BDA relies on the material before the
Court, to indicate that possession of the land in Survey
No.57/1 was taken on 19.10.1989 and possession of the
land in Survey No.57/2 was taken on 16.10.1989. In
terms thereof, a Notification dated 16.07.1990 was
published in the Gazette on 08.07.1991 under Section
16(2) of the Land Acquisition Act. Therefore, it clearly
indicates that possession has been taken. When
possession has been taken and a Notification under
Section 16(2) of the Land Acquisition Act has been issued,
the lands vest with the State/BDA. The lands cannot be
divested from the State / BDA.
(b) Therefore, once vesting takes place the same
cannot be a subject matter of adjudication in a court of
law. Once the vesting takes place, there cannot be de-
vesting. Therefore, the writ petitions require to be
32
rejected. In support of the said contention, reliance is
placed on the decision reported in (2011) 3 SUPREME
COURT CASES 139 in the case of OFFSHORE HOLDINGS
PRIVATE LIMITED VERSUS BANGALORE DEVELOPMENT
AUTHORITY AND OTHERS, by relying on para 38 which
reads as follows:
“ ….. On vesting, the land stands transferred
and vested in the State/Authority free from all
encumbrances and such status of the property
is incapable of being altered by fiction of law
either by the State Act or by the Central Act”.
Therefore, he contends that the question of divesting
would not arise for consideration.
(c) The learned Senior Counsel for the petitioners
disputes the same. He submits that the question for
consideration before the Hon’ble Supreme Court was not
on vesting. Firstly, the question that was referred for
consideration was whether the provisions of Section 11-A
33
of the Land Acquisition Act can be applied to an acquisition
under the provisions of the BDA Act. Therefore, this was
the question that was referred to the Constitution Bench.
In answering such a question, reference has been made
with regard to the issue on vesting. Therefore, the
findings of the Hon’ble Supreme Court in para 38 can only
be considered as an ‘obiter dicta’ because that was not the
question for consideration. Therefore, he pleads that the
said Judgment would not be applicable, so far as the
question of vesting is concerned.
(d) Secondly, the case of the respondents BDA in
taking possession or vesting becomes irrelevant, in view of
the order of injunction granted in favour of the petitioners.
It is pleaded that the petitioners had filed Original Suit
No.1875 of 1989 before the II Additional City Civil Judge,
Bengaluru. The decree sought for therein, were for a
declaration to declare that the Preliminary and Final
Notification for formation of HBR III Stage Layout is illegal,
34
void and rendering themselves infructuous and inoperative
under law and also for a decree of permanent injunction
restraining the defendants therein from dispossessing the
plaintiffs. On the very same day, an application for
temporary injunction under Order 39 Rule 1 and 2 of CPC
was filed seeking for a direction to the defendants not to
dispossess the plaintiffs from the suit schedule properties,
secondly, to direct the defendants not to demolish any of
the existing structures on the suit schedule properties and
thirdly, to direct the defendants not to pass any award
with respect to the suit schedule properties. Temporary
injunction as prayed for was granted. The learned counsel
for the defendants BDA, entered appearance on
12.06.1989. The suit was ultimately dismissed vide
Judgment and Decree dated 22.11.1995. Therefore, from
the date of filing of the suit, that is on 30.03.1989 up to
22.11.1995, there was an order of temporary injunction as
narrated hereinabove, against the defendants. When the
defendants have been directed not to dispossess the
35
plaintiffs, that is the petitioners herein, from the suit
schedule properties, the defendants, that is the
respondents BDA herein, could never take possession of
the same. Therefore, it is sufficient to negate the plea of
the respondent/BDA, that the possession was not taken on
16.10.1989 and 19.10.1989.
(e) This is opposed by the learned Counsel for
the BDA by relying on the Judgment of the Hon’ble
Supreme Court reported in (1995)4 SUPREME COURT
CASES 229 in the case of STATE OF BIHAR VERSUS
DHIRENDRA KUMAR AND OTHERS with reference to para
3. In the facts and circumstances therein, the notification
under Section 4(1) of the Land Acquisition Act and
thereafter a declaration under Section 6 of the Land
Acquisition Act was issued by the State; possession was
taken and given to the Housing Board. Several
encroachments were made on the land and unauthorized
constructions appear to have been put up. Steps were
36
taken by the Housing Board to have the encroachers
ejected from those lands. Thereafter, original suit was
filed before the trial Court along with an interlocutory
application under Order 39, Rule 1 of CPC for an ad-
interim injunction. The trial Court having found that a
prima facie case having been made by the plaintiff,
granted an injunction restraining the defendants from
dispossessing the plaintiffs from the land in question till
the disposal of the suit. The same was challenged before
the High court, which was modified by ordering status quo.
That order was challenged before the Hon’ble Supreme
Court. The Hon’ble Supreme Court held that the Civil
Court has no jurisdiction to go into the question of the
validity or the illegality of the notification of acquisition.
The same can be done only by the High Court in a
proceeding under Article 226 of the Constitution.
Therefore, the civil suit itself is not maintainable. When
such is the situation, the finding of the trial Court that
there is a prima facie triable issue is unsustainable.
37
Learned Senior Counsel for the BDA extends his argument
by contending that since the suit itself is not maintainable,
an interim injunction could not be granted. Since the trial
Court has granted the interim injunction, the same is bad
in law.
(f) On hearing learned Senior Counsels, we are
unable to accept the contention of the learned counsel for
the respondents BDA. The Hon’ble Supreme Court in the
case of Dhirendar Kumar, held that since the possession
was already taken and handed over to the Housing Board,
the order of injunction was without jurisdiction and hence
the suit itself was not maintainable. However, in the
instant case, the possession has not been taken over by
the BDA at all. The material on record would indicate that
even though the BDA had immediately put in appearance
in the suit, there was no application to vacate the
injunction operating against them. For the next 6 [six]
years there was not even an application filed by the
38
defendants BDA, seeking to vacate the ex-parte order of
temporary injunction. No efforts have been made to get it
vacated. The suit was subsequently dismissed on
22.11.1995. Therefore, it is only on the day when the suit
was dismissed, the interim order of injunction granted
against the defendants BDA, would stand dissolved. As
long as the suit was pending and as long as the interim
order of injunction was in force, the BDA could not take
possession. Therefore, the contention of the BDA is
unacceptable.
(g) On the other hand, if the contention of the BDA
is to be accepted, the same would amount to disobedience
of the Court order attracting contempt. The records of the
Trial Court would disclose that right up to 1995, the order
of injunction prevented the defendants BDA from taking
possession of the suit schedule properties etc. Therefore,
the alleged possession of the suit schedule properties on
16.10.1989 and 19.10.1989, cannot be accepted.
39
(h) It is the further contention of the learned
Senior Counsel for the respondents BDA, that the records
namely the mahazar would indicate that the possession
has been taken in accordance with law in the presence of
the panchas. We have considered the mahazar produced
by the BDA for both the lands. It would indicate that the
same is in a cyclostyle form. The presence of the owner is
not found. The owner or the person present at the time of
drawing the mahazar has been deleted. Therefore, it
would show that the owner was not present when the
possession was taken. Secondly, the signature made on
the mahazar is sought to be argued as that of the owner.
This we find rather hard to accept. There is no material to
indicate that the said signature on the mahazar, belongs to
the owner himself.
(i) The further objection to the mahazar by the
petitioner, is that the panchas who signed the mahazar,
were not identifiable. On considering the records, we find
40
certain signatures/initials in the mahazar which are not
relatable to any person. As held by the Hon'ble Supreme
Court in a number of decisions, the Mahazar witnesses are
required to be identified. One would have to know who
was the witness to the Mahazar. If the witnesses cannot
be identified, then the witness of such persons, cannot be
accepted. There is no material, as to who have signed this
document, what are their names, where they are residing
etc. No such particulars are forthcoming. Therefore, the
Mahazar witnesses cannot be relied upon.
(j) Learned Senior Counsel for the respondents
BDA relies on the decision of the Hon’ble Supreme Court
reported in (2011) 5 SUPREME COURT CASES 394 in the
case of BANDA DEVELOPMENT AUTHORITY, BANDA
VERSUS MOTILAL AGARWAL AND OTHERS in order to show
that valid possession of the land has been taken. In
support of his argument, reliance is placed on para No.37
of the said Judgment, wherein the principles are culled out
41
with regard to taking possession of the land. Therefore, it
is contended that all these parameters have been complied
with. The same is disputed by the learned Senior Counsel
for the petitioners, on the ground that there were
structures on the land. Admittedly, the mahazar itself
indicates that there were structures. Therefore, when
there were structures on the land, Clause No.(iii)
mentioned in the said Judgment would become applicable.
Para 37 of the aforesaid judgment reads as follows:
“37. The principles which can be culled
out from the above noted judgments are:
(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 panchanama will
ordinarily be treated as sufficient to constitute
taking of possession.
42
(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
panchanama. 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 independent
witnesses and getting their signatures on such
document.
43
(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.”
(k) Therefore, Clause(iii) would clearly postulate
that whenever any building / structure exists, then merely
going to the spot by the authority concerned, will not by
itself be sufficient for taking possession. The authority will
have to give notice to the occupier of the building /
structure. In the instant case, admittedly there were
structures on the property. That there is nothing to
indicate that notices were issued to the occupiers of the
said structures. Therefore, it is in gross violation of the
order of the Hon’ble Supreme Court. Therefore, it cannot
44
be said that possession has been taken in a manner known
to law.
(l) Clause-(v) would also indicate that, if the
beneficiary is the instrumentality of the State and 80% of
the total compensation is deposited in terms of Section-
17(3-A) and further if 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 land has been taken. In the instant
case, firstly, there is no material to indicate that 80% of
the total compensation has been deposited. Even assuming
that 80% of the total compensation has been deposited,
the second portion of the Clause has not been complied
with, as a substantial portion of the acquired land has not
been utilized. Therefore, when substantial portion of the
land has not been utilized, there cannot be a presumption
that possession of the acquired land has been taken.
Hence, on this issue also, it cannot be said that possession
45
has been taken nor can there be a presumption that
possession has been taken.
17.(a) Yet another contention advanced by the
learned Senior Counsel for the respondents BDA, is based
on the Award that has been passed. It is contended that
the petitioners have participated in the proceedings and
the Award has been passed. That once the claimants have
participated in the award proceedings, they cannot go
behind it. It is further pleaded that the Land Acquisition
Officer while considering the case of the claimants held at
page Nos. 22 and 23 therein, that even though the plaint
copy in O.S. No. 1875 of 1989 filed by the plaintiffs were
produced and that there was a temporary injunction
against the defendants, the BDA Advocate, has moved the
reference Court and the reference Court has noted as
follows:
“It is clarified that ad-interim order of
temporary injunction order is passed only in
46
respect of demolishing the structures in the
suit schedule property.”
Therefore, it is contended that since the temporary
injunction has been modified by the trial Court, the
temporary injunction, remained only with regard to
demolition of the structures. To this, we asked the learned
Senior Counsel for the respondents BDA to support his
submission by producing the original order passed by the
trial Court. No such order is produced. We fail to
understand as to how such a submission could be made by
the BDA without proof with regard to the actual order of
the trial Court. It would appear that an incorrect
statement has been made by the BDA. In the absence of
any proof that the initial order of temporary injunction has
been modified, necessarily the said order of temporary
injunction, continued till the disposal of the suit.
Admittedly, no application was filed by the BDA either to
modify, clarify or vacate the said order. In such
circumstances, the Trial Court could not have suo-motu
47
clarified the order. Therefore, the contention of the
learned Senior Counsel for the respondents BDA, that the
order of temporary injunction has been clarified, and
therefore, possession has been taken, is not only incorrect,
but runs contrary to the records.
(b) Furthermore, it could be seen that the
application for a temporary injunction was granted as
prayed for. The order of temporary injunction also included
an order directing the defendants not to pass any award,
which was granted by the trial court. The application
for Temporary Injunction reads as follows:-
“Under Order-39, Rules-1 and 2 read with Section-
151 of the Code of Civil Procedure, that for the
reasons sworn to in the accompanying affidavit, the
plaintiffs pray that this Hon’ble Court may be pleased
to pass an order of temporary injunction restraining
the defendants from in any way interfering with the
suit properties and from demolishing the existing
constructions thereon and from passing of the
48
awards or from dispossessing the plaintiffs from the
schedule property pending disposal of the suit.
xxx xxx
xxx xxx”
The temporary injunction as prayed for was granted. That
order has remained till the disposal of the suit. As stated
hereinabove, no effort was made to vacate or modify the
said order, which remained till the disposal of the suit.
Therefore, there is an injunction that no award should be
passed. So if the entire contentions of the respondent-BDA
is to be accepted, the same would amount to disobedience
of the order of the trial court inviting contempt. Therefore,
when there is a specific injunction operating against the
defendants which included an injunction not to pass any
award, passing of such an award is void. The contention of
the BDA that the petitioners participated in the award,
therefore, is not borne out from the records.
18.(a) The Commissioner, BDA has filed an affidavit
dated 01.10.2012 before this court. He has stated therein,
49
with regard to the extent of the lands which were part of
the Preliminary Notification, Final Notification, lands
covered, Award, possession taken, etc. He has further
stated in the affidavit that the petitioners have prevented
the respondents BDA from forming the layout in the said
lands by resorting to civil litigations by obtaining interim
orders in O.S. Nos.1875 of 1989, 7128 of 1996 and 1786
of 1989 etc. That O.S. No.1786 of 1989 was decreed on
27.08.1992 and the respondents BDA filed an appeal in
R.F.A. No.119 of 1994 before the High Court, which was
allowed on 04.01.2002. He has also narrated the extent of
the land and the Award passed, but possession is not
taken to the extent of 10 acres 31 guntas of the land of
the petitioners. Therefore, the Commissioner, BDA has
himself stated on oath that the possession of the lands of
the petitioners has not been taken.
(b) In the statement of objections dated
02.11.2012 filed by the respondents – BDA it is stated in
50
para 8 that in respect of the lands of the appellants, the
possession could not be re-taken, which is the subject
matter of these appeals. Therefore, there is a clear
admission of the respondents BDA themselves, that the
possession has not been taken.
(c) In view of the statement of objections filed, the
affidavit of the Commissioner of the BDA, the order of
temporary injunction passed by the trial Court and the
records, we have no hesitation to hold, that the BDA has
not taken possession of the lands at all and that the
possession of the land continues to remain with the
petitioners even as on date. Therefore, when the
possession has not been taken by the respondents, the
question of vesting would not arise. Hence, there is no
vesting.
51
REGARDING LAPSING OF THE SCHEME:
19.(a) The plea of the petitioners is that the
Scheme has not been implemented by the respondent-
BDA. That the acquisition was a result of the scheme as
propounded by the BDA. Consequently, a preliminary
Notification in the year 1978 and a final Notification in the
year 1989 were issued. The preliminary Notification was
to an extent of 982 acres 6 guntas. The final Notification
was to an extent of 433 acres 32 guntas. Therefore, an
extent of 548 acres 14 guntas were excluded. The
admitted position is that, awards were passed only in
respect of 97 acres 7 guntas of land and there is no award
passed to an extent of 325 acres 24 guntas. It is further
contended by the petitioners, that not a single plot has
been developed or allotted to anyone.
(b) The learned Senior Counsel for the petitioners
relies on the order passed by the learned Single Judge of
this Court dated 19.03.1997 passed in Writ
Petition Nos. 14674 to 14678 of 1989. The said writ
52
petitions were filed by certain land owners, questioning the
very Preliminary and Final Notifications as impugned
herein. The learned Single Judge was of the view that no
explanation was given by the BDA for the delay of 11 years
in issuing the final notification. Therefore, the learned
Single Judge came to the conclusion that the acquisition
proceedings are vitiated. Consequently, the writ petitions
were allowed and the Preliminary and Final Notifications
were quashed so far as the petitioners were concerned.
Therefore, it is contended that once the acquisition
proceedings have been quashed by the order of this Court,
on the ground of delay, the said reasoning also applies to
other litigants under the same notification.
(c) The same is disputed by the learned Senior
Counsel for the respondent-BDA. He contends that the
question of applying the order passed by the learned
Single Judge in Writ Petition Nos.14674 to 14678 of 1989
would not arise for consideration. It is contended that the
53
said order is not applicable to the writ petitioners herein.
That firstly, there is no declaration that the Scheme has
lapsed. Secondly, even though in terms of the said order,
the acquisition has been quashed, the quashing of the
acquisition would be relatable only so far as those writ
petitioners are concerned and cannot be extended to the
petitioners herein.
(d) The earlier learned Single Judge, has clearly
stated that no explanation has been offered by the BDA for
the delay of 11 years in issuing the Final Notification,
which causes injuries to the land owners etc. Therefore,
when findings were already recorded by the learned Single
Judge, which attained finality, necessarily the same
principle would stand applicable to the case of the
petitioners herein. The material on record would also
indicate that aggrieved by the order of the learned Single
Judge, the BDA had filed Writ Appeal No.3519 of 1999 and
Writ Appeal Nos.4536-4539 of 1999. By the order dated
54
7-4-2000, the writ appeals were dismissed by virtue of a
peremptory order. The dismissal order has remained.
Hence, the appeals are liable to be allowed on this ground.
(e) Various material have been produced before
this Court with regard to lapsing of the Scheme. Pursuant
to the queries raised in the process of considering these
Writ Appeals, the respondent-BDA, filed a statement dated
2.11.2012 supported by the affidavit of the Deputy
Commissioner, BDA. Therein, in paragraph 8, it is
narrated that in respect of 10 acres 31 guntas of land viz.,
the land belonging to the writ petitioners, the possession
of the land could not be retaken. It is narrated that the
layout could not be formed on lands where the possession
has been taken in view of the land being in unauthorized
occupation. Various particulars are narrated therein. It is
also further narrated that no layout plan has been
prepared in respect of Hennur-Bellary Road III Stage.
55
(f) Therefore, even while considering the affidavits
filed by the respondent-BDA, there is a clear admission
that the Scheme has not been implemented. There is no
material produced by the BDA, even now, to show that
even a single plot has been developed or handed over to
any one at all. Therefore, the question of holding that the
Scheme has been substantially implemented is not
supported by any material on record. Moreover in the
affidavits of the respondent-BDA, it is stated that there has
been no development of the land under the Scheme, and
not even a single plot has been developed. Therefore, the
scheme has not been implemented. Therefore, based on
the various affidavits of the BDA, we have no hesitation to
hold that the Scheme has lapsed.
REGARDING WITHDRAWAL FROM ACQUISITON BY THE
BDA
20. The further plea of the petitioners is that the
respondent-BDA has produced a resolution dated
56
18.11.2000 passed in Resolution No.147 of 2000. The
same is produced herein as Annexure-E to the Writ Appeal.
We have considered the same. The same would indicate
that a Resolution was passed by the respondent-BDA to
drop the proceedings with regard to the said layout, which
Resolution was forwarded to the Government. The learned
Government Advocate submits that having received the
said Resolution, the same is pending consideration. Under
these circumstances, the petitioners contend that when the
BDA itself has sought to withdraw from the acquisition or
to drop the acquisition, the question of continuing the
Scheme or the acquisition would not arise for consideration
under any circumstances. The resolution was passed on
18.11.2000. Even after 19 years, the file is still pending
consideration by the State. Therefore, this clearly implies
that the State has no interest in continuing with the
acquisition and therefore no orders have been passed
thereon. Therefore, once the BDA themselves have passed
a resolution they cannot now seek to contest the
57
acquisition or the lapse of the scheme. Therefore, we find
that this is also an additional ground to allow the Appeals.
ALTERNATE PLEAS BY BDA:
21.(a) At this stage, the learned Senior counsel
appearing for the respondent–BDA contends that even
assuming that the Scheme is held to have lapsed or could
not be implemented or has been abandoned, that by itself
would not automatically render the acquisition proceedings
to be quashed. In support whereof, he relies on the
Judgment of the Hon’ble Supreme Court in the case of
OFFSHORE HOLDINGS PRIVATE LIMITED VERSUS
BANGALORE DEVELOPMENT AUTHORITY AND OTHERS
reported in (2011)3 SCC 139 with reference to paragraphs
37 to 40. It is therefore contended that, as held by the
Hon’ble Supreme Court in paragraph 38, the acquisition
would not lapse or terminate as a result of lapsing of the
Scheme under Section 27 of the BDA Act. That since
58
vesting of the land has taken place; the status of the
property is incapable of being altered by fiction of law
either by the State Act or by the Central Act.
(b) As already held hereinabove, so far as the
question of vesting of the lands are concerned, we have
categorically come to the conclusion that there is no
vesting of land that has taken place in favour of the State
or the BDA. Therefore, the decision is not applicable to the
facts and circumstances involved herein.
(c) The Scheme of the BDA Act postulates that the
acquisition of land could only be done on a Scheme being
propounded by the BDA. The Scheme being sanctioned by
the State, an acquisition could take place. Once it is held
that the acquisition has lapsed and it is also held that there
is no vesting of land in the State, necessarily the
acquisition cannot stand.
59
(d) It is the further contention of the learned
Senior counsel for the respondent-BDA that even if it is to
be held that the scheme has lapsed, the BDA is entitled to
propound yet another scheme for the utilisation of the
petitioners’ land.
(e) We are unable to accept such a contention.
When once the scheme is held to have lapsed and when in
the given facts and circumstances of this case, the
possession has also not been taken, the question of the
BDA retaining possession of the property would not arise
for consideration. By the scheme of the Act, the lands can
be acquired only on a scheme being propounded by the
BDA. No land can be held by the State or the BDA in the
absence of any scheme. Therefore, the holding of the land
by the BDA is illegal. Furthermore, the acquisition is
always pursuant to a scheme. A scheme cannot be
propounded of the land which the BDA according to them,
continue to be in possession of. Once the Court holds that
60
the scheme has lapsed and the acquisitions are quashed,
the possession of the lands by the State or the BDA
becomes unauthorised. It cannot retain the land sans any
power in law. The land could be retained by the State/BDA
only in a lawful manner. When once the acquisition has
been quashed and the scheme is held to have lapsed,
neither the State nor the BDA can hold on to the lands.
(f) It is further contended by the learned Senior
counsel for the respondent-BDA that when once it is held
that the Scheme has lapsed, then the Government is
entitled to use the land or to direct the BDA to use the land
for any purpose that it so orders. Therefore, it is
contended that the State, is entitled to use the land for
any purpose as it deems fit or transfer it to the BDA, as
the case may be. Therefore, the State is entitled to
exercise such power as vested in it under Section 37 of the
BDA Act.
61
(g) Firstly, as held hereinabove, the question of
vesting has since been answered by us by holding that
there is no vesting of land or taking of possession from the
petitioners. Furthermore, assuming that the vesting of
land has taken place, only then the question of re-vesting
could be considered. However, in view of the finding
recorded hereinabove, on possession we are of the view
that the proposed action of the State, would be
unauthorized in law and opposite to the facts of the case.
The question of the State retaining the land would not
arise for consideration in view of the fact that the
acquisition of the land is held to be bad.
(h) If the contention of the learned counsel for the
BDA is to be accepted, the same would lead to
unacceptable conclusions. If the acquisition is quashed
and the scheme is held to have been lapsed by a court of
law, the same cannot be retained in order to propound yet
another scheme. Assuming yet another scheme is
62
propounded and the same is challenged and the
acquisitions is held to be bad, then based on the
contentions of the learned counsel for the BDA they can
once again hold lands to propound another scheme. This
situation would never end at all. However, that is not how
law operates. When an acquisition is challenged, it
receives a logical end on a final order being passed by a
court of law. The question of retention of lands to create
yet another acquisition, cannot be accepted. There is no
provision in law to enable the state or BDA to retain a
land, wherein the acquisition has been quashed and the
scheme is held to have lapsed. Once a court of law passes
an order, the same attains finality, ofcourse subject to the
appellate jurisdiction or interference by a higher authority.
The same does not and never can be meant to be read,
that the State or the BDA can hold on to the lands forever.
(i) Furthermore, the entire contention becomes
invalid since it is based on an assumption that the State/
63
BDA continue in possession of the land. It is on the basis
of this assumption that a contention is being advanced.
When a categorical finding has been recorded that the
State / BDA is not in possession of the land, the contention
of retention of such lands, therefore, becomes misplaced.
Therefore, the basis of the very contention does not exists
to advance such a contention.
22. Therefore, in conclusion, we are of the view that
the writ petitions require to be allowed. The material on
record would indicate that 982 acres 6 guntas of land were
sought to be acquired. 548.14 acres were dropped from
the final Notification. Therefore, what remained was only
433.32 acres. Out of 433.32 acres, award has been
passed only for 97.07 acres. There is no award for the
remaining extent of land. The possession has not been
taken from the writ petitioners. Not even a single plot of
land has been developed. The respondent-BDA
themselves have stated in more than one affidavit that
64
possession has not been taken and the scheme has not
been implemented. The respondent-BDA have already
passed a resolution to drop the proceedings. Therefore,
they cannot contend to the contrary. Therefore, virtually
no ground exists either to sustain the scheme or the
acquisition.
23. Under these circumstances, we are of the view
that the Scheme having lapsed and for the reasons
recorded hereinabove, the acquisition also becomes bad in
law.
24. For all the aforesaid reasons, the Writ Appeals
are allowed. The order passed by the learned Single Judge
dated 12th April 2007 in Writ Petition No. 17935 of 2002
by the 5 writ petitioners therein is set aside. The Writ
Petition is allowed so far as the petitioners are concerned,
in the following terms:
65
i) Hennur-Bellary Road III Stage layout is held
to have lapsed.
ii) The preliminary Notification dated 2.6.1978 to
an extent of 3 acres 28 guntas in Survey
No.57/1 and 6 acres 39 guntas in Survey
No.57/2 on Nagawara village, Bengaluru North
Taluk and the final Notification dated 2.2.1989
for the said lands are quashed;
iii) All further proceedings thereto shall stand
quashed.
Sd/- Sd/-
JUDGE JUDGE
Ksm / ln
