1.The issue raised in these two appeals centres around the Notification dated 12.04.2001, issued by State Government, withdrawing Survey No.50, area 6 acres, 20 guntas from the acquisition made by the State Government by Notification under Section 4 dated 19.09.1977 and declaration under Section 6 dated 07.02.1978 of the of the Land Acquisition Act, 1894 (hereinafter referred to as “Act 1894”).
2.All the appeals have been filed against the Division Bench judgment dated 11.12.2008 dismissing the Writ Appeal filed against the judgment dated 30.03.2007 in Writ Petition No.13404 of 2005. Writ Petition No.13404 of 2005 was filed by the land owners challenging the Notification dated 22.03.2005 issued by the State Government by which the State Government had withdrawn the earlier Notification dated 12.04.2001. The learned Single Judge had allowed the Writ Petition, setting aside the Notification dated 22.03.2005 and restoring the earlier Notification dated 12.04.2001 by which Survey No.50 was withdrawn from acquisition.
3.Land acquisition proceeding for acquisition of various plots including Survey No.50(which is the subject matter of dispute) has a chequered history. It is necessary to note the series of events and various litigations undertaken by the parties and their predecessors before we consider the issues raised in these appeals.
4.The Bangalore Development Authority framed a Scheme for formation of layout known as BTM layout which was sanctioned by State of Karnataka. For the above purpose the State of Karnataka decided to acquire land to the extent of 1703-10 acres. A Notification under Section 4 dated 19.09.1977 was published on 29.09.1977. Declaration under Section 6 dated 07.02.1978 was issued, which was published on 09.03.1978, acquiring large extent of land. The acquired land included Survey No.50, 51 and 52 of the Tavarekere Village. Notice under Section 9 of the Act was published on 05.06.1978. Land owners filed W.P.Nos.21097-21107 of 1983, praying for quashing the Notification dated 19.09.1977 under Section 4 and Notification dated 07.02.1978 under Section 6. The Writ Petitions were dismissed by the High Court vide its judgment and order dated 10.02.1984. Writ Appeal Nos.271-281 of 1984, challenging the judgment of the Single Judge were also dismissed. The award was passed on 08.02.1984, which was approved by the competent authority on 19.03.1984. On 23.03.1984, the possession of Survey No.50 at Tavarekere Village was taken and handed over to the Bangalore Development Authority by going on to the spot and preparing a Mahazer. Compensation for Survey No.50 was also deposited in the Civil Court. A Notification dated 07.05.1985 under Section 16(2) of the Act was also published in the Karnataka Gazette on 24.10.1985 notifying the taking of possession of the land.
5.The Writ Petition No.5508 of 1984 was filed by Munivenkatappa, one of the co-land owners, challenging Notification under Section 4 to 6. The Writ Petition was dismissed by Karnataka High Court vide its judgment dated 14.12.1984. The High Court in its judgment also held that the development plan has been completed by the Bangalore Development Authority and the Scheme is in process of implementation. N.A.L. Employees Co-operative Housing Society Ltd. had made a request to Bangalore Development Authority for allotment for forming a housing colony. BDA passed a resolution dated 17.11.1982, allotting an area of 8 acres of land for forming a housing colony. The Sale Deed dated 09.05.1985 was executed by BDA in favour of NAL Employees Co-operative Housing Society Ltd. which included land in Survey Nos.50, 51 and 52. In spite of sale, in favour of N.A.L. Employees Co-operative Housing Society Ltd.(hereinafter referred to as 'Society'), family members of the owners attempted to interfere in the possession of the society. Hence, the OS No.1492 of 1985 was filed for permanent injunction. Trial Court granted a temporary injunction, which was confirmed by the order dated 04.01.1986. Munivenkatappa also filed OS No.2294 of 1988, claiming that he was in possession of the land, which was sold to society, which suit came to be dismissed. Allotment in favour of society was unsuccessfully challenged by Munivenkatappa by filing a W.P. No.18360 of 1988 which too was dismissed.
6.The daughter of Munivenkatappa, namely, Papamma filed a W.P. No.4042 of 1998, praying that respondents be directed not to proceed with the acquisition in respect of Survey No.50. It was claimed in the Writ Petition that recommendation dated 30.06.1981 by the Special Land Acquisition Officer has been sent for de-notifying the acquisition of 6 acres and 20 guntas of Survey No.50. In the said Writ Petition, it was submitted by the respondent that possession of the land was taken and Notification under Section 16(2) has already been issued on 07.05.1985. The High Court, noticing the aforesaid facts held that the acquisition proceeding has become final and the possession has already been taken as early as in 23.03.1984, the Writ Petition has no merit and was dismissed on 16.03.1998.
7.Further, W.P. Nos.14779-14781 of 2000 were filed by one S.M.Bhimanna @ Subbanna, S/o Munivenkatappa and two others, seeking a direction to respondents to consider the representation of the petitioners to drop the acquisition proceedings in respect of land in Survey No.50. In the said representation, it was contended on behalf of the BDA that after issuance of final Notification in 1978, the award was passed and possession was taken by publishing a Notification under Section 16(2), hence, the petitioners are not entitled to any relief. After considering the submission of the parties, the Writ Petition was dismissed by this Court vide its judgment and order dated 16.08.2000.
8.One K.R.Rajakumar proprietor of M/s Veeranjeya Auto Engineering Works, claiming to be a lessee vide Lease Deed dated 08.04.1985 from land owners of Survey Nos.50, 51 and 52, filed an OS No.5511 of 1995 for injunction against the land owners as well as the society, which was impleaded as defendant No.7. In the suit, defendant No.7 pleaded that possession of land was taken in the year 1984. Acquisition has become final. The suit for injunction was dismissed. R.F.A.No.58/99 was filed by Shri K.R.Rajakumar against the society which too was dismissed by Karnataka High Court vide its order dated 07.03.2000.
9.It appears that land owners having failed to obtain any favourable order against acquisition proceeding from the High Court or any order from the Civil Court approached the State Government by filing a representation, praying for withdrawal of acquisition in respect of Survey No.50. The State Government issued a Notification dated 12.04.2001, exercising its power under Section 48 of the Act, withdrawing Survey No.50 from acquisition. The Bangalore Development Authority which was not informed prior to issuance of order dated 12.04.2001, immediately, brought to notice of the State Government that possession of land has already been taken in the year 1984, no order can be passed under Section 48. The State Government immediately, issued another order on 09.05.2001, cancelling the Notification dated 12.04.2001.
10.Land owners challenged the order dated 09.05.2001 by filing a W.P. No.37577 of 2002, Shri Bhimanna @ Subbanna S/o Munivenkatappa vs. State of Karnataka. The Writ Petition was allowed by learned Single Judge vide its judgment dated 04.11.2003 on the ground that the State Government before taking a decision on 09.05.2001 has not issued a notice to the petitioner for whose benefit Notification under Section 48(1) dated 12.04.2001 was issued. On the above ground, the Notification dated 09.05.2001 was set aside and Writ Petition against the said order was allowed. Subsequent to the judgment of learned Single Judge dated 04.11.2003, the State Government issued notice to land owners and after taking into consideration the material on record issued a Notification dated 22.03.2005, withdrawing/ cancelling the Notification dated 12.04.2001.
11.Land owners filed a Writ Petition No.13404 of 2005, challenging the Notification dated 22.03.2005 issued by the State Government in which Writ Petition the allottees of society, namely, respondent Nos.3 to 21 got impleaded. The Writ Petition, after hearing the parties was allowed by the learned Single Judge vide its judgment and order dated 30.03.2007. The Bangalore Development Authority filed a Writ Appeal against judgment of learned Single Judge, which was dismissed by Division Bench of the Karnataka High Court vide dated 11.12.2008 against which judgment all the above Civil Appeals have been filed.
12.Civil Appeal arising out of SLP(C) Nos.29553– 29554 of 2011 has been filed by the appellant, who claimed allotment of a part of land of Survey No.50 in public auction conducted on 30.07.2003. Appellant claimed to have paid the entire sale consideration of Rs.24,41,775/-. But the Sale Deed has yet not been executed in favour of appellant. Appellant claimed to have filed applications for impleadment i.e. I.A.Nos.3-4 of 2010 in SLP(C) Nos.20190-20191 of 2009 filed by Bangalore Development Authority in which notices were issued by this Court and order of status quo was granted. However, the said SLP(C) Nos.20190-20191 of 2009 have been withdrawn on 02.03.2011. Hence, the appellant has filed these appeals, questioning the judgment of the Division Bench dated 11.12.2008, affirming the judgment of the Single Judge dated 30.03.2007, quashing the notification dated 22.03.2005.
13.Civil Appeals filed by the P.M. Anoop Kumar refer to similar facts and grounds, challenging the judgments of the Karnataka High Court. Reference of pleadings and judgments in Civil Appeal Nos.9790-9791 of 2017 (arising out of SLP(C) Nos.5911-5912 of 2010) shall be sufficient for deciding all the Civil Appeals.
14.Shri B. H. Marlapalle, senior counsel appearing for the appellant submits that the appeal filed by appellant is fully maintainable and the appellant has locus standi to file this appeal, this Court has already granted permission to file SLP by its order dated 15.02.2010. BDA had allotted the land to N.A.L. Employees Co-operative Housing Society, the predecessors in interest of appellant. For espousing the cause of its members the appellant has ample locus standi to challenge the judgment of High Court, restoring the Notification dated 12.04.2001. It is submitted that the W.P. No.13404 of 2005 filed by Muniamma, the widow of late Bhimanna who was one of the three sons of Munivenkatappa, was not maintainable on the ground of doctrine of stare decisis and doctrine of res judicata. Further, there was delay and laches and non-joinder of necessary parties in the Writ Petition. The writ-petitioners never challenged the Notification dated 07.05.1985 issued under Section 16(2) of the Land Acquisition Act (Karnataka amendment). Hence, it was not open for the writ-petitioners to contend that possession of land was not taken over by the State. It is submitted that in W.P. No.4042 of 1998 filed by the Papamma, daughter of Munivenkatappa this Court, while dismissing the Writ Petition has held that acquisition proceedings having reached finality by taking possession of the land in March, 1984. Further, same finding of possession was taken in the year, 1984 was rendered by this Court in W.P. Nos. 14779-14781 of 2000.
15.The appellant was necessary party in the Writ Petition since, land in favour of the society was allotted by the BDA on 18.05.1985. The appellant is registered Association of members who have been allotted land in the above land and has sufficient interest to be necessary party, pertaining to any litigation of land in question.
16.Learned counsel further contends that learned Single Judge committed an error in holding that actual possession was not taken by the State in March, 1984. It is submitted that possession was taken by Special Land Acquisition Officers of the State by going on to the spot on 23.03.1984. Learned counsel for the appellant, referring to Mahazer contends that it has been specifically recorded in the Mahazer that owners of the land and building were present and they refused to hand over the land and building. Learned counsel further relied on judgment of this Court in Balwant Narayan Bagde vs. N. B. Bhagwat & Ors. (1976) 1 SCC 700, Balmokund Khatri Educational and Industrial Trust, Amritsar vs. State of Punjab, (1996) 4 SCC 212, Tamilnadu Housing Board vs. A Wiswam (1996) 8 SCC 259, Sitaram Bhandar Society, New Delhi vs. Lieutenant Governor, Government of NCT, Delhi & Ors (2009) 10 SCC 501 and Hubli -Dharwad Urban Development Authority vs. Shekharagowda Chennabasannagowda Phakirgowdar, (2016) 9 SCC 13.
17.Learned counsel for the appellant has further attacked the Survey Report dated 01.04.2017 filed by the BDA, which was prepared in pursuance of the order dated 22.02.2017 passed in this appeal. He submits that the allegation that society has encroached 5 guntas in Survey No.50, in excess of what was allotted to it, is incorrect. It is submitted that Survey Nos.50, 51 and 52 were included in the registered Sale Deed dated 09.05.1985. The BDA cannot be allowed to make submission that appellant does not have any land in Survey No.50.
18.Shri K.V.Vishwanathan, senior counsel appearing for respondent Nos.2(a) to 2(g), refuting the submission of the learned counsel for the appellant contends that the appeals filed by the appellant are neither maintainable nor appellant has locus standi to challenge the judgment of the High Court. It is submitted that original allottee was N.A.L Employees Co-operative Housing Society which is a registered Society having a separate and distinct identity from the appellant. In any view of the matter the appellant cannot espouse the cause beyond 8 acres of land which was originally allotted to Housing Society. Referring to Survey conducted by BDA on 22.03.2017 and its report, learned counsel submits that the appellant Association is in enjoyment of 8 acres 24 guntas as has been reported, which is against the sanctioned allotment of 8 acres. It is further submitted that BDA which was the beneficiary of acquisition having itself withdrawn the SLP(C) Nos.20190-20191 of 2009, the appellant cannot claim to be on better footing to challenge the impugned judgment. The Association having themselves wrongfully encroached upon the land no interference of this Court is called for in exercise of its jurisdiction under Article 136. Learned Single Judge after perusing the original records has returned the findings that physical possession was not taken by the State which findings have been affirmed by the Division Bench. When the physical possession was never taken by the State, there was no impediment in exercise of power under Section 48 of the Act, 1894. Both learned Single Judge and Division Bench have held that the symbolic/paper possession taken under Section 16 of the 1894 was not in conformity with Karnataka Amendment, where it is Deputy Commissioner to take possession and notify the same in the Official Gazette.
19.Learned counsel further submits that the learned Single Judge has also recorded a finding regarding discriminatory treatment to the land owners since various Survey Nos. which were acquired by the same acquisition Notifications were released from acquisition under Section 48 of Act, 1894 whereas respondent land owners were not extended the same benefit. Learned Counsel further contends that after issuance of Notification under Section 48(1) dated 12.04.2001, the said Notification could not have been withdrawn by the State. It is contended that Section 21 of General Clauses Act, 1897 was not applicable in the present case, so as to, empower the State to issue Notification dated 09.05.2001. It is submitted that at the time of the conducting the auction on 26.09.2002, 30.7.2003, 14.08.2003 and 26.08.2003, the Notification dated 12.04.2001 was in subsistence, hence, there is no legal sanctity to any of the acts of auction of the sites.
20.Replying the submission of the learned counsel for the appellant in Civil Appeals filed by P.M. Anupkumar, it is submitted that there is already an order dated 22.05.2009 in W.P. No.5814 of 2008, directing the BDA to execute the Sale Deed in favour of Anupkumar in respect of site No.58 and in view of the Survey No.50 being de-notified, the said order in W.P. No.5814 of 2008 cannot be implemented, by the BDA. It is further submitted that in the Writ Petition of Anupkumar answering respondents were not parties, the Special Leave Petitions filed by Anupkumar and SLP deserves to be dismissed.
21.Respondent Nos.3 to 21 have supported the submissions made by learned counsel for the appellant. Respondent No.21 who has appeared in person, has also adopted the submission made by learned counsel for the appellant. Respondent No.3 to 21 have further submitted that a joint memo in W.P. No.13404 of 2005 was filed by land owners and respondent Nos.3-21 wherein, it was agreed between the land owners and respondent Nos.3-21 that the rights and title of respondent Nos.3-21 shall not be affected in any manner and the land owners have recognized the rights of respondent Nos.3-21, who were auction purchaser of sites after investing the huge amount. It is submitted that learned Single Judge while disposing of the Writ Petition on 30.03.2007 has already held that right, title and interest acquired by respondent Nos.3-21 could not be affected by any of the observations made in the Writ Petition and the Writ Petition was disposed of in terms of the joint memo entered into between the writ-petitioner(land owners) and the respondent Nos.3-21(auction purchasers). It is thus submitted that in any view of the matter rights of the respondent Nos.3–21 are safe and protected. It is submitted that BDA has already executed Sale Deed in favour of the respondent Nos.3-21 and BDA has also issued a Possession Certificate in their favour. Residential Plots sold in public auction by the BDA in favour of respondent Nos.3 to 21 are all part of Survey No.50 and they are clearly demarcated as per the Allotment Plan prepared by the BDA.
22.We have considered the submissions of both the parties and have perused the record.
23.From the facts, as noted above following facts emerge: (i) The Notification dated 19.09.1977 was issued under Section 4 of the Land Acquisition Act, proposing to acquire large chunk of land including Survey No.50, a declaration under Section 6 dated 07.02.1978 was issued acquiring the land for Bangalore Development Authority, including Survey No.50. (ii) The State Government proceeded to take possession of Survey No.50 on 23.03.1984 and after taking over possession, handed over the same to Bangalore Development Authority. (iii) The Land owners filed several Writ Petitions, challenging the Notification under Section 4 & 6, which were dismissed by this Court on 10.02.1984 and 14.12.1984. (iv) The Society filed Suit No.1492 of 1984, seeking permanent injunction against the owners in which temporary injunction was confirmed and Suit decreed. (v) A Civil Suit No.2294 of 1988 was filed by Munivenkatappa, a co-owner of the land, claiming to be in the possession, which was subsequently dismissed. (vi) W.P.No.4042 of 1998 was filed by daughter of Munivenkatappa, seeking a direction to BDA not to proceed with the acquisition proceeding on the ground that an application before the Government for de-notifying the 6 acres 20 guntas of Survey No.50 had been made on which favourable recommendations have been obtained on 30.06.1981. The W.P. was dismissed on 16.03.1998. (vii) Another W.P.Nos.14779-14781 of 2000 were filed by Munivenkatappa and another co-owners praying for a direction to the State to consider representation of land owners for dropping the acquisition proceedings with regard to Survey No.50. The Writ Petitions were dismissed on 16.08.2000. (viii) A representation was submitted by the land owners in the year 2001 before the State Government. Notification under Section 48 of the Act dated 12.04.2001 was issued withdrawing Survey No.50 from acquisition without giving any notice or opportunity to the BDA for whose benefit the land was acquired. (ix) On the State Government having been apprised about the correct fact by the BDA that acquisition has already been finalized and possession taken in the year 1984, the State Government, immediately, withdrew the Notification dated 12.04.2001 vide Notification dated 09.05.2001 (x) W.P. NO.37577 of 2002 was filed by land owners, challenging the Notification dated 09.05.2001, which was allowed on 04.11.2003 by the High Court on the ground that before issuing the Notification dated 09.05.2001, no notice was given to the land owners. (xi) The state Government after giving notice to the land owners issued another Notification on 22.03.2005 withdrawing the Notification dated 12.04.2001. The State Government thus, refused to withdraw the Survey No.50 from acquisition in exercise of power under Section 48. (xii) The Writ Petition No.13404 of 2005 was filed by land owners, challenging the Notification dated 22.03.2005, which was allowed by learned Single Judge on 30.03.2007. Writ appeal filed by BDA was dismissed on 11.12.2008.
24.The sum total of aforesaid events indicate that acquisition of Survey No.50 was challenged by land owners in several rounds which were repelled by the High Court.
25.The State Government initially issued an order on 12.04.2001, withdrawing Survey No.50 from the acquisition which order itself was withdrawn after notice to the land owners on 22.03.2005. The State Government thus, refused to withdraw Survey No.50 from the acquisition.
26.The learned Single Judge allowed Writ Petition, quashing the order dated 22.03.2005. Basically, two reasons have been given by learned Single Judge for quashing the Notification dated 22.03.2005. Firstly, the possession of Survey No.50 was not taken by the State Government in accordance with law and secondly, although, the State Government has withdrawn various survey numbers on the representation made by owners of the land, whereas, petitioners have been discriminated by refusing to give similar and equal treatment.
27.Shri K.V.Vishwanathan learned counsel appearing
for land owners has challenged the maintainability
of the appeals as well as locus of appellant to file
the appeals. Hence, it is necessary to consider the
above preliminary submissions at the very outset.
The appeals have been filed with the leave granted
under Article 136 of Supreme Court of India.
Although, the appellant was not party in the writ
proceeding before the Karnataka High Court but this
Court in its discretion by order dated 15.02.2010
granted permission to the appellant to file S.L.P.
and this Court has granted leave on 25.07.2017. The
Constitution did not for best of reasons choose to
fetter or circumscribe the power exercisable under
Article 136 in any way. The jurisdiction of this
Court under Article 136 is discretionary and
equitable in nature. Article 136 begins with non
obstante clause “notwithstanding anything“. The
words ‘notwithstanding anything’ in Chapter IV of
Part V are words of overriding effect and clearly
indicate the intention of the framers of the
Constitution that it is a special jurisdiction and
residuary power unfettered by any statute or other
provisions of Chapter IV of Part V of the
Constitution. We thus do not find any substance in
the arguments of the learned counsel for the
respondent, questioning the maintainability of the
appeals.
28. Now, we come to the submissions raised by the
counsel for the respondent, questioning the locus of
appellant to file the appeal. The appellant
Association is a registered Association with
Registration No.753/2003-04. As noted above,
Bangalore Development Authority auctioned various
sites in the year 2002-03 in the acquired land. The
N.A.L. Employees Co-operative Housing Society after
allotment of 8 acres land in Survey Nos.50, 51 and
52 has formed the layout which layout was sanctioned
by the BDA on 15.06.1998. After the sites were
auctioned to various individuals, they formed the
appellant Association to espouse the cause of
residents. The appellant has been espousing cause of
its members, which has also been reflected from the
various actions taken by it in the interest of
members of the Association. In this context
reference is made to the letter dated 06.07.2009,
Annexure P.16 to the appeals filed by the
Association, where Association has written to the
Commissioner, BBMP, bringing in notice of the
Commissioner regarding the health hazard due to
inaction of the BBMP Officials.
29. The Association which has been espousing the
cause of its members, who are allottees of different
sites thus has sufficient locus to file this appeal.
It is further relevant to note that against the
judgment of the Division Bench, BDA has also filed
SLP(C) Nos.20190-20191 of 2009. SLP(C) Nos.5911-5922
of 2010 were tagged with these vide order dated
15.02.2010. SLPs filed by BDA have been withdrawn on
02.03.2011. We thus find sufficient justification to
accept the locus of the appellant to file the
present appeal. We thus do not find any substance in
preliminary objections raised by the learned counsel
for the respondents.
30. Another submission raised by K.V. Vishwanathan
learned senior counsel for the respondents needs to
be considered. It is submitted by Shri K.V.
Vishwanathan that after issuance of Notification
dated 12.04.2001 under Section 48 of the Act, 1894,
the State Government had no jurisdiction to withdraw
such Notification. He contends that Section 21 of
the General Clauses Act, 1897 is not applicable. He
submits that under Section 48 land vested already in
the land owners, hence, recourse under Section 21 of
the General Clauses Act to withdraw the Notification
under Section 48 cannot be taken. Section 21 of
General Clauses Act, 1897 provides as follows:
“21. Power to issue, to include power
to add to, amend, vary or rescind
notifications, orders, rules or
bye-laws.-Where, by any [Central
Act] or Regulations a power to
[issue notifications,] orders, rules
or bye-laws is conferred, then that
power includes a power, exercisable
in the like manner and subject to
the like sanction and conditions (if
any), to add to, amend, vary or
rescind any [notifications,] orders,
rules or bye-laws so [issued].”
31. According to Section 21 power to issue
Notification conferred by any Central Act includes
the power, exercisable in the like manner and
subject to like sanctions and conditions, if any, to
add to, amend, vary or rescind any Notification so
issued. Although, Section 48 does not refer to the
issuance of any Notification, however, this Court
has laid down in Larsen & Toubro Ltd. versus State
of Gujarat and Others, (1998) 4 SCC 387 that
withdrawal from acquisition has to be notified.
Following was stated in Para 30 & 31:
“30. It was submitted by Mr. Salve
that Section 48 of the Act did not
contemplate issue of any notification
and withdrawal from the acquisition
could be by order simpliciter. He
said that Sections 4 and 6 talked of
notifications being issued under
those provisions but there was no
such mandate in Section 48. It was
thus contended that when the statute
did not require to issue any
notification for withdrawal from the
acquisition, reference to Section 21
of the General Clauses Act was not
correct. Section 21 of the General
Clauses Act is as under:
“21. Power to issue, to
include power to add to,
amend, vary or rescind,
notifications, orders, rules
or bye-laws.—Where by any
Central Act, or Regulation,
a power to issue
notifications, orders,
rules, or bye-laws is
conferred, then that power
includes a power,
exercisable in the like
manner and subject to the
like sanction and conditions
(if any) to add to, amend,
vary or rescind any
notifications, orders, rules
or bye-laws so issued.”
Mr Salve said that Section 21 expressly referred to the powers being given to issue notifications etc. under an Act or Regulation and under this that power included power to withdraw or rescind any notification in a similar fashion. It was therefore submitted that when Section 48 did not empower the State Government to issue any notification and it could not be read into that provision that withdrawal had to be issued by a notification. His argument, therefore, appeared to be that on correct interpretation of Section 21 of the General Clauses Act before reaching the stage of Section 48, the State Government could withdraw notifications under Sections 4 and 6 of the Act by issuing notifications withdrawing or rescinding earlier notifications and that would be the end to the acquisition proceedings. We do not think that Mr Salve is quite right in his submissions. When Sections 4 and 6 notifications are issued, much has been done towards the acquisition process and that process cannot be reversed merely by rescinding those notifications. Rather it is Section 48 under which, after withdrawal from acquisition is made, compensation due for any damage suffered by the owner during the course of acquisition proceedings is determined and given to him. It is, therefore, implicit that withdrawal from acquisition has
to be notified.”
“31....Principles of law are,
therefore, well settled. A
notification in the Official Gazette
is required to be issued if the
State Government decides to withdraw
from the acquisition under Section
48 of the Act of any land of which
possession has not been taken. An
owner need not be given any notice
of the intention of the State
Government to withdraw from the
acquisition and the State Government
is at liberty to do so. Rights of
the owner are well protected by
sub-section (2) of Section 48 of the
Act and if he suffered any damage in
consequence of the acquisition
proceedings, he is to be compensated
and sub-section (3) of Section 48
provides as to how such compensation
is to be determined.....”
32. Applicability of Section 21 cannot be denied to
any Central Act as defined in Section 3(7) of
General Clauses Act, 1897. Section 3(7) is as
follows:
”3. In this Act, and in all
Central Acts and Regulations made
after the commencement of this
Act, unless there is anything
repugnant in the subject or
context,
“(7). “Central Act” shall mean an
Act of Parliament, and shall
include
(a) an Act of the Dominion
Legislature or of the Indian
Legislature passed before the
commencement of the
Constitution, and
(b) an Act made before such
commencement by the Governor
General in Council or the
Governor General, acting in a
legislature capacity;
33. The Land Acquisition Act, 1984 clearly falls
within the definition of Central Act. The
applicability of Section 21 of the General Clauses
Act was considered by this Court in State of Madhya
Pradesh and Others versus Vishnu Prasad Sharma and
Others, AIR 1966 SC 1593, where it is held that in
a case where under Section 9 Notification has not
been issued the Government can cancel the
of Section 21 General Clauses Act. It is useful to
extract following observations made in paragraph
20:
“20. Then reliance is placed on
Section 48 which provides for
withdrawal from acquisition. The
argument is that Section 48 is the
only provision in the Act which
deals with withdrawal from
acquisition and that is the only way
in which the Government can withdraw
from the acquisition and unless
action is taken under Section 48(1)
the notification under Section 4(1)
would remain (presumably for ever).
It is urged that the only way in
which the notification under Section
4(1) can come to an end is by
withdrawal under Section 48(1). We
are not impressed by this argument.
In the first place, under Section 21
of the General Clauses Act, (10 of
1897), the power to issue a
notification includes the power to
rescind it. Therefore it is always
open to government to rescind a
notification under Section 4 or
under Section 6, and withdrawal
under Section 48(1) is not the only
way in which a notification under
brought to an end. Section 48(1)
confers a special power on the
government of withdrawal from
acquisition without canceling the
notifications under Sections 4 and
6, provided it has not taken
possession of the land covered by
the notification under Section 6. In
such circumstances the Government
has to give compensation under
Section 48(2)......”
34. The applicability of Section 21 in exercise of
particular power granted by Central Act can be
negated only when the statute in question itself
expressly or implicitly indicates so. As noted
above, this Court in Larsen & Toubro has rejected
the submission of learned counsel that Notification
under Section 4 and 6 with aid of Section 21 of
General Clauses Act can be cancelled at any time.
This Court held that when Notifications under
Section 4 and 6 are issued and much has been done
towards the acquisition process and that process
cannot be reversed merely by rescinding this
Notification.
35. However, when the State has exercised its power
under Section 48(1) by withdrawing from acquisition
there is nothing in the Land Acquisition Act, 1894
to indicate that such Notification cannot be amended
varied or rescinded by issuing a notification in
like manner. In the event, it is accepted that
after issuance of Notification under Section 48,
there is no power to amend, vary or rescind any such
Notifications, it may cause undue hardship. Take an
example of simple mistake whereby Notification under
Section 48 has been issued where acquisition has
been completed in all respects and acquired land had
already been utilized. We are thus of the opinion
that there may be several circumstances where
Notifications under Section 48 may be required to be
amended, modified or rescinded. As observed above,
there is nothing in the Act, which indicates that
after exercising power under Section 48, the State
Government exhaust its jurisdiction to vary, amend,
modify or rescind the notification. Thus, the
applicability of Section 21 of General Clauses Act
in exercise of power under Section 48 of Act 1894 by
a Notification cannot be denied.
36. The discussion of the learned Single Judge, in
its judgment mainly centred around to the claim of
taking possession by the State Government on
23.03.1984. What is the procedure of taking
possession of the land under the provisions of Land
Acquisition Act, 1894 has to be first looked into.
37. The State is empowered to take possession under
Section 16 of the Act. There is State amendment in
Section 16, in so far as, the State of Karnataka is
concerned by Act No.17 of 1961 w.e.f. 24.08.1961 by
which Section 16 has been renumbered as sub Section
(1) and after sub Section (1), sub Section (2) has
been added. Thus, Section 16 as applicable in State
of Karnataka is as follows:
“Section 16. Power to take
possession:
(1)When the Deputy Commissioner has
made award under Section 11, he may
take possession of the land which
shall thereupon vest absolutely in
the Government free from all
encumbrances.
(2)The fact of such taking
possession may be notified by the
Deputy Commissioner in the official
Gazette, and such Notification shall
be evidenced of such fact.”
38. In the present case, the award was passed on
08.02.1984 by Land Acquisition Officer, which was
approved by the competent authority on 19.03.1984.
The award was prepared, after issue of notice unless
Section 9 and after considering the objections filed
by the land owners, in reference to Notification
dated 19.09.1977 and 17.2.1978. After the award was
passed, possession was claimed to be taken on
23.03.1984 by the State Government, which was also
handed over to the BDA on the same date.
39. Notification dated 07.5.1985 was published in
the Gazette on 24.10.1985, as contemplated by
Section 16(2). The possession was taken by the
authorities by going on the spot and preparing a
Mahazer.
40. Learned Single Judge, has quoted the entire
Mahazer dated 23.03.1984 in his judgment and order
which is to the following effect:
“Office of the Spl. Land
Acquisition Officer, Bangalore
Development Authority. In the
presence of the Revenue Inspector.
Mahazar written by gathering on
Sy. No. 50, Tavarekere Village, Begur Hobli, Bangalore South Taluk.
Read the Order of the Spl. Land Acquisition Officer dated 19.8.1984 in LAC No. 266/78-79 passed for the purpose of making over possession to the Bangalore Development Authority in respect of Sy. No. 50 of Tavarekere Village to an extent of 6 acres 20 guntas which has been acquired for the purpose of formation of Byrasandra Tavrekere Madivala Layout and in respect of which compensation is already awarded. Today, BDA Officers of the Engineering Department have accompanied the Revenue Inspector and with assistance of Revenue Surveyor they have inspected the land. The Surveyor has measured the land and shown the boundaries to the Officers of the Engineering Department. Presently, the following buildings, malkies are existing on the land and people are residing in the buildings. Some merchants have also started shops therein and doing business.
Malkies:
1) Allahabad Guava : 30 2) Pannarale Trees : 8 3) Jackfruit Trees : 8 4) Tamrind Trees : 16 5) Coconut Trees : 18 6) Mango Trees : 63 7) Custard Apple Trees: 15 8) Nerale Trees : 7 9) Hippe Trees : 1 10) Chigare Trees : 1 11) Sweet Tamarind : 6
12) Chelli Trees : 3
Stone Walled Wells : 2
Unauthorised Constructions
1) Touring Talkies : 1 2) Mosaic Tiles Factory : 1 3) Car Garage : 1 4) Lorry Garage : 1 5) RCC Buildings :3(about4-7 height) 6) Stone boundary Wall:
The above buildings are currently in use and amongst them, wood shop, kerosene godown, etc are present. Orders are passed in OS. No. 849/84, 850/84, 851/84, 852/84, on 20.03.1984 restraining Bangalore Development Authority from demolishing the buildings. That apart stay has been granted by the Hon. High Court of Karnataka in W.P. No. 5010/84 on 15.03.1984. The land owners were present at the land and the owners of the buildings and land owners have refused to hand over possession of both land and buildings.
Therefore, without any other recourse the possession of the land is taken under Section 16 of the Land Acquisition Act and handed over to the Engineering Department. Therefore, from now on, the said Sy. No. 50 has been handed over to the possession of the Bangalore Development Authority as evidenced by this Mahazer.
Read over and certified
to be correct” Taken possession Sd/-Narayan Reddy
Sd/- sd/-Daval Khan
(HG Hanumaiah sd /-Kanayaka Naidu
Assistant Executive sd/- Kaleemulla
Engineerl, 2, South
Sub, Dn. BDA,
Bangalore – 90 Before Me
Sd/-R.I. Spl. LAO, BDA”
41. The Land Acquisition Act does not provide any
manner or procedure of taking possession of the
acquired land. The question as to how the possession
of acquired land is to be taken under the Land
Acquisition Act came for consideration before this
Court in large number of cases.
42. The Three Judge Bench in Balwant Narayan Bhagde
versus M.D.Bhagwat And Others, (1976) 1 SCC 700, had
occasion to consider the said issue. Justice
Untwalia's view at Para 25 in the above case, is as
follows:
"25. When a public notice is
published at a convenient place or
near the land to be taken stating
that the Government intends to take
possession of the land, then
ordinarily and generally there
should be no question of resisting
or impeding the taking of
possession. Delivery or giving of
possession by the owner or the
occupant of the land is not required. The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in taking possession. On publication of the notice under section 9(1) claims to compensation for all interests in the land has to be made ; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under section 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of section 16 or 17(1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. But the question is what is the mode of taking possession ? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking, of possession is not necessary. No further notice beyond that under section 9(1) of
the act is required. When possession
has been taken, the owner or the
occupant of the land is
dispossessed. Once possession has
been taken the land vests in the
Government.”
43. Bhagwati, J. by giving a concurring opinion on
his behalf and on behalf of Justice A. C. Gupta had
laid down the following in para 27:
“27....We think it is enough to
state that when the Government
proceeds to take possession of the
land acquired by it under the Land
Acquisition Act, 1894, it must take
actual possession of the land, since
all interests in the land are sought
to be acquired by it. There can be
no question of taking 'symbolical'
possession in the sense understood
by judicial decisions under the Code
of Civil Procedure. Nor would
possession merely on paper be
enough. What the Act contemplates as
a necessary condition of vesting of
the land in the Government is the
taking of actual possession of the
land. How such possession may be
taken would depend on the nature of
the land. Such possession would have
to be taken as the nature of the
land admits of. There can be no hard
and fast rule laying down what act
would be sufficient to constitute
taking of possession of land. We
should not, therefore, be taken as
laying down an absolute and
inviolable rule that merely going on
the spot and making a declaration by
beat of drum or otherwise would be
sufficient to constitute taking of
possession of land in every case.
But here, in our opinion, since the
land was lying fallow and there was
no crop on it at the material time,
the act of the Tehsildar in going on
the spot and inspecting the land for
the purpose of determining what part
was waste and arable and should,
therefore, be taken possession of
and determining its extent, was
sufficient to constitute taking of
possession. It appears that the
appellant was not present when this
was done by the Tehsildar, but the
presence of the owner or the
occupant of the land is not
necessary to effectuate the taking
of possession. It is also not
strictly necessary as a matter of
legal requirement that notice should
be given to the owner or the
occupant of the land that possession
would be taken at a particular time,
though it may be desirable where
possible to give such notice before
possession is taken by the
authorities, as that would eliminate
the possibility of any fraudulent or
collusive transaction of taking of
mere paper possession, without the
occupant or the owner ever coming
to know of it.”
44. In Balmokand Khatri Educational And Industrial
Trust, Amritsar versus State Of Punjab and Others,
(1996) 4 SCC 212, this Court had laid down that
normal mode of taking possession is drafting the
Panchnama in presence of Panches and taking
possession and giving delivery to the Officials.
Para 4 of the judgment is as follows:
“4.....It is now well-settled legal
position that it is difficult to
take physical possession of the land
under compulsory acquisition. The
normal mode of taking possession is
drafting the panchnama in the
presence of panchas and taking
possession and giving delivery to
the beneficiaries is the accepted
mode of taking possession of the
land. Subsequent thereto, the
retention of possession would
tantamount only to illegal or
unlawful possession.”
45. In Banda Development Authority, Banda versus
Moti Lal Agarwal and Others, (2011) 5 SCC 394, this
Court has considered the question of taking up
possession of acquired land after noticing all
earlier judgments of this Court. This Court culled
out the principles in Para 37 of the judgment, which
is quoted as below:
“37. The principles which can be
culled out from the abovenoted
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 panchnama will ordinarily be treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of
a large tract of the 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.
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
utilised in furtherance of
the particular public
purpose, then the court may
reasonably presume that
possession of the acquired
land has been taken.”
46. In the present case Notification under Section
16(2) dated 07.05.1985 was published in the
Karnataka Gazette of 24.10.1985. Publication in the
Gazette is evidence of the fact that possession has
been taken as is statutorily provided by Section 16
(2). This Court has occasion to consider Section
16(2) (as amended in Karnataka in P.K. Kalburqi
versus State of Karnataka and Others, (2005) 12 SCC
489. This Court considered the relevance of
Notification under Section 16(2) and held that such
Notification could be evidence of fact that
possession was taken, though not conclusive and in
absence of such notification, the Court can consider
the other fact on record which has a bearing on this
question. Following is stated in Para 9:
“ 9. A plain reading of the said
section would indicate that the
power conferred on the Deputy
Commissioner is enabling in nature,
and if such a notification is issued
it shall be evidence of the fact
that possession was taken, though
not conclusive. Such a notification
would be a piece of evidence which
may establish that possession of the
lands was in fact taken. It is not
as if in the absence of such a
notification the Court cannot
consider the other evidence on
record which has a bearing on this
question. We are, therefore,
satisfied that the High Court was
right in coming to the conclusion
that possession of the lands was
taken by the State and there was
therefore no authority in the State
Government to issue a notification
denotifying the lands under Section
19(7) of the Karnataka Urban
Development Authorities Act, 1987.”
47. The present is a case where on the land various
trees were standing, which has been noted in the
Mahazer. Certain other constructions, as referred to
in the Mahazer as unauthorised construction were
also noticed. The Mahazer further noticed that land
owners and owners of the building were also present
at the land and land owners and owners of building
refused to hand over the possession of land and
building. The Mahazer was signed by Revenue
Inspector, Special LAO, Engineer of BDA as well as
four other persons.
48. Present is a case where land was acquired for a
public authority and Bangalore Development Authority
has prepared the BMT Scheme layout which was
sanctioned. Society was allotted the land on
18.05.1985 and the society also got its allotment
sanctioned.
49. It is useful to notice as to what was recorded
by High Court on 14.12.1984 while dismissing the
Writ Petition filed by land owners being W.P.
No.5508 of 1984. While dismissing the above Writ
Petition, High Court has held the following, in the
aforesaid judgment:
“....Though he has taken a
specific contention that the land in
question was not covered by the
development scheme prepared by the
BDA, the records produced by the
learned counsel for BDA show that the
land bearing S. Nos. 50, 51 and 52
form part and parcel of the BDA
Scheme. This scheme covers a very
large extent of land and the lands of
a number of persons had been acquired
under the said scheme and the
acquisition proceedings regarding
these lands have become final. The
development plan has been completed
by the BDA and the scheme is in the
process of implementation.
In the circumstances and for the
reasons stated by this court in the
order in the aforesaid writ
petitions, this petition fails and
accordingly it is rejected at the
stage of preliminary hearing....”
50. One of the main submissions, which has been
pressed by counsel for the appellant is that in
different Writ Petitions filed by the land owners
themselves, this Court has accepted the contention
of the BDA that possession of the land was already
taken on 23.03.1984 and the land has vested in the
BDA.
51. It is contended that there being findings
recorded in judgment of this Court in earlier
litigation between the parties, learned Single
Judge in the judgment dated 30.03.2007 could not
have recorded different findings regarding the
possession. The possession having taken over by the
State Government, which was handed over to BDA the
land vested in the State Government free from all
encumbrances and power under Section 48 could not
have been invoked. For appreciating the aforesaid
submission, it is necessary to look into the
judgment of the High Court where it is claimed that
with regard to possession, finding has already been
returned that possession had been taken by the
State in the year 1984.
52. In above context following judgments of the
High Court need to to be specifically noted:
(a) The W.P. No.18360 of 1988 was filed by Shri
S.M.Bhimanna @ Subbanna and two others,
challenging the order passed by the Minister
for Urban Development, dismissing the Writ
Petition by which, allotment in favour of
society was sought to be cancelled. This Court
after noticing the earlier judgment of High
Court in W.P.No.5508 of 1984 dated 14.12.1984
made the following observations:
“The order made in W.P. No. 5508/83
has become final as far as the
legality of the acquisition
proceedings is concerned.
Accordingly the land in question
became vested in the Bangalore
Development Authority. It is for the
Bangalore Development Authority to
allot the land in accordance with
the provisions framed under the
Bangalore Development Authority
(b) The Writ Petition No.4042 of 1998 Smt.
Papamma versus The Special Land Acquisition
Officer, was filed seeking a direction to the
respondents not to proceed with the
acquisition in respect to Survey No.50.
Following was stated in Para 8:
“8. I do not find any merit in this
petition. This petition is liable to
be rejected on every one of the
grounds urged by the learned counsel
for the Respondents. As noticed by
me earlier, the notification under
subsection(1) of Section 17 of the
Act was issued on 19th September 1987
and Notification under subsection(1)
of Section 19 of the Act was issued
on 9th March 1978 and award was
passed on 8th February 1984 and a
Notification evidencing taking
possession of the said land on 19th
March 1984 came to be issued on 7th
May 1985 as per Annexure-R1. In this
petition, the Petitioner has not
challenged the correctness of the
said notifications. On the other
hand the prayer of the Petitioner is
for a direction to the Respondents
not to proceed with the acquisition
proceedings. The narration of facts
stated above clearly shows that the
acquisition proceedings have become
final and the possession of the land
was taken as back as 19 th March 1984.
Under these circumstances, I am
unable to understand as to how the
Petitioner can seek for a direction
to the Respondents not to proceed
with the acquisition proceedings
without challenging the acquisition
proceedings without challenging the
acquisition proceedings and more
particularly the Notifications
issued under Section 17(1) and 19(1)
of the Act. On this short ground
alone this petition is liable to be
dismissed. Further, as rightly
pointed out by Sri Hegde, the
acquisition proceedings having
reached finality by taking
possession of the said land on 19th
March, 1984, the Petitioner cannot
be, at this stage, permitted to
challenge the acquisition
proceedings.”
53. The above two Writ Petitions were filed by Writ
Petitioners where the Special LAO as well as BDA
both were parties to the proceedings. In Writ
Petition filed by S.M.Bhimanna, the State of
Karnataka as well as Society(N.A.L.) was also
respondents.
54. The Court after considering the submissions of
the parties and material on record has returned the
finding that possession of land has been taken in
the year 1984 and land has absolutely vested in the
State.
55. The learned Single Judge in its judgment dated
30.03.2007 has not given due weight to the aforesaid
findings. The learned Single Judge in its judgment
dated 30.03.2007 could not have returned a contrary
finding that possession has not been taken from the
petitioners. The learned Single Judge, in its
judgment has referred to earlier judgment of the
High Court in W.P. No.4042 of 1998, Smt. Papamma
versus Special Land Acquisition Officer in which
judgment, a finding was returned by the High Court
that possession has already been taken.
56. The High Court has discarded the finding
returned in the above judgment of this Court dated
16.03.1998 by making following observations:
“33.......Copy of the judgment in
Writ Petition No.4042 of 1998 is
perused. At Paragraph-8 while
discussing with regard to validity of
acquisition a reference was made to a
notification dated 07.05.1985
evidencing taking possession of the
said land on 19.03.1984. The learned
judge opines narration of facts
clearly shows that the acquisition
proceedings have become final and the
possession of the land was taken over
as on 19.03.1984. This observation
was made by Court without reference
to any of the records but only based
on the contentions of the parties. At
that point of time, there was neither
de-notification of the land from
acquisition nor withdrawal of the
order of de-notification. As a matter
of fact, petitioner did contend being
in possession and enjoyment of the
land all through.”
57. The observation of the learned Single Judge
that observation in judgment dated 16.03.1998 was
made by Learned Judge without reference to any of
the record but only based on the contention of the
parties is incorrect and unfounded. The finding
recorded by the High Court was on the basis of
submissions of the parties based on the pleadings
and materials which were placed on the record as
well as on the notification dated 07.05.1985 issued
under Section 16(2) evidencing taking of possession
of land on 23.03.1984. Notification dated 07.05.1985
published in official Gazette on 24.10.1985 under
Section 16(2) of the Act 1894(as amended in
Karnataka) was an evidence rightly relied by High
Court for coming to the conclusion that possession
was taken as notified in the notification. The
Judgment of High Court dated 16.03.1998 was fully in
accordance with the provisions of Section 16(2) of
Act 1894, which provision has not even adverted to
either by learned Single Judge or the Division Bench
in the impugned judgment. The findings recorded in
the judgment dated 16.03.1998 could not have been
discarded in such slipshod manner by learned Single
Judge.
58. We are thus of the view that in earlier
judgments of the High Court between the parties
regarding the acquisition in question a finding was
returned that possession was taken from the land
owners in the year 1984.
59. High Court in subsequent Writ Petition filed
by land owners, even though, arising out of a
Notification by the State, by which it had cancelled
earlier Notification withdrawing from the
acquisition, the said finding in earlier proceeding
regarding delivery of possession could not have been
ignored or discarded. Learned Single Judge
committed error in proceeding to re-examine the
issue with regard to which finding was recorded in
earlier proceeding that possession was already taken
by the State in the year 1984 and the land
absolutely vests in the State.
60. High Court lost sight of the fact that
Notification dated 12.04.2001 was issued after 16
years of taking of the possession. In the meantime,
BDA has proceeded with the development of the land.
Roads were constructed and society's allotment was
also passed in the year 1985 itself, layout
sanctioned in the year 1988 itself.
61. Thus, we are of the opinion that High Court
instead of relying on the earlier findings recorded
by the High Court as noted above that the possession
of land has already been taken by the State and
handed over to the BDA in the year 1984, gave a
contrary finding that possession was not taken,
which is unsustainable. The issue as to whether
possession of Survey No.50 was already taken by
the State and handed over to BDA in the year
1984 which was directly and substantially in
issue in the earlier writ proceedings initiated
by the land owners, especially in W.P. No.4042
of 1998 and W.P. Nos.14779-14781 of 2000 where
land owners were seeking a direction to withdraw
Survey No.50 from acquisition on the ground that
they are still in possession. The dismissal of
aforesaid writ petitions and finding to the
effect that acquisition proceedings have become
final and possession of the land was taken back
in the year 1984 shall operate as res-judicata
in subsequent W.P. No.13404 of 2005 filed by the
land owner. The findings of Karnataka High Court
that possession of the land has already been
taken in the year 1984 as recorded in writ
petitions as noted above precluded the learned
Single Judge in W.P. No.13404 of 2005 to take a
contrary decision. We thus find that submission
of learned counsel for the appellant that the
decision on the issue of taking possession by
the State as rendered in earlier writ petitions
filed by land owners shall operate as
res-judicata in subsequent writ petition filed
by land owner being W.P. No.13404 of 2005 and
judgment of learned Single Judge as affirmed by
the Division Bench deserves to be set aside on
this ground.
62. There is one other reason due to which the
judgment of the High court cannot be sustained. The
land owners had filed W.P. No.4042 of 1998 where a
direction was sought for BDA not to proceed with the
acquisition proceeding on the ground that an
application before the Government for de-notifying
Survey No.50 has been filed. The copy of the
judgment dated 16.03.1998 in the aforesaid Writ
Petition has been brought on the paper-book at page
No.96 to 105. The opening part of the judgment is as
follows:
“This writ petition is filed under
articles 226 and 227 of the
Constitution of India praying to
direct the Respondents not to
proceed with the acquisition in
respect of Sy. No.50 of Tavarekere
Village, Bangalore South Taluk and
etc...”
63. The High Court has also in the same judgment
noticed the claim of petitioner that a communication
was issued on 30.06.1981 by Special LAO to the State
Government praying for de-notification of Survey
No.50 and the prayer of the petitioner that State be
directed to de-notify the land. The said facts have
been noticed in Para 2 which are to the following
effect:
“2. In this petition, the Petitioner
has sought for a direction to the
Respondents not to proceed with the
acquisition in respect of the said
land. Sri Suresh Joshi, Learned
counsel for the Petitioner made two
submissions. Firstly, he submitted
that since the Petitioner was not
served with the notice and was not
heard in the course of Section 5A
enquiry and also at the stage of
passing of the award, the
Respondents have no authority in law
to proceed with the acquisition
proceedings; and therefore the
entire acquisition proceedings are
required to be declared as illegal.
Secondly, he submitted since a
communication was issued to the
Petitioner on 30th June 1981, a copy
of which has been produced as
Annexure-C stating that the
recommendations were made by the 2nd
Respondent to the State Government
to de-notify 6 acres and 20 guntas
of land in Sy.No.50 where structures
and garden are existing, the
Respondents must be directed to
de-notify the land in question from
the acquisition proceedings.
According to the learned counsel the
recommendation made by the 2nd
Respondent as per Annexure-C is
pending consideration before the
State Government. He further
submitted that under similar
circumstances, the Government has
de-notified the lands of several
others recently. In support of this
plea he relied upon the Circular
dated 15th November 1978 and 1st
January 1987, copies of which have
been produced as Annexures-B and D
respectively wherein the Government
has notified that wherever the land
proposed to be acquired by the
Bangalore Development Authority
consists of garden and nursery, the
said lands should be dropped from
acquisition proceedings.”
64. The High Court has dismissed the above Writ
Petition in which following was observed:
"....the narration of facts stated
above, clearly shows that the
acquisition proceedings have become
final and the possession of the land
was taken as back as 19.03.1984.
Under these circumstances, I am
unable to understand as to how the
petitioners can seek for a direction
to the respondents, not to proceed
with the acquisition
proceedings...."
The Writ Petition seeking direction to the
State Government to withdraw from acquistion with
regard to Survey No.50 was thus dismissed.
65. Similarly, another Writ Petition
Nos.14779-14781 of 2000, S.M. Bhimanna versus
Bangalore Development Authority was also filed where
following reliefs were claimed:
"(a) a direction to respondents to
consider their representations and
drop the acquisition proceedings in
respect of land measuring 6 acres 20
guntas in Sy. No. 50 of Tavarkere
Village, Begur Hobli, Bangalore,
South Taluk.
(b) a direction to second respondent
not to demolish the structures in
the petition schedule property
pending consideration of their
applications for regularization
(Annexure-E, E1 and E2 dated
30.04.1994.”
66. The aforesaid Writ Petition was contested by
BDA by pleading that possession of the land was
already taken in the year 1984 and a Notification
under Section 16(2) has been published on 24.10.1985
and the land absolutely vested in the State.
Noticing the aforesaid contention ultimately, the
Writ Petition was dismissed by Division Bench of
Karnataka High Court vide judgment dated 16.08.2000.
67. Thus, land owners have filed two Writ
Petitions, seeking a direction to the State to
de-notify the land i.e. Survey No.50 i.e. By
exercising power under Section 48. Both the above
Writ Petitions were dismissed. After dismissal of
the aforesaid Writ Petitions where relief of
withdrawing from the acquisition of the Survey No.50
was refused, land owners without disclosing the
relevant facts approached the State Government in
the year 2001 by submitting a representation that
they are in possession and acquisition of Survey
No.50 be withdrawn.
68. When the Writ Petitions, praying for similar
relief i.e. withdrawal of Survey No.50 from
acquisition have been dismissed by the Karnataka
High Court, as noticed above, the petitioners could
not have approached the State Government praying for
same relief.
69. Both the judgments of the High Court i.e.
judgment dated 16.03.1998 in W.P. No.4042 of 1998 as
well as judgment dated 16.08.2000 in Writ Petition
Nos.14779-14781 of 2000 were not brought into notice
of the State Government by the land owners and they
succeeded obtaining a Notification on 12.04.2001
which was cancelled within one month.
70. Thus, when the two Writ Petitions as noted
above, filed by land owners for same relief have
been dismissed by the Karnataka High Court, we fail
to see how the petitioners could have approached the
State Government by representation thereafter
praying the State Government to exercise its power
under Section 48 to withdraw Survey No.50 from
acquisition. Thus, the entire excercise by the land
owners of approaching the State Government to
withdraw from acquisition of Survey No.50 was
uncalled for and was not permissible in view of the
dismissal of their Writ Petitions by Karnataka High
Court where the same relief was prayed and refused.
71. Learned Single Judge vide its judgment dated
30.03.2007 has not adverted to the aforesaid two
judgments of High Court dated 16.03.1998 and
16.08.2000 which was passed in the Writ Petition
filed by the land owners itself where same relief
for withdrawl of Survey No.50 from acquisition was
refused. The Division Bench has also not adverted to
the aforesaid aspects of the matter while dismissing
the Writ Appeal.
72. It has to be noted that in the Writ Petition
the land owners before learned Single Judge has also
pleaded that State has withdrawn acquisition with
regard to various Survey Nos. whereas
writ-petitioner has been discriminated by refusing
to give similar and equal treatment.
73. Be as it may, when the High Court in earlier
proceedings has already held that possession was
taken up by the State Government and land vested in
the State free from any encumbrances, power under
Section 48 could not have been exercised by the
State. Hence, it is not necessary for us to dwell on
the aforesaid reasons given by the learned Single
Judge any further.
74. We are thus of the view that State Government
having withdrawn the Notification dated 12.04.2001
and having refused to withdraw Survey No.50 from
acquisition which had already become final sixteen
years ago, when the possession was taken by the
State and handed it over to BDA in the year 1984,
which fact was notified in the official Gazette on
24.10.1985, Learned Single Judge committed an error
in allowing the Writ Petition by quashing order of
the State Government dated 22.03.2005.
75. Division Bench also did not advert to the
relevant aspects and committed error in confirming
the judgment of the learned Single Judge.
76. This Court vide its order dated 22.02.2017 has
directed learned counsel for the BDA to inform the
Court as to how much land is allotted to the
appellant-Society by the BDA and how much land is
in actual possession. BDA in pursuance of the order
of this Court conducted a survey and submitted its
report dated 01.04.2017. In the Survey Report, it
has been mentioned that total allotment of land in
favour of N.L.A. Co-operative Society was 8 acres
and members of the appellant-Society are in
possession of more area then allotted to it. It is
not necessary for us to consider or express any
opinion in the above regard. In the event members of
the appellant-Society are in possession of any
excess area, it is always open for the BDA to take
such steps as permissible in law.
77. In result, Civil Appeals Nos.9790-9791 of 2017
arising out of SLP(C) Nos.5911-12 of 2010 are
allowed. Judgment of Division Bench dated 11.12.2008
as well as judgment of the learned Single Judge
dated 30.03.2007 are set aside and W.P. No.13404 of
2005 is dismissed.
78. For the above reasons, Civil Appeal
Nos.9792-9793 of 2017 arising out of SLP(C)
Nos.29553-29554 of 2011 are also allowed.
( A.K. SIKRI )
AUGUST 09,2017.
Civil Appeal Nos. 9790-9791/2017
N.A.L. LAYOUT RESIDENTS ASSOCIATION Appellant(s)
BANGALORE DEVELOPMENT AUTHORITY & ORS. Respondent(s)
C.A. No. 9792-9793/2017
Date : 09-08-2017
These appeals were called on for pronouncement of judgment today.
For Appellant(s) Mr. Rajesh Mahale, AOR
M/s. Khaitan & Co., AOR
For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. Navin Prakash, AOR
Ms. N. Annapoorani, AOR
Mr. S. J. Amith, Adv.
Dr. (Mrs. ) Vipin Gupta, AOR
Ms. Anitha Shenoy, AOR
Mr. Raghavendra S. Srivatsa, AOR
Mr. S. K. Kulkarni, Adv.
Mr. M. Gireesh Kumar, Adv.
Mr. Ankur S. Kulkarni, AOR
Respondent-in-person
Mr. R. Gopalakrishnan, AOR
Mr. Joseph Aristotle S., Adv.
Ms. Priya Aristotle, Adv.
Mr. Ashish Yadav, Adv.
Ms. Romsha Raj, Adv.
Hon'ble Mr. Justice Ashok Bhushan
pronounced the judgment of the Bench comprising
Hon'ble Mr. Justice A. K. Sikri and His Lordship.
The appeals are allowed in terms of the
signed reportable judgment.
Application for impleadment stands disposed
of.
[Signed reportable judgment is placed on the file.]
Civil Appeal Nos. 9790-9791/2017
N.A.L. LAYOUT RESIDENTS ASSOCIATION Appellant(s)
BANGALORE DEVELOPMENT AUTHORITY & ORS. Respondent(s)
C.A. No. 9792-9793/2017
Date : 09-08-2017
These appeals were called on for pronouncement of judgment today.
For Appellant(s) Mr. Rajesh Mahale, AOR
M/s. Khaitan & Co., AOR
For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. Navin Prakash, AOR
Ms. N. Annapoorani, AOR
Mr. S. J. Amith, Adv.
Dr. (Mrs. ) Vipin Gupta, AOR
Ms. Anitha Shenoy, AOR
Mr. Raghavendra S. Srivatsa, AOR
Mr. S. K. Kulkarni, Adv.
Mr. M. Gireesh Kumar, Adv.
Mr. Ankur S. Kulkarni, AOR
Respondent-in-person
Mr. R. Gopalakrishnan, AOR
Mr. Joseph Aristotle S., Adv.
Ms. Priya Aristotle, Adv.
Mr. Ashish Yadav, Adv.
Ms. Romsha Raj, Adv.
Hon'ble Mr. Justice Ashok Bhushan
pronounced the judgment of the Bench comprising
Hon'ble Mr. Justice A. K. Sikri and His Lordship.
The appeals are allowed in terms of the
signed reportable judgment.
[Signed reportable judgment is placed on the file.]