Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3600 OF 2011
M/S. VINAYAK HOUSE BUILDING
COOPERATIVE SOCIETY LTD. … APPELLANT
VERSUS
THE STATE OF KARNATAKA
& ORS. … RESPONDENTS
WITH
CONTEMPT PETITION (C) NO. 823 OF 2018
IN
CIVIL APPEAL NO. 3600 OF 2011
J U D G M E N T
S.ABDUL NAZEER, J.
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.08.28
10:27:04 IST
Reason:
1 . " Bangalore was a beautiful city – once " said Justice O.
Chinnappa Reddy, in one of his judgments of the year 1987
2
1
(B.K. Srinivasan and Ors. v. State of Karnataka and Ors. ).
He went on to say "It was a city with magic and charm, with
elegant avenues, gorgeous flowers, lovely gardens and
plentiful spaces. Not now. That was before the invasion of
concrete and steel, of soot and smoke, of high rise and the
fast buck. Gone are the flowers, gone are the trees, gone are
the avenues, gone are the spaces……" Indeed, Bangalore was
a beautiful city. It had luscious gardens, beautiful lakes,
welllaid roads, plenty of open spaces and wonderful weather
throughout the year. It was one of the most beautiful cities
in the country. It was rightly called the "Garden City" and a
"Pensioner's Paradise". These are things of the past. The
city's environment is degraded so much and so fast that the
time will not be far away for us to say " once upon a time
Bangalore was a beautiful city ." Traffic jams, overcrowding,
haphazard constructions, dying lakes, destruction of the
flora, shrinking of lung spaces etc have become the order of
the day. Its clear cool foggy air has turned into grey smoke
1
1 (1987) 1 SCC 658)
3
and brown dust. All this has happened in the name of
development. Of course, the development in today's time
comes at a cost that the city of Bangalore has very dearly
paid. What is lost has already been lost and no amount of
work or effort can bring back the glorious garden days of
Bangalore. The only thing that can be done and must be
done is to at least wake up now, meticulously plan and
develop the city in order to maintain whatever little is left of
the old Bangalore city and develop the evergrowing city on
the broad lines of the glorious days of the past.
2. Keeping the above in mind as a blue print, let us come to
the facts of this case.
. The appellant is a society registered under the Karnataka
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Cooperative Societies Act 1959, with the objective of inter
acquiring lands for formation of house sites and for
alia
distributing the same to its members. The appellant had
requested the State Government to acquire an extent of 100
acres of land in Nagarabhavi Village, Yeswanthapura Hobli,
Bangalore. In the year 1982, the State Government accorded
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sanction for initiation of proceedings for acquisition of 78
acres 16 guntas of land for the benefit of the appellant. It
appears that even before the initiation of acquisition
proceedings, Vijayanagar Industrial Workers Housing Co
operative Society Ltd had approached the appellant with a
representation that it had already entered into an agreement
dated 06.11.1982 with respondent No.3 to purchase the
entire extent in Survey No.30, of which she claimed to be the
owner. Accordingly, the said society requested the appellant
to withdraw its request for acquisition of the said land. This
is evident from the agreement at Annexure P1 entered into
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between the 3 respondent and the said society. Under the
said agreement, out of the total sale consideration of
Rs.50,000/ per acre, respondent No.3 had received a sum of
Rs.25,500/ and had parted with possession of the land in
favour of the said society and stated that she had no
objection to the land being acquired by the State
Government.
5
4 . In compliance with the procedure prescribed under
Chapter VII of the Land Acquisition Act, 1894 (for short 'L.A.
Act'), the State Government executed an agreement at
Annexure P2, undertaking to acquire land in favour of the
appellant which included Sy.No.30 measuring 5 acres 33
guntas and 8 guntas of pot kharab land. On 16.01.1985,
notification under Section 4(1) of the L.A. Act was issued
proposing to acquire the required extent of land including
Sy.No.30. An enquiry under Section 5A of the L.A Act was
conducted and a report was submitted to the State
Government recommending acquisition.
The State Government, having accepted the
5.
recommendation issued a declaration under Section 6(1) of
the L.A Act on 04.03.1986, to the effect that several extent of
land including Sy. No.30 was needed for the public purpose
of the appellant society.
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The 3 respondent, claiming to be the owner of an extent
6.
4 acre 16 guntas of land in Sy.No.30, filed W.P. No. 12566 of
1986 before the High Court of Karnataka questioning the
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notifications issued under Section 4(1) and 6(1) of the L.A Act
and obtained an interim order dated 08.07.1986 staying
dispossession. Acquisition was challenged on the ground that
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3 respondent was not issued with any notice; that no
enquiry was held; and that acquisition was not for public
purpose.
7. Subsequently, awards were passed which were approved
by the State Government. In respect of Sy.No.30, an award
was passed fixing compensation at the rate of Rs.45,000/
per acre. The Land Acquisition Officer in terms of his letter
dated 06.04.1987 (Annexure P5) called upon the appellant to
deposit Rs.19,76,948/ including the general award amount,
in compliance whereof the appellant has deposited the
amount.
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8. The 3 respondent made a representation as per
Annexure P6 dated 26.08.1990 to the State Government for
withdrawing the acquisition proceedings in respect of 3 acres
5 guntas of land in Sy.No.30 (hereafter referred to as
'disputed property'). The representation of respondent No.3
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stated that she had sold the land in Sy.No.30 long back. The
purchasers of the sites had come forward to construct the
houses on the sites which was objected to by the Land
Acquisition Officer and the appellant. It was also contended
that she had sold the sites as she had to maintain her family
as her children were unemployed and that she had to perform
the marriages of her sons and daughters.
The High Court by its order dated 22.02.1991 dismissed
9.
the writ petition by rejecting all the contentions of respondent
No.3.
10. Soon after the dismissal of the writ petition, respondent
No.3 claiming to be the owner of 4 acres 16 guntas of land in
Sy.No.30, again filed W.P. No. 5558 of 1991 before the High
Court questioning the award determining the market value of
the acquired land. On 12.03.1991, the High Court granted
an interim order staying the dispossession. The State
Government delivered possession of the land acquired in
terms of the official memorandum dated 13/14.10.1992 to an
extent of 68 acres 17 guntas to the appellant. The extent
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delivered to the appellant included 1 acre 25 guntas in Sy.
No.30 out of total extent 6 acres 1 gunta. Balance of
disputed land measuring 4 acres 10 guntas in Sy.No.30
which formed subject matter of interim order of stay in W.P.
No. 5558 of 1991 was not delivered to the appellant.
11 . The High Court by order dated 15.07.1998 dismissed the
writ petition W.P. No. 5558 of 1991 by imposing a cost of
Rs.2,000/ on the ground that the appellant having suffered
an order in W.P. No. 12566 of 1986, ought not to have filed
another writ petition for the same relief. Respondent No.3
challenged this order in intra court appeal before the Division
Bench of the High Court in W.A. No. 4245 of 1998.
12 . In spite of dismissal of W.P. No. 12566 of 1986 and W.P.
No. 5558 of 1991 rejecting the challenge made by the
respondent No.3 to the acquisition, the State Government
issued a withdrawal notification dated 19.08.1998 under
Section 48 of the L.A Act in respect of the disputed property,
even without affording an opportunity of being heard to the
9
appellant. The appellant challenged this order by filing writ
petition No. 26558 of 1998 before the High Court.
13 . Writ appeal No. 4245 of 1998 filed by respondent No.3
came to be dismissed by the Division Bench in terms of the
order dated 18.11.1998, thereby confirming the order in W.P.
No. 5558 of 1991. On the same day, i.e. 18.11.1998, the
High Court allowed W.P. No. 26558 of 1998 filed by the
appellant on the ground that the appellant had not been
heard in the matter before issuing the notification under
Section 48 of the L.A Act and the matter was remitted to the
State Government for reconsideration after affording
opportunity to the appellant. It was directed that until the
time State Government took fresh decision, the status quo as
regards possession and nature of the property would be
maintained.
. Respondent No.3 had only sought denotification of the
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disputed property, i.e. 3 acres and 5 guntas in Sy.No.30.
However, even out of the balance 2 acres and 36 guntas, only
1 acre 25 guntas had been handed over to the appellant.
10
Accordingly, after dismissal of the writ appeal W.A. No. 4245
of 1998 filed by respondent No.3, the appellant requested the
State Government to deliver possession of further 1 acre 11
guntas in Sy. No.30 which did not form part of the request
made by the respondent No.3 for denotification. The State
Government having failed to act, the appellant filed W.P. No.
2592 of 1999 before the High Court for necessary direction.
The High Court in terms of the order dated 02.02.1999
allowed the said writ petition directing the State Government
to hand over possession of 1 acre 11 guntas of land to the
appellant and accordingly possession of the said extent was
handed over to the appellant. Thus, a total extent of 2 acres
36 guntas of land was handed over to the appellant out of 5
acres 33 guntas. The review petition filed by respondent No.3
seeking review of the order dated 02.02.1999 in W.P. 2592 of
1999 was dismissed by the High Court imposing cost of
Rs.2500/ with the following observations :
"…thus it is clear that a clever attempt
is being attempted to be made by the
petitioner to get over an order this
11
Court by creating an impression that
the petitioner has attempted
suppression of fact and has practiced
fraud. On the contrary it is clear that
the petitioner is playing fraud on this
by means of representing that 1 acre 11
st
guntas of land restored to the 1
respondent form part of the property,
claimed by the petitioner. This is a clear
misrepresentation. I am of the opinion
that this writ petition is totally
misconceived and is made with oblique
motive. Accordingly this Revision
Petition is dismissed with costs of
st
Rs.2,500/ payable to the 1
respondent."
15 . After lapse of about 5 years of the order dated
18.11.1998 in W.P. No. 26558 of 1998, in terms whereof the
notification under Section 48 of L.A Act in respect of the
disputed property had been quashed, the State Government
issued notice to the appellant regarding its proposal to de
notify the land. On 28.08.2003, the appellant filed detailed
statement of objections to the proposed denotification of
the acquired land. Ignoring objection raised by the appellant,
the State Government proceeded to pass an order deciding to
12
withdraw the aforesaid land measuring 3 acres 5 guntas in
Sy.No.30.
16. Being aggrieved by the government order dated
27.12.2003 and the consequential notification dated
12.01.2004 issued under Section 48 of the L.A Act, the
appellant approached the learned Single Judge of the High
Court by filing W.P. No. 4912 of 2004. The learned Single
Judge dismissed the writ petition on 08.03.2004 and the writ
appeal filed by the appellant in Writ Appeal No. 2583 of 2004
challenging the said order has been dismissed by the Division
Bench on 07.08.2008. The appellant has called in question
the legality and correctness of the said order in this appeal.
. We have heard Mr. Basava Prabhu Patil, learned senior
17
advocate for the appellant, Mr. Joseph Aristotle S., for
respondent Nos. 1 and 2 and Mr. Huzefa Ahmadi, learned
senior advocate for respondent No.3.
. Mr. Patil, learned senior counsel, submits that the first
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respondent has exercised the power under Section 48 (1) of
the L.A Act in an arbitrary and whimsical manner. The order
13
prejudicially affects the interest of the appellant. The exercise
of power lacks bona fides and suffers from vice of
arbitrariness. It is further submitted that the disputed
property forms an integral part of the layout formed by the
appellant. A portion of the disputed property is reserved for
civic amenities. If the land in question is denotified, it will
have adverse impact on the planned development of the
layout leading to public inconvenience. It is further
submitted that the individual interest of respondent No.3
cannot come in the way of larger public interest. It is also
submitted that according to the third respondent, she had
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already sold 1/3 of 3.5 acres to the third parties by a
registered sale deed on 28.05.1992. According to her
representation, the purchaser has already formed sites in
disputed property. She cannot maintain an application under
Section 48(1) of the L.A Act for denotification of the land
already sold. Having failed in her challenge to the acquisition
proceedings, she could not have maintained the application
for denotification. Section 48 (1) was basically meant for the
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State Government to denotify the land from acquisition when
it is not possible to acquire the said land and not meant for
the owners, particularly when lands are being acquired for
public purpose.
19 . On the other hand, learned advocates appearing for the
respondents have sought to justify the impugned order. Mr.
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Ahmadi, learned senior counsel, appearing for the 3
respondent submits that the appellant society is not a bona
fide housing society. It is submitted that there was no bar for
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the 3 respondent to maintain an application for de
notification under Section 48 (1) of the L.A Act even though
her writ petition challenging the acquisition proceedings has
ended in dismissal. Taking into account the hardship
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suffered by the 3 respondent, the State Government has de
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notified the land in her favour. Accordingly, the 3
respondent prays for dismissal of the appeal.
20 . We have carefully considered the submissions of the
learned counsel made at the Bar.
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21 . Section 48 of the L.A Act corresponds to Section 54 of
the old Act 'X' of 1870. For ready reference Section 54 of the
old Act is as under:
"54. Except in the case provided for in
s. 44, nothing in this Act shall be taken
to compel the Govt. to complete the
acquisition of any land unless an award
shall have been made or a reference
directed under the provisions
hereinbefore contained.
But whenever the Govt. declines to
complete any acquisition, the Collector
shall determine the amount of
compensation due for the damage (if
any), done to such land under s. 4 or s.
8 and not already paid for under s. 5,
and shall pay such amount to the
person injured".
. Section 54 of the old Act gave power to the government
22
for withdrawal of the land which it has proposed to acquire.
This power had to be exercised before the award is made.
This was causing great hardship to the government. The
reasons for reenacting the said provision in the L.A Act of
1894 can be gathered from the preliminary report of the
nd
Select Committee dated 2 February, 1893, which is as
under:
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"Section 54 of the Act (10 of 1870) gives
to the Govt. or the public bodies whom
it represents the power of withdrawal
from land it has proposed to acquire.
This power, however, must be exercised
before the award is made. After award,
withdrawal is prohibited whatever may
be the circumstances. Experience has
shown that the only occasion on which
powers of withdrawal, would be really
useful are when an award has shown
that the Govt. was seriously misled by
an underestimate of the value of the
land. A case has been reported in which
a municipality has been nearly ruined
by being compelled to proceed with an
acquisition in which the award was
inordinately in excess of the original
valuation. We think, therefore, that
power to withdraw should be given
after, as well as before, the award, but
that, if so exercised, it should only be
on terms of the most liberal
compensation to the owner and that, if
he is dissatisfied with the Collector's
offer, he should have the same rights of
reference to the Judge as in case of
acquisition".
(emphasis supplied)
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23 . The Select Committee in its second report dated 23
March, 1893 has given certain clarifications, which are as
under:
17
"We have altered the terms of the first
clause of s. 48, which gives certain
powers to Govt. to withdraw from a
contemplated acquisition of land so as
to make it clear that this withdrawal
may be made at any time before
possession is taken but not afterwards.
Instances were quoted in our
Preliminary Report in which the
Collector was proved by the Judge's
award to have been seriously misled as
to the value of the land and in which
the Govt. would not have acquired the
land had it received a correct
appraisement. We think, that a Govt.
which provides compensation from the
taxes of the Empire should have larger
powers of withdrawal than are given by
the present Act, but we are of opinion
that no such power should be given
after possession has once been taken
and that each Local Govt. must protect
itself by executive instructions to
Collectors to refrain from taking
possession until after the award of the
Judge, in every case in which there is a
material difference between the
Collector and the owner as to the value
of the property".
(emphasis supplied)
24 . Section 48 of the L.A. Act of 1894 is as under:
"
48. Completion of acquisition not
compulsory, but compensation to be
18
awarded when not completed. (1)
Except in the case provided for in
section 36, the Government shall be at
liberty to withdraw from the acquisition
of any land of which possession has not
been taken.
(2) Whenever the Government
withdraws from any such acquisition,
the Collector shall determine the
amount of compensation due for the
damage suffered by the owner in
consequence of the notice or of any
proceedings thereunder, and shall pay
such amount to the person interested,
together with all costs reasonably
incurred by him in the prosecution of
the proceedings under this Act relating
to the said land.
(3) The provisions of Part III of this Act
shall apply, so far as may be, to the
determination of the compensation
payable under this section".
25 . It is clear that an important change was affected in law
in 1894 by enactment of this section. Under the previous
Act, the government could not withdraw from the acquisition
after an award had been made or a reference directed. This
was causing hardship in cases where the land turned out to
be more valuable than the acquisition was worth. The
difficulty has been removed by fixing the bar at the taking of
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possession, an act which can be indefinitely postponed to
meet the occasion. When possession under Section 16 of the
L.A. Act is not taken, the government can withdraw from
acquisition and the person interested would be entitled to
compensation for the damage suffered in consequence of the
acquisition proceedings and also to such costs of the
proceedings as reasonably incurred by him. Section 48,
however, will have no application when once the land has
vested in the government under Section 16 of the L.A. Act.
26 . The two reports referred to above indicate that the liberty
to withdraw from acquisition under Section 48 (1) of L.A Act
was made available prior to taking possession of the land in
order to curtail payment of exorbitant award amount in cases
where it was no longer possible for the government to
effectuate the intended purpose of acquisition. In Special
Land Acquisition Officer, Bombay and Ors. v. M/s Godrej
2
and Boyce , this Court was considering the denotification of
land before taking its possession. In this case, the
2
1988 (1) SCC 50
20
government had intended to acquire vast piece of land for
construction of houses by the State Housing Board but this
land had been overrun by slum dwellers to such an extent
that it was no longer possible for the government to effectuate
the intended purpose of acquisition. It was observed that the
State Government was not responsible for the occupation of
land by trespassers. Therefore, the State Government cannot
be compelled to go ahead with the acquisition when the
purpose of such acquisition could not be achieved. In this
regard it is beneficial to note the observations of the Supreme
Court:
"Where slum dwellers on a large scale
occupy pieces of land, social and
human problems of such magnitude
arise that it is virtually impossible for
municipalities, and no mean task even
for the government, to get the lands
vacated. If the government is reluctant
to go ahead with the acquisition in view
of these genuine difficulties, it can
hardly be blamed. We see no
justification to direct the government to
acquire the land and embark on such a
venture. We are also of the opinion that
the fact that the government exercised
the power of withdrawal after the writ
21
petition was filed does not spell mala
fides once the existence of
circumstances, which, in our opinion,
justified the government's decision to
withdraw, is acknowledged".
. It is thus clear that subsection (1) of Section 48 of the
27
L.A Act empowers the government to withdraw from
acquisition proceedings of the land of which possession has
not been taken. It is further provided that when the
government withdraws from acquisition, the Collector shall
determine the amount of compensation due for the damages
suffered by the owner in consequence of notice or proceedings
thereunder. A combined reading of subsection (1) and sub
section (2) of Section 48 of the L.A. Act makes it clear that the
purpose of Section 48 was mainly to ensure that the State
Government is not compelled to acquire the land when the
acquisition ceases to be beneficial for the intended purpose.
That is why, subsection (2) of Section 48 provides for
payment of compensation to the owner, whose land was
notified for acquisition but not acquired for the reason that
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such an acquisition is against the public interest and public
revenue.
28. However, from the language employed in subsection (1)
of Section 48, it can also be inferred that there is no bar to
denotify the land from acquisition at the request of the
landowners. We are of the view that when an application is
made for denotification of the land, the government has to
consider the same with great care and caution. The
government has to consider the application keeping in mind
the subservience of public interest because the lands are
being acquired for public purpose. The government should
not exercise this power in an arbitrary and whimsical
manner. The decision of withdrawal from acquisition should
be bona fide and backed by valid reasons. It is settled that
the government could not withdraw land from acquisition
without giving the beneficiary of acquisition an opportunity of
being heard. (See: State Government Houseless Harijan
3
Employees' Association v. State of Karnataka and Others )
3
(2001) 1 SCC 610
23
29 . It is also necessary to emphasize here the need to have
planned development of the city and the importance of
planning schemes and the illeffects of denotification of the
land from the approved scheme/plan. Town planning
schemes are made for the immediate need of the community.
Town planning is meant for planned development of certain
local areas in order to make utilities and facilities available to
the general public. Planned development of the city is a sine
qua non for its health and growth, given the rapid increase in
population of the city on account of influx of thousands of
people from other parts of the country.
30 . The Karnataka Town and Country Planning Act, 1961
(for short 'Planning Act') and the Bangalore Development Act,
1976 (for short 'BDA Act') play an important role in the
planned development of the city of Bangalore. The Planning
Act was enacted by the State Legislature for the regulation of
planned growth of land use and development and for
executing town planning schemes in the State of Karnataka.
The Planning Act has created a Planning Authority which has
24
been given power to check, survey and locate the area for
development by declaring it as a planning area. It also
provides for preparation of master plan for development of the
city after carrying out the survey of the area within its
jurisdiction. The zoning regulations are made from time to
time, classifying the land use in the planning area.
31 . The State Legislature has enacted the BDA Act for the
establishment of a development authority for the development
of city of Bangalore and areas adjacent thereto and for
matters connected therewith. The State Government has
constituted Bangalore Development Authority to effectuate
the purpose of the BDA Act. This authority is a Planning
Authority for the city of Bangalore. The main object of the
BDA Act is planned development of the city of Bangalore and
to check haphazard and irregular growth of the city. BDA is
the sole authority which draws the schemes for formation
layouts within the Bangalore Metropolitan Area. This Act
envisages development of two types of layouts. The first is
formation of a layout by the BDA itself. For this purpose, BDA
25
has to draw a development scheme. The particulars to be
provided in the development scheme are enumerated in
Section 16 of the BDA Act. The development scheme made by
the BDA provides for acquisition of the land, laying and re
laying of all or any land including the construction and re
construction of buildings, formation and alteration of the
streets, provision for drainage, water supply, electricity,
reservation of not less than 15% of the area of the layout for
public purpose and playground and an additional area of not
less than 10% of the total area of the layout for civic
amenities. Section 18 of the BDA Act provides for sanction of
the scheme submitted by the BDA. After acquisition, State
Government vests the acquired land with the BDA for
formation of a layout strictly in accordance with the
sanctioned scheme.
. The second type of layout under the BDA Act is a private
32
layout. Section 32 of the BDA Act provides for formation of
private layouts. If any person intends to form an extension or
a layout, he has to make a written application with a plan to
26
the Commissioner, BDA under subsection (2) of Section 32.
The said plan has to contain laying out sites of the area,
reservation of land for open spaces, the intended level,
direction and width of the street, street alignment and the
building line and the proposed sites abutting streets, the
arrangement for leveling, paving, metalling, flagging,
channelling, sewering, draining, conserving and lighting the
streets and for adequate drinking water supply. A private
layout cannot be formed without the approval of the layout
plan by the Commissioner, BDA and such layout has to be
formed strictly in accordance with the approved plan. While
forming the layout, the BDA or a private individual or a
society, as the case may be, cannot deviate from the
sanctioned scheme or the approved layout plan.
33 . It has come to the notice of this Court that of late the
State Government has been denotifying the lands acquired
for public purpose for the benefit of the authorities like BDA
or other urban development authorities and for the formation
of private housing layouts, adversely affecting the planned
27
development of the city of Bangalore and other cities in the
State of Karnataka. The instant case is a classic example
where the power has been blatantly misused ignoring larger
public interest.
34 . As noticed above, the State Government had accorded
sanction for initiation of acquisition proceedings for the
benefit of the appellant in the year 1982 itself. The State
Government executed the agreement in the month of August
1984, undertaking to acquire 78 acres 16 guntas of land in
favour of the appellant, including the land in Sy.No.30
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belonging to the 3 respondent. Notifications under Sections
4(1) and 6(1) of the L.A Act were issued and possession was
taken except the disputed land to an extent of 3 acres 5
guntas.
35. The approved layout plan was issued by the government
in compliance with the provisions of the BDA Act and the
Planning Act. The layout plan produced by the appellant at
Annexure P13 would indicate that meticulous planning has
been undertaken for planned development of the layout. The
28
plan also indicates that lands have been reserved for civic
amenities, open spaces and also for roads. The width of the
street and its alignment, the building line and the proposed
sites abutting the streets, have been perfectly drawn.
36 . The appellant has contended that the disputed property
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falls in the middle of the layout. However, the 3 respondent
has contended that the disputed property is situated in the
southern end of the layout. Whether the disputed property
falls in the middle of the layout or in the southern end makes
no difference so long as it is within the layout. It is also clear
from the materials on record that a portion of the disputed
property has been earmarked as a civic amenity and the
remaining portion abutting the street has been proposed for
residential sites. If the order of denotification is allowed to
stand, the very object of the planned development of the
layout would be lost. There will be shortage of civic amenity
sites in the layout and it would no longer be possible to set
the street alignment and the building line as per the approved
plan. This will have adverse impact on the planned
29
development of the layout leading to public inconvenience. It
will nullify the object and the purpose for which Planning Act
and the BDA Act have been enacted by the Legislature.
. Experience has shown us that the lands are being de
37
notified before taking possession or dropped from acquisition
before the issuance of declaration by the government are
mostly at the instance of land mafias in connivance with
influential persons; political or otherwise. These lands are
generally situated within the layouts in major cities and
specially in Bangalore city. After denotification, multi
storied complexes come up on these lands comprising of large
number of residential and nonresidential units. This has a
direct impact on the existing infrastructure consisting of
water supply, sewerage and lighting. Similarly, the traffic
movement facility suffers unbearable burden and is often
thrown out of gear because the original scheme/layout plan
did not envisage construction of these complexes. The civic
amenities provided in the original layout plan were in
proportion to the development proposed in the scheme/plan.
30
The purchasers of residential sites, who wish to have a roof
over their heads, fall prey to the designs of unscrupulous
land mafias. We may not hesitate to add that irreparable
damage has already been done to many layouts in Bangalore
and in other places by allowing construction of multistoried
buildings within the layouts.
38. We are of the considered view that the government
should refrain from denotifying or dropping any land being
acquired for the formation of a layout, under Section 48 of
the L.A Act or under any other law. The courts should also
be very strict while considering the plea of the landowners
seeking denotification of the lands which are being acquired
or quashing of the notification on the ground of lapsing of the
scheme or on any other grounds in respect of the acquired
lands for the formation of the layout. It has to be kept in
mind that private interest always stands subordinated to the
public good.
39. It is also to be noted here that the area reserved for civic
amenity should not be diverted for any other purpose other
31
than the purpose for which it was reserved in the sanctioned
scheme or the approved layout plan. The plan for building in
the layout should be sanctioned strictly in accordance with
the building byelaws. If a site is earmarked for residential
purpose, no plan should be sanctioned for construction of a
nonresidential building at such site. The construction on
the sites by the allottees should be made in accordance with
the plan sanctioned by the competent authority.
40 . It is no doubt true that right to build on one's own land
is a right incidental to the ownership of the land. This right
has been regulated in the interest of the community residing
within the limits of the city in general and the layout in
particular. This has to be strictly implemented for the
planned development of the city. If it is not controlled, it will
have tremendous burden on the infrastructure available in
the layout.
. We are of the view that Section 14A of the Planning Act,
41
which empowers the Planning Authority to grant permission
for change of land use or development, has no application to
32
the lands acquired under Sections 17 to 19 of the BDA Act for
the implementation of the scheme or the layout approved
under Section 32 of the said Act. The position is similar even
in respect of the other Development Authorities in the State of
Karnataka.
42. We make it clear that henceforth, the
planning/development authorities in the State of Karnataka,
including the BDA shall not permit change of land use within
the layout formed by the BDA or a private layout formed
under Section 32 of the BDA Act or the layout formed by any
other authority contrary to the scheme sanctioned by the
State Government or the layout plan approved by the
competent authority. The BDA or the other
planning/development authorities shall not venture to alter
the sanctioned scheme/approved layout plan in any manner.
The BDA and the other planning/development authorities,
Bruhat Bangalore City Municipal Corporation Bangalore, or
any other authorities in the State of Karnataka authorized to
sanction the plan for construction of the buildings shall not
33
sanction any plan for construction contrary to the sanctioned
scheme/approved layout plan. The sites reserved for parks,
playgrounds or for providing other amenities shall be used
strictly for the purpose for which they were reserved. Be it
noted that violation of any of these directions by the
authorities will be viewed strictly.
43. It is also hereby clarified that if denotified lands or the
lands dropped from acquisition before the issuance of the
declaration under the BDA Act or any other law are available
within the BDA layout or the private layout approved by the
BDA or the layout formed by any urban development
authorities in the State of Karnataka, the said lands shall be
utilized strictly in accordance with the land utilization
proposed in the scheme/approved layout plan. Hence,
building permission or the sanctioned plans to build on
these lands shall not be issued by any authorities contrary
to the land utilization proposed in the scheme/approved
layout plan.
34
rd
44. Now, let us focus on the conduct of the 3 respondent
who had managed to obtain an order of denotification. It is
clear from the materials on record that even prior to the
issuance of preliminary notification, M/s. Vijayanagar
Industrial Workers Housing Cooperative Society Ltd had
rd
entered into an agreement on 06.11.1982 with the 3
rd
respondent to purchase the land in question. In fact, the 3
respondent had also received partial compensation from the
said society. She has challenged the acquisition proceedings
thereafter by filing writ petition in W.P. No. 12566 of 1986.
During the pendency of this case, she filed a representation
dated 26.09.1990, requesting the State Government to
withdraw from acquisition of the said land. In the said
representation, it was contended that she had sold the said
land long back for the purpose of collecting funds to perform
the marriage of her children and that she had divided the sale
proceeds amongst her children. It was also contended that
pursuant to the sale, the purchaser had come forward to
construct houses and the Land Acquisition Officer and the
35
appellant had objected to the same. On the said ground, she
had sought denotification of the land after the dismissal of
W.P. No. 12566 of 1986. Therefore, the Land Acquisition
Officer passed an award. She filed the second writ petition
challenging the acquisition proceedings in W.P. No. 5558 of
1991, which was rightly dismissed by the High Court and
intra court appeal filed by her challenging the said order was
also dismissed by the Division Bench. It is obvious that in the
said cases, she had raised the grounds which had been
raised by her in her representation seeking denotification of
the disputed property.
The appellant has opposed the proposal for de
45.
notification by filing detailed objections as per Annexure P
rd
12. The conduct of 3 respondent in filing case after case for
quashing the notification issued by the State Government for
acquisition of the land has been brought to the notice of the
government. It was also stated that since the lands have
been notified for acquisition for a public purpose, namely, for
the formation of a layout, a portion of the said land cannot be
36
denotified as it will adversely affect the layout, causing
st
public inconvenience. The 1 respondent, without adverting
any of these contentions, has passed an order of de
notification. We are of the view that the said order has been
passed without application of mind and it is arbitrary in
nature.
th
46 . In this appeal, the 4 respondent has filed an application
contending that he had purchased certain extent of land out
of the disputed property. In support of his contentions he has
rd
produced saledeed dated 27.5.1992 executed by 3
respondent in favour of his vendor, Smt. P.N. Kanthanna. In
rd
fact, the 3 respondent in her statement of objections filed in
this appeal has admitted having sold the land. However, it is
pleaded that denotification of the land is necessary in order
to convey better title in favour of the purchasers. It is stated
as under:
"23. The contention that this
respondent has no subsisting interest
in the land in question as she has sold
the land is totally false. This
respondent has to convey better title in
37
favour of the purchasers and therefore
her request to denotify the land is not
tainted with any malafides. As stated
earlier, this respondent has sold certain
land to sustain herself and her family."
rd
Since the 3 respondent has already sold certain portion
47.
of the land, she could not have maintained the application for
denotification of the said portion of the land as she has no
subsisting interest in the said land. We are also of the view
that even the subsequent purchaser of the land cannot seek
denotification of the land from acquisition as his saledeed is
void.
48. We have also noticed that the State Government has
been denotifying the lands under Section 48 (1) of the Act
for the past 1015 years and allegations have been made that
these orders have been passed with ulterior motives. We are
of the view that the State Government has to reconsider all
these orders and take corrective steps in case it is found that
such orders have been passed in violation of the law.
Perpetuation of illegality has to be ceased, desisted and
deterred at any cost.
38
49. Mr. Ahmadi, learned senior counsel, submits that the
appellant is not a bona fide h ousing society and that 90% of
its members are not eligible to become its members and that
they are not entitled for allotment of sites from the appellant.
It is not possible to consider these contentions of Mr. Ahmadi
rd
in this appeal. However, if the 3 respondent has any
grievance in relation to the bona fides of the society, she may
lodge a suitable complaint before the competent authority. If
such complaint is filed, we direct the concerned authority to
consider the same in accordance with law.
rd
A contention has also been raised by the 3 respondent
50.
that the appellantsociety has sold sites meant for civic
amenities illegally to various persons and the showcause
notice has been issued by the competent authority in this
rd
regard. The 3 respondent has produced the notices issued
by the Pattangere City Municipal Council, Bangalore dated
8.7.1998 at R18 which is as under:
"Annexure R18
Pattanagere City Municipal
Council
39
Bangalore, Dated 08/07/1998
The President/Secretary,
Sri Vinayaka House Building
Cooperative Society Limited,
No.3, Adi chunchanagiri complex,
Vijayanagar, Bangalore 40
Sir,
Sub: Representation with regard to
transfer of katha from the City
Municipal Council fraudulently in
respect of C.A. reserved sites to some
of the members of your society
contrary to law and rules of BDA in
nd
the layout formed at 2 Stage,
Nagarabhavi and suppressing the
information.
With relation to the above subject, the layout
formed by Sri Vinayaka House Building Cooperative
Society Ltd., is the layout which comes within Ward
No.7 of our City Municipal Council limits. It is
noticed that the sites have been developed, approval
being obtained by the Bangalore Development
authority, the sketch/plan has been got sanctioned
and the sites have been allotted.
But, the Local City Municipal Council Member,
Sri V. Prakash, B.Com., LL.B., Advocate has
submitted the complaint in writing on behalf of the
general public that the plan/sketch in respect of
certain areas has not been sanctioned by the BDA
and the area which has been reserved for civic
amenities by the BDA have been formed in to sites
40
and by giving wrong information to some of the
members and in violation of the rules of government
and BDA, the President, C.H. Subboji Rao and the
Secretary M.S. Srinivasa Murthy have fraudulently
registered the said civic amenities sites to the
civilians and cheated the said persons.
Therefore, it has come to the notice of our City
Municipal Council that kathas have been effected for
39 members by giving wrong information. I hereby
order to give explanation as to why legal action
should not be initiated against the President,
Secretary and the members who have obtained the
sites, within 7 days from the date of receipt of this
notice.
Yours faithfully,
Sd/
Commissioner
Pattangere CMC
Bangalore39."
[Emphasis
supplied]
51. The second notice at Annexure R19 dated 03.08.1998
issued by the BDA to the Commissioner, City Municipal
Corporation, Pattangere reads as under:
"Annexure R19
M.R.C.R. Shopping Complex,
Vijayanagar,
Bangalore560 040.
41
Dated: 03.08.1998
No.BDA/EE(W)/111/9899.
To:
The Commissioner,
City Municipal Corporation,
Pattanagere,
Bangalore.
Sir,
Sub: Approval layout by Bangalore
Development Authority in Sy. Nos. 17,
18, 19, 20, 30, 31, 32, 36/1, 37, 64,
71, 95 to 98, 112/19, 135 to 137(17)
of Nagarabhavi Village,
Yeshwanthapura Hobli, Bangalore
North Taluk in favour of Vinayaka
HBCS Reg.,
With reference to the above subject, B.D.A. has
approved layout plan in respect of Sy. Nos. 17, 18,
19, 20, 30, 31, 32, 36/1, 37, 64, 71, 95 to 98,
112/19, 135 to 137(17) of Nagarabhavi Village,
Yeshwanthapura Hobli, to an extent of 78 Acres
from a layout in favour of Sri.Vinayaka HBCS vide
resolution No.883 dated 23.01.1988 with a
condition after formation of Layout all the roads and
C.A., Sites has mark to be handed over to B.D.A.
through relinquishment.
Accordingly society has the layout and so for
about 71% of sites has been released by B.D.A. and
the rest of sites will be released to society after
handling over of roads and C.A. site to B.D.A.
42
But now it is learnt that the society has
registered some sites with a Sub Numbers to their
Members in the marked C.A. Area and in park Area
and in the approved layout plan. This is illegal.
Also it has come to know that Khathas and
sanctioning of plan to these illegal site members are
being processing in your office.
In the light of the above information it is
requested not to accord making any Khathas or
sanctioning of any residential/commercial plans and
also not be regularize any illegal holdings in the
preserved area, as the area is can marked as park
and civil amenities sites in C.D.P.
Also it is requested to restrain your officials
Elected representatives that not to interfering in
B.D.A. Jurisdiction.
Any clarification in this regard may please be
obtained from the Executive Engineer (West) B.D.A.
Vijayanagar, or Asst. Executive Engineer No.4 West
Subdivision, B.D.A. before taking any approval or
sanction.
Yours faithfully,
Sd/
Bangalore Development Authority,
M.R.C.R. Complex, Vijayanagar,
Bangalore560 040."
[Emphasis
supplied]
43
52. The appellant has not denied the above contentions by
filing a rejoinder. It is necessary to notice here that out of 5
acres 33 guntas and 8 guntas of port kharab land in
Sy.No.30, possession of 2 acres 36 guntas has been taken by
the State Government and delivered to the appellant. The
subject matter of this appeal is only 3 acres 5 guntas of land
in Sy.No.30. Admittedly, the possession of this land has not
been taken so far. In the layout plan, a portion of this land is
reserved for civic amenities and the balance of the land is
meant for formation of house sites.
53 . An intervener application has been filed by one Mrs.
Bhavna Praveen contending that certain sites have been
formed in the disputed property and possession of these sites
have been given to members of the appellantsociety, namely,
R. Dhanabalan, D. Vinod Kumar and Mrs. D. Geetha. The
saledeeds have also been executed in respect of these sites in
their favour.
54 . A Contempt Petition (civil) No.823 of 2018 was filed by S.
Krishnappa complaining of violation of the interim order of
44
status quo granted by this Court in this Appeal dated
07.01.2009. It was alleged that the contemnors therein have
trespassed into the disputed property and began to construct
illegally on the said land. A reply was filed by the appellant
herein contending that site Nos. 501, 526, 527, 528 and 529
have been formed out of 2 acres 36 guntas of land in
Sy.No.30, the possession of which was already delivered to
the appellant and that the sites formed in the said land have
been allotted to the members of the society as per the plan
approved by the BDA prior to the order of denotification.
Relevant portion of the objection is at paragraph 10 which is
as under:
"10. That, the said Sites No.501,
526, 527, 528 & 529 have been formed
out of 2 acres 36 guntas of land in
Survey No.30 which has been handed
over in favour of the Society by the
Order passed by the Hon’ble High Court
of Karnataka in W.P. No. 10249/2003
and the same has been allotted in
favour of the members of the society as
per the approved BDA and that too,
prior to the order of the denotification
dated 27.12.2003 and notification dated
45
12.01.2004 issued by the Government
of Karnataka”.
(Emphasis
supplied)
55. Therefore, even according to the appellant, the disputed
property is vacant and no allotment/sale of the sites have
been made out of this land. However, it is evident from the
above referred two letters and other materials on record that
the appellant has illegally formed the sites in the other lands
reserved for civic amenities in the approved plan. In order to
compensate for the loss of land reserved for civic amenities, it
is just and proper to direct the appellant to reserve the entire
disputed property measuring 3 acres 5 guntas in Sy.No.30 for
civic amenities and play ground. Therefore, we direct the
appellant to utilize the portion of the disputed property
reserved as a civic amenity site in the layout plan for
providing civic amenities. The competent authorities are
directed to develop the balance of the disputed property as a
park or a playground or both for the benefit of general public.
The appellant shall not allot/sell the disputed property or any
46
portion thereof either to its members or to any other parties.
The Commissioner BDA is directed to ensure compliance of
this order.
If it is found that the appellant has allotted any site in
56.
the disputed property in favour of its members or any other
parties, the appellant has to refund the consideration paid by
them with interest @ 18% p.a. from the date of the allotment
till the date of payment. Ordered accordingly.
. The State Government is directed to take possession of
57
the aforesaid disputed property and transfer the same to the
appellant forthwith for its utilization in terms of paragraph 55
of this judgment.
. In the light of the above discussions, we pass the
58
following orders:
(i) The judgment and order of the Division Bench as
also of the learned Single Judge impugned herein are
hereby set aside.
st
(ii) The order passed by the 1 respondent dated
27.12.2003 and the consequent notification dated
47
12.01.2004 pertaining to the lands in dispute are hereby
quashed.
59. The appeal and all the pending applications are disposed
of accordingly, without any order as to costs.
. In view of the above, Contempt Petition(C) No.823 of
60
2018 in C.A. No.3600 of 2011 is also disposed of.
61. The Registry is directed to send a copy of this judgment
to the Commissioner, Bangalore Development Authority,
Bangalore forthwith.
………………………………………J.
(ARUN MISHRA)
………………………………………J.
(S. ABDUL NAZEER)
………………………………………J.
(M.R. SHAH)
New Delhi;
August 26, 2019.