Karnataka High Court
Smt. N. Jayamma vs The State Of Karnataka on 5 February, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION Nos.17906-17907/2016 (LA-BDA)
BETWEEN:
1. SMT. N. JAYAMMA
AGED 58 YEARS,
W/O. M. SIDDAREDDY,
2. SRI A.S. ANIL KUMAR,
AGED 42 YEARS,
S/O M. SIDDAREDDY
BOTH R/O NO.105,
11TH MAIN, 16TH CROSS,
LAKKASANDRA EXTENSION,
BENGALURU - 560 030. ... PETITIONERS
(BY SRI: R.S. HEGDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
M.S. BUILDING, DR. AMBEDKAR ROAD,
BENGALURU - 560 001.
2. THE BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020
REP. BY ITS COMMISSIONER. ... RESPONDENTS
(BY SRI: VIJAYAKUMAR A. PATIL, ADDL. GOVT. ADV. FOR R-1;
SRI RAJARAM S., STANDING COUNSEL FOR R-2)
*****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS RELATING TO THE CASE OF THE
-: 2 :-
PETITIONERS FROM THE RESPONDENTS AND DECLARE THAT
THE SCHEME OF HOSUR ROAD SARJAPUR ROAD LAYOUT
PURSUANT TO THE PRELIMINARY NOTIFICATION
DTD.15.12.1984 ISSUED BY THE R-1 PUBLISHED IN
KARNATAKA GAZETTE DTD.17.01.1985 VIDE ANNEX-H, AND
FINAL NOTIFICATION DTD.28.11.1986 PUBLISHED IN
KARNATAKA GAZETTE DD.25.12.1986, ISSUED BY R-1 VIDE
ANNEX-J, STOOD STATUTORILY LAPSED AS CONTEMPLATED
U/S 24[2] OF RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT 2013 [ACT 30 OF 2013] IN SO FAR AS THE
SCHEDULE PROPERTY BELONGING TO THE PETITIONERS AND
ETC.,
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
COURT MADE THE FOLLOWING:
ORDER
These writ petitions are listed for considering I.A.1/17.
2. With consent of learned counsel for the parties, writ petitions are heard finally.
3. Petitioners have sought relief under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (Act 30 of 2013) (hereinafter referred to as "2013 Act" for the sake of convenience) in so far as the schedule property belonging to the petitioners is concerned. The schedule property is a site bearing No.13, formerly Village Panchayath Assessment No.76/1 and Village Panchayath -: 3 :- Khatha No.516, situated at Agara village, Begur Hobli, Bengaluru South Taluk, presently having BBMP Municipal Khatha bearing No.260/221/235/216/1 consisting of a residential building measuring East to West 60 ft. and North to South 50 ft. morefully described in the schedule appended to the memorandum of writ petitions and hereinafter referred to as "scheduled property" for the sake of convenience.
4. Petitioners have also sought a declaration that preliminary notification dated 15/12/1984 (Annexure-H) and final notification dated 28/01/1986 issued by the first respondent (Annexure-J) under section 17(1) and 19(1) of BDA Act respectively has lapsed as stipulated under Section 27 of Bangalore Development Authority Act, 1976 ("BDA Act", for short) in so far as the schedule property belonging to the petitioners is concerned. Petitioners have sought a direction against the respondents restraining them from demolishing the house existing on the schedule property belonging to the petitioners and not to dispossess the petitioners from the schedule property.
5. According to the petitioners, schedule property is part of land bearing survey No.76/1 of Agara Village, -: 4 :- Bengaluru South Taluk, which totally measured 4 acres 33 guntas. That, Pasala Reddy, S/o Chikkamuniswamappa was the owner to an extent of 2 acres 31 guntas and he divided the said extent amongst his two sons namely, Munireddy and Jayarama Reddy in equal shares and put them in possession of their respective shares way back in the year 1980. Accordingly, Munireddy and Jayarama Reddy were entitled to 1 acre 15 guntas each as per the extent which fell to their shares. That Jayarama Reddy developed his portion of land by construction of houses and he was recognized as owner and Kathedar by the Village Panchayath of Agara. On the demise of Jayarama Reddy, his widow Smt. S.M.Lakshmidevi's name was entered in the records of Village Panchayath. According to the petitioners, the first petitioner purchased property bearing site No.13 for a valuable consideration of Rs.1,23,000/- under registered sale deed dated 22/06/1994 and she has been recognized as the owner, since the said date. Her name has also been entered in the records of the Village Panchayath and she has been paying taxes thereon. The first petitioner purchased the schedule property with the existing house constructed by her predecessor and she also applied for grant of building -: 5 :- licence before the local authority, Agara Group Village Panchayath and building licence was sanctioned on 26/06/1995. Subsequently, Madivala Notified Area Committee came to be constituted and ownership of petitioner's property was recognized by the said Committee. Thereafter, CMC of Bommanahalli came to be constituted under the Karnataka Municipalities Act, 1964, having jurisdiction over the schedule property and the first petitioner started paying taxes to the said Municipality. The first petitioner transferred suit property under a registered gift deed dated 08/12/2008 in favour of her son/second petitioner. Thereafter, the name of the second petitioner has been entered in the records of the Bangalore City Corporation (BBMP) after its merger.
6. When the matter stood thus, the officials of the second respondent Authority (BDA) sought to demolish the existing residential building with the aid of bulldozers without notice and without enquiry. The first petitioner- Smt.N.Jayamma filed O.S.No.5958/2001 before the IX Additional City Civil Judge, Bengaluru, seeking relief of declaration of title and consequential injunction against the defendants therein i.e., Bangalore Development -: 6 :- Authority (BDA) represented by its Commissioner. The said suit was decreed by judgment and decree dated 07/04/2006.
7. Being aggrieved by the said judgment and decree of the trial court, the second respondent-BDA filed R.F.A.No.1279/2006 before this court which was dismissed by judgment dated 10/08/2011. Being aggrieved by the dismissal of the appeal, BDA preferred Special Leave Petition before the Hon'ble Supreme Court, which was converted into Civil Appeal No.2832/2016. The said Civil Appeal was allowed by judgment dated 10/03/2016. Subsequently, these writ petitions have been preferred on 29/03/2016 seeking aforesaid prayers.
8. I have heard learned counsel for the petitioners and learned AGA for respondent No.1 and perused the material on records.
9. Petitioner's counsel drew my attention to the judgment and decree of the Hon'ble Supreme Court to contend that the Hon'ble Supreme Court has expressly reserved liberty to the petitioners to seek relief under Section 24(2) of 2013 Act, which has repealed and -: 7 :- substituted Land Acquisition Act, 1894, (hereinafter called "LA Act, 1894" for the sake of brevity) as well as Section 27 of the BDA Act. He submitted that having regard to the liberty reserved by the Hon'ble Supreme Court, these writ petitions have been filed and that they may be allowed in terms of the recent judgment passed by this court in the case of Smt. K.M.Chikkathayamma & Others vs. The State of Karnataka and others reported in ILR 2016 Karnataka 1603 (Chikkathayamma). Therefore, he submitted that since the petitioners are in possession of the property in question and there has been no development whatsoever made by the second respondent, as possession of the same has not been taken, relief may also be granted to the petitioners under the provisions of the BDA Act by quashing the impugned acquisition notifications and allowing these writ petitions. He further submitted that petitioners are entitled to seek regularization of their possession, even if the petitioners are unsuccessful in these writ petitions.
10. Per contra, learned Addl. Government Advocate appearing for the first respondent-State submitted that having regard to the dicta of the Hon'ble -: 8 :- Supreme Court in the case of Delhi Development Authority vs. Sukbir Singh and others reported in (2016) 16 SCC 258; (Sukbhir Singh) Government (NCT of Delhi) vs. Manav Dharam Trust and another reported in (2017) 6 SCC 751 (Manav Dharam Trust) which has elucidated on the applicability of the 2013 Act, Section 24(2) is not applicable to acquisition initiated under the provisions of BDA Act. He further submitted that in Munithimmaiah vs. State of Karnataka and others, [(2002) 4 SCC 326] (Munithimmaiah); Offshore Holdings Private Ltd v. Bangalore Development Authority, [(2011) 3 SCC 139] (Offshore Holdings), and Bondu Ramaswamy and others vs. Bangalore Development Authority and others, [(2010) 7 SCC 129] (Bondu Ramaswamy), it has been held by the Hon'ble Supreme Court that BDA Act is a self contained code which is distinct from LA Act, 1894 and that acquisition of land is not the main purpose under BDA Act, whereas under the LA Act, 1894, acquisition of land for a public purpose is the essence of the said Act. That the Hon'ble Supreme Court in Girnar Traders (3) vs. State of Maharastra and others [(2011) 3 SCC 1] (Girnar Traders) has held that Maharashtra Regional and Town -: 9 :- Planning Act, 1966, (the MRTP Act) is similar to BDA Act which can be distinguished from LA Act, 1894. Therefore, having regard to the aforesaid dicta of Hon'ble Supreme Court, acquisition initiated by the BDA cannot be equivalent to initiation of acquisition of land under LA Act, 1894. He further submitted that subsequent to the dictum of this Court in Chikkathayamma in the case of M/S. Evershine Monuments vs. State of Karnataka and others in WP.Nos.17852-17856/2014 and 17969/2014 and connected matters disposed of on 14/12/2017 (M/S. Evershine Monuments), it has been held that the acquisition initiated under the provisions of BDA Act cannot be construed as acquisition initiated under LA Act, 1894. Therefore, he submits that Section 24(2) of the 2013 Act, could not have been invoked by petitioners to seek relief under the said provisions. He submits that this Court may follow the latest dictum rendered in the case of M/s. Evershine Monuments and not Chikkathayamma as the latter decision has not followed the dicta of the Hon'ble Supreme Court rendered on Section 24 of 2013 Act or the provisions of BDA Act. -: 10 :-
11. Learned Additional Government Advocate further submitted that the acquisition notifications in the instant case are of the years 1984 and 1986, but the petitioners have approached this court seeking relief under Section 27 of the BDA Act only in the year 2016 and that there is gross delay in filing these writ petitions. In this context reliance has been placed on the order passed in Writ Petition Nos.41508-41512/2017 (Smt. Hasnatha Bi vs. The State of Karnataka) disposed off on 01/02/2018. In the circumstances, learned AGA submits that petitioners cannot be granted any relief and these writ petitions may be dismissed on the ground of delay and laches as has been held by this court in similar matters.
12. Having heard learned counsel for the respective parties, the following points would arise for my consideration:
(i) Whether the petitioners are entitled to relief under sub-section(2) of Section 24 of the 2013 Act? In other words, whether Section 24 applies to acquisition initiated under the provisions of BDA Act as held in the case of Chikkathayamma or the dictum in M/s.Evershine Monuments is to be followed?-: 11 :-
(ii) Whether the petitioners are, at this point of time, entitled to a declaration under Section 27 of the BDA Act to the effect that the scheme has lapsed insofar as the schedule property is concerned or whether the writ petition is hit by the principle of delay and laches?
(iii) What order? Re. Point No.1:
13. Section 24 of the 2013 Act is extracted for immediate reference as under:
"24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases: (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894:
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.-: 12 :-
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
The title or preamble to Section 24 reads as "Land acquisition process under Act No.1 of 1894" shall be deemed to have lapsed in certain cases. It is explicit, restricted in its scope and not expansive in nature. It is only where the acquisition process has been initiated under LA Act, 1894 that the acquisition would lapse, on the existence of conditions as stated in sub-section (2) of -: 13 :- Section 24. Same is the case with regard to Clauses (a) and (b) of sub-section (1) of Section 24.
14. The said Section has been interpreted by the Hon'ble Supreme Court in the case of Delhi Development Authority vs. Sukhbir Singh and others [(2016) 16 SCC 258] (Sukbhir Singh). In said case the acquisition was under the provisions of LA Act, 1894 and not under any other Central or State enactment. Further, it has been held as under:
"11. Section 24(1) begins with a non- obstante clause and covers situations where either no award has been made under the Land Acquisition Act, in which case the more beneficial provisions of the 2013 Act relating to determination of compensation shall apply, or where an award has been made under Section 11, land acquisition proceedings shall continue under the provisions of the Land Acquisition Act as if the said Act had not been repealed.
12. To Section 24(1)(b) an important exception is carved out by Section 24(2). The necessary ingredients of Section 24(2) are as follows:
(a) Section 24(2) begins with a non-
obstante clause keeping sub-section (1) out of harm's way;
-: 14 :-
(b) For it to apply, land acquisition proceedings should have been initiated under the Land Acquisition Act;
(c) Also, an award under Section 11 should have been made 5 years or more prior to the commencement of the 2013 Act;
(d) Physical possession of the land, if not taken, or compensation, if not paid, are fatal to the land acquisition proceeding that had been initiated under the Land Acquisition Act;
(e) The fatality is pronounced by stating that the said proceedings shall be deemed to have lapsed, and the appropriate Government, if it so chooses, shall, in this game of snakes and ladders, start all over again."
(underlining by me)
15. Further, in the case of Government (NCT of Delhi) vs. Manav Dharam Trust and another [(2017) 6 SCC 751], (Manav Dharam Trust) referring to Sukhbir Singh, it has been observed as under:
"24. The 2013 Act has made a sea change in the approach on the acquisition of land and compensation thereof. The only lapse under the 1894 Act was under Section 11-A where what would lapse is the ... "entire proceedings for the acquisition of land" whereas under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under the 1894 -: 15 :- Act which has culminated in passing of an award under Section 11 but where either possession was not taken or compensation was not paid within five years prior to 1-1-2014. In other words, the land acquisition proceedings contemplated under Section 24(2) of the 2013 Act would take in both, payment of compensation and taking of possession within the five year period prior to 1-1-2014. If either of them is not satisfied, the entire land acquisition proceedings would lapse under the deeming provision. The impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F. Nariman, J. in DDA v. Sukbhir Singh: (SCC p.283, para 26) "26. ... As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs. ... In fact, Section 24(2) uses the expression "deemed to have lapsed"
because the Legislature was cognizant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State, vesting has taken place, after which land acquisition proceedings could be said to have been ended."
-: 16 :-
Thus, on account of the lapse, the encumbrance created in favour of the State comes to an end, and resultantly, the impediment to encumber the land also comes to an end. Even, according to the appellants, the transfers were illegal and void for the reason that there was an impediment for the transfer. Once the acquisition proceedings lapse, all impediments cease to exist."
(underlining by me)
16. The aforesaid observations have been made by the Hon'ble Supreme Court while considering the question whether subsequent purchasers/assignees/power of attorney holders etc. have locus standi to file a petition seeking declaration of lapse of acquisition proceedings under sub-section (2) of Section 24 of 2013 Act, which, even according to the Hon'ble Supreme Court was the only issue arising in that case. But, nevertheless, the aforesaid observations have been made in the context of land acquisition proceedings initiated under LA Act, 1894.
17. Further, in the case of Aligarh Development Authority vs. Meghsingh (AIR 2016 SC 2912), which is also a case arising under the provisions of LA Act, 1894, at paragraph 6 and 7, it has been held as under; -: 17 :-
"6. Section 24 of the 2013 Act envisages mainly two situations; i) where the land acquisition proceedings had already been initiated under the 1894 Act but no award was passed till the date the new Act came into force.
(ii) where the Award has been passed but neither the owner has been dispossessed nor has he been paid the compensation. Under the first, where the award had not been passed, the acquisition proceedings could continue; but the compensation will have to be determined under the scheme of 2013 Act. Under the second category, there is a statutory lapse of the proceedings. There is also an incidental third situation, where award under the 1894 Act had already been passed prior to coming into force of the 2013 Act, but payment is yet to be made and possession is yet to be taken. In that case, the further proceedings after the award could continue under the old Act of 1894; but if either payment or possession has not taken effect in five years prior to the 2013 Act, then proceedings will lapse.
7. In the case before us, since admittedly the award has not been passed, there arises no question of lapse. The land acquisition proceedings would continue but with the rider that the award will have to be passed and compensation determined under the provisions of 2013 Act."-: 18 :-
18. Thus, by following the observations and interpretation made by the Hon'ble Supreme Court, it becomes clear that Section 24 of the 2013 Act, [whether it is sub-section (1) or sub-section (2)] applies only when acquisition proceedings have been initiated under the provisions of the LA Act, 1894. Therefore, on that short ground alone, it could be held that Section 24 of the 2013 Act is not applicable to an acquisition initiated under the BDA Act.
19. The LA Act, 1894, though a pre-constitution legislation and since repealed, could be traced to Entry-42, List-III (Concurrent List) of the Seventh Schedule of the Constitution, whereas the BDA Act has been enacted by the State Legislature on the strength of Entry-5, List-II (State List) of the Seventh Schedule of the Constitution. The said entries are extracted for immediate reference as under:
"Seventh Schedule, List III-Concurrent List, Entry 42 - Acquisition and requisitioning of property."
"Seventh Schedule, List II- State List, Entry- 5 - Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district -: 19 :- boards, mining settlement authorities and other local authorities for the purpose of local self- government or village administration."
Thus, both the Acts have been enacted under two different Entries of two distinct Lists of the Seventh Schedule. Moreover, the object and purpose of the two Acts are distinct.
20. The object and purpose of the LA Act, 1894, is for acquisition of the land for public purposes and for companies. The expression public purpose is defined in Section 3(f) of the said Act. It is an inclusive definition and not an exhaustive one. Section 3(f) is substituted by the Karnataka Amendment with effect from 24.08.1961. On the other hand, the object of the BDA Act, which has substituted City Improvement Trust Board Act, is to provide for the establishment of a Development Authority for the development of the city of Bangalore, now Bengaluru, and areas adjacent thereto and matters connected therewith. Whereas, the provisions of LA Act, 1894, is to acquire land for public purposes, determination of compensation and matters connected therewith and is a general enactment, the object and purpose of the BDA Act is for planned development of Bangalore Metropolitan Area -: 20 :- and acquisition of land under Sections 17 and 19 of the BDA Act by issuance of Preliminary and Final Notifications is incidental which is for the purpose of development schemes, as enunciated in Chapter III of the BDA Act, for Bangalore Metropolitan Area. For that purpose, the BDA has authority to acquire land by agreement with the land owners as per Section 35 of the said Act or the State Government could transfer land to the BDA belonging to it or to Corporation or a local authority as per Section 37 or, BDA could directly acquire land from land owners under Chapters III and IV of the said BDA Act.
21. The object and purpose of the BDA Act has been considered by the Hon'ble Supreme Court in the case of Bondu Ramaswamy and others vs. Bangalore Development Authority and others [(2010) 7 SCC 129] (Bondu Ramaswamy), which was a case concerning challenge to acquisition made by BDA for the purpose of formation of Arkavathi Layout, at Paragraph No.47, by holding that, the purpose and object of the BDA is to act as a development authority for the development of the city of Bangalore and areas adjacent thereto. The Preamble of the BDA Act describes it as "an Act to provide for the -: 21 :- establishment of a Development Authority for the development of the city of Bangalore and areas adjacent thereto and for matters connected therewith". The development contemplated by the BDA Act is "carrying out of building, engineering or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment" (vide Section 2(j) of BDA Act). Therefore, the purpose of BDA Act is to make lay outs, construct buildings or carry out other operations in regard to land."
22. Further, in Offshore Holdings Private Limited vs. Bangalore Development Authority [(2011) 3 SCC 139] (Offshore Holdings), the scheme under the BDA Act, 1976, has been alluded to in detail.
23. By contrast, the scheme of the LA Act, 1894, which is since repealed by 2013 Act was an expropriatory legislation to provide for acquisition of land for public purposes and for companies. Section 4 of the said Act dealt with publication of Preliminary Notification while Section 5-A provided for hearing objections with regard to the proposed acquisitions. Section 6 dealt with the issuance of a declaration and Final Notification that the -: 22 :- land was required for a public purpose. The said declaration was conclusive evidence that the land was needed for a public purpose or for a Company, as the case may be. After making such a declaration, the appropriate government could acquire the land in accordance with the Act. In fact, Part II of the LA Act, 1894, dealt with acquisition which contemplated procedure for the passing of an award; notifying persons interested and taking possession of the land. Part II of the said Act, dealt with the provisions dealing with enhancement of compensation by the reference Court by the land owner seeking a reference for a higher compensation. Part IV dealt with apportionment of compensation, while Part V of the said Act concerned with payment. Acquisition of land for companies was dealt with in Part VII of the said Act and a special procedure was prescribed. Part VIII pertained to miscellaneous provisions. Thus, the whole object and scheme of LA Act, 1894, was to acquire land for a public purpose or for the benefit of companies, whereas the object and scheme of the BDA Act is to have planned development of Bangalore Metropolitan Area and in that regard acquisition of land under the BDA Act read with the -: 23 :- provisions of the LA Act, 1894 is only incidental to and not the primary object of BDA Act.
24. More specifically, the controversy as to, whether, Sections 6 and 11-A of the LA Act, 1894, were applicable to provisions of the BDA Act or not were considered by the Hon'ble Supreme Court in the cases of Munithimmaiah vs. State of Karnataka and others [(2002) 4 SCC 326]; Offshore Holdings Private Limited, and Bondu Ramaswarmy, the latter two cases have been referred to above.
Recently, in Special Land Acquisition Officer, KIADB, Mysore and another vs. Anasuya Bai (D) by LRs. and others (AIR 2017 SC 904) (Anasuya Bai), the question under consideration before the Hon'ble Supreme Court was, as to, whether relief under Section 24 of the 2013 Act could be granted to landowners when acquisition was made under the provisions of the Karnataka Industrial Areas Development Act, (KIAD Act).
25. Next, it is necessary to discuss Smt. K.M. Chikkathayamma and others vs. The State of Karnataka and others [ILR 2016 KAR 1603], which is -: 24 :- a recent judgment rendered by a learned Single Judge of this Court and which is the sheet-anchor of learned counsel for the petitioners.
a) The points for determination in the aforesaid case are culled out for immediate reference as under:
"(a) Whether the petitions in WP 38868-70 and WP Nos.38871-74/2015 are maintainable in view of the acquisition proceedings initiated under the KUDA Act having been quashed and the same being the subject matter of an appeal before a Division bench of this Court.
(b) Whether the provisions of the LA Act, 1894 or the LA Act, 2013, should be applied to acquisition proceedings under the provisions of the KUDA Act and the BDA Act, if the proceedings are not completed as on the date of coming into force of the LA Act, 2013.
(c) What order should follow in each of these petitions."
Learned Single judge has culled out the ingredients of the said sub-section which is extracted later.
b) It is necessary to delineate on this case in detail as heavy reliance has been placed on the said decision by learned counsel for the petitioners. The primary contention canvassed in the aforesaid case was, as to, whether 2013 Act would be applicable to acquisitions initiated under the -: 25 :- provisions of the Karnataka Urban Development Authorities Act, 1987 (KUDA Act) and BDA Act. If the answer to the same was in the affirmative, then the acquisition proceeding in the aforesaid case which concerned BDA Act also was deemed to have lapsed.
c) In that case, the contention of learned Senior Counsel and learned Counsel for the petitioners was, where a statute is cited by a reference (the cited statute) (LA Act, 1894) into an another statute (the referring statute) (BDA Act/KUDA Act) any repeal or amendment of the cited statute is automatically carried over or reflected in the referring statute. This was in contrast, to a case of legislation by incorporation wherein the repeal or amendment of the incorporated statute does not automatically affect the incorporating statute. It was further contended in the said case that in Offshore Holdings Private Limited, the Hon'ble Supreme Court held, Section 36 of the BDA Act (a provision in pari materia with Section 36 of KUDA Act) to be a case of legislation by incorporation. But, the repeal of LA Act, 1894 and substitution of 2013 Act created an exception and when the exception applied, the effect would be one of legislation by reference. It was contended that, if LA Act, -: 26 :- 1894, was to be applied to acquisitions made under the KUDA Act post 01.01.2014, the quantum of compensation to the land owners in relation to acquisitions under the KUDA Act would be lesser than the compensation vis-à-vis acquisition made under 2013 Act, even though the purpose of the acquisition is same (urban or town planning and allotment of house sites). Similarly, the additional benefits in relation to rehabilitation and resettlement of affected families would also not be available to the land owners even though the purpose of the acquisition remains the same. It was emphasized in that case that the provisions of 2013 Act are more beneficial to the land owners and affected families in land acquisition proceedings. The discriminatory effect as regards compensation and other benefits would occur because there is a complete change in the legislative approach in relation to land acquisition, rehabilitation and resettlement under 2013 Act which is more beneficial to the land owners. It was further contended in the said case that the land owners would thus be entitled to different rates of compensation and other resettlement and rehabilitation benefits, depending upon which Act the acquisition is made, whether under the BDA Act or KUDA Act or the central land acquisition -: 27 :- enactments resulting in a discriminatory effect being in violation of Article 14 of the Constitution.
d) Per contra, the State through learned Advocate General submitted in the said case that the intention of Section 24 in 2013 Act is different and distinct in that the said section has specific reference to acquisition proceedings initiated under LA Act, 1894. That the object and purpose of Section 24 is not only to save acquisition initiated under LA Act, 1894, but also to declare lapse of acquisition under sub-section (2) of Section 24 and to also give the benefit of the 2013 Act under certain circumstances. It was further contended that Section 27 of KUDA Act as well as BDA Act provide for lapse of scheme of development and consequent inoperation of Section 36 of the Act. That BDA Act being a complete code by itself, lapse of acquisition has to be considered under that Act only. It was further contended that Section 24 is more in the nature of a transitory provision and an exception and operates as a link between LA Act, 1894 and 2013 Act.
e) While considering point No.2 extracted above, learned Single Judge in the said case held with regard to -: 28 :- interpretation of sub-section (2) of Section 24 of the 2013 Act as under:-
"Section 24(2) of the LA Act, 2013 provides for lapse of acquisition proceedings commenced under the LA Act, 1894, on the satisfaction of certain conditions, which are as follows:
a. The award of compensation should have been passed five years or more prior to the commencement of the LA Act, 2013. In that, it should have been passed prior to 01.01.2009;
AND b. Physical possession of the land has not been taken;
OR
c. Compensation has not been paid.
The Apex Court has interpreted the
requirement of possession being taken under
Section 24(2) of the LA Act, 2013, to mean that actual physical possession has to be taken and mere symbolic possession would not suffice."
(emphasis by me) Although learned Single Judge has noticed that sub- section (2) of Section 24 of the 2013 Act applies to acquisition proceedings commenced under the LA Act, 1894, nevertheless has also held that the "answer to the second point for consideration is that it is the LA Act, 2013 that shall be applied to acquisition proceedings under the BDA Act and KUDA Act, that have remained without being -: 29 :- completed in all respects as on 1.1.2014, and proceedings that have been initiated thereafter".
f) Thus, learned Single Judge after referring to Section 24 of 2013 Act, held that it was applicable even to acquisitions made under the provisions of the BDA Act as well as KUDA Act. Learned Single Judge however noted that sub-section (2) of Section 24 is a substantive provision of law which saves acquisition as well as affords the prospect of land sought to be acquired reverting to the land owner under certain conditions.
26. The said decision was rendered on 10.03.2016. It is stated at the Bar that the said decision has been appealed against by the BDA and a Division Bench of this Court has stayed the order passed in the said case.
27. Further, in the case of M/s. Evershine Monuments, it has been observed and held as under:
"37. In my humble opinion, the judgment in Chikkathayamma's case as well as similar judgments in other cases, in the context of KUDA, 1987 and BDA Act have been rendered without making an analysis of Section 24 of the 2013 Act, with regard to its applicability to acquisitions initiated under those Acts as opposed to acquisitions initiated under LA Act, -: 30 :- 1894. Further, judgments of Hon'ble Supreme Court in that regard have not been considered and followed and without bearing in mind the distinction in the object and scheme of the LA Act, 1894 and the BDA Act, as well as the decisions rendered by the Hon'ble Supreme Court in that regard. Learned Single Judge by his order has granted relief under sub-section (2) of Section 24 of 2013 Act. While a reference has been made to the decisions of the Hon'ble Supreme Court in the case of Bondu Ramaswamy, Munithimmaiah, and Offshore Holdings Pvt. Ltd., the said reference is not in depth, as a detailed consideration of the aforesaid judgments, which have been rendered on a detailed comparison of LA Act, 1894 with BDA Act, would have thrown light on the object and scope of Section 24 of 2013 Act.
38. Reliance placed on the observations made by Hon'ble Supreme Court in the aforesaid decisions referred to above in detail would clearly indicate that the object and scheme of the LA Act, 1894 and the BDA Act, being distinct and meant for different purposes, it cannot be construed that acquisition initiated under the provisions of the BDA Act, is an acquisition initiated under the provisions of the LA Act, 1894. More significantly, the judgment in Chikkathayamma's case does not take into consideration the dicta of the Hon'ble Supreme Court in the case of Sukhbir Singh and the -: 31 :- subsequent decision in the case of Manav Dharam Trust, which are directly on the issue of applicability of sub-section (2) of Section 24 of the 2013 Act to only acquisitions initiated under LA Act, 1894.
39. With respect, the judgment in the case of Chikkathayamma and other judgments which are similar in nature cannot be considered to be binding precedent as they are contrary to the dicta of the Hon'ble Supreme Court referred to above as well as the provision of Section 24 of the 2013 Act and hence cannot be applied to the present cases which deal with acquisition under BDA Act. There are also additional reasons for holding so.
40. Revisiting the words of Section 24 of the 2013 Act, what is significant to note is the fact that the said Section expressly refers to land acquisition proceedings initiated under the LA Act, 1894. The said Section does not incorporate the words "or proceedings initiated under any other enactment". Therefore, the expression "land acquisition proceedings initiated under the LA Act, 1894" are significant and must be given its natural and plain meaning and the said expression cannot be given an expansive interpretation by adding words to the provision, in the absence of the provision itself giving rise to any such implication. In this regard, the rules of interpretation of a statute would become relevant and reliance could be placed on guiding -: 32 :- principles of interpretation of statute. One such principle is that the Court is not entitled to read words into a provision of an Act or Rule for, the meaning is to be found within the four corners of the provision of an act or rule, as in the instant case. Therefore, while it is not permissible to add words or to fill in a gap or lacuna, on the other hand, effort should be made to give meaning to each and every word used by the legislature. Thus, the golden rule of construction is that the words of a provision of a statute, or rule must be first understood in the natural, ordinary or popular sense. Phrases and sentences must be construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. In other words, the golden rule is that the words of a statute prima facie be given an ordinary meaning. Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the words are used requires a different meaning". Such a meaning cannot be departed from by the judges "in light of their own views as to policy" unless it is shown to adopt a purposive interpretation of the statute, which does not arise in the instant case.
41. In this context, Harbhajan Singh vs. Press Council of India reported in AIR 2002 SC 1351 could be relied upon wherein, Cross on -: 33 :- "Statutory Interpretation" (Third Edition, 1995) has been relied upon as follows:-
"Thus, an 'ordinary meaning' or 'grammatical meaning' does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute, but rather that he adopts a meaning which is appropriate in relation to the immediately obvious and unresearched context and purpose in and for which they are used."
42. The aforesaid principles being squarely applicable to Section 24 of the 2013 Act, the same must be interpreted having regard to the intention of the Parliament. In this regard, one cannot lose sight of the fact that 2013 Act repeals only LA Act, 1894, and not any other Central or State enactment dealing with acquisition. Therefore, what are sought to be saved under Section 24 of the 2013 Act, are those acquisitions initiated only under LA Act, 1894 and not any acquisition initiated under any other Central or State enactment. Therefore, the words "acquisition proceedings initiated under any other enactment" cannot be added or supplemented by the Court after the expression "in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894"
under both sub-sections 1 and 2 of Section 24 of 2013 Act. Further, the short title of Section 24 of 2013 Act reads as "Land acquisition process -: 34 :- under Act No.1 of 1894 shall be deemed to have lapsed in certain cases." This is another indication that Section 24 applies only to those acquisition "initiated" under the provisions of LA Act, 1894.
43. Further, Section 24 creates a new right in favour of land owners in as much as they are entitled to relief under certain circumstances as stipulated in Section 24 of the Act. One such relief is under sub-section(2) of Section 24 of the Act, dealing with lapse of acquisition by a fiction. It is a deeming provision, provided the stipulations therein are complied with or the conditions mentioned therein exist. One overbearing condition is that the acquisition must have been initiated under the provisions of LA Act, 1894. Thus, if acquisition is initiated under any other Central or State enactment, Section 24 does not apply.
44. The reasons as to why Parliament has incorporated Section 24 in the 2013 Act are evident and not far to see. The said section creates a new right in favour of land owners whose lands have been acquired under the provisions of LA Act, 1894, which has been repealed and substituted by 2013 Act. The 2013 Act is not a substitution for other Central enactments pertaining to acquisition of land or for that matter any other State enactment. Therefore, Section 24 uses the expression that the acquisition must have been initiated under -: 35 :- the provisions of LA Act, 1894. But while creating a new right in favour of land owners under Section 24, Parliament at the same time has intended two further aspects: first, saving acquisition under LA Act, 1894 and second, not encroaching upon other Central or State enactments. As far as State enactments dealing with acquisitions are concerned, Parliament intentionally has not touched upon any State enactment. The reason being that several State enactments have been made drawing sustenance from Entry 5, List II or State List of Seventh Schedule of the Constitution, whereas LA Act, 1894 as well as 2013 Act could be traced to Entry 42 List III (Concurrent List of the Seventh Schedule. Moreover, as has been explained above, the object and scope of the BDA Act made under Entry 5 List II (State List) are distinct from LA Act, 1894 substituted by 2013 Act.
45. Further, the State enactments have their own provisions concerning lapse of acquisition such as Section 27 of BDA Act or KUDA Act and Section 24 of 2013 Act cannot trammel upon those provisions of the State Acts such as BDA Act or KUDA Act. The State enactments may have referred to certain provisions of LA Act, 1894, particularly with regard to determination of compensation and such other matters.
Reference to LA Act, 1894 in the State enactments for certain purposes does not -: 36 :- imply that the acquisition is initiated under
LA Act, 1894. What is of prime importance for Section 24 of 2013 Act to apply is that acquisition proceedings must have been initiated under LA Act, 1894 and not any other law. Losing sight of this aspect would create confusion in the applicability of Section 24 of 2013 Act. If the said provision is to apply to acquisitions initiated under a State enactment, such as, BDA Act or KUDA Act, then Section 27 of the said Acts which also deal with lapse of acquisition under certain circumstances will be rendered nugatory, otiose or redundant on prevailing of circumstances mentioned in Section 24 of the 2013 Act. In this regard, it is also observed that when State Acts such as, BDA Act or KUDA Act, have specific provisions in the form of Section 27 concerning lapse of acquisition, Section 24 of the Parliamentary enactment i.e., 2013 Act, cannot be applied, when acquisitions are under State enactments. This is because, the State or Central Laws concerning acquisition are enacted under different entries and in different Lists of the Seventh Schedule of the Constitution and therefore, they operate in different fields. This is so, although, the State enactments may refer to the provisions of LA Act, 1894 for certain purposes.
x x x x x -: 37 :-
47. Thus, 2013 Act has not only repealed the LA Act, 1894, but has substituted the said Act. The 2013 Act is a totally distinct enactment and a complete code by itself. Hence, for the aforesaid reasons, initiation of acquisition under State enactments such as BDA Act is not the same as initiation of acquisition under LA Act, 1894.
48. Further, it is noted that 2013 Act has, by virtue of Section 114 thereof, repealed LA Act, 1894. Section 114 reads as under:
"114. Repeal and Saving: (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.
(2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals."
Therefore, what is saved under Section 114 of 2013 Act are only those acts and actions initiated under the provisions of the LA Act, 1894, which ought to be saved having regard to the provisions of Section 6 of the General Clauses Act, 1897. Section 6 of the General Clauses Act, 1897, reads as under:
"6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be -: 38 :- made, then, unless a different intention appears, the repeal shall not.-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
However, Section 6 of the General Clauses Act would apply only when a saving clause as per sub-section 2 of Section 14 is not expressly provided under 2013 Act. Section 24 of the 2013 Act, which is in the nature of a saving clause has created new rights in favour of land owners whose lands had been acquired under LA Act, 1894. Sub-section (1), lays down the -: 39 :- conditions when the land acquisition proceedings initiated under the LA Act, 1894, would be amenable to the provisions of 2013 Act or, continued under the provisions of the LA Act, 1894, on certain conditions or circumstances prevailing. Under sub-section (2) of Section 24, the Parliament has, by a deeming provision, intended that if certain conditions are satisfied, the acquisition proceedings initiated under the LA Act, 1894, shall be deemed to have lapsed.
xxxxx
50. Therefore, for a declaration of lapse of acquisition, the pre-conditions or conditions precedent mentioned under sub-section (2) of Section 24 of the 2013 Act must apply. Most importantly the said conditions must prevail in an acquisition initiated under the provisions of the LA Act, 1894, and not with regard to acquisition initiated under any other enactment be it Central or State enactment. Therefore, before land owners could seek relief under sub-section (2) of Section 24 of 2013 Act, which is a right created in their favour, the basic postulate that must be borne in mind is to ascertain, in the first instance, as to under which law, acquisition has been initiated; whether under the provisions of the LA Act, 1894 or any other law. If it is under any other law, then in my view Section 24 would not be applicable to such acquisitions. The dicta of the Hon'ble Supreme Court in the case of Munithimmaiah, Bondu Ramaswamy, Offshore -: 40 :- Holdings Private Limited clearly enunciate that an acquisition initiated under the provisions of the BDA Act being distinct from an acquisition initiated under the provisions of the LA Act, 1894, it cannot be held that acquisition process initiated under the provisions of the LA Act, 1894, would also encompass acquisition proceedings initiated under any other law such as, the BDA Act. As already noted, the two enactments being distinct having a different object and scope and acquisition of lands being only incidental to the main object and scope under the BDA Act, the acquisition proceedings initiated under the two Acts cannot be considered on par, so as to hold that land acquisition proceedings initiated under the provisions of the BDA Act is "land acquisition proceedings initiated under the provisions of the LA Act, 1894."
51. As already observed, Section 24 of the 2013 Act creates a new right in the land owners. For the exercise of said right, certain conditions have to exist, the most significant of them being, the initiation of proceedings for acquisition under the provisions of the LA Act, 1894. Therefore, the said words must be given a natural interpretation and not an expansive or wide interpretation, so as to extend the right under Section 24 even in respect of land owners whose lands are subjected to acquisition under any State enactment, such as the BDA Act or KUDA Act. In fact, the Parliament itself has been conscious of -: 41 :- the fact that 2013 Act repeals and substitutes only LA Act, 1894, and not any other Central enactment or for that matter any other State enactment dealing with acquisition of lands. This is evident from Section 105 of the 2013 Act, which reads as under:
"105. Provisions of this Act not to apply in certain cases or to apply with certain modifications: (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of Section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall -: 42 :- apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament."
The enactments relating to land acquisition specified in the Fourth Schedule referred to in sub-section (1) of Section 105 consists of the following thirteen Parliamentary enactments, namely:
-: 43 :-
"THE FOURTH SCHEDULE [See section 105] LIST OF ENACTMENTS REGULATING LAND ACQUISITION AND REHABILITATION AND RESETTLEMENT
1. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958).
2. The Atomic Energy Act, 1962 (33 of 1962).
3. The Damodar Valley Corporation Act, 1948 (14 of 1948).
4. The Indian Tramways Act, 1886 (11 of 1886).
5. The Land Acquisition (Mines) Act, 1885 (18 of 1885).
6. The Metro Railways (Construction of Works) Act, 1978 (33 of 1978).
7. The National Highways Act, 1956 (48 of 1956).
8. The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962).
9. The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952).
10. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948).
11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957).
12. The Electricity Act, 2003 (36 of 2003).
13. The Railways Act, 1989 (24 of 1989)."
52. Therefore, Parliament itself has listed the Central enactments to which 2013 Act does not apply. This is because Parliament was conscious of the fact that LA Act, 1894 was substituted by -: 44 :- the 2013 Act, which is distinct and different from the other Central enactments enumerated in the Fourth Schedule to the 2013 Act or State enactments.
53. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to, acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, BDA Act. The said Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub-section (2) of Section 24, the land owner would be entitled to the deeming provision regarding lapse of acquisition and not otherwise.
54. In the result, Point No.(i) is answered by holding that petitioners are not entitled to relief under sub-section (2) of Section 24 of the 2013 Act, as the acquisitions in these cases were initiated under the provisions of the BDA Act and not under the LA Act, 1894. It is further held, with respect, that Chikkathayamma's and other similar decisions, having regard to the dicta of Hon'ble Supreme Court in the case of Munithimmaiah, Bondu Ramaswamy, Offshore Holdings Private Limited, are not applicable as binding precedent in the present case. Further, most of the decisions referred to above have -: 45 :- granted relief on the basis of factual determination as per sub-section 2 of Section 24 and without considering the question of law which arises in these cases. Further, in some cases, the petitioners have themselves not pressed sub-section (2) of Section 24 of 2013 Act. Even then, relief has been granted on a determination made on facts and by holding that there has been abandonment of acquisition/lapse of acquisition.
55. Hence, these writ petitions are liable to be dismissed, as the petitioners are not entitled to relief under sub-section (2) of Section 24 of the 2013 Act as the said section does not apply to acquisition initiated under the provisions of BDA Act."
The aforesaid dictum squarely applies to the present case. In the circumstances, it is held that the petitioners are not entitled to relief under Section 24 (2) of the 2013 Act. Point No.1 is accordingly answered. Re. Point No.2:
28. It is noted that in the instant case, Preliminary Notification was issued on 15/12/1984 under Section 17 of the BDA Act and declaration and Final Notification was issued on 28/11/1986, but the writ petition has been filed on 29/03/2016 seeking relief under Section 27 of the BDA -: 46 :- Act three decades later. Learned counsel for the petitioners submitted that the petitioners had earlier preferred W.P.Nos.18849-18851/2001 before this Court.
The said writ petitions were disposed of reserving liberty to the petitioners to avail of any other remedy. Petitioners had infact preferred O.S.No.5958/2001 before the IX Addl. City Civil Judge at Bangalore. The said suit was decreed by judgment and decree dated 07/04/2006. Against the said judgment and decree, BDA had preferred RFA.No.1279/2006 before this Court, which was dismissed by judgment dated 10/08/2011. Subsequently, BDA had preferred special leave petition, which was converted into Civil Appeal No.2238/2016 which was allowed by judgment dated 10/03/2016, and the suit filed by the petitioners was dismissed. However, at paragraph No.23, liberty was reserved to the petitioners to avail of a remedy under Section 27 of the BDA Act and therefore, the present writ petition came to be filed on 29/03/2016 and hence, the same is maintainable. However, at paragraph No.23 of the judgment of the Hon'ble Supreme Court, it is observed as under:
"23) Learned counsel for the respondent had raised the plea of equity. He has also submitted that when the BDA itself is -: 47 :- created for the purpose of formation of layouts and allotment of sites to the members of the public, the respondent should not be dispossessed when she is in continuous possession of the suit property.
However, these would not be the relevant considerations in the present case as we cannot forget that the present appeal arises out of civil proceedings filed in the form of a suit by the respondent and once it is found that the respondent has not been able to prove title by adverse possession, no such aspects, not coming within the scope of the suit proceedings, can be looked into. Insofar as the argument predicated on Section 27 of the Bangalore Development Authority Act or Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 are concerned, again these issues were neither raised nor arise in the instant case. If the respondent, if at all, has any right to make claim on the aforesaid grounds, in any appropriate proceedings, she can do so, if permissible in law. We may clarify that this Court has not gone into these issues and, therefore, has not made any comments on the merits of such pleas raised by the respondent."
(underlining by me) -: 48 :-
29. The Hon'ble Supreme Court has expressly stated that the argument based on Section 27 of the BDA Act or on Section 24(2) of the 2013 Act was neither raised nor arose before the Civil Court in the suit. That if the petitioners had any right to make the claim on the aforesaid grounds, they may do so in an appropriate proceeding, if permissible in law. Therefore, the question that arises is, as to, whether, in the year 2016, petitioners could seek a declaration that the acquisition has lapsed insofar as the schedule property is concerned, on the premise that Section 27 of the BDA Act applies. As already noted, the Preliminary and Final Notifications in the instant case are of the years 1984 and 1986. Much water has flown since then, as according to the respondents, award has been passed and compensation has been paid to the original khatedars. Also, after taking physical possession of the schedule property, sites have been formed and the same are allotted to the allottees by the BDA. Even though the same is controverted by learned counsel for the petitioners, the question remains as to whether the petitioners could seek relief under Section 27 of the BDA Act by filing these writ petitions in the year 2016. There is no explanation whatsoever, which would emerge on a -: 49 :- reading of the memorandum of the writ petition, as to why petitioners did not seek relief under Section 27 of the BDA Act for all these decades. The earliest point of time, when the petitioners could have sought such a relief was in 1990s as the declaration and Final Notification was issued on 28/11/1986. This is having regard to the fact that Section 27 of the BDA Act itself states that, where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1) of Section 19, authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative. Although petitioners had filed W.P.Nos.18849-18851/2001 before this Court, they did not seek any relief under Section 27 of the BDA Act therein, instead, it appears that an interim order had been passed on 27/01/2001 in the said writ petitions.
30. Further, petitioner No.1 had filed O.S.No.5958/2001 before the City Civil Court. In that suit, petitioner No.1 could not have sought any relief under Section 27 of the BDA Act, instead, he sought the relief of declaration of title and consequential relief of permanent injunction, which was in fact granted by the Civil Court, which was ultimately negated by the Hon'ble Supreme -: 50 :- Court. However, Hon'ble Supreme Court granted leave to the petitioners to seek remedy under Section 27, if it was permissible in law to do so. The reason as to why the petitioners did not seek relief for over two decades before this Court under Section 27 of the Act has not been explained. Further, the Hon'ble Supreme Court has categorically held that if it is permissible in law, the petitioners would be at liberty to seek relief under Section 27 of the BDA Act. In the absence of there being any explanation for the absence of seeking such a relief earlier, I am of the view that these writ petitions would have to be dismissed on the ground of delay and laches. Merely because petitioner No.1 herein had filed writ petition in the year 2001 and subsequently, original suit in the same year which ultimately culminated in the judgment of the Supreme Court on 10/03/2016 cannot be a reason for filing of these writ petitions now by invoking Section 27 of the BDA Act, when the same could have been done in the 1990s or in 2001 when the earlier writ petition was filed.
31. It is observed that the exercise of jurisdiction under Article 226 of the Constitution is an instance of exercise of jurisdiction in equity and therefore, before -: 51 :- considering the writ petition on merits, the doctrine of delay and laches would have to be adverted to while exercising powers under equity jurisdiction. Having regard to the salutary doctrine, I am of the view that in the absence of there being any explanation whatsoever for the belated filing of these writ petitions invoking Section 27 of the BDA Act and there being no good reason explaining the delay, these writ petitions would have to be dismissed on the ground of delay and laches.
32. In this context, a plethora of decisions of the Hon'ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution cannot extend its hands to such persons who approach the Court after several years can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows:-
a) In a recent decision of the Apex Court reported in 2011 AIR SCW 1332 [State of Orissa & Anr. vs. Mamata Mohanty] the consideration of an application -: 52 :- where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the Doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches.
b) In the case of Shankar Co-op. Housing Society Ltd. vs. M.Prabhakar & Ors. [2011 AIR SCW 3033], the Apex Court at Para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows;
"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the -: 53 :- petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."
c) Similarly, the Apex Court in the case of Sawaran Latha and others vs. State of Haryana and others [2010(4) SCC 532] has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged. -: 54 :-
d) In Tamil Nadu Housing Board, Chennai vs. M.Meiyappan & Others [2010 AIR SCW 7130], when the acquisition proceedings were challenged ten years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.
e) In Swaika Properties (P) Limited and another vs. State of Rajasthan & others [2008 (4) SCC 695], the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Greater Bombay v. The Industrial Development Investment Co. Pvt. Ltd. & others [(1996) 11 SCC 501] by observing as follows:
"After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchnama) prepared by the Land Acquisition -: 55 :- Officer and signed by Panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer."
It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.
f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in Banda Development Authority, Banda vs. Motilal Agarwal and others [(2011) 5 SCC 394], as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of six years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public -: 56 :- purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.
g) Reference can also be made to another decision of the Apex Court reported in (1996) 6 SCC 445 in the case of State of Rajasthan & Others vs. D.R.Lakshmi & others, wherein it has cautioned the High Court not to entertain writ petitions where there is inordinate delay, while exercising jurisdiction under Article 226 of the Constitution of India.
h) Similarly, in the case of The Municipal Council, Ahmednagar & anr. vs. Shah Hyder Beig & others [(2002) 2 SCC 48], it has been opined thus:-
"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay."
i) In fact in S.S.Balu and others vs. State of Karnataka [(2009) 2 SCC 479], it has been held that -: 57 :- delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the courts in time.
j) To a similar effect is the decision of the Hon'ble Supreme Court in Andhra Pradesh Industrial Infrastructure Corporation Ltd. vs. Chinthamaneni Narasimha Rao & others [(2012) 12 SCC 797].
k) In Chennai Metropolitan Water Supply and Sewerage Board vs. T.T. Murali Babu [(2014) 4 SCC 109], on the doctrine of delay and laches and approach of the Court in that regard, the Hon'ble Supreme Court has ruled as under:
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a -: 58 :- belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, 'procrastination is the greatest thief of time' and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
l) Further, recently in the case of State of Jammu and Kashmir vs. R.K. Zalpuri and others [(2015) 15 SCC 602], the Hon'ble Supreme Court has opined that the writ Court while deciding a writ petition he has to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice.
The aforesaid decisions are squarely applicable having regard to the facts of the present case. Hence, these writ petitions are dismissed on the ground of delay and laches vis-à-vis, invocation of Section 27 of the BDA Act.
-: 59 :-
33. That apart, the Hon'ble Supreme Court in its judgment has opined as under on the aspect of possession:
"15) In the first blush, argument of the learned counsel for the respondent, viz., there is a finding of fact that respondent and her predecessors-in-
title have been in continuous possession and enjoyment of the suit property for more than 12 years and, therefore, the respondent has perfected her title by adverse possession, appears to be attractive. It may appear to be a finding of fact simplicitor. However, an indepth analysis of the issue would manifest that the matter cannot be brushed aside with such a simplisitic overtone. In fact, the detailed discussion that follows would amply demonstrates that the manner in which the issue has been approached by the courts below is itself erroneous and legally unsustainable. For this, we are not even required to discuss various nuances of the issue as the judgment of this Court in M. Venkatesh has done this exercise whereby same issue has been directly and squarely dealt with which arose in almost similar circumstances. Therefore, it would be apt to discuss the facts of that case as well as law laid down therein which would provide answers to many arguments raised by the parties before us.
16) In M. Venkatesh (supra) as well, land was acquired by the State Government of Karnataka and given at the disposal of the BDA. Preliminary Notification was issued on July 17, 1984 and final -: 60 :- Notification dated November 28, 1986 was published on December 25, 1986. Determination of amount of compensation payable to the landowners having been approved by the competent authority on August 21, 1986, the BDA claimed that possession of the land was taken over from the landowners and handed over to the engineering section of the BDA by drawing a possession Mahazar on November 06, 1987. A Notification under Section 16(2) of the Act was also published in the Karnataka Gazette dated July 04, 1991 which, according to the BDA, signified that the land in question stood vested with the BDA free from all encumbrances whatsoever. Here also, after taking of the aforesaid steps by the BDA, the original land owners of the acquired land sold the said land to different persons after carving out the sites/plots. When the actual possession was sought to be taken, the said subsequent purchasers (like the respondent in the instant appeal) filed writ petitions in the High Court. Their writ petitions, along with the writ petition of the respondent herein and some others, were the subject matter of the judgment of the Division Bench of the High Court in John B. James's case (supra). Like the respondent herein, the individuals/subsequent purchasers in the case of M. Venkatesh (supra) were also relegated to the civil court giving them permission to file the suit if they were claiming adverse possession. Five such suits were the subject matter of the judgment in M. Venkatesh (supra). The trial court had, in fact, clubbed these suits which were decided together and decreed. -: 61 :- The issues framed in those suits were almost the same to the ones framed in the civil suit filed by the respondent herein, as is clear from the issues which were settled by the trial court in those cases:
"(1) Whether the Plaintiffs prove that, they have acquired and perfected their alleged title to the suit schedule properties by virtue of the alleged law on adverse possession, as claimed?
(2) Whether the Plaintiffs prove their alleged lawful possession and enjoyment of the suit schedule properties, as on the date of the suit?
(3) Whether the Plaintiffs further prove the alleged illegal interferences and obstructions by the defendant?
(4) Whether the defendant proves that, the suit schedule properties is duly acquired by the defendant, in accordance with law and as such, the same have stood vested with the defendant, free from all the encumbrances?
(5) Whether the Plaintiffs are entitled to the suit relief of declaration and injunction, against the defendant?
(6) What Order or Decree?"
17) In that case also the trial court had recorded the findings that those plaintiffs were in lawful possession on the date of the suit, such possession -: 62 :- was for more than 12 years and, thus, the plaintiffs had perfected their title to the schedule properties by way of adverse possession. The BDA filed appeals against the decree passed by the trial court. Four appeals were allowed wherein the High Court held that the trial court was wrong in recording the finding that those four plaintiffs had established their possession. It was noticed that the plaintiffs in those appeals were claiming settled possession of vacant piece of land, which was clearly impermissible. The High Court found that there was no dispute that all the structures on the suit properties, relevant to those suits, had been demolished and that the land was a vacant piece of land all along and at all material times, including on the date of filing the suit as well as on the date of judgment. These four plaintiffs had filed appeals which were dismissed by this Court in M.Venkatesh (supra) approving the view taken by the High Court in the said four appeals. Insofar as decision in those four cases is concerned, it may not be very relevant as in the instant case it is not the vacant land with which we are concerned. However, what is relevant for us is the discussion in the fifth appeal which was filed by the BDA in the High Court wherein the High Court had affirmed the decree passed in favour of the plaintiff. The High Court noticed that in the said case the plaintiffs were running a saw mill which was in operation long prior to the filing of the suit and which continued to be in existence even on the date of the suit as well as on the date of the judgment of the High Court. Keeping in view the aforesaid -: 63 :- position, the High Court relied upon its Division Bench judgment in John B. James's case (supra) and held that the plaintiff therein was entitled to protection against attempted eviction by the BDA. On this basis, decree passed by the trial court was affirmed. This judgment of the High Court was also appealed against, which also became the subject matter of discussion in M. Venkatesh (supra). Pertinently, this Court allowed the appeal of the BDA and set aside the aforesaid judgment of the High Court and reversed the decree passed by the trial court, thereby holding that even in this case the plaintiff was not entitled to any protection.
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22) The aforesaid analysis of the judgment in M.Venkatesh (supra) amply shows that it is squarely and directly applicable to the facts and circumstances of the present case. In the first instance, it shows that reliance of the respondent herein on the judgment of John B. James (supra) is of no avail. It would further demonstrate that the findings of the court below that only paper possession was taken and actual possession was not taken also becomes meaningless as the manner of taking possession in the instant case was also identical. In addition, it is pertinent that the respondent herein, in para 10 of the plaint, had herself admitted that the officials of the BDA had come to the suit property on April 24, 2001 and demolished the existing structure. This act of the BDA would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suit land."
-: 64 :-
34. Therefore, the petitioners herein cannot contend that Section 27 of the BDA Act is applicable in respect of the land in question or for that matter, in respect of the Scheme known as HSR Layout which has been implemented.
In view of dismissal of the writ petitions, I.A.No.1/17 for early hearing also stands disposed.
Sd/-
JUDGE Msu/S*