Karnataka High Court
M/S Jamnalal Bajaj Seva Trust vs State Of Karnataka on 18 January, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.42261/2016 (LA-UDA)
BETWEEN:
M/S. JAMNALAL BAJAJ SEVA TRUST
A REGISTERED TRUST HAVING ITS
REGISTERED OFFICE AT WARDHA AND
ALSO HAVING ITS OFFICE AT 2ND FLOOR,
BAJAJ BHAVAN, NARIMAN POINT,
MUMBAI AND ALSO AT
13TH K.M.MAGADI ROAD,
VISHWANEEDAM POST,
BENGALURU - 560 091.
REPRESENTED BY ITS
POWER OF ATTORNEY HOLDER
COLONEL BALAKUMAR NAIR,
VISHWANEEDAM,
BENGALURU - 560 091. ... PETITIONER
(BY SRI: N. SURYANARAYAN BHAT, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY SECRETARY TO GOVERNMENT,
URBAN DEVELOPMENT DEPARTMENT,
M.S.BUILDING, DR.AMBEDKAR VEEDI,
BENGALURU - 560 001.
2. THE BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK WEST,
BENGALURU - 560 020.
REPRESENTED BY ITS COMMISSIONER.
3. THE SPEICAL LAND ACQUISITION OFFICER,
THE BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD, KUMARA PARK WEST,
BENGALURU - 560 020.
-: 2 :-
4. THE DEPUTY COMMISSIONER (LA)
BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020. ... RESPONDENTS
(BY SRI: VIJAYA KUMAR A. PATIL, ADDL. GOVT. ADV. FOR R-1;
SRI NANJUNDA REDDY, SENIOR ADVOCATE FOR
SRI M.B. PRABHAKAR, ADVOCATE FOR R-2 TO R-4)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RELEVANT RECORDS AND QUASH THE FINAL
NOTIFICATION DTD.16.09.2014 VIDE ANNEX-C IN SO FAR AS
IT RELATES TO THE LANDS IN SY.NOS.37/1P, 39, 40/1, 51 AND
52/2 OF HEROHALLI VILLAGE, YESHWANTHAPURA HOBLI,
BANGALORE NORTH TALUK, BELONGING TO THE PETITIONER.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
COURT MADE THE FOLLOWING:
ORDER
This writ petition is listed to consider I.A.No.1/17 for vacating stay granted by this Court. However, with the consent of learned counsel for the parties, they are heard finally pursuant to order passed by the Division Bench of this Court, in Writ Appeal No.336/2017, dated 27/01/2017.
2. Petitioner is a registered Trust. It has assailed Final Notification dated 16/09/2014 (Annexure-C), insofar as it relates to Sy.Nos.37/1P, 39, 40/1, 51 and 52/2 of Herohalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk, belonging to the petitioner.
-: 3 :-3. According to the petitioner, it had acquired the lands in question in Herohalli village, and other adjacent villages of Yeshwanthapura Hobli, Bangalore North Taluk, in the year 1960. That the lands in question along with other lands were sought to be acquired by respondent No.2/Bangalore Development Authority ("BDA" for short), by issuance of Notification under Section 17(1) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as "the BDA Act" for the sake of convenience) for the purpose of formation of Sir M. Vishweshwaraiah Extension Layout. The lands in question were sought to be acquired for the purpose of formation of 150 ft. road and to provide water supply to the said layout and other neighbouring villages. The Preliminary Notification was followed by declaration and Final Notification issued under Section 19(1) of the Act, on 16/09/2014 and the same was published in the Karnataka Gazette on 09/10/2014.
Petitioner has not assailed those Notifications in any other writ petition, but in the instant case, the declaration and Final Notification dated 16/09/2014 has been challenged by filing this writ petition on 02/08/2016. By interim order dated 25/08/2016, this Court directed both parties to -: 4 :- maintain status quo in respect of the lands in question.
Initially it was for a limited period and thereafter the interim order of status quo has been extended from time to time.
4. In response to the notices issued by this Court, BDA has appeared and filed its statement of objections and application for vacating the said interim order of status quo. In the circumstances, the said application has also been listed along with main writ petition.
5. I have heard learned counsel for the petitioner, learned Addl. Government Advocate for respondent No.1 and learned Senior Counsel for respondent Nos.2 to 4 (BDA) as well as perused the material on record.
6. Petitioner's counsel contended that although the acquisition has been initiated under the provisions of the BDA Act on the enforcement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "2013 Act" for the sake of convenience) by repealing the Land Acquisition Act, 1894 (hereinafter referred to as "the LA Act, 1894" for the sake of brevity), -: 5 :- the provisions of 2013 Act would become applicable to acquisitions initiated not only under the provisions of the repealed Act, but also under the provisions of the BDA Act.
He drew my attention to Section 25 of the 2013 Act to contend that the said Act stipulates that within a period of twelve months from the date of publication of declaration under Section 19, the award has to be made or else the acquisition of the land would lapse. Relying on Section 25 of 2013 Act, learned counsel submits that in the instant case, the declaration and Final Notification under Section 19 of the BDA Act was issued on 16/09/2014, award was made and approved on 25/07/2016, which is beyond the period of twelve months stipulated under Section 25 of 2013 Act. Therefore, petitioner is entitled to a declaration that the acquisition has lapsed as the award has been made and approved beyond twelve months from the date of issuance of declaration and Final Notification. He relied on the judgment of this Court in the case of K.M. Chikkathayamma & Others vs. The State of Karnataka, Urban Development Department, Represented by its Principal Secretary & Others [ILR 2016 Kar. 1603] (K.M. Chikkathayamma), wherein it is -: 6 :- held while answering the second point raised therein that 2013 Act shall be applied to acquisition proceeding under BDA Act that have remained without being completed in all respects as on 01/01/2014 and proceedings that have been initiated thereafter. In the circumstances, it is the contention of learned counsel for petitioner that the award not having been passed within a period of twelve months from the date of issuance of declaration and final notification, the acquisition has lapsed having regard to Section 25 of 2013 Act.
7. Per contra, learned Senior Counsel appearing for the respondent/BDA submitted that the acquisition in the instant case has been initiated under the provisions of the BDA Act and not 2013 Act or LA Act, 1894. That Section 25 of 2013 Act is a stipulation, which would apply when the acquisition is initiated under the provisions of 2013 Act and that has no application to Section 19 of the BDA Act or for that matter any other enactment under which an acquisition may be initiated. He further submitted that when the acquisition was initiated in the instant case, the LA Act, 1894 was in operation even then the stipulation under Section 11-A of that Act did not apply -: 7 :- when the acquisition was initiated under the provisions of the BDA Act. In support of this contention, learned Senior Counsel has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Offshore Holdings Pvt.
Ltd. vs. Bangalore Development Authority & others [(2011)3 SCC 139] (Offshore Holdings). He contended that the petitioner cannot seek a declaration under the provisions of Section 25 of 2013 Act when the acquisition has not been initiated under the said Act, but when it has been initiated under the provisions of BDA Act. He also drew my attention to Annexure-R6 appended to the statement of objections filed by the BDA to contend that petitioner has expressed its willingness and has consented to acquisition of the lands in question as per revised alignment and the petitioner has sought compensation under the provisions of 2013 Act, which would imply that there is no challenge to the acquisition as such and as far as the award of compensation is concerned, that is not the subject matter of this writ petition. Therefore, the aforesaid aspects cannot be considered together in this writ petition. Learned Senior Counsel contended that the judgment of this Court in K.M.Chikkathayamma would not -: 8 :- apply to this case having regard to the dictum of the Hon'ble Supreme Court in Offshore Holdings.
8. Learned Addl. Government Advocate appearing for the State submitted that subsequent to the dictum of this Court in the case of K.M.Chikkathayamma, in the recent order dated 14/12/2017, passed in the case of M/s.Evershine Monuments & others vs. State of Karnataka & others, in Writ Petition Nos.17852-17856/2014 & 17969/2014 c/w. W.P.Nos.17290/2014 & 17673- 17687/2014, W.P.No.20626/2016 (LA-BDA), the object and scope of the BDA Act, LA Act, 1894 and 2013 Act, have been analysed in detail and it has been held that the provisions of 2013 Act would not be applicable to any acquisition initiated under the provisions of the BDA Act.
He therefore, endorses the submission made by the learned Senior Counsel for the BDA.
9. The detailed narration of facts and contentions would not require a reiteration except highlighting the fact that the petitioner has not assailed Preliminary Notification dated 15/05/2012 (Annexure-R2), issued under Section 17(1) of the BDA Act. The challenge is only in respect of Final Notification dated 16/09/2014 insofar as the lands in -: 9 :- question are concerned. From the material on record, it is noted that the award has been passed in respect of the lands in question and approved on 28/05/2016.
Thereafter, notice under sub-section (2) of Section 12 of LA Act, 1894 was issued to the petitioner and it is at that stage, the writ petition was filed as the notice expressly stated that the petitioner ought to surrender the lands in question. It is noted that this Court on 25/08/2016, ordered status quo to be maintained. It is noted that on 12/01/2017, this Court, while admitting the writ petition, modified the order of status quo and directed that the respondent/BDA could go ahead with the further proceedings to undertake the development work of construction of "Water Reservoir" and "formation of the link road", subject to the final decision in the cases filed by the petitioner/Trust. However, if any permanent building structure is to be removed, the respondent/BDA would seek specific relief of this Court at an appropriate time.
However, removal of temporary constructions, tin sheds, trees etc., would not require any permission of this Court.
This order was assailed by the petitioner in W.A.No.336/2017. The Division Bench of this Court -: 10 :- directed, the status quo to continue. However, it has observed that the learned single Judge could dispose of the main writ petition as expeditiously as possible.
Subsequently, the application for vacating the interim order has been filed and in that context, submission has been made that the writ petition could be disposed of owing on the basis of the observation made by the Division Bench. Therefore, the writ petition has been heard finally and petitioner's contentions would be considered in seriatim.
10. Firstly, learned counsel for the petitioner has placed reliance on Section 25 of the 2013 Act, to contend that on the repeal of LA Act, 1894, the 2013 enactment would apply to all acquisitions in enforcement on the said Act i.e., with effect from 01/01/2014. Section 25 of 2013 Act reads as under:
"25. Period within which an award shall be made.- The collector shall make an award within a period of twelve months from the date of publication of the declaration under Section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:-: 11 :-
Provided that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same:
Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and to be uploaded on the website of the authority concerned."
A plain reading of the said section makes it clear that an award has to be made within twelve months from the date of publication of the declaration under Section 19 and if no award is made within that period, the entire proceedings for the acquisition shall lapse. The first proviso states that the appropriate Government has the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same. The second proviso states that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. Reference is made to Section 19 in Section 25 of the 2013 Act. Section 19 of the 2013 Act deals with publication of declaration and summary of rehabilitation and resettlement. After the issuance of the Preliminary -: 12 :- Notification under Section 11 of the said Act, certain mandatory requirements have to be complied with such as, social impact assessment report to be prepared and thereafter, when the appropriate Government is satisfied after considering the said report and that any particular land is required for public purpose, a declaration shall be made to that effect. For the sake of immediate reference, Section 19 of the Act 2013 is extracted as under:
"19. Publication of declaration and summary of Rehabilitation and Resettlement.-(1) When the appropriate Government is satisfied, after considering the report, if any, made under sub-section (2) of section 15, that any particular land is needed for a public purpose, a declaration shall be made to that effect, along with a declaration of an area identified as the "resettlement area" for the purposes of rehabilitation and resettlement of the affected families, under the hand and seal of a Secretary to such Government or of any other officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same preliminary notification irrespective of whether one report or different reports has or have been made (wherever required).-: 13 :-
(2) The Collector shall publish a summary of the Rehabilitation and Resettlement Scheme along with declaration referred to in sub-section (1):
Provided that no declaration under this sub-section shall be made unless the summary of the Rehabilitation and Resettlement Scheme is published along with such declaration:
Provided further that no declaration under this sub-section shall be made unless the Requiring Body deposits an amount, in full or part, as may be prescribed by the appropriate Government toward the cost of acquisition of the land:
Provided also that the Requiring Body shall deposit the amount promptly so as to enable the appropriate Government to publish the declaration within a period of twelve months from the date of the publication of preliminary notification under section 11.
(3) In projects where land is acquired in stages, the application for acquisition itself can specify different stages for the rehabilitation and resettlement, and all declarations shall be made according to the stages so specified.
(4) Every declaration referred to in sub-
section (1) shall be published in the following manner, namely:-
(a) in the Official Gazette;
-: 14 :-
(b) in two daily newspapers being
circulated in the locality, of such area of which one shall be in the regional language;
(c) in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil;
(d) uploaded on the website of the
appropriate Government;
(e) in the affected areas, in such manner
as may be prescribed.
(5) Every declaration referred to in sub-
section (1) shall indicate,-
(a) the district or other territorial division
in which the land is situated;
(b) the purpose for which it is needed, its
approximate area; and
(c) where a plan shall have been made
for the land, the place at which such
plan may be inspected without any
cost.
(6) The declaration referred to in sub-
section (1) shall be conclusive evidence that the land is required for a public purpose and, after making such declaration, the appropriate -: 15 :- Government may acquire the land in such manner as specified under this Act.
(7) Where no declaration is made under sub-section (1) within twelve months from the date of preliminary notification, then such notification shall be deemed to have been rescinded:
Provided that in computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded:
Provided further that the appropriate Government shall have the power to extend the period of twelve months, if in its opinion circumstances exist justifying the same:
Provided also that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned."
Therefore, reference to Section 19 in Section 25 is in Section 19 of 2013 Act and it is only when a declaration has been made under Section 19 of the said Act and if no award is made within a period of twelve months from the date of publication, the entire proceeding for the -: 16 :- acquisition of the land would lapse. Of course, the said provision is subject to a proviso, wherein appropriate Government has the power to extend the period of twelve months if, in its opinion, circumstances exist justifying the same and reasons have to be recorded in writing, which shall be notified and uploaded on the website of the authority concerned. Therefore, if the declaration has not been made under Section 19 of the 2013 Act, then the stipulation under Section 25 of the said Act would not apply. Admittedly, in the instant case, the acquisition is not under the provisions of 2013 Act or under the LA Act, 1894, but the acquisition is initiated under Sections 17 and 19 of the BDA Act. Hence, the contention of the petitioner is rejected.
11. Further, as far as the application of such a stipulation as contained in Section 25 of the 2013 Act or for that matter Section 11-A of the LA Act, 1894, on an acquisition initiated under the provisions of the BDA Act is concerned, reliance could be placed on the dictum of the Hon'ble Supreme Court in the case of Offshore Holdings, wherein on considering the scope and object of the BDA Act and LA Act, 1894, the Hon'ble Supreme Court has -: 17 :- categorically held that the stipulation contained in Section 11-A of the 1894 Act would not apply when the acquisition is initiated under the provisions of the BDA Act. While holding so, the Hon'ble Supreme Court relied upon two earlier decisions rendered by it in the case of Munithimmaiah vs. State of Karnataka and others [(2002) 4 SCC 326] and Bondu Ramaswamy and others vs. Bangalore Development Authority and others [(2010) 7 SCC 129]. In fact, reference could also be made to another decision of the Hon'ble Supreme Court in the case of Girnar Traders (3) vs. State of Maharashtra and others [(2011) 3 SCC 1].
Therefore, when the Hon'ble Supreme Court has opined that the stipulation as contained in Section 11-A of the LA Act, 1894 is not applicable to any acquisition initiated under the provisions of the BDA Act, then by way of analogy it must be held that the stipulation contained in Section 25 of the 2013 Act would also not apply to an acquisition initiated under the BDA Act.
12. Be that as it may, learned counsel for the petitioner has relied upon the dictum of this Court in K.M. Chikkathayamma's case to contend that while answering -: 18 :- the second point, this Court has held that the provisions of LA Act, 1894 or 2013 Act would apply to acquisition proceedings under the BDA Act. The implications of the observations of this Court are in the context of the applicability of LA Act, 1894 or 2013 Act, as the case may be, to the provisions of the BDA Act when the acquisition is initiated under the BDA Act and the said provisions would be applicable to such acquisitions which have not been completed as on 1.1.2014. It is however observed that the above observations are in the context of determination of compensation under Section 36 of the BDA Act. It specifically states that the provisions of LA Act, 1894 would apply as far as they are applicable. Section 36 of the BDA Act is extracted for immediate reference:
36. Provisions applicable to the acquisition of land otherwise than by agreement.- (1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894.-: 19 :-
(2) For the purpose of sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the Authority shall be deemed to be the Local Authority concerned.
(3) After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority."
13. In the circumstances, the contention that Section 25 of the 2013 Act would become applicable to even acquisition initiated under the provisions of the BDA Act and the stipulation as contained therein would entitle such an acquisition to be declared as having lapsed cannot be accepted. When 2013 Act has repealed and substituted LA Act, 1894 and the applicability of LA Act, 1894 to an acquisition made by BDA under the BDA Act was only to a restricted extent, the Parliamentary legislation of 2013 Act cannot cover or apply to acquisition initiated under the BDA Act under Section 36 of the BDA Act, LA Act, 1894 would be applicable to a limited extent only i.e., in the -: 20 :- matter of determination of compensation and not in the matter of initiation of acquisition proceeding. Further, in view of the dictum of the Hon'ble Supreme Court in Offshore Holdings to the effect that Section 11-A of the LA Act, 1894 is not applicable to an acquisition initiated under the BDA Act, merely because the same is repealed and substituted by 2013 enactment, Section 25 of the said 2013 Act cannot be applied to an acquisition initiated under the BDA Act in a straight jacket manner.
14. Further, the observations made in the case of K.M. Chikkathayamma are in the context of applicability of Section 24(2) of the LA Act, 1894 to an acquisition initiated under the BDA Act and to that extent only. But the same is contrary to the dicta of the Hon'ble Supreme Court.
15. 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:-: 21 :-
(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.
(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 -: 22 :- 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 Section 24. Same is the case with regard to Clauses (a) and (b) of sub-section (1) of Section 24.
16. 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 -: 23 :- 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;
(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) -: 24 :-
17. 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 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 -: 25 :- 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."
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)
18. 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, -: 26 :- 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.
19. 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;
"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 -: 27 :- 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."
20. 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 -: 28 :- 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.
21. 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 -: 29 :- is for planned development of Bangalore Metropolitan Area 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.
22. 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 -: 30 :- the BDA Act describes it as "an Act to provide for the 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."
23. 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.
24. Adverting to Section 27 of BDA Act, the Hon'ble Supreme Court has observed that it places an obligation upon the Authority (BDA), to complete the scheme within a period of five years and if the scheme is not substantially carried out within that period, it shall lapse and the provisions of Section 36 shall become inoperative, i.e. this is a provision which provides for -: 31 :- serious consequences in the event the requisite steps are not taken within the specified time.
25. Observing that some land may have to be acquired for the purpose of completing the scheme; such land has to be identified in the scheme itself as per Section 16 of the BDA Act. Chapter IV of the BDA Act deals with "acquisition of land". Adverting to Sections 35 and 36 of the BDA Act, the Hon'ble Supreme Court has observed that these provisions postulate acquisition of land by two modes. Firstly, by entering into an agreement with the owner of the land; and secondly, otherwise than by agreement which shall be regulated by the provisions of the Land Acquisition Act, in so far as they are applicable.
Where the lands are acquired by agreement, there would be hardly any dispute either on fact or in law.
Controversies, primarily, would arise in the cases of compulsory acquisition under the provisions of the Act. The intention of the Legislature, thus, is clear to take recourse to the provisions of the Land Acquisition Act to a limited extent and subject to the supremacy of the provisions of the State Act.
-: 32 :-26. Comparing BDA Act with Maharashtra Act, the Hon'ble Supreme Court has observed that a very important aspect which, unlike the MRTP Act, (Maharashtra Regional and Town Planning Act), is specified in the BDA Act is that, once the land is acquired and it vests in the State Government in terms of Section 16 of the LA Act, 1894 then the Government, upon (a) payment of the cost of acquisition and (b) the Authority, agreeing to pay any further cost, which may be incurred on account of acquisition, shall transfer the land to the BDA whereupon, it shall vest in the BDA. The Government is further vested with the power to transfer land to the BDA belonging to it or to the Corporation as per Section 37 of the BDA Act.
27. 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 land was required for a public purpose. The said -: 33 :- 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 -: 34 :- provisions of the LA Act, 1894 is only incidental to and not the primary object of BDA Act".
28. Further, the decision in K.M.Chikkathayamma has been considered, but not followed in the case of M/s.Evershine Monuments and the relevant extracts are as under:
"33. 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 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 -: 35 :- 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 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 -: 36 :- 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, 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 -: 37 :- 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 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 -: 38 :- 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 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) -: 39 :- 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 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.
34. 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.
35. There are several other decisions, which are similar to the decisions rendered in Chikkathayamma's case, which are cited at the -: 40 :- Bar by learned counsel for petitioners. In Sri Munibyrappa and another vs. State of Karnataka and others, (W.P.Nos.32950- 951/2015 and connected matter disposed of on 18.7.2017), there is no discussion on the legal aspect of the applicability of sub-section (2) of Section 24 of 2013 Act to an acquisition initiated under the BDA Act. On the facts of that case, relief was given to the petitioners therein on the assumption that Section 24 of 2013 Act applied to an acquisition initiated under the BDA Act. Similarly, in Jayamma and others vs. State of Karnataka and others, (W.P.Nos.59417- 59419/2013 disposed of on 18.07.2016), proceeded on facts as if the said section was applicable to an acquisition initiated under the BDA Act. In T.B.R.Boranna and others vs. The Bangalore Development Authority and others, (W.P.Nos.16634-16636/2014, disposed of on 22.04.2016), without considering the legal aspect of the applicability of sub-section (2) of Section 24 of 2013 Act, this Court held that the conditions mentioned under the section were applicable and allowed the writ petitions by declaring that the acquisition had lapsed. So also, in the case of Smt. Padmavathi and others vs. State of Karnataka and others (W.P.Nos.23251-255/2016, disposed of on 09.08.2017) the petitioners therein did not press their case under sub-section (2) of Section 24 of 2013 Act. But, nevertheless, this Court held that -: 41 :- BDA had abandoned the acquisition and allowed the writ petitions by holding that the acquisition had lapsed. In Writ Appeal Nos.4302-
4304/2016, Bangalore Development Authority and another vs. Smt. Prema and another, (disposed of on 23.11.2016), the Division Bench of this Court proceeded on the basis that the writ petitioner therein had been in settled possession of a constructed building and thus settled things should not be unsettled. Without there being any discussion on the applicability of sub-section (2) of Section 24 of 2013 Act, the Division Bench held that the acquisition had lapsed and dismissed the writ appeal which was filed after a delay of 199 days. In Bangalore Development Authority vs. M. Narasimhaiah and others (W.A.No.3306/2016 and connected matters disposed of on 05.01.2017), the judgment of the Division Bench proceeded on the premise that the learned Single Judge had held that the scheme for formation of layout had been abandoned and the acquisition proceedings were quashed, on a finding that out of the initial notification proposing to acquire 225 acres after the Final notification and on issuance of notification under sub-section (1) of Section 48 of LA Act, 1894, releasing certain extents from acquisition, there were only 20 acres left for the purpose of formation of layout. Therefore, the Division Bench held that in roughly 20 acres of land in isolated pieces no layout could be -: 42 :- formed. Consequently, it held that the scheme to form a layout stood frustrated.
M/s.Arunachalam Properties vs. State of Karnataka and others (W.P.Nos.10962 and 12456-457/2012 and connected writ petitions) pertains to an order dated 18.12.2012 passed prior to the enforcement of 2013 Act. The said order is not applicable to the point in issue. Therefore, the aforesaid judgments relied upon by learned Counsel for the petitioners are not applicable having regard to the nature of controversy in this case.
36. In Sri Suryaprakash and others vs. State of Karnataka and others (W.P.Nos.10286-291/2014 disposed of on 5.12.2016) the petitioners therein expressly submitted that they did not press their case under sub-section (2) of Section 24 of 2013 Act as according to them that provision did not arise for consideration in that case. Even de hors sub- section (2) of Section 24 of 2013 Act the petitioners sought a declaration that the acquisition proceeding had been abandoned by the BDA and had stood lapsed and such a declaration was granted to subsequent purchasers therein, who were the petitioners in that case. On the other hand, in H.A. Balaji vs. The State of Karnataka and others reported in ILR 2011 Kar. 2727, it was held that having regard to the judgments of the Hon'ble -: 43 :- Supreme Court in the case of Munithimmaiah and Offshore Holdings Private Limited, the concept of lapse of acquisition as envisaged under Section 11A of LA Act, 1894, could not be imported into the provisions of BDA Act and that if the award was not made within a reasonable time i.e. five years, then the land owners therein could seek additional compensation by bearing in mind that under Section 27 of BDA Act, there must be substantial implementation of the scheme within five years. In the said case the award had not been passed within the said five years.
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, 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 -: 44 :- 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 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 -: 45 :- 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 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 -: 46 :- 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 "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 -: 47 :- 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 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 -: 48 :- 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 the provisions of LA Act, 1894. But while creating a new right in favour of land owners -: 49 :- 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 imply that the acquisition -: 50 :- 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.
46. At this stage itself, it may be observed that the issue as to whether LA Act, -: 51 :- 1894 has been incorporated into BDA Act by the device of legislation by incorporation or legislation by reference is wholly foreign and outside the scope of controversy while considering the applicability of Section 24 to acquisition initiated under any law (whether State or Central), de hors LA Act, 1894. The arguments of learned counsel for the land owners - petitioners in Chikkathayamma's case on the aforesaid aspect was unwarranted and wholly digressive from the issue to be considered in that case namely, whether Section 24 of 2013 Act was applicable to acquisitions initiated under any law other than LA Act, 1894, such as, BDA Act, KUDA Act. The dicta of the Hon'ble Supreme Court in this regard after comparing the scheme of LA Act, 1894 and BDA Act, are binding and authoritative and the same cannot be brushed aside or ignored by not applying the same in appropriate cases, such as the present one.
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.
-: 52 :-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 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 -: 53 :-
(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 -: 54 :- 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.
X X X
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 -: 55 :- Munithimmaiah, Bondu Ramaswamy, Offshore 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 -: 56 :- any State enactment, such as the BDA Act or KUDA Act. In fact, the Parliament itself has been conscious of 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 -: 57 :- the enactments specified in the Fourth Schedule or shall 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:
-: 58 :-"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).-: 59 :-
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 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 -: 60 :- 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 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."
29. The aforesaid reasoning is squarely applicable to the present writ petition also. In the circumstances, -: 61 :- there is no merit in the writ petition. The writ petition is dismissed.
Parties to bear their respective costs.
The interim order of status quo dated 25/08/2016, which was extended on subsequent dates stands vacated.
In view of dismissal of this writ petition, I.A.No.1/17 does not survive for further consideration and it is disposed.
Sd/-
JUDGE S*