Karnataka High Court
Smt. Rajamma Alias Venkatamma And ... vs Bangalore Development Authority on 1 February, 1999
Equivalent citations: ILR1999KAR959, 2000(1)KARLJ455, AIR 1999 KARNATAKA 399, 1999 (2) KANTLD 216, (1999) ILR (KANT) 959, (2000) 1 KANT LJ 455
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. A Ring Road aimed at easing the ever increasing vehicular pressure on the existing roads in the Bangalore Metropolitan area although conceived nearly 20 years ago continues to elude the citizens, assurances of the Government and directions of this Court for an early completion of the project notwithstanding. Cumbersome land acquisition proceedings and official apathy towards a time bound completion; have both contributed in equal measure to the delay in the construction of barely 40 kms of road length. 3.6 kilometres out of which lies between the Airport Road and Koramangala. If the version of the respondents were to be believed construction of the road is now complete but for a short stretch of 340 metres, in which the construction work is in progress at present. The completion of the road in that stretch is however hampered because of the interim orders issued by this Court in these petitions which have been filed to challenge acquisition proceedings in respect of small bits of land measuring 8 guntas in Sy. No. 2/1, 5 (juntas in Sy. No. 2/2, 20 guntas in Sy. No. 3/2 and 14 guntas in Sy. No. 4 of Village Shinivagalu, Bangalore South Taluk. These parcels of land constitute a part of a much larger area notified for acquisition in terms of a preliminary notification issued under Section 17(1) of the B.D.A. Act, on 20th of May, 1984. The purpose underlying the acquisition as originally notified was the formation of a residential layout. A final notification under Section 19(1) of the Act was issued on 9th of January, 1989 and published on 23rd of February, 1989 after a sanction under Section 18(3) was granted by the State Government on 3rd of June, 1988. Possession of 8 guntas of land in Sy. No. 2/1 and 35 guntas in Sy. No. 2/2 has according to the respondents been taken over on 15th of September, 1997. Insofar as the remaining extent in Sy. Nos. 3/1 and 4 are concerned, the land in question appears to have been utilised for raising unauthorised constructions which shall have to be vacated to facilitate the road laying work.
2. On behalf of petitioners Mr. Acharya, learned Senior Counsel argued that the B.D.A. had in a resolution passed on 10th of May, 1995, dropped the scheme originally conceived thereby rendering the purpose underlying the acquisition extinct. Construction of the Ring Road and acquisition of the extent indicated earlier was according to the learned Counsel impermissible, for the reason that the construction of such a road was not within the contemplation of the scheme framed under Section 15. It was contended that while construction of a Ring Road may constitute a "Public Purpose" justifying the issue of a fresh notification, no acquisition could for the achievement of that purpose be made on the basis of the proceedings already taken. The award made by the Land Acquisition Officer, on 20th of August, 1993, in respect of the extents indicated above is also assailed on the ground that the same was beyond reasonable time, assuming Section 11A did not have any application to acquisitions under the B.D.A. Act. Reliance in support was placed upon the decisions of the Supreme Court in Ram Chand and Others v Union of India and Others .
3. Appearing for the respondents Mr. Hegde, argued, that Section 11A of the Land Acquisition Act had no application to acquisitions made under the B.D.A Act. That part of the controversy was according to the learned Counsel concluded by the decision of a Division Bench of this Court in Bangalore Development Authority v CBCI Society for Medical Education and Another. It was urged that the purpose originally notified had within its comprehension construction of a Ring Road, as envisaged by the Comprehensive Development Plan. The scheme formulated by the B.D.A. had not it was argued, interfered with the C.D.P. although on account of certain unavoidable circumstances, a deviation from the original alignment had become necessary. One of the reasons which necessitated the deviation was that the Ring Road if constructed would pass very close to the defence transmitting antenna which was not agreeable to the Defence Authorities for security and technical reasons. An alternative alignment was therefore suggested by the Defence Authorities, which was found feasible upon consideration and subject to which the Defence Authority had agreed and actually handed over a part of the defence land required for the construction of the proposed road. It was argued that the alignment shown in the C.D.P. could not be meticulously related to the ground conditions by reference to Survey Numbers, for all that the C.D.P. shows is a general alignment details whereof have to be worked out by conducting an engineering survey based on the ground conditions, existing roads and the developments if any that have taken place. The alignment of the Ring Road has according to the respondents been drawn after conducting such a survey by STUP Consulting Engineering. The deviation that became necessary did not according to Mr. Hegde bring about any fundamental change in the C.D.P. or taken the owners of the lands by surprise. It was urged that out of the total project cost of Rs. 14.3 crores, the respondents have already spent 8.5 crores and that out of 3.6 kilometres between Airport Road and Koramangala 3 kilometres had already been asphalted whereas work over the 600 metres was in progress including 400 metres in which the pace has been slowed down on account of the orders issued by the Court. The locus of the petitioners to question the validity of the acquisition proceedings was also disputed by Mr. Hegde, according to whom the petitioners had sold most of the lands owned by them to different persons and some of the purchasers had filed Writ Petition Nos. 21129 and 21130 of 1998 dismissed by this Court by order dated 10th of September, 1998. Even the bona fides of the deviation was also challenged by one of the petitioners namely Smt. Rajamma in W.P. Nos. 3221 to 3223 of 1998 which were dismissed by a Division Bench on 17th of November, 1998, declining to go into the question of the validity of the deviation.
4. The material facts do not appear to be in dispute. It is not disputed that the preliminary notification issued by the respondents was for the formation of a residential layout in terms of a scheme formulated under Section 15 of the Act. It is also not in dispute that the said scheme had not altered the CDP insofar as the construction of a Ring Road to the extent the same was to pass through the proposed layout was concerned. The acquisition of lands notified for the formation of the layout, would therefore not only imply acquisitions for purposes of carving out sites but all other incidental purposes such as formation of roads etc. Construction of a Ring Road falling within the layout, would thus have necessarily been an approved developmental activity implicit in the implementation of the scheme. It is not therefore correct to suggest that construction of the Ring Road within the area covered by the scheme would be a purpose different from the scheme, to render independent acquisition proceedings for the same necessary. The fact that the scheme has been dropped insofar as the formation of the layout is concerned, also does not mean that acquisition proceedings already initiated cannot he utilised for the limited purpose of constructing the Ring Road. This is evident from the fact that the terms of notification dated 21st of August, 1991 some of the Sy. Nos. mentioned in the same were de-notified subject to the condition that the owners of the said lands would permit utilisation of such portion of those lands as were necessary for the construction of the roads free of costs. The proposal to drop the scheme therefore did not extend to giving up the construction of the Ring Road also. That purpose was it is abundantly clearly kept alive while de-notifying certain area. In the circumstances I find it difficult to accept the argument that construction of the Ring Road was not a purpose included in the original notification and that for satisfying any such purpose, it was necessary for the respondents to issue a fresh notification to give to the petitioners a fresh opportunity to oppose the same.
5. Equally untenable is the submission that the deviation in the alignment of the Ring Road amounted to an alteration of the C.D.P. which could be done only by the Government. The circumstances in which that deviation became necessary has been sufficiently explained by the respondents in the objections filed by them. I am inclined to accept the submissions that the C.D.P. insofar as it provides an alignment simply provides a broad outline of the plan, the details whereof have to be worked out at the time of actual execution of the work taking into account the ground realities. There is no substance in the submission feebly made on behalf of the petitioners that the deviation, was meant to exclude the lands of certain influential people. The challenge to the deviation made in public interest in W.P. Nos. 3221 to 3223 of 1998 was also unsuccessful. Besides, matters like alignment of the road to be followed, the suitability and the extent of the land required and such other aspects rest with the authorities dealing with the finalisation and implementation of the projects. Judicial review of acquisition proceedings does not extend to examining the wisdom behind the decision and interference with the same may be justified only in cases where the decision is so outrageously irrational that no prudent person could have possibly taken the same. The present does not appear to me to be one such case. As a matter of fact the deviation appears to have become necessary only on account of the security requirements of the Defence Ministry. That being so, the question of finding fault with the deviation or nullifying the acquisition proceedings on that ground does not arise.
6. Super-added to the above, is the fact that the alignment decided by the authorities, as already been acted upon. As notified earlier, out of a total road length of 3.6 kilometres, 3 kilometres has already been constructed and asphalted at considerable expense running into a few crores. The remaining stretch measures only 600 metres, in which the work is in progress. Even there the problem is confined only to nearly 400 metres involving the lands claimed by the petitioners. The respondents version is that construction work in that portion is also in progress, on the opposite side of the road without touching the land which is the subject-matter of the dispute in these proceedings. That being the position, the question of alignment is a fait accompli for this Court as also for any statutory authority. The two ends of the road are just 400 metres apart. A deviation by change of alignment, in that length does not appear to me to be feasible. Even if it be possible to make a deviation it would result in infructuous expenditure of crores of rupees. I see no reason why a project of such great magnitude with considerable public utility in which so much work has already been done should be jeopardised at this distant point of time. The petitioners have not disputed the fact that they have sold small parcels of land in the form of small sized house building sites long after the issue of the preliminary notification. They are not therefore on the right side of law and although according to Mr. Acharya, the fault lay with the respondents in not making an award, I do not think that the petitioners are justified in misleading the purchasers or creating impediments for an early completion of the project. The fact of sales having been made has been suppressed by the petitioners. The conduct of the petitioners does not therefore appear to me to be bona fide, assuming that judicial intervention was permissible even at this stage.
7. That brings me to the only other submissions made by Mr. Acharya, touching upon the validity of the award which was questioned on the ground that the same was made beyond a reasonable time. The decision of this Court in Bangalore Development Authority's case, supra, Khoday Distilleries Limited v State of Karnataka and Satya Pal v State of Uttar Pradesh, set at rest the controversy relating to the application of Section 11A of the Land Acquisition Act to acquisition under the E.P.T. Act, The absence of a statutory period for the making of an Award notwithstanding, the statutory authorities under the Act are expected to discharge their duties and complete the acquisition process within a reasonable period. The authorities cannot sit over the matter and take decisions affecting the citizen at their sweet will and at any time convenient to them. A statutory power vested in the designated authority must be exercised reasonably and within reasonable period. Decisions of the Supreme Court in State of Gujarat v Patel Raghau Natha and Others, Mansaram v S.P. Pathak and Others , State of Madhya Pradesh and Others v Vishnu Prasad Sharma and Others and Khadim Hussain v State of Uttar Pradesh and Others , are ample authority for that proposition. The question then is : What is the reasonable time within which an award should be made in regard to acquisitions under the B.D.A. Act. The answer is not far to seek. If for purposes of awards under the Land Acquisition Act, the Parliament has considered a period of two years to be reasonable, there is no reason why the said period should not broadly speaking hold good for acquisitions under the B.D.A. Act also. The failure of the authorities to make an award within a reasonable period throws up the possibilities of the Court either striking down the acquisition or making such other directions as may be necessary to reduce hardship to the owners which would arise from the failure of the authorities to make an award. In Ram Cnands case, supra, and Aflatoon v Lt. Governor of Delhi, the Court while deprecating inaction on the part of the authorities in the matter of making awards declined to quash the acquisition proceedings on the ground that such proceedings were meant for a public purpose. The Court found that the lands in question were being utilised for providing shelter to thousands and to implement a planned development of the city - a consideration that deserved to be given its due weight. All the same, the Court directed remedial steps for the delay in the making of the award in the nature of award of additional compensation at 12% p.a. on the amount of compensation for the period the award was delayed. Following the view taken in Rama Chand's case, this Court in the case of B.D.A., supra, while disapproving the inaction on the part of the B.D.A. in not making a proper award within a reasonable time, directed award of additional compensation on similar terms. Applying the said principles to this case, the scheme is meant to benefit the entire citizenry of Bangalore. Quashing the proceedings on account of delay in the making of the award does not therefore appear to me to be a remedy conducive to public interest. The question then is whether any additional compensation in the form of interest on the awarded amount can be directed in the present case also. Mr. Hegde, pointed out that the B.D.A. had with a view to reducing hardship to the owners, taken a decision not only to pay adequate compensation for the constructions, if any, raised after the preliminary notification but also for the grant of alternative house sites to the owners. He placed reliance upon the decision of the authority dated 19th of May, 1997 in Sub No. 134 of 1997 in this regard and urged that the said decision was sufficient to offset the prejudice, if any, suffered by the owners on account of the delay in the making of the award. It was also pointed out that a number of owners had agreed to abide by the terms of the said notification and given up their challenge to the acquisition proceedings including petitioner in Writ Petition No. 4743 of 1997 which was dismissed by this Court on 23rd of January, 1998 in similar circumstances. It therefore appears that the B.D.A. has offered a package to reduce the hardship to the owners arising from the delay. It is in my opinion unnecessary to examine whether the package offered by the authority in terms of the decision referred to above, is more attractive than the additional compensation which the Supreme Court had in the Ram Chand's case, supra, directed to be paid. In my opinion an option given to the owners should enable them to pick up whatever is considered more beneficial.
8. In the result, these petitions succeed but only to the limited extent that such of the petitioners as are willing to avail of the benefit in terms of the authority's decision dated 19th of May, 1997, may do so before the competent authority, failing which they shall be entitled to an additional compensation in the form of interest at the rate of 12% p.a. on the amount awarded for the period for which the making of the award was delayed beyond 23rd of February, 1991.
No costs.
Immediately after the decision was pronounced, Mr. Manjunath, appearing for the petitioners, prayed for an interim stay of demolition of the structures raised by the petitioners for two weeks to enable the petitioners to prefer appeals against this order.
Mr. Hegde, Counsel for the respondents opposed this prayer.
Keeping in view however the nature of the controversy and the fact that the petitioners claim to have raised certain constructions, in which some of the petitioners are presently residing, I consider it just and proper to direct that the constructions, if any, raised by the petitioners on the land sought to be acquired shall not be demolished for a period of 10 days only.