Karnataka High Court
Offshore Holdings Pvt Ltd vs Bangalore Development Authority on 14 December, 2012
Author: B.S.Patil
Bench: B.S.Patil
WP 41352/2001
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.41352/2001 (BDA)
BETWEEN:
Offshore Holdings Pvt. Ltd.,
A company incorporated under
the Companies Act, 1956,
having its registered office at
No.32, Seshadri Road,
Bangalore - 560 009,
And its Administrative Office
at Unit 307, 3rd Floor, "MBC",
No.134, Infantry Road,
Bangalore - 560 001,
Represented by its Director,
Mr. Mukesh Gupta. ... PETITIONER
(By Sri A.K.Ganguly, Sr. Counsel &
Sri Ananth Mandagi, Sr. Counsel for
Sri T.V.Ratnam and Sri Pramod N.Kathavi, Advs.)
AND:
1. Bangalore Development Authority,
A Statutory Body constituted
Under the Bangalore Development'
Authority Act, 1976,
Having its office at T.Chowdaiah Road,
Kumara Park West,
Bangalore - 560 020,
Represented by its Commissioner.
2. The Deputy Commissioner
(Land Acquisition)
Bangalore Development Authority,
WP 41352/2001
2
Having its office at
T.Chowdaiah Road,
Kumara Park West,
Bangalore - 560 020.
3. The Assistant Executive Engineer,
Bangalore Development Authority,
No.3, North Sub-Division, BDA,
Having its office at BDA Nursery Farm,
Devasandra, New BEL Road,
Bangalore - 560 094.
4. Government of Karnataka,
Housing and Urban Development
Secretariat, Vidhana Soudha,
Dr. B.R.Ambedkar Veedhi,
Bangalore - 560 001,
Represented by its
Principal Secretary. ... RESPONDENTS
(By Sri D.N.Nanjunda Reddy, Sr. Counsel for
Sri K.Krishna, Adv. for R-1 to 3;
Sri Vijay Kumar Patil, HCGP for R-4)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the resolution dated
31.12.1997 passed by R1 vide Annexure-A, the notification
dated 03.01.1977 issued by R1 vide Annexure-B and the final
notification dated 02.08.1978 issued by R4 vide Annexure-C.
This petition having been heard and reserved for orders
on 18.09.2012, coming on 'pronouncement', group this day, the
Court made the following:
ORDER
1. In this writ petition, petitioner is challenging the preliminary and final notifications dated 03.1.1977 and 02.08.1978 issued under Sections 17(1) and 19, respectively, of the Bangalore Development Authority Act (for short, 'the Act'), WP 41352/2001 3 insofar as it pertains to the acquisition of the land in question comprised in Sy. No.9/2 of Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk, now forming part of Rajamahal Vilas Extension II Stage, Bangalore, measuring 2 acres 34 guntas.
2. Petitioner is a company incorporated under the Companies Act, 1956. It has purchased 1 acre 2 guntas of land comprised in the above survey number from its erstwhile owners Uttanallappa, Munishamappa, Ramaiah and Hanumaiah under various registered sale deeds ranging from 22.05.1995 to 30.06.1998 in respect of different sites.
3. The erstwhile landowners had made representation to the Bangalore Development Authority ('BDA', for short) and to the State Government - respondents 1 & 4 herein, respectively, seeking deletion of a portion of the land from acquisition. Considering the said representation, the 1st respondent - BDA passed a resolution on 28.06.1988 resolving to de-notify an extent of 1 acre 2 guntas of land from acquisition. It is pertinent to notice here that the erstwhile landowners had filed a writ petition in W.P.No.16065-16069/1987 challenging the acquisition.
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4. Considering the representation submitted by the landowners, the BDA resolved in its meeting dated 28.06.1988 to de-notify the land. Pursuant to this resolution, the erstwhile landowners filed a memo dated 22.09.1988 in the writ petition filed by them, seeking to withdraw the same. The said memo reads as under:
"The petitioners have challenged the acquisition proceedings relating to the land comprised in Sy. No.9/2 measuring 2 acres 34 guntas out of 3 acres 7 guntas together with constructions, grapes garden including residential constructions and farm houses, situate at Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk, which are produced for being acquired for the purpose of Gokul Second Stage, Rajamahal Vilas, II Stage Layout. The petitioners having represented before the Bangalore Development Authority, the Bangalore Development Authority have resolved to de-notify the lands and to drop the acquisition proceedings and in view of the decision so taken by the Bangalore Development Authority, the petitioners do not propose to prosecute the above writ petitions and hence, the petitioners may kindly be permitted to withdraw the writ petition and dispose of the writ petition accordingly as not pressed in the interest of justice."
5. The writ petition was dismissed as withdrawn placing the memo on record vide order dated 22.09.1988. It is thereafter WP 41352/2001 5 that the property was sold in favour of the present petitioner during 1995 and 1998 by way of eight sale deeds executed on different dates. Five sale deeds were executed during the year 1995 and three sale deeds were executed in the year 1998, as is clear from the facts stated in paragraph 7 of the writ petition.
6. The further case of the petitioner is that after purchasing the property, with a desire to proceed with the construction of a culvert/bridge over the storm water drain abutting the land, the petitioner sought permission from BWSSB which was accorded as per letter dated 22.05.1996. Thereafter, petitioner by submitting the required drawings to the Assistant Executive Engineer of the BDA applied for permission to construct the culvert. Pursuant to the same, the 3rd respondent vide letter dated 24.02.2001 accorded permission to the petitioner to construct the culvert over the storm water drain as per Annexure-J - letter issued in this regard. Petitioner commenced the construction work and made substantial progress in the construction. But, by another letter dated 04.08.2001, petitioner was informed by the 3rd respondent that as it had not followed the instruction contained in the letter of permission granted by respondents 1 & 3 the permission to WP 41352/2001 6 build the culvert had been temporarily withdrawn. Annexure-K
- communication dated 04.08.2001 is produced in this regard. This was followed by another letter dated 30.8.2001 issued by the 3rd respondent informing that the de-notification of land ordered vide resolution dated 28.06.1988 had been withdrawn by another resolution dated 31.12.1997 by the 1st respondent, therefore, the petitioner was not entitled to continue the construction of the bridge over the storm water drain. At this stage, the petitioner has approached this Court challenging the resolution dated 31.12.1997 - Annexure-A passed by the BDA withdrawing its earlier resolution de-notifying the land and also the notifications issued both preliminary and final, acquiring the land.
7. This is the second round the matter comes up before this Court. At the first instance, by order dated 25.01.2007, this Court dismissed the writ petition negativing the contention urged by the petitioner about the application of Section 11A of the Land Acquisition Act to the acquisition made by the BDA. This order of the learned Single Judge was challenged in W.A.No.1012/2007 before the Division Bench. The Division WP 41352/2001 7 Bench by its judgment dated 16.10.2008 dismissed the writ appeal. The matter was taken up before the Apex Court.
8. The question whether Section 11A of the Land Acquisition Act as introduced by the Central Act No.68/1984 can be read into the provisions of the BDA Act and also into the similar provisions contained in the Maharashtra Regional and Town Planning Act, 1966, came to be referred for consideration by the Constitution Bench. The Constitution Bench vide its judgment dated 18.01.2011 has held that the BDA Act is a self contained Code and the provisions introduced in the Land Acquisition Act by the Central Act No.68/1984 can be read into it only to a limited extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, but with a specific exception that the provisions of the Land Acquisition Act, in so far as they provide different time frames and consequences of default thereof, including lapsing of acquisition proceedings could not be read into the BDA Act. Section 11A of the Land Acquisition Act being one such provision, it is held, cannot be applied to the acquisitions under the BDA Act.
WP 41352/20018
9. Having answered the point regarding application of Section 11A to the acquisition under the BDA Act, the matter was placed for disposal before the bench for disposal on merits. Civil Appeal No.711/2011 arising out of SLP(c) No.14315/2009 came to be disposed of on 15.09.2011 by allowing the appeal. Having set aside the judgment of the Single Judge and the Division Bench of this Court, the Apex Court remanded the matter for consideration of the prayer for quashing the preliminary and final notifications by examining the grounds urged other than Section 11A of the Land Acquisition Act. It is in this background the matter has come up before this Court for consideration.
10. Learned Senior counsel Mr. A.K.Ganguly, appearing on behalf of the petitioner has advanced the following arguments.
i) The impugned Resolution dated 31-12-1997 passed by the Bangalore Development Authority (BDA) withdrawing its earlier resolution dated 28-6-1988 is in violation of rules of natural justice as no hearing had been given either to the original land owners or the petitioners before withdrawing the decision taken as per Resolution dated 28-6-1988 resolving to give up the land from acquisition. It is urged that the WP 41352/2001 9 impugned resolution which is passed nearly after 10 years from the date of the previous resolution to exempt the land from acquisition does not give any reason in support of the revocation of the earlier resolution. Reliance is placed on the Judgment of the Apex Court in the case of MYSORE URBAN DEVELOPMENT AUTHORITY VS VEERKUMAR JAIN - (2010) 5 SCC 791, to contend that revocation of the earlier resolution without hearing the affected person is opposed to the principles of Natural justice. To support the contention that in the absence of any reasons, the impugned resolution is vitiated, reliance is placed on the Judgment in KRISHNASWAMI VS UNION OF INDIA & OTHERS - (1992) 4 SCC 605 and also the decision in RAVI YASHWANT BHOIR VS DISTRICT COLLECTOR, RAIGAD & OTHERS - (2012)4 SCC 407.
ii) That the petitioner's legitimate expectation has been belied. To substantiate this contention it is urged that out of total extent of 2 acres 34 guntas of land acquired from the petitioner, an extent of 1 acre 2 guntas was resolved to be de-
notified as a part of an understanding whereby balance of 1 acre 32 guntas was acquired by the BDA without any objection by the land owners. The land owners were made to file a memo in the pending writ petition praying to withdraw the writ WP 41352/2001 10 petition because of the resolution resolving to de-notify the portion of the land. The memo disclosed the reason why the writ petition was being withdrawn. The BDA which was represented by a counsel did not object to the contents of the memo and agreed for dismissal of the writ petition by recording the memo. The writ petition was accordingly dismissed as withdrawn as per Order dated 22-9-1988. Thus the BDA created a legitimate expectation in the minds of the original owners that the lands in question were no longer subject matter of acquisition. This was strengthened by the Endorsement dated 11-3-1991 issued by the Deputy Commissioner (Land Acquisition), BDA certifying that the land in question was no longer under acquisition. In addition, when the land owners had sought permission of the BDA for constructing a culvert across the Storm Water Drain (SWD) in the lands, the Executive Engineer of BDA had permitted the same without any objection. In fact, it was on the basis of these assurances that the petitioners had purchased the land from the original land owners. These assurances were essential for the petitioners coming to the decision to purchase the lands. The petitioner is a registered company and no corporate entity would willingly purchase lands which were the subject matter of acquisition by WP 41352/2001 11 the government. In fact, after the petitioner came into possession of the lands, BDA had made a similar assurance to it in the form of permission it granted to continue with the construction of culvert/bridge. Such permission had been granted not only before the resolution dated 31.12.1997 had been passed, but also subsequent to it. In fact permission to the said effect had been granted to the petition as late as on 24.02.2001. Based on these facts learned Senior counsel dealing with the scope and ambit of the Doctrine of legitimate expectation has placed reliance on the judgment in UNION OF INDIA & OTHERS VS HINDUSTAN DEVELOPMENT CORPORATION & OTHERS - (1993) 3 SCC 499.
iii) It is further urged, on the strength of the facts mentioned herein above and the assurance and the promise attributed to the BDA in its conduct that the BDA was estoppel from acting contrary to its earlier resolution. Reliance is placed on the judgment of the Supreme Court in UNION OF INDIA & OTHERS VS GODFREY PHILLIPS INDIA LTD. - (1985) 4 SCC 369 and the decision in STATE OF PUNJAB VS NESTLE INDIA LTD. & ANOTHER - (2004) 6 SCC 465.
WP 41352/200112
iv) It is also urged that as the BDA being a party to the earlier writ petition, had agreed for the dismissal of the writ petition through their counsel by recording the memo filed by the land owners wherein the decision on the BDA to with draw the land from the acquisition had been mentioned, hence it was not permissible for the BDA to resile from its stand especially after a judicial order was passed in that regard. Dealing with the sanctity of assurances made by a party before a court leading to the dismissal of the writ petition the learned Senior counsel has referred to the decisions of the Apex Court in B.L.MANDAWAT & OTHERS VS UNION OF INDIA & OTHERS - (1993) 4 SCC PAGE 10 (Paragraph 20) and another decision in BALRAM SINGH VS BHIKAM CHAND JAIN & OTHERS - (1985) 4 SCC 246.
v) It is further urged that the action of the BDA resulted in violation of the mandate of Article 300A of the Constitution. Reliance is placed in this regard on the Judgments of the Apex court in K.T.PLANTATION PRIVATE LTD. & ANOTHER VS STATE OF KARNATAKA - (2011) 9 SCC 1 and in the case of CHAIRMAN, INDORE VIKAS PRADHIKARAN VS PURE INDUSTRIAL COKE & CHEMICALS LTD. - (2007) 8 SCC 705.
WP 41352/200113
vi) It is next urged the de-notification of the land is only a ministerial act and therefore once the BDA passed the resolution dated 24-8-1988 exempting the land from acquisition, the notification to be issued by the State would be only a ministerial act, non-performance of the same would not affect the resolution passed by the BDA which had been acted upon. In fact, it is contended by the petitioner that the BDA Act 1976 does not contemplate issuance of any such Notification as a necessary procedure for withdrawing the land from acquisition.
vii) Alternatively it is contended by the Learned Senior counsel that even assuming that such a ministerial act was required to be performed, the BDA/State Government ought to have performed the same as they could not defeat the accrued rights of the petitioners by not performing their statutory duty.
viii) It is next urged that the award which is said to have been passed on 9-3-1998 was in violation of Sections 9, 10 & 11 of the Land Acquisition Act and such an award passed after an unreasonable delay was non-est. There is a delay of 20 years in passing the award. Hence it is urged that even where a statute prescribes no time period within which the statutory WP 41352/2001 14 authority must exercise a statutory power, the same must be exercised within a reasonable period. Reliance is placed in this regard on the following judgments:
a) THE STATE OF GUJARAT VS PATEL RAGHAV NATHA & OTHERS - 1969 (2) SCC 187;
b) MANSARAM VS S.P.PATHAK & OTHERS - (1984) 1 SCC 125;
c) RAM CHAND & OTHERS VS UNION OF INDIA & OTHERS
- (1994) 1 SCC 44.
Particularly, the decision in RAM CHAND & OTHERS VS UNION OF INDIA is heavily relied to contend that irrespective of any time frame or schedule prescribed to complete the acquisition proceedings and even in the absence of Section 11A of the Land Acquisition Act the authorities are enjoined with a duty to perform their functions within a reasonable time.
ix) It is urged that possession of the land has continued with the petitioners and that the respondents have not taken over the possession as provided under Section 16 of the Act. In this regard reference is made to the permission accorded by the Asst. Executive Engineer, BDA on 24-1-2001 to continue with the construction of the culvert across the Storm Water Drain abutting the land in question. Had the land been in possession WP 41352/2001 15 of the BDA, question of according such permission to the petitioner would not arise. It is also urged that the subsequent communication dated 4-8-2001 of the AEE, BDA informing the petitioner about the withdrawal of the de-notification and calling upon the petitioner to remove the centering of the bridge also disclosed that possession of the land continued with the petitioner. Reliance is also placed on the judgment in PRAHLAD SINGH & OTHERS VS UNION OF INDIA & OTHERS - (2011) 5 SCC 386, particularly paragraphs 13 & 20 to contend that vesting of the land under Section 16 of the Act pre-supposes actual taking of possession and till that is done, legal presumption of vesting contained in Section 16 cannot be raised in favour of the acquiring authority.
x) It is also urged that as per Section 27 of the BDA Act 1976 the scheme has lapsed because there was lapse on the part of the BDA to execute the scheme substantially within 5 years from the date of publication of the declaration under Section 19(1) of the BDA Act which was gazetted on 31-8-1978. It is urged that even after lapse of 3 decades the scheme has not been implemented in respect of the land in question. Reliance is placed on the judgment of the Constitution Bench in OFFSHORE HOLDINGS PVT. LTD. VS BANGALORE WP 41352/2001 16 DEVELOPMENT AUTHORITY & OTHERS - (2011) 3 SCC 139, particularly paragraphs 37 to 39.
xi) It is lastly urged that as the development scheme has been formulated and notified by the BDA duly sanctioned by the State government under Section 18 and as Section 19(4) permits the BDA to make an alteration in the scheme, in terms of Section 21 of the Karnataka General Clauses Act, 1899 the BDA would be authorized to exercise the power of de-notifying the lands in question from acquisition.
11. Learned Senior Counsel Mr. Ananth Mandgi who also addressed arguments for the petitioner, contended that it is not necessary to go to the provisions of Section 48 of the Land Acquisition Act, in as much as, the BDA had the authority to pass Annexure-N - resolution in the light of Section 21 of the General Clauses Act. He refers to the objects of the BDA as contained under Section 14 and that the BDA Act, 1976, having been held to be a self contained Code, it was not necessary for the BDA to wait till a notification is issued under Section 48 of the Land Acquisition Act by the State Government. He has further pointed out that there was no justification for withdrawal of Annexure-N - resolution and the action of the WP 41352/2001 17 BDA in this connection is wholly illegal and unsustainable. In this regard, he has placed reliance on the judgment of the Division Bench in the case of M/S. VIJAYA LEASING LIMITED, BANGALORE VS STATE OF KARNATAKA & OTHERS - 2006(4) Kar.L.J. 126.
12. Learned Senior Counsel appearing for the BDA has urged the following contentions supporting the action of the BDA.
i) The competent authority for de-notifying the land is State Government and not the BDA.
ii) No right has accrued in favour of the original land owners or the purchaser-petitioner. Hence, question of violating the principles of natural justice does not arise.
iii) The resolutions passed by the BDA are in the nature of inter-departmental correspondences. Therefore no right is created by the said resolutions and no promise is made by the BDA so as to apply the principles of promissory estoppel and that doctrine of estoppel cannot be applied against the statute namely Section 48 of the Land Acquisition Act. WP 41352/2001 18
iv) That the award is passed on 9-3-1998 and possession has been taken on 7-4-1998 & 10-2-2000. Therefore the lands having already been vested in the State the same cannot revert back to the owner. The scheme has been upheld by the Division Bench of this Court and therefore it does not lapse. Even assuming that scheme lapses, acquisition will not be affected as the possession has already been taken over.
v) He has further contended that the endorsement issued by the Deputy Commissioner, BDA has no legal sanctity as he was not the competent authority to issue such an endorsement. Similarly the communications issued by the AEE, BDA regarding construction of a culvert had nothing to do with the land in question. Hence the principle of estoppel or legitimate expectation has no application.
vi) He has further contended that the writ petition originally filed in the year 1997 and also the present writ petition suffered from delay and latches.
vii) It is further urged by him that as per Section 36(c) of the BDA Act the land vests in the State Government after issue of Notification under Section 16 of the Land Acquisition Act. WP 41352/2001 19 Thereafter once the same is transferred by the State to the BDA it vests in the BDA. He, therefore, contends that the land did not belong to BDA when the resolution de-notifying the land was passed by the BDA. He has placed reliance on the Judgment of the Apex court in the case of RAGHBIR SINGH SEHRAWAT VS STATE OF KARNATAKA & OTHERS - (2012) 1 SCC 792 particularly on paragraphs 25 - 28 to contend that possession of the vacant land could be taken by drawing up a mahazar. He has also made attempts to show how the judgments cited by the counsel for the petitioner and the principles laid down there were inapplicable to the present case.
13. In the light of the facts which are apparent from the pleadings and the various contentions urged by the learned Counsel for the parties, what clearly emerges is, as admitted in paragraph 4 of the statement of objections filed by the BDA, Sy. No.9/2 of Lottegollahalli village measured 3 acres 17 guntas, 29 guntas out of the same was acquired by the Railways. In the remaining 2 acres 28 guntas of land, 34 guntas was utilized by the BDA for formation of outer ring road and 32 guntas was the built up area. The remaining area of 1 acre 2 guntas was sought for de-notification by the land owners. They had also WP 41352/2001 20 filed W.P.No.16065-69/1987 challenging the acquisition proceedings. Because of the resolution passed by the BDA on 28.06.1988 resolving to de-notify 1 acre 2 guntas of land in favour of the owners, the said writ petition was withdrawn on 22.09.1988 by filing a memo bringing to the notice of the Court the resolution passed by the BDA resolving to de-notify the land.
14. It is also not in dispute that the Deputy Commissioner (Land Acquisition), BDA, Bangalore, had issued an endorsement dated 11.03.1991 informing one of the land owners that the land in question measuring 1 acre 2 guntas was though notified for acquisition, was subsequently de- notified as per the resolution of the BDA dated 28.06.1988. The resolution of the BDA is at Annexure-D to the writ petition. Nearly seven years after the said resolution, the present petitioner purchased different portions of land under various sale deeds from the erstwhile owners. It is in this background, the Apex Court, while setting aside the orders passed earlier by the learned Single Judge and the Division Bench while remanding the matter for fresh consideration, has clearly observed that the principle that a purchaser after the date of WP 41352/2001 21 preliminary notification had no locus standi to challenge the acquisition was no doubt correct, but had no application to the facts of the instant case, as the appellant had apparently purchased the land after the BDA had represented that there was no acquisition in regard to the land in question and that it was withdrawn from acquisition.
15. In paragraph 12 of the order remanding the matter for fresh consideration, the Apex Court has observed that even if the withdrawal or de-notification was without authority of law, a bona fide purchaser who stepped into the shoes of the original owners, can still challenge the acquisition itself, as the earlier challenge to the acquisition was withdrawn in view of the specific representation held out by the BDA. It is in the wake of these observations made by the Apex Court in C.A.No.711/2011 vide order dated 15.09.2011, learned Senior Counsel Mr. Nanjunda Reddy appearing for the BDA has fairly contended that the BDA cannot agitate this question regarding locus standi of the purchaser-petitioner herein to maintain the writ petition.
16. The impugned resolution dated 31.12.1997 in Subject No.325/1997 passed by the BDA states that the note placed WP 41352/2001 22 before the authority was examined and after discussion it was resolved that the resolution dated 28.06.1988 exempting the lands in Sy. No.9/2 of Lottegollahalli village to an extent of 1 acre 2 guntas from the purview of land acquisition was withdrawn. It is clear from the records that the BDA after passing the first resolution in the year 1988 resolving to exempt the land from acquisition, had forwarded the papers to the State Government. There is nothing in the file of the BDA to show that the resolution passed by the BDA recommending exemption of the land was rejected by the Government. At Page No.102 (printed) of the BDA records, a communication of the Government dated 16.02.1993 is found. In that a reference is made to the letter dated 15.03.1992 of the State Government and it states that as no official report had been received from the BDA since long, the matter was treated as closed and if necessary, BDA could send fresh proposal. The letter dated 15.02.1992 of the State Government is found at Page No.108 (printed) of the BDA records. It is clear from this letter that the Government wanted to know whether possession of the land had been taken or not. No record is available to show whether at all any reply was sent to this letter of the Government and if it had been sent what was the information given. WP 41352/2001 23
17. Admittedly, possession of the land had not been taken and nothing prevented the BDA to inform the State Government about the said fact in response to the letter of the Government dated 15.02.1992. As the Government did not receive any communication from the BDA for nearly one year, on 16.02.1993, the Government has replied saying that the matter was treated as closed. The Government made it clear that fresh proposal could be sent, if necessary. The BDA did not take any steps even thereafter. Very strangely, without any change in the circumstances, during the year 1997 after lapse of nearly 10 years from the date of the previous resolution exempting the land and after lapse of nearly 20 years from the date of publication of the final notification dated 02.08.1978, the impugned resolution is passed withdrawing the exemption of land from acquisition without assigning any reason.
18. There is absolutely no material produced by the BDA either in the form of records maintained by it or by way of any stand taken in the statement of objections to show why they did not respond to the information sought for by the Government and why they kept quiet till the year 1997 to revoke the exemption granted. There is nothing to show why the BDA did WP 41352/2001 24 not inform the owners regarding their decision not to pursue the matter regarding de-notification of the land by the Government and why it allowed the land owners and the occupants to continue to occupy, enjoy and develop the land. This laxity on the part of the BDA which has remained unexplained coupled with its highly belated act of turn around to give a go by to its decision to exempt this land by resolving to revoke such exemption granted 10 years back, undoubtedly smacks of arbitrary, unreasonable and unfair action. The records disclose that the Government had no reservation in taking decision on the resolution passed by the BDA to de- notify the land. It only wanted to know whether possession had been taken, which information is obviously necessary to decide whether the land has to be de-notified by exercising the power under Section 48 of the Land Acquisition Act. Therefore, the impugned resolution passed by the BDA is illegal and unsustainable.
19. In the statement of objections, it is contended by the BDA that possession has been taken over on 07.04.1998 and 10.02.2000 and therefore the lands having already vested in the State, they cannot revert back to the owner nor can there be WP 41352/2001 25 any de-notification as per Section 48 of the Land Acquisition Act.
20. It is necessary to notice at this stage that the land owners had sought permission of the BDA for constructing a culvert across the storm water drain which is abutting the land in question. The Executive Engineer of BWSSB and the BDA permitted the same. This is evident from Annexures-H, G & J - correspondences produced along with the writ petition. The Assistant Executive Engineer, No.3, North Sub-Division, BDA, has given the permission to the petitioner herein, on condition that the design and drawing given by the petitioner gets approved by the BDA with a stipulation that ownership of the bridge, on completion, will have to be transferred to the BDA and necessary cleaning of the storm water drain at the bridge portion twice a year should be done at the cost of the petitioner. If the acquired land had been taken possession of, question of the petitioner who had purchased the land putting up any bridge or culvert to have access to the land would not have arisen and the Assistant Executive Engineer would not have accorded any permission to put up such a culvert. The fact that such permission was granted on 24.02.2001 vide Annexure-J WP 41352/2001 26 itself makes it clear that even after the impugned resolution passed by the BDA withdrawing the exemption granted and even after the alleged award which is said to have been passed on 09.03.1998, the possession of the land was not taken over. On the other hand, it continued with the petitioner. It is only on 30.08.2001 as per Annexure-L - communication, the Assistant Executive Engineer informs the petitioner about the resolution dated 31.12.1997 withdrawing the de-notification of the land, thereby calling upon the petitioner to remove the centering put by the petitioner to the bridge or otherwise BDA will remove the same. In this background, as rightly contended by the learned Senior Counsel for the petitioner, the assertion made by the BDA that possession had been taken by the BDA is totally baseless.
21. Even otherwise, as per Section 16(2) of the Land Acquisition Act, 1894, as amended by Karnataka Amendment (Mysore Act No.17/1961) with effect from 24.08.1961, after the Deputy Commissioner makes an award under Section 11, he may take possession of the land and thereafter the land shall vest absolutely in the Government free from all encumbrances. Sub-clause (2) provides that the fact of such taking possession WP 41352/2001 27 may be notified by the Deputy Commissioner in the official gazette and such notification shall be evidence of such fact. In the instant case, it is not the stand of the BDA that there is any such notification as per Section 16(2) issued by the competent authority and duly published in the gazette which could evidence the factum of taking possession. Therefore, in the absence of any such notification and in the wake of the materials produced by the petitioner in the form of permission granted in its favour to construct a culvert across a storm water drain abutting the land to gain access to the land, it is clear that the possession of the land has remained with the petitioner.
22. Therefore, once it is held that the impugned resolution revoking the earlier resolution exempting the land from acquisition is arbitrary and illegal and hence deserved to be set aside, the earlier resolution revives. No doubt, as the provisions of the Land Acquisition Act are made applicable to the extent provided in Section 36(1) of the BDA Act and as the acquisition is made by the State Government and the land will eventually vest in the State Government if once award is passed and possession of the land is taken, in order to delete the land from WP 41352/2001 28 acquisition, there has to be a notification under Section 48 of the Land Acquisition Act for de-notifying the land from acquisition before its possession is taken over. Therefore, in the normal circumstances, this Court would have issued necessary direction to the BDA and the State Government to take appropriate action in this regard.
23. However, such a course of action is not necessary in the facts and circumstances of this case having regard to the conduct of the BDA and the enormous delay in finalizing the acquisition proceedings and the fact that nearly 34 years have elapsed since the date of final declaration. The BDA having taken note of the fact that the land owners had parted with their lands for ring road and the remaining portion of the land involved in the present writ petition was required to be de- notified as it was found not necessary for the completion of the scheme, had exempted these lands. Neither the State Government nor the BDA have exercised their power of acquiring and making use of the same by taking over possession in accordance with the provisions of the Act within any reasonable period.
WP 41352/200129
24. As rightly contended by the learned Senior Counsel Mr. A.K.Ganguly, even where a statute prescribes no time period within which the statutory authority must exercise the statutory power, the same must be exercised within a reasonable period. He has rightly placed reliance on the decisions of the Apex Court in the case of THE STATE OF GUJARAT VS PATEL RAGHAV NATHA & OTHERS - 1969 (2) SCC 187; MANSARAM VS S.P.PATHAK & OTHERS - (1984) 1 SCC 125; and RAM CHAND & OTHERS VS UNION OF INDIA & OTHERS - (1994) 1 SCC 44. In the context of the present case where not only the respondents have not taken any action within a reasonable period for completing the acquisition proceedings by passing the award and taking over possession, but also that the BDA has indeed exempted the land and abandoned the same from the scheme while completing the scheme without taking over possession of the subject land. It cannot now turn around and urge that it required the land for the scheme. Therefore, the respondents cannot proceed further with the acquisition of the land after the lapse of nearly three decades.
25. The impugned resolution withdrawing the exemption of land from acquisition does not state for what purpose and use WP 41352/2001 30 the land was required for the BDA. The State has not come up with any definite stand urging that in the facts and circumstances of the case it required the land for its purpose to make use of the same for any public use. The assurance held out and the consent given by the BDA for withdrawal of the writ petition based on the resolution exempting the land from acquisition, estops the BDA from now contending that the land is required for its purpose. The authorities, vested with the power to acquire lands belonging to the citizens are required to act fairly, reasonably and within a reasonable time. The period of two decades in completing the acquisition proceedings viewed in the context of this case and of the conduct of the authorities cannot be termed as a reasonable period.
26. Hence, the writ petition is allowed. The impugned acquisition proceedings are set aside.
Sd/-
JUDGE KK