Karnataka High Court
The Bangalore Development Authority vs C.B.C.I. Society For Medical Education on 9 March, 1998
Equivalent citations: ILR1998KAR2021
Author: S.R. Bannurmath
Bench: R.P. Sethi, S.R. Bannurmath
JUDGMENT S.R. Bannurmath, J.
1. The findings of the learned Single Judge in respect of applicability of Section 11A of the Land Acquisition Act to the B.D.A. proceedings has been mainly challenged in this appeal by the Bangalore Development Authority.
2. The brief facts necessary for consideration are as follows:-
Respondent No. 1 is a Society and respondent No. 2 is the Hospital run fey it. The land in dispute Sy.No.80 measuring 10 acres of Tavare kerel village, Begur Hobli, Bangalore South Taluka belongs to respondent Nos.1 and 2 herein. For the formation and implementation of Byrasandra Thavarakere Madivala Scheme (B.T.M.) under a preliminary notification dated 19.9.1977 under Section 17(1) & (3) of the Bangalore Development Authority Act (B.D.Act for short), the said land was proposed for acquisition by the B.D.A. Pursuant to this, final notification under Section 19(1) of the B.D.A. Act is issued on 7.2.1978. Though no objections were filed by respondent Nos. 1. and 2, on receipt of notices under Sections 9 and 10 of the Land Acquisition Act (L.A.Act for Short) for determining compensation in 1978-79, respondent Nos.1 and 2 objected the acquisition proceedings by filing objections and requested for dropping the acquisition proceedings. However the B.D.A. went a head and passed the award on 29.9.1994 and notification under Section 16(2) of the L.A. Act was also issued on 25.8.1995.
3. Aggrieved by these actions, respondent Nos. 1 and 2 approached this Court in W.P.No. 42586/95 inter alias contending that the award has been passed beyond the limitation prescribed under Section 11A of the L.A. Act and as such illegal and without jurisdiction that the entire acquisition proceedings are also liable to be quashed since respondent Nos. 1 and 2 were not issued or served with the mandatory notices including Section 12(2) of the Act; that the action of the B.D.A. in not taking any steps from 1978 to 1994 almost for a period of 16 years would show that initially having abondened the acquisition, suddenly walking up and passing award is illegal especially when there is non compliance of mandatory provisions etc. The appellant B.D.A. on entering its appearance contended that there are delay and laches on the part of respondent Nos. 1 and 2 in not filing objections to the preliminary and final notification and challenging the same after awards are passed" itself would be sufficient to dismiss the Writ Petition; that the provisions of LA. Act are not applicable to the present case as proceedings are exclusively under B.D.A. Act etc,
4. On considering these rival contentions the Learned Single Judge by the Order dated 30.8.96 held that the provisions of Section 11A of the Act are applicable in respect of acquisition pursuant to the notifications issued under the Act; that though the time limit prescribed under Section 6(1) are not applicable while issuing final notification under Section 19(1) of the B.D.A. Act, however keeping in view the decision of the Hon'ble Supreme Court in the case of RAM CHAND v. UNION OF INDIA 1994(1) SCC 451 held that three years period would be reasonable time gap from the date of preliminary notification to issuing of final notification and this direction is prospective in nature and the delay in approaching this Court would not come in the way of respondent Nos. 1 and 2 in getting the relief. As such the Writ Petition was allowed and the notification under Section 17(1) and (3) and 19(1) of the B.D.A. Act were quashed so also the award dated 29.9.94. Hence this Writ appeal.
5. The Learned Counsel appearing for the appellant B.D.A. challenging the order of the learned Single Judge argued in this appeal that Section 11A which is introduced in the L.A. Act in 1984 is not applicable to the present proceedings under the B.D.A. Act; that the Writ Petition was liable to be rejected in limine because of the latches and delay on the part of respondent Nos. 1 and 2; that the approach of the learned Single Judge was totally on erroneous view of the law and various decisions of this Court and the Hon'ble Supreme Court; that the quashing of the notifications by the learned Single Judge was erroneous when admittedly respondent Nos. 1 and 2 have not at all filed their objections to the preliminary or final notifications and no grounds are made out to show as to how they are illegal etc.
6. In view of these rival contentions following questions arise for our consideration :-
(a) Whether provisions and limitation under Section 11A of the L.A. Act is applicable to the acquisition proceedings under B.D.A. Act and if not what is the remedial measure in case there is a delay in passing the award? And
(b) Whether the Writ Petition is liable to be dismissed on the ground of delay and laches?
(a) In so far as first question is concerned the appellant's Counsel has, placed reliance mainly upon the recent decision of this Court in the case of KHODAY DISTILLERIES LTD., v. STATE OF KARNATAKA and the decision of the Hon'ble Supreme Court in the case of SATYA PAL v. STATE OF UTTARPRADESH . On the other hand the learned Counsel for respondent Nos. 1 and 2 relied upon the judgment of this Court in the case of G. NARAYAN REDDY v. GOVERNMENT OF KARNATAKA and in the case of GOWRISHANKAR GAUR v. STATE OF UP.
7. In the case of Khoday Distilleries which is a Division Bench decision to which one of us is party has after considering earlier judgments of this Court and the Hon'ble Supreme Court and analysing various provisions of both the Acts held that "provisions of Sections 6 and 11A of the Land Acquisition Act which provide for the period of limitation within which final notifications can be made and award could be passed was excluded from application to acquisition made under the B.D.A. Act by necessary implication. The rest of the provisions other than those relating to the issues of preliminary notifications, final notification or period within which the award should be passed and lapsing of proceedings under the B.D.A. Act, of the L.A. Act would certainly be applicable." This view has been now practically upheld by the Hon'ble Supreme Court in the case of SATYA PAL v. STATE OF UP. whereunder application of Section 11A of the L.A. Act to U.P. Awas Evam Vikas Parishad Adhinlyam (similar to B.D.A. Act) was held to be not applicable. In the case of NARAYANASWAMY REDDY v. GOVERNMENT OF KARNATAKA this question was not directly involved and decided by the Hon'ble Supreme Court. Similarly in the case of GOWRISHANKAR GAUR v. STATE OF U.P. the question involved was regarding application of Section 6 of the L.A. Act and not Section 11A which decision infact has been referred to in Satya Pal's case (1997) SC 2235). On the other hand considering the application of Section 11A of the L.A. Act to the Maharastra Regional and Town Planning Act and considering the principles regarding distinction between incorporation and adoption by reference in the case of STATE OF MAHARASTRA v. SANT JOGINDER SINGH KISHAN SINGH 1995 Supp(2) SCC 475 the Hon'ble Supreme Court held that the provisions are not applicable as only certain specific provisions have been incorporated. In view of this now settled principle, we have to hold that the provisions of Section 11A of the L.A. Act are not applicable to the acquisition proceedings under the B.D.A. Act..
8. This takes us to the next question that if Section 11A is not applicable, what is the remedial measure for the delay caused by the inaction of the Authorities. This aspect is also now well settled by the Hon'ble Supreme Court in the case of RAM CHAND v. UNION OF INDIA and AFLATOON v. LT., GOVERNOR OF DELHI . In these cases, though the Apex Court deprecated the inaction on the part of the Authorities held that taking into consideration the purpose of acquisition, the delay of land owners approaching the Courts, it would be proper to award additional compensation than to quash the notifications themselves.
9. In the present case also preliminary notification was dated 19.9.1977 and final notification on 7.2.1978. However, the award is passed on 29.9.1994 nearly 17 years later. But keeping in view the fact that the acquisition is for a large scheme called as B.T.M. Scheme whereunder thousands of acres of lands have been acquired and the scheme is substantially executed and the fact that though the notifications, are of the year 1977 and 1978, the respondents have approached this Court challenging the same only in 1995 after a period of 17 to 18 years that too after possession is taken on 15.12.1994 and notification under Section 16(2). is issued on 25.8.1995, while deprecating the inaction of the B.D.A. following the principles laid down by the Apex Court in RAM CHAND's case , we too feel that instead of quashing the notifications, and award, it would be just and proper to award additional compensation to the owners.
10. In so far as the delay and laches, on the part of the respondent Nos.1 and 2 is concerned no doubt they have approached this Court nearly .17 years after the notifications are issued and after 17 years of award being passed this delay and laches has to be considered along with the inaction on the part of the authorities who had to perform their statutory duty. In this regard once again observations of the Apex Court in RAM CHAND's case (supra) are relevant for consideration. The Hon'ble Supreme Court observed thus:-
"It is true that this Court has take note of delay on the part of the petitioners concerned in invoking the jurisdiction of the High Court or of this Court for quashing the land acquisition proceedings on the ground that the proceedings for acquisition of the lands in question have remained pending for more than a decade, in the case of AFLATOON v. LT. GOVERNOR OF DELHI and RAMJAS FOUNDATION v. UNION OF INDIA. According to us, the question of delay in invoking the writ jurisdiction of the High Court under Article 226 or of this Court under Article 32, has to be considered along with the inaction on the part of the authorities, who had to perform their statutory duties. Can the statutory authority take a plea that although it has not performed its duty within a reasonable time, but it is of no consequence because the person, who has been wronged or deprived of his right, has also not invoked the jurisdiction of the High Court or of this Court for a suitable writ or direction to grant the relief considered appropriate in the circumstances? The authorities are enjoined by the statute concerned to perform their duties within a reasonable time, and as such they are answerable to the Court why such duties have not been performed by them, which has . caused injury to claimants. By not questioning, the validity of the acquisition proceedings for a long time since the declarations were made under Section 6, the relief of quashing the acquisition proceedings has become inappropriate, because in the meantime, the lands notified have been developed and put to public use. The lands are being utilised to provide shelter to thousands and to implement the scheme of a planned city, which is a must in the present setup. The outweighing public interest has to be given due weight. That is why this Court has been resisting attempts on the part of the landholders, seeking quashing of the acquisition proceedings on ground of delay in completion of such proceedings. But, can the respondents be not directed to compensate the petitioners, who were small cultivators holding lands within the ceiling limit in and around Delhi, for the injury caused to them, not by the provisions of the Act. but because of the non-exercise of the power by the authorities under the Act within a reasonable time?"
and thus condoning the delay the Hon'ble Supreme court has directed remedial steps.
11. Though the decision in RAM CHAND's case is under the provisions of the Land Acquisition Act. the principles and guidelines and suggestive remedy are squarely applicable to the present case and as such while setting aside the order of the learned Single Judge in respect of findings regarding application of Section 11A of LA. Act in acquisition proceedings under B.D.A. Act and further direction of quashing the awards and notifications impugned we hold that (i) provisions of Section 11A of the L.A. Act are not applicable to the acquisition made under B.D.A. Act; (2) We deprecate the inaction on the part of the B.D.A. for its inaction and delay in passing award but keeping in view the purpose of the acquisition, the delay of the land owners approaching the Court and the rights created in third party, quashing of award and notifications would not be appropriate and instead award of additional compensation at 12% per annum for the period from 7.2.1978 to 29.9.1994 (delay period from final notification to passing award) would be an appropriate relief. Hence, we direct that appellants to pay the additional amount of compensation to be calculated at the rate of 12% per annum from 7.2.1978 to 29.9.1994, to be calculated with reference to market value of the land in question on the date of the preliminary notification i.e., 19,9.1977.
The Writ Appeal is disposed of accordingly. However, in the circumstances of the case, there shall be no order as to costs.