Karnataka High Court
Mrs. Latha U. Kamath And Ors. vs The Commissioner, Bangalore ... on 29 January, 2003
Equivalent citations: ILR2003KAR1604, 2003 AIR KANT HCR 2010, 2003 A I H C 1496 (2003) 2 LACC 237, (2003) 2 LACC 237
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER--STATING THAT LANDS USED FOR NURSERIES BE EXEMPT FROM LAND ACQUISITION FOR ITS DEVELOPMENT SCHEMES BY THE B.D.A. Whether such circular/Government order is binding on the BDA? Held: If the Circular has been acted upon by the BDA in the same notification then it is for the State Government to consider the matter as such. Such specialized knowledge is only within realm of the State Government. (B) LAND ACQUISITION ACT, 1894 (CENTRAL ACT NO. 1 OF 1894)--SECTION 48 - Can the concerned authority withdraw from acquisition of the lands, if possession was not taken. Held : It is for the State Government to determine whether the possession has been taken by the BDA and Section 48 gives liberty to the State Government to withdraw from acquisition any land on which possession has not been taken. WA disposed off with certain observations. JUDGMENT Kumar Rajaratnam, J.
1. By consent of the learned Counsel appearing for the parties, these Writ Appeals are taken up for final disposal.
2. Since both the writ appeals arise out of the same acquisition and raise the same points of law, a common order is passed in both the Writ appeals.
3. The appellants being the land owners questioned the preliminary and the final notifications dated 29.12.1988 and 9.5.1994 respectively and to declare the same as illegal and not binding on the petitioners. In the Writ Petition No. 20621/1998, the question related to 7 acres 21 guntas of land situate in Sy.No. 88/2 of Uttarahalli, Bangalore South Taluk. In Writ Petition No. 21786/1998, the question related to 2 acres 30 guntas situate in Sy.No.88 of Uttarahalli, Bangalore South Taluk. The learned Single Judge in two separate orders dated 5.8.1998 dismissed the Writ Petitions Nos. 20621/1998 and 21786/1998 on the ground that the petitioners in Writ Petitions approached the Court belatedly and the Writ Petitions were liable to be dismissed on the ground of delay and laches.
4. The learned Single Judge relied on the decision of the Supreme Court in both the cases in LARSEN AND TOUBRO LIMITED v. STATE OF GUJARAT, . Liberty was granted, however, to the petitioners in the Writ Petitions to challenge the bulk allotment for Group Housing Scheme in a separate petition. Liberty was also granted to the petitioners to approach the Government or the Bangalore Development Authority (hereinafter referred to as the BDA) for such other remedies as available in law in respect of the lands against which the declaration is being made. With these observations, the Writ Petitions were disposed of.
5. Aggrieved by the Order of the learned Single Judge, the land owners are before us in these appeals.
6. The question that arises for consideration is whether the Writ Petitions are barred on account of delay and laches and if so whether the State Government under Section 48 of the Land Acquisition Act, 1894, is at liberty to withdraw from acquisition of the said lands, if possession, was not taken.
7. Before we deal with the facts of the case. It would be necessary to refer to Section 48 of the Act. Section 48 reads as follows:-
"Completion of acquisition not compulsory, but compensation to be awarded when not completed:- (1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section".
8. Coming to the facts of the case, it can be briefly stated as follows:
One M. Umanath Kamath was the owner of the said lands in Sy.No. 88/2 and 88/3 of Uttarahalli, Bangalore South Taluk in all measuring 7 acres 21 guntas. It is stated that Umanath Kamath raised a Nursery of Horticultural plants and seeds. It is stated that he had got installed borewells and pumpsets in the said lands and also constructed a Farm House. After his demise, the appellants are using the said land for the purpose of nurseries. It is also stated that the R.T.C. records and pahani extracts also indicate that the said lands are used as a nursery of Horticultural plants and seeds and the nursery came to be known as "Kamadenu nursery" Coconut trees and lime trees were also planted in the said land. Even after the demise of Umanath Kamath, the appellants continued to use the said lands as a nursery.
9. Respondents-1 and 2 sought to acquire the lands for the purpose of forming of a Lay Out called Banashankari V Stage. A Preliminary notification under Section 17 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the BDA Act) was issued on 29.12.1988.
10. At this stage, it would be necessary to refer to the main thrust of the argument of Sri G.V. Shantharaju, learned Senior Counsel for the appellants. It was submitted by him that a Government Order was issued exempting the lands used as nurseries from the Land Acquisition Proceedings by the B.D.A. This order passed by the Government of Karnataka is before this Court as Annexure-G. Since the entire case rest on whether this order is binding on the B.D.A. or not, it would be relevant to extract Annexure-G. It reads thus:-
"PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA SUBJECT- Exempting the nursery lands from Acquisition by Bangalore Development Authority.
PREAMBLE:
The question of exempting nursery and garden land from acquisition by Bangalore Development Authority for the purpose of its scheme has been examined on the petition by Nurserymen Co-operative Society Limited, Lalbagh, Bangalore-4 made to the Hon'ble Chief Minister. They have urged that these professional people have been following this profession for over decades in this State and making all round efforts for the development of Horticulture, Fruit, Orchards, Plantations, Speicos, Lawns and Gardens. They have also invited the attention to Government Order No. HUD 91 CGL 78 dated 15.11.1978, wherein indiscriminate acquisition of lands of Nurserymen denying their livelihood would work hard on them. They also drawn the attention to the resolution No. 834 of Bangalore Development Authority, dated 5.9.1985.
Wherein the notified areas the coconut trees, grapes and other fruit trees was not grown. It is decided that these lands have to be reconveyed to the land owners under the following conditions:
a) The land owners shall not change the uses of the land and shall not change the nature of land.
b) The land owners shall not put up any construction without the permission of B.D.A.
c) The land shall not be alienated to any person without prior permission of B.D.A.
d) Priority shall be given to B.D.A. if the land owner wants to sell the lands. If B.D.A. granted permission to sell the lands subject to the above conditions.
(a) B.D.A. has got power to take back the lands if any one of the conditions violated by the owners of the lands.
Therefore, they have requested the Government to kindly denotify the Nursery land from acquisition by BDA or K.H.B., and to exempt them under Urban Land (Ceiling and Regulation) Act, 1976 for continuing this profession.
The matter has been examined further by Chief Minister at a meeting taken by him on 22.10.1986. It has been decided at the meeting that Nurseries should be permitted to continue on their activities and necessary orders may be issued stating that if the owners discontinue to use these lands for nursery, they will be acquired by Bangalore Development Authority. Exemption to garden land other than Nursery they will be acquired by Bangalore Development Authority. Exemption to garden land other than Nursery from acquisition by Bangalore Development Authority over was not been agreed to Nursery has been defined as:
"The place where Horticulture plants and seeds are in the regular course of business propagated for the purpose of sale but does not include a Horticultural Nursery belonging to or managed by the State or Central Government."
ORDER NO: HUD 478 MNX 86, BANGALORE DATED 1st January 1987 Government have further examined the request and hereby order that the lands used for nurseries be exempt from Land Acquisition for its developmental schemes by the Bangalore Development Authority. If the owners of these nurseries discontinue to use those lands for nurseries, the lands will be acquired by the Bangalore Development Authority.
This order shall come into force with immediate effect and untill further orders.
By Order and in the name of the Governor of Karnataka Sd/-
(C. VENKATAIAH), UNDER SECRETARY TO GOVERNMENT, Housing and Urban Dev. Department.
(emphasis by the Court) From a perusal of this order, it appears that the State Government had exempted nurseries from acquisition. These directions were issued to the B.D.A. A question will also arise whether this circular is binding on the B.D.A.
11. We shall now revert to the facts of the case.
12. Pursuant to preliminary notification issued under Section 17(1) of the B.D.A. Act, which was published in the newspaper on 23.11.1989, the deceased Umanath Kamath on 8.12.1989 submitted his objections which reads as follows:-
From :
M. Umanath Kamath, 115, VI Main, V Block, Jayanagar, Bangalore-560 041.
To, The Commissioner, Bangalore Development Authority, Bangalore.
Dear Sir, Ref:- Your notice under Section 17(1) and 5 of B.D.A. Act 1976 vide No. BDA/Commr/SLAO/A/324/89-90 published in Deccan Herald dated 23.11.89.
Sub:- Suvey No. 88/2 of Uttarahalli Hobli, Uttarahalli Village, Bangalore South Taluk area 7 acres, 21 guntas.
I, M. Umanath Kamath, S/o Late M.H. Kamath, 115, VI Main, V. Block Jayanagar, Bangalore 560 041. I am hereby filing this statement of objections to your proposal to acquire my aforesaid land.
1. The total area including phut kharab is 7 acres, 21 guntas i.e., 6 acres 34 guntas + 27 guntas of phut kharab.
2. I have developed this land over the last nearly 10 years spending and investing a lot of money and running a Nursery of Horticultural plants and seeds. The Nursery is known as KAMADHENU NURSERY'.
3. I have got a bore well drilled, a pump set installed, a big water tank built and laid galvanized steel pipes for irrigating the Nursery.
4. I have also fenced the land all round and provided partly compound wall and gate for protection. A house for watchman, a godown for storage of seeds, a room for implements and manure and a shed for bullocks etc., have been built long back with proper permission from the village authorities.
5. For purposes of shade and also green manure, I have planted various trees.
6. In order to develop coconut and lime seedlings, I have also planted good number of coconut and lemon trees, which are now yielding.
7. I spent and invested a lot of money on this Nursery, in order that it would give me good returns over the years and be the main source of income for me and my family's livelihood.
8. I never had any intention of selling this land or converting it to housing or other purposes.
9. If the BDA or any other Governmental authority were to go ahead with the proposal to acquire the land, I would be put to a lot of hardship and loss.
I am enclosing herewith photostat copy of the certificate of record of rights and pahani for the year 1987-88 and 1988-89 dated: 11.11.1989, wherein it has been clearly recorded that land has been used for purposes of Nursery. I am also enclosing a few photographs of the place for your reference.
In view of my aforesaid objections, I request you to delete my land measuring 7 acres 21 guntas from the list of properties proposed to be acquired by you and permit me to continue with my Nursery activities.
If any additional information/ details are required, I shall furnish on hearing from you.
Thanking you, Yours faithfully (M. UMANATH KAMATH) ENCLA/A"
13. It appears that the deceased Umanath Kamath at the very outset had filed his objections based on the Circular issued by the State Government to exempt those lands which are developed as a nursery of horticultural plants. It is not in dispute that the said objections were received by the B.D.A.
14. However, it is the case of the B.D.A. that the objections were considered and overruled and final notification under Section 19 of the B.D.A. Act came to be issued on 9.5.1994 as per Annexure-K.
15. In the meanwhile, the deceased Umanath Kamath passed away and the wife of Umanath Kamath, who is one of the appellant before us, wrote a letter on 5.8.1994 once again requesting the respondents to drop the acquisition proceedings on the ground of the Circular exempting nurseries. The said Umanath Kamath died on 19.3.1995 leaving behind his wife and children, who are the appellants before the Court. The final notification was issued on 9.5.1994 under Section 19 of the B.D.A. Act and the Writ Petitions were filed on 5.8.1998 after a lapse of almost four years.
16. The delay was sought to be explained by stating that the deceased Umanath Kamath passed away on 19.3.1995 and his wife the first appellant was under the impression that the objections filed by her husband would be considered and that the notification pertaining to bulk allotment was issued only on 20.6.1998 and the appellants requested for a copy of the notification and her request was refused by the B.D.A. and as soon as the notification for bulk allotment was issued in the year 1998. The petitioners filed Writ Petitions on 5.8.1998.
17. When these appeals came up for admission the Division Bench of this Court had passed certain interim orders.
18. On 27.10.1998 notice was ordered to the respondents in the Writ Appeals and Status quo order was passed by this Court.
19. On 14.9.1999 the B.D.A filed its objections on 10.1.2000, the Division Bench of this Court directed the appointment of a Commissioner to inspect the land and submit a report. The Order reads as follows:
"There is a dispute as to whether entire land is being used for nursery. We think it proper to appoint a Commissioner to inspect the land and to submit report.
Smt. Subhashini K. Reddy No. 4, Kenchappa Road Cross, (Off: Budha Vihar Road), Frazer Town, Bangalore - 5 is appointed as Commissioner for that purpose. She shall inspect the land in question after issuing notice to all the parties and submit a report to this Court.
Commissioner's fee is fixed at Rs. 2,500/- to be paid by the appellant".
20. On 6.3.2000, after hearing both sides, another interim order was passed directing the appellants not to change the nature of the land. On 1.6.2000, the Commissioner's report dated 7.2.2000 was placed before the Court. On 20.6.2000, an interim order was passed directing the appellants to maintain the land in question as a Nursery and not to put up any construction of whatever kind. These interim orders may have some bearing on whether "possession" has been taken or not. The Commissioner's report indicated that the land in question was being maintained as a Nursery.
21. Mr. Nazeer, learned Senior Counsel appearing for the B.D.A. submitted that the Commissioner's report is one sided and the findings given by the Commissioner has to be rejected outright.
22. Be that as it may, it cannot be denied that this interim orders except the first Interim Order dated 27.10.1998 was passed in the presence of the counsel for the B.D.A. We are referring this interim orders only to understand for ourselves whether possession has been taken by the B.D.A. and whether the land has vested in the B.D.A.
23. Mr. Nazeer, the learned Senior Counsel for the B.D.A. vehemently submitted that the proceedings for acquisition was in the year 1988 and the Writ Petitions have been filed after a decade in the year 1998 and the Writ Petitions are liable to be dismissed at the threshold.
24. Reliance was placed on the often quoted Judgment of the Supreme Court in M/S. LARSEN AND TOUBRO LIMITED'S CASE reported in 1998 SCC 1608. The Supreme Court pronounced that it has been repeatedly held that Writ Petition challenging the notification issued under Section 4 & 6 of the Act is liable to be dismissed on the ground of delay and laches if challenging is not made within a reasonable time. Challengers to acquisition proceedings cannot sit on the fence and allow the State to complete the Acquisition proceedings and that would be putting a premium on the dilatory tactics.
25. It was further submitted that large extent of land measuring over 100 acres have been notified including the lands in question for the formation of layout called Banashankari V Stage. Pursuant to the preliminary Notification under Section 17 of the B.D.A. Act notice was ordered to the deceased Umanath Kamath and he has filed his objections on the ground that the land is a garden land. It is submitted Special Land Acquisition Officer considered the objections and overruled the objections on the ground that the land in question was notified for public purpose. For implementation of scheme final Notification was also issued under Section 19(1) of the B.D.A. Act. After issuing final declaration in the year 1994 notices were fixed on the land in question. Since the deceased was not residing on the land in question, public notices were issued in the News paper on 21.7.1994. In response to the public notice, the deceased Umanath filed his objections on 5.8.1994. He once again requested the respondents to drop the Acquisition of land as it was being used as a nursery. After considering the same an Award has been passed on 4.3.1996, it was also submitted that after passing of the Award possession of the land was taken. Subsequently also a notified Khatedar i.e., wife of the deceased Umanath Kamath, Mrs. B.N. Shubha Appellant in W.A.No. 4215 of 1998 also filed objections to delete the land on the ground that they have maintained the land as nurseries and spent huge sum of money for developing the land for horticultural purposes. The objections of the notified khatedar i.e., Mrs. B.N. Shubha Appellant in W.A.No. 4215 of 1998 was placed before the Authority and the same was overruled by the Authority on the ground that it is notified for public purpose. It was further submitted that the entire acquisition proceedings were completed in accordance with law.
26. Mr. Nazeer, the learned Senior Counsel for the B.D.A. vehemently submitted that the appellants are small holders of the land in question and no relief can be granted by the Court since the land has been acquired for a public purpose. With respect to the challenge in the objections filed by the deceased Umanath Kamath and subsequently his wife Mrs. Latha U Kamath it was submitted that the Government Circular exempting nursery lands cannot be sustained in law on the ground that issuance of Executive Order is not a bar under the Act for acquiring the land in question. In these circumstances it was submitted that (a) circular is not binding on the B.D.A. (b) the Writ Petitions are liable to be dismissed on the ground of delay and laches.
27. Mr. G.V. Shantharaju, learned Sr. Counsel submitted that circular at Annexure 'G' has been acted upon by the respondents with respect to certain lands which was sought to be acquired under the same notification. He submitted that on the basis of the circular at Annexure 'G' certain lands owned by Dr.L.S. Ravi Prakash in Survey No. 190/1, 190/2 and 191 of Halaguvadera Halli, Bangalore South Taluk was exempted and deleted on the ground that they are nursery lands. It was further submitted that the materials were placed before the respondents at Annexure 'C' 'D' and 'E' and which indicated that the RTC and Pahani extracts clearly describe the land as nursery land attracting the exemption under Annexure 'G' the Government circular. Another example cited by Mr.G.V. Shantharaju was that certain lands belonging to Smt. Suman Bhojaraj in the impugned notification measuring 4 acres 29 guntas in Survey No. 13 of Uttarahalli Bangalore South Taluk were exempted on the ground that they were nursery lands. Yet another example was given of a case belonging to Sri Manmohan Attavar measuring 20 acres 38 guntas in Survey Nos. 199, 200, 201 and 209 of Halagaevaderahalli village, Bangalore South Taluk which was deleted on the ground that they were nursery lands. Once again Respondent No. 3 by its Notification dated 24.9.1997 withdrew the acquisition proceedings of nine items of small extent of lands belonging to private parties as per Annexure IV. These details were produced in the Writ Appeals by Mr. G.V. Shantharaju on the ground that the Writ Petitions of the Appellants were dismissed in limine and he did not have the opportunity to bring it to the notice of the learned Single Judge. They are before this Court as Annexures I to V. By this, it was submitted that the Appellants had been subjected to hostile discrimination and such action in discriminatory and violative of Article 14 of the Constitution of India.
28. It was further submitted that the B.D.A. has acted on the circular issued by deleting the lands in the same notification on the ground that the lands were being used as a nursery. Therefore it cannot be said by any stretch of imagination that the circular issued by the State Government which has been addressed to the B.D.A. is not binding on the B.D.A. It was further submitted that even at the earliest point of the time, the deceased Umanath Kamath had filed his objections stating that the land is being used as a nursery and there has been no clear stand by the B.D.A. that this aspect of the matter has been considered by the B.D.A. All that the B.D.A. states in its objections was that the objections were considered and overruled. Whether this aspect of the matter with respect to the circular was actually considered or not does not find a place in the records. Even Sri Nazeer, learned Senior Counsel for the B.D.A. was not able to satisfy the Court that this aspect of the matter was considered by the respondents but submitted that there was subjective satisfaction of the respondents even though no specific reference has been made to this aspect of the matter.
29. it was submitted that it is not open to this Court to verify the subjective satisfaction rendered by the respondents.
30. It appears to us, prima facie, that if the circular has been acted upon in the same notification with respect to other lands then by inference the circular is binding on the B.D.A. since it is a circular issued by the State Government to the B.D.A. with respect to exemption of land that are being used as a nurseries.
31. Perhaps it is not necessary to dwell on the object of circular but it cannot be ruled out that the object of the circular was to preserve as many pieces of land as garden lands for the purpose of lung space in the city of Bangalore and to prevent indiscriminate high rise buildings coming up in this Beautiful City of Bangalore. We are, however, not concerned with the objects or the reasons behind such circular. The only question is whether such circular is binding on the respondents. We express no opinion on this matter but if the Circular has been acted upon by the B.D.A. in the same notification then it is for the State Government to consider the matter as such. Such specialized knowledge is only within realm of the State Government.
32. The Supreme Court had occassion to consider a similar situation in the case of OMPRAKASH AND ANR. v. STATE OF U.P. AND ORS., . The Supreme court in that case was dealing with a situation where Section 5-A inquiry under the provisions of the Land Acquisition Act can be dispensed with under the urgency provision under Section 17(4) of the Act read with Section 5(A).
33. The Supreme Court in that case also dealt with the situation even in a case where there was no justification for dispensing with an inquiry under Section 5-A of the Act whether it was proper to set aside the acquisition proceedings the whole-hog.
34. The Court dealt with two points which arose for consideration. They were as follows:
(1) Whether the State authorities were justified in invoking Section 17(4) of the Act for dispensing with inquiry under Section 5-A of the Act.
(2) In any case, whether the appellants' lands have to be treated as immune from acquisition proceedings on the ground that they were having abadi thereon and were, therefore, governed by the policy decision of the State of U.P. not to acquire such lands.
35. With respect to 1st point, the Supreme Court after exhaustively dealing with the pronouncements of the Court answered in the negative in favour of the land owners and held that in the light of the aforesaid discussion the conclusion becomes inevitable that the action of dispensing with the inquiry under Section 5-A of the Act in those cases was not based on any real and genuine subjective satisfaction depending upon any relevant data available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5-A inquiry by resorting to Section 17 Sub-section (4) thereof.
36. This was a case where Section 4(1) notification read with Section 17(4) was issued on 5.1.1991 on the ground that the land was essentially required for the planned development in the District of Ghaziabad through NOIDA. However, inspite of the urgency the declaration under Section 6 was made on 7.1.1992.
37. The Supreme Court pronounced that the State itself has taken more than 9 months after 4(1) notification read with Section 17(4) in issuing a declaration under Section 6 of the Act. The Supreme Court has held that the conduct of the respondent falsified the claim of the State for the urgency of acquisition.
38. Having held that the acquisition was bad in law in answering the points at paragraph-25 of the judgment in favour of the land owners the Supreme Court declined to interfere with the acquisition proceedings on the ground that it is neither advisable nor feasible to interfere with the acquisition proceedings when only 1/10th of the land was subject to challenge.
39. In this case also we are of the view that there was no proper application of mind by the respondents with respect to whether the Circular at Annexure-G has been considered by the respondents and whether this Circular is binding on the respondents. However, it would not be appropriate to set aside the acquisition proceedings, since the appellants have approached this Court belatedly.
40. The second point dealt with by the Supreme Court reads as follows:
"2. In any case, whether the appellants' lands have to be treated as immune from acquisition proceedings on the ground that they were having abadi thereon and were, therefore, governed by the policy decision of the State of U.P. not to acquire such lands".
41. The question before the Supreme Court was whether the State had exempted from acquisition of lands that were having abadi thereon was answered by the Supreme Court by relegating the appellants to approach the State Government.
42. The background of the cases which was dealt with by the Supreme Court on the second point was almost the same as it is before us and we shall take the same route as that taken by the Supreme Court.
43. The Supreme Court dealt with a situation where there was a State policy of not acquiring lands which had abadi on it. Abadi is a term of art which refers to village site lands utilised for residential purposes and there was a State policy adopted by the State of Uttar Pradesh not to acquire lands on which there is abadi namely village site lands having residential construction thereon. (The word 'Abadi' appears to be an Urdu word which translated in English means Township (Basti) fully developed, a place where people go and reside with all the amenities.)
44. The Supreme Court while relegating the parties to approach the State Government under Section 48(1) of the Act directed the State to satisfy itself whether following conditions were fulfilled:
(i) Whether there was any abadi on the acquired lands at the time of Section 4(1) notification;
(ii) Whether such abadi was a legally permissible abadi;
(iii) Whether such abadi has continued to exist till the date "of representation;
(iv) Whether such abadi was covered by any government policy in force at the time of issuance of Section 4(1) notification and/or Section 6 notification for not acquiring lands having such abadi;
(v) Whether such government policy has continued to be in force tilt the date of representation.
45. In fact the Supreme Court left the entire matter at large for the consideration of the State on a representation being made by the land owners. The Supreme Court also directed the parties to maintain status-quo, pending representation being given to the State Government.
46. Ultimately the Supreme Court did not choose to quash the acquisition proceedings, but on the question of State policy left the matter to be determined by the State Government in accordance with law.
47. In the case presently before us the situation is more or less the same. Annexure-G the Circular issued by the State Government which appears to prohibit the acquisition of lands which is being used exclusively as a nursery. Enough materials have been placed to prima facie satisfy the Court that in the same notification other lands which had nurseries were deleted from the acquisition proceedings. However our opinion is only prima facie, since the Annexures produced before the Court whereby the lands were deleted on the grounds that the lands were being maintained as nurseries will have to be verified by the State Government and the State Government is also required to verify whether under the same notification other lands were exempted on the basis of the circular.
48. The learned Single Judge while disposing of the Writ Petitions has also given liberty to the appellants to approach either the Government or the Bangalore Development Authority for such other remedies as available in law in respect of the said lands in question. This portion of the Order has not been appealed against by the Bangalore Development Authority or the State Government. It is only in this context, we have chosen to deal with this matter by assigning reasons and on the basis of the judgment rendered by the Supreme Court in OM PRAKASH'S CASE (1998) 6 SCC.
49. We are also prima facie of the view that in view of the interim orders granted by earlier Benches of this Court in the writ appeals in the presence of the BDA the possession appears to be still with the appellants. The Court Commissioner's report also appears to be of the same view. However, whether possession has been taken or not is a disputed question of fact and it is for the State Government to determine whether the possession has been taken by the BDA.
50. On the factual aspect of possession we are not inclined to give any finding and leave it to the State to deal with it in accordance with law. Right at the outset we had extracted Section 48 of the Act. Section 48 gives liberty to the State Government to withdraw from acquisition any land on which possession has not been taken.
51. In these circumstances, we direct the appellants to make a representation to the State Government within three weeks from the date of receipt of this Order and the State Government shall consider the following matters:-
(i) Whether there were any nurseries on the acquired lands at the time of Section 17 notification;
(ii) Whether such nurseries were a legally permissible nurseries;
(iii) Whether such nurseries have continued to exist till the date of representation;
(iv) Whether such nurseries were covered by any government policy (Annexure-G)in force at the time of issuance of Section 17 notification and / or Section 19 notification of the B.D.A. Act 1976 for not acquiring lands having such nurseries;
(v) Whether such Government policy (Annexure-G) has continued to be in force till the date of representation.
52. The State Government which is a final authority shall determine these issues and pass orders in accordance with law as expeditiously as possible on the basis of the representation if possession has not been taken. Pending disposal of the representation, interim orders granted by this Court shall enure to the benefit of the appellants. If no representation is made within the stipulated time the interim orders granted by the earlier Division Benches of this Court shall stand vacated.
Accordingly these Writ Appeals are disposed of. No order as to costs.