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25. The learned Counsel also urged that the creation of five planned parcels of land under the Scheme would immensely help the trading activities in the State and would be extremely useful for the citizens. The learned Counsel further pointed out that the land would be put to the industrial, commercial, residential, amusement or institutional purposes which would ultimately serve the public purpose. Lastly, on this question, the learned Counsel urged that it was a misnomer to say that the compensation was coming only from the private coffers of the Company. The learned Counsel also referred to the nature of the agreement i.e. the BOT contract. The contention raised was that a BOT contract, by its nature cannot be equated to or with an acquisition for a Company. According to the learned Counsel, all that the Government was doing was merely choosing a third party agency to implement the work of building, designing, financing or running the Project, and that the Government was utilizing the expertise and enterprise of a third party.

26. Our attention was also invited to two decisions of this Court concerning the BOT contracts and the allegations made relating to them. The decisions were State of Karnataka & Anr. Vs. All India Manufacturers Organization & Ors. [2006 (4) SCC 683] and Sooraram Pratap Reddy & Ors. Vs. District Collector, Ranga Reddy District & Ors. etc. etc. [2008 (9) SCC 552].

27. The first and foremost thing which we must keep in mind while deciding these matters is that at least in the present two matters (Balbir Singh's case decided on 5.10.2009 and Nand Kishore's case decided on 30.11.2009), the subject related only to the acquisition of few hectares of land as compared to the acquisition of large chunk which has not been challenged. Further, it is an admitted position that majority of the acquisition proceedings are over. In Balbir Singh's case also, the persons who challenged the Project, were 9 in number, owning about 7.09 hectares of land i.e. about 0.42% of the total land. It has been strongly argued on behalf of the State, the Company and YEIDA that the major activity of land acquisition process is over. It has been noted in Balbir Singh's case that out of the 12,315 affected farmers in 133 villages over the total area of 1,638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers out of such a large number of villages have raised the issues, leaving 139 farmers who had not taken the compensation. This is apart from the fact that only 9 Writ Petitioners came in that Writ Petition. The story in Nand Kishore's Writ Petition which was disposed of by the High Court alongwith other Writ Petitions is no different. The learned Counsel appearing on behalf of the appellants could not deny the fact that the total number of petitioners concerned in these acquisition proceedings, coming up before the High Court, was extremely insignificant as compared to those who had accepted the compensation. Of course, that by itself may not be the only reason to hold against the appellants (petitioners), however, that fact will have to be kept in mind while deciding the issues which cover the whole acquisition process, which acquisition is for the purpose of development of 25 million square meters of land. The High Court has also noticed this aspect. We have mentioned this aspect only with a limited objective of showing that the criticism against the whole scheme which would invalidate the acquisition would be difficult to be accepted, particularly in this case, in view of the fact that majority of the land owners have parted with possession, taken the compensation and thus, the whole scheme has progressed to a substantial level, wherefrom it will be extremely difficult now to turn back to square one.

36. The respondents then fall back upon the nature of the transaction, saying that since the whole transaction is on the BOT basis, the Government has merely chosen a third party agency to implement the Project instead of taking up itself the task of building, designing, financing or running the Project. It was pointed out that in such contracts, the assets did not go to the private enterprise which was chosen by the Government. On the other hand, the assets revert to the Government and, therefore, the BOT Project can never be akin to the acquisition of land for a Company under Part VII of the Act, where the land and the assets vest and belong to the Company. The respondents argued that when a BOT contract is tested in the light of the provisions of Part VII of the Act, as also the Land Acquisition (Companies) Rules, 1963, it would come out that there has to be an agreement between the State and the Company, which necessarily provides for the payment of cost of acquisition to the Government. It must entail the transfer of such land to the Company. Similarly, under Rule 5 of the Rules of 1963, the agreement must itself make provision that the land will be utilized only for the purposes for which it was acquired and if the Company commits breach of any condition of the agreement, the Government would be entitled to declare the transfer of land to it to be null and void, so also if the Company fails to utilize the entire land acquired, the unutilized portion would revert to the Government. The respondents argued that in a BOT contract, the land is only leased to a third party agency for the purposes of implementation of the Project. There is no occasion for declaring the transfer of land to be null and void. There would also be no occasion for reversion of the utilized land of the State Government. The respondents, therefore, argued that a BOT contract can never be contemplated as falling under Part VII of the Act.