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             REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3600 OF 2011

M/S. VINAYAK HOUSE BUILDING COOPERATIVE SOCIETY LTD.      … APPELLANT  

VERSUS

THE STATE OF KARNATAKA  & ORS. … RESPONDENTS

WITH  

CONTEMPT PETITION (C) NO. 823 OF 2018 IN

CIVIL APPEAL NO. 3600 OF 2011

J  U  D  G  M  E  N  T

S.ABDUL NAZEER, J.

1. "Bangalore was a beautiful city – once" said Justice O.

Chinnappa Reddy, in one of his judgments of the year 1987

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(B.K. Srinivasan and Ors. v. State of Karnataka and Ors.1).

He went on to say "It was a city with magic and charm, with

elegant avenues, gorgeous flowers, lovely gardens and

plentiful  spaces.  Not  now. That was before  the  invasion of

concrete and steel, of soot and smoke, of high rise and the

fast buck. Gone are the flowers, gone are the trees, gone are

the avenues, gone are the spaces……"  Indeed, Bangalore was

a beautiful city. It had  luscious  gardens, beautiful lakes,

well­laid  roads, plenty of open spaces and wonderful weather

throughout the year.   It was one of the most beautiful cities

in the country.  It was rightly called the "Garden City" and a

"Pensioner's  Paradise".   These  are things  of the  past.  The

city's environment is degraded so much and so fast that the

time will not be far away for us to say "once upon a time

Bangalore was a beautiful city." Traffic jams, over­crowding,

haphazard constructions, dying lakes, destruction of the

flora, shrinking of lung spaces etc have become the order of

the day.   Its clear cool foggy air has turned into grey smoke

1 1(1987) 1 SCC 658)

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and brown dust.   All this has  happened in the  name of

development.  Of course, the  development in today's time

comes at a cost that the city of  Bangalore has very dearly

paid. What is lost has already been lost and no amount of

work or  effort  can bring back  the  glorious garden days  of

Bangalore.  The only thing that can be done and must be

done is to at least  wake up now,  meticulously plan and

develop the city in order to maintain whatever little is left of

the old Bangalore city and develop the ever­growing city on

the broad lines of the glorious days of the past.

2. Keeping the above in mind as a blue print, let us come to

the facts of this case.

3. The appellant is a society registered under the Karnataka

Co­operative  Societies Act  1959,  with  the objective of  inter

alia  acquiring lands for formation of house sites and for

distributing the same to its  members. The appellant had

requested the State Government to acquire an extent of 100

acres of land in Nagarabhavi Village, Yeswanthapura Hobli,

Bangalore. In the year 1982, the State Government accorded

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sanction for initiation  of proceedings for acquisition  of 78

acres 16 guntas of land for the benefit of the appellant.   It

appears that even before the initiation of acquisition

proceedings, Vijayanagar Industrial Workers Housing Co­

operative  Society  Ltd had approached the appellant  with a

representation that it had already entered into an agreement

dated 06.11.1982 with respondent No.3 to purchase the

entire extent in Survey No.30, of which she claimed to be the

owner.  Accordingly, the said society requested the appellant

to withdraw its request for acquisition of the said land.  This

is evident from the agreement at Annexure P1 entered into

between the 3rd  respondent and the said society.   Under the

said agreement, out of the total sale consideration of

Rs.50,000/­ per acre, respondent No.3 had received a sum of

Rs.25,500/­ and had parted with possession of the land in

favour of the said society and stated that she had no

objection to the land being acquired by the State

Government.

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4. In compliance with the procedure prescribed under

Chapter VII of the Land Acquisition Act, 1894 (for short 'L.A.

Act'), the State Government executed an agreement at

Annexure P­2, undertaking to acquire land in favour of the

appellant  which included Sy.No.30  measuring 5 acres 33

guntas  and 8  guntas  of  pot  kharab land.  On 16.01.1985,

notification  under  Section  4(1) of the  L.A.  Act  was issued

proposing to  acquire the  required  extent  of land  including

Sy.No.30. An enquiry under Section 5A of the L.A Act was

conducted and a report was submitted to the State

Government recommending acquisition.

5. The State Government, having accepted the

recommendation issued a declaration under Section 6(1)  of

the L.A Act on 04.03.1986, to the effect that several extent of

land including Sy. No.30 was needed for the public purpose

of the appellant society.

6. The 3rd respondent, claiming to be the owner of an extent

4 acre 16 guntas of land in Sy.No.30, filed W.P. No. 12566 of

1986  before the  High  Court of  Karnataka  questioning the

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notifications issued under Section 4(1) and 6(1) of the L.A Act

and obtained an interim order dated 08.07.1986 staying

dispossession. Acquisition was challenged on the ground that

3rd  respondent was not issued with any notice; that no

enquiry  was held;  and  that  acquisition  was not for  public

purpose.

7. Subsequently, awards were passed which were approved

by the State Government.   In respect of Sy.No.30, an award

was passed fixing compensation at the rate of  Rs.45,000/­

per acre.   The Land Acquisition Officer in terms of his letter

dated 06.04.1987 (Annexure P­5) called upon the appellant to

deposit Rs.19,76,948/­ including the general award amount,

in compliance whereof the appellant has deposited the

amount.

8. The 3rd  respondent made a representation as per

Annexure P­6 dated 26.08.1990 to the State Government for

withdrawing the acquisition proceedings in respect of 3 acres

5 guntas of land in Sy.No.30 (hereafter referred to as

'disputed property').  The representation of respondent  No.3

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stated that she had sold the land in Sy.No.30 long back. The

purchasers of  the sites had come forward to construct  the

houses on the sites which was objected to by the Land

Acquisition Officer and the appellant. It was also contended

that she had sold the sites as she had to maintain her family

as her children were unemployed and that she had to perform

the marriages of her sons and daughters.

9. The High Court by its order dated 22.02.1991 dismissed

the writ petition by rejecting all the contentions of respondent

No.3.

10. Soon after the dismissal of the writ petition, respondent

No.3 claiming to be the owner of 4 acres 16 guntas of land in

Sy.No.30, again filed W.P. No. 5558 of 1991 before the High

Court questioning the award determining the market value of

the acquired land.   On 12.03.1991, the High Court granted

an interim order staying the dispossession. The State

Government delivered possession of the land acquired in

terms of the official memorandum dated 13/14.10.1992 to an

extent of 68 acres 17 guntas to the appellant.   The extent

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delivered to the appellant included 1 acre 25 guntas in Sy.

No.30 out of total extent 6 acres 1 gunta.   Balance of

disputed land  measuring 4 acres 10 guntas in Sy.No.30

which formed subject matter of interim order of stay in W.P.

No. 5558 of 1991 was not delivered to the appellant.

11. The High Court by order dated 15.07.1998 dismissed the

writ  petition W.P. No. 5558 of 1991 by  imposing a cost of

Rs.2,000/­ on the ground that the appellant having suffered

an order in W.P. No. 12566 of 1986, ought not to have filed

another writ  petition for the same relief.  Respondent No.3

challenged this order in intra court appeal before the Division

Bench of the High Court in W.A. No. 4245 of 1998.

12. In spite of dismissal of W.P. No. 12566 of 1986 and W.P.

No. 5558 of 1991 rejecting the challenge made by the

respondent  No.3 to the acquisition, the  State  Government

issued a withdrawal notification dated 19.08.1998 under

Section 48 of the L.A Act in respect of the disputed property,

even without affording an opportunity of being heard to the

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appellant.   The appellant challenged this order by filing writ

petition No. 26558 of 1998 before the High Court.

13. Writ appeal No. 4245 of 1998 filed by respondent No.3

came to be dismissed by the Division Bench in terms of the

order dated 18.11.1998, thereby confirming the order in W.P.

No. 5558 of 1991.   On the same day,  i.e.  18.11.1998,  the

High  Court allowed  W.P.  No. 26558 of 1998 filed by the

appellant on the ground that the  appellant  had  not been

heard in the  matter before issuing the notification under

Section 48 of the L.A Act and the matter was remitted to the

State Government for reconsideration after affording

opportunity to the appellant.   It was directed that until the

time State Government took fresh decision, the status quo as

regards possession and nature of the property would be

maintained.

14. Respondent No.3 had only sought de­notification of the

disputed  property, i.e. 3  acres  and  5  guntas in  Sy.No.30.

However, even out of the balance 2 acres and 36 guntas, only

1 acre  25  guntas  had been  handed over to the  appellant.

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Accordingly, after dismissal of the writ appeal W.A. No. 4245

of 1998 filed by respondent No.3, the appellant requested the

State Government to deliver possession of further 1 acre 11

guntas in Sy. No.30 which did not form part of the request

made by the respondent No.3 for de­notification. The State

Government having failed to act, the appellant filed W.P. No.

2592 of 1999 before the High Court for necessary direction.

The High Court in terms of the order dated 02.02.1999

allowed the said writ petition directing the State Government

to hand over possession of 1 acre 11 guntas of land to the

appellant and accordingly possession of the said extent was

handed over to the appellant.  Thus, a total extent of 2 acres

36 guntas of land was handed over to the appellant out of 5

acres 33 guntas.  The review petition filed by respondent No.3

seeking review of the order dated 02.02.1999 in W.P. 2592 of

1999  was dismissed by the  High  Court imposing cost of

Rs.2500/­ with the following observations :

"…thus it is clear that a clever attempt is being attempted to be made by the petitioner to get over an order this

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Court by creating an impression that the petitioner has attempted suppression of fact  and has  practiced fraud. On the contrary it is clear that the petitioner is  playing  fraud on this by means of representing that 1 acre 11 guntas of land restored to the 1st

respondent form part of the  property, claimed by the petitioner. This is a clear misrepresentation.   I am of the opinion that this writ petition is totally misconceived and is made with oblique motive.   Accordingly this Revision Petition is dismissed with costs of Rs.2,500/­ payable to the 1st

respondent."

15. After lapse of about 5 years of the order dated

18.11.1998 in W.P. No. 26558 of 1998, in terms whereof the

notification  under  Section  48  of L.A  Act in respect of the

disputed property had been quashed, the State Government

issued notice to the appellant regarding its proposal to de­

notify the land.   On 28.08.2003, the appellant filed detailed

statement of objections to the proposed     de­notification of

the acquired land.  Ignoring objection raised by the appellant,

the State Government proceeded to pass an order deciding to

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withdraw the aforesaid land measuring 3 acres 5 guntas in

Sy.No.30.   

16. Being aggrieved by the government order dated

27.12.2003 and the consequential notification dated

12.01.2004 issued under Section 48 of the L.A Act, the

appellant approached the learned Single Judge of the High

Court by filing W.P. No. 4912 of 2004.   The learned Single

Judge dismissed the writ petition on 08.03.2004 and the writ

appeal filed by the appellant in Writ Appeal No. 2583 of 2004

challenging the said order has been dismissed by the Division

Bench on 07.08.2008.   The appellant has called in question

the legality and correctness of the said order in this appeal.

17. We have heard Mr. Basava Prabhu Patil, learned senior

advocate for the appellant, Mr. Joseph Aristotle S., for

respondent Nos.  1 and 2 and Mr.  Huzefa Ahmadi, learned

senior advocate for respondent No.3.

18. Mr. Patil, learned senior counsel, submits that the first

respondent has exercised the power under Section 48 (1) of

the L.A Act in an arbitrary and whimsical manner.  The order

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prejudicially affects the interest of the appellant.  The exercise

of power lacks  bona fides  and suffers from vice of

arbitrariness.   It is further submitted that the disputed

property forms an integral part of the layout formed by the

appellant.   A portion of the disputed property is reserved for

civic amenities.   If the land in question is de­notified, it will

have adverse impact on the planned development of the

layout leading to public inconvenience.   It is further

submitted that the individual interest of respondent  No.3

cannot come in the way of larger public interest.   It is also

submitted that  according to the third respondent,  she had

already sold 1/3rd  of 3.5 acres to the third parties by a

registered sale deed on 28.05.1992. According to her

representation, the  purchaser  has already formed sites in

disputed property. She cannot maintain an application under

Section 48(1)  of the L.A Act for  de­notification of the  land

already sold. Having failed in her challenge to the acquisition

proceedings, she could not have maintained the application

for de­notification.  Section 48 (1) was basically meant for the

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State Government to de­notify the land from acquisition when

it is not possible to acquire the said land and not meant for

the owners, particularly when lands are being acquired for

public purpose.

19. On the other hand, learned advocates appearing for the

respondents have sought to justify the impugned order.  Mr.

Ahmadi, learned senior counsel, appearing for the 3rd

respondent submits that the appellant society is not a bona

fide housing society.  It is submitted that there was no bar for

the 3rd  respondent to maintain an application for de­

notification under Section 48 (1) of the L.A Act even though

her writ petition challenging the acquisition proceedings has

ended in dismissal.   Taking into account the hardship

suffered by the 3rd respondent, the State Government has de­

notified the land in her favour.   Accordingly, the 3rd

respondent prays for dismissal of the appeal.

20. We have carefully considered the submissions of the

learned counsel made at the Bar.

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21. Section 48 of the L.A Act corresponds to Section 54 of

the old Act 'X' of 1870. For ready reference Section 54 of the

old Act is as under:

"54. Except in the case provided for in s. 44, nothing in this Act shall be taken to compel the Govt. to complete the acquisition of any land unless an award shall have been  made or a reference directed under the provisions hereinbefore contained.

But whenever the Govt. declines to complete any acquisition, the Collector shall determine the amount of compensation due for the damage (if any), done to such land under s. 4 or s. 8 and not already paid for under s. 5, and shall pay such amount to the person injured".

22. Section 54 of the old Act gave power to the government

for withdrawal of the land which it has proposed to acquire.

This power had to be exercised before the award  is  made.

This  was  causing  great  hardship to the  government.  The

reasons for re­enacting the said provision in the L.A Act of

1894 can be gathered from the preliminary report of the

Select Committee dated 2nd  February, 1893, which is as

under:

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"Section 54 of the Act (10 of 1870) gives to the Govt. or the public bodies whom it represents the  power of  withdrawal from  land  it  has  proposed to  acquire. This power, however, must be exercised before the award is made. After award, withdrawal is prohibited whatever may be the circumstances.  Experience  has shown that the only occasion on which powers  of  withdrawal,  would be  really useful  are when an award has shown that the Govt. was seriously misled by an  underestimate of the value of the land. A case has been reported in which a municipality has been nearly ruined by being compelled to proceed with an acquisition in which the award was inordinately in excess of the original valuation.  We think, therefore, that power to withdraw should be given after, as well as before, the award, but that, if  so exercised, it should only be on terms of the most liberal compensation to the owner and that, if he is dissatisfied with the Collector's offer, he should have the same rights of reference to the Judge as in case of acquisition".

    (emphasis supplied)

23. The  Select  Committee in its second report dated 23rd

March,  1893 has given certain clarifications,  which are  as

under:

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"We have altered the terms of the first clause of s. 48, which gives certain powers to Govt. to withdraw from a contemplated acquisition of land so as to  make it clear that  this  withdrawal may be made at any time before possession is taken but not afterwards. Instances were quoted in our Preliminary Report in which the Collector was proved by the Judge's award to have been seriously misled as to the value of the land and in which the Govt. would not have acquired the land had it received a correct appraisement.  We think, that a  Govt. which provides compensation from the taxes of the Empire should have larger powers of withdrawal than are given by the present Act, but we are of opinion that no such power should be given after possession has once been taken and that each Local Govt. must protect itself by executive instructions to Collectors to refrain from taking possession until after the award of the Judge, in every case in which there is a material difference between the Collector and the owner as to the value of the property".

    (emphasis supplied)

24. Section 48 of the L.A. Act of 1894 is as under:

"48. Completion of acquisition not compulsory, but compensation to be

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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".

25. It is clear that an important change was affected in law

in 1894 by enactment of this section.   Under the previous

Act, the government could not withdraw from the acquisition

after an award had been made or a reference directed. This

was causing hardship in cases where the land turned out to

be more valuable than the acquisition was worth. The

difficulty has been removed by fixing the bar at the taking of

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possession,  an  act  which  can  be indefinitely  postponed to

meet the occasion.  When possession under Section 16 of the

L.A.  Act is  not taken, the government can  withdraw from

acquisition  and  the  person  interested  would  be  entitled to

compensation for the damage suffered in consequence of the

acquisition proceedings and also to such costs of the

proceedings as reasonably incurred by him. Section 48,

however,  will  have no application when once  the  land has

vested in the government under Section 16 of the L.A. Act.   

26. The two reports referred to above indicate that the liberty

to withdraw from acquisition under Section 48 (1) of L.A Act

was made available prior to taking possession of the land in

order to curtail payment of exorbitant award amount in cases

where it was no longer possible for the government to

effectuate the  intended purpose of  acquisition.   In  Special

Land Acquisition Officer, Bombay and Ors. v. M/s Godrej

and Boyce2, this Court was considering the de­notification of

land before taking its possession.   In this case, the

2 1988 (1) SCC 50

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government had  intended to  acquire  vast  piece of land  for

construction of houses by the State Housing Board but this

land had been overrun by slum dwellers to such an extent

that it was no longer possible for the government to effectuate

the intended purpose of acquisition.  It was observed that the

State Government was not responsible for the occupation of

land by trespassers. Therefore, the State Government cannot

be compelled to go ahead  with the acquisition  when the

purpose of such acquisition could not be achieved.   In this

regard it is beneficial to note the observations of the Supreme

Court:

"Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that  it is virtually  impossible  for municipalities, and no mean task even for the government, to get the lands vacated. If the government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed. We see no justification to direct the government to acquire the land and embark on such a venture. We are also of the opinion that the fact that the government exercised the power of withdrawal after the writ

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petition  was  filed  does  not  spell  mala fides once the existence of circumstances,  which, in  our  opinion, justified the government's decision to withdraw, is acknowledged".

27. It is thus clear that sub­section (1) of Section 48 of the

L.A Act empowers the government to withdraw from

acquisition proceedings of the land of which possession has

not been taken.   It is further provided that when the

government withdraws  from acquisition, the Collector  shall

determine the amount of compensation due for the damages

suffered by the owner in consequence of notice or proceedings

thereunder.  A combined reading of sub­section (1) and sub­

section (2) of Section 48 of the L.A. Act makes it clear that the

purpose of Section 48 was mainly to ensure that the State

Government is not compelled to acquire the land when the

acquisition ceases to be beneficial for the intended purpose.

That is why, sub­section (2) of Section 48 provides for

payment of compensation to the owner, whose land was

notified for acquisition but not acquired for the reason that

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such an acquisition is against the public interest and public

revenue.   

28. However, from the language employed in sub­section (1)

of Section 48, it can also be inferred that there is no bar to

de­notify the land from acquisition at the request of the

landowners. We are of the view that when an application is

made for de­notification of the land, the government has to

consider the same with great care and caution. The

government has to consider the application keeping in mind

the subservience of public interest because the lands are

being acquired for public purpose.   The government should

not exercise this power in an arbitrary and whimsical

manner.  The decision of withdrawal from acquisition should

be  bona fide  and backed by valid reasons. It is settled that

the government could  not  withdraw land from  acquisition

without giving the beneficiary of acquisition an opportunity of

being heard. (See:  State  Government  Houseless  Harijan

Employees' Association v. State of Karnataka and Others3)

3 (2001) 1 SCC 610

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29. It is also necessary to emphasize here the need to have

planned development of the city and the importance of

planning schemes and the ill­effects of de­notification of the

land from the approved scheme/plan. Town planning

schemes are made for the immediate need of the community.

Town planning is meant for planned development of certain

local areas in order to make utilities and facilities available to

the general public.  Planned development of the city is a sine

qua non for its health and growth, given the rapid increase in

population of the city on account of influx of thousands of

people from other parts of the country.

30.  The Karnataka Town and Country Planning Act, 1961

(for short 'Planning Act') and the Bangalore Development Act,

1976 (for short 'BDA  Act') play an important role in the

planned development of the city of Bangalore.   The Planning

Act was enacted by the State Legislature for the regulation of

planned growth of land use and development and for

executing town planning schemes in the State of Karnataka.

The Planning Act has created a Planning Authority which has

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been given power to  check,  survey and  locate the area  for

development by declaring it as a planning area.   It also

provides for preparation of master plan for development of the

city after carrying out the survey of the area within its

jurisdiction.  The zoning regulations are made  from time to

time, classifying the land use in the planning area.  

31. The State Legislature has enacted the BDA Act for the

establishment of a development authority for the development

of city of Bangalore and areas adjacent thereto and for

matters connected therewith.   The State  Government has

constituted  Bangalore  Development Authority to effectuate

the  purpose  of the  BDA Act.  This  authority is  a  Planning

Authority  for the city of  Bangalore.  The main object of the

BDA Act is planned development of the city of Bangalore and

to check haphazard and irregular growth of the city.  BDA is

the  sole  authority  which draws  the  schemes for formation

layouts within the Bangalore  Metropolitan Area. This Act

envisages development of two types of layouts.  The  first is

formation of a layout by the BDA itself. For this purpose, BDA

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has  to  draw a development  scheme.  The  particulars to  be

provided in the development scheme are enumerated in

Section 16 of the BDA Act. The development scheme made by

the BDA provides for acquisition of the land, laying and re­

laying of all or any land including the construction and re­

construction of buildings, formation and alteration of the

streets, provision for drainage, water supply, electricity,

reservation of not less than 15% of the area of the layout for

public purpose and playground and an additional area of not

less than 10% of the total area of the layout for civic

amenities.  Section 18 of the BDA Act provides for sanction of

the scheme submitted by the BDA. After acquisition, State

Government vests the acquired land with the BDA for

formation of a layout strictly in accordance with the

sanctioned scheme.   

32. The second type of layout under the BDA Act is a private

layout.   Section 32 of the BDA Act provides for formation of

private layouts. If any person intends to form an extension or

a layout, he has to make a written application with a plan to

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the Commissioner, BDA under sub­section (2) of Section 32.

The said  plan has  to  contain  laying out  sites  of the  area,

reservation of land for open spaces, the intended level,

direction and width of the street,  street alignment and the

building line and the proposed sites abutting streets, the

arrangement for leveling, paving, metalling, flagging,

channelling, sewering, draining, conserving and lighting the

streets and for adequate drinking water supply.   A private

layout cannot be formed without the approval of the layout

plan by the Commissioner, BDA and such layout has to be

formed strictly in accordance with the approved plan.   While

forming the layout, the  BDA or a private individual or a

society, as the case may be, cannot deviate from the

sanctioned scheme or the approved layout plan.

33. It has come to the notice of this Court that of late the

State Government has been de­notifying the lands acquired

for public purpose for the benefit of the authorities like BDA

or other urban development authorities and for the formation

of  private  housing layouts,  adversely  affecting the  planned

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development of the city of   Bangalore and other cities in the

State  of  Karnataka.  The instant case is  a  classic example

where the power has been blatantly misused ignoring larger

public interest.  

34. As noticed above, the State Government had accorded

sanction for initiation of acquisition proceedings for the

benefit  of  the appellant  in the year 1982 itself.  The State

Government executed the agreement in the month of August

1984, undertaking to acquire 78 acres 16 guntas of land in

favour of the appellant, including the land in Sy.No.30

belonging to the 3rd respondent.  Notifications under Sections

4(1) and 6(1) of the L.A Act were issued and possession was

taken  except the  disputed land to  an  extent  of  3  acres  5

guntas.   

35. The approved layout plan was issued by the government

in compliance with the provisions of the BDA Act  and the

Planning Act.   The layout plan produced by the appellant at

Annexure P­13 would indicate that meticulous planning has

been undertaken for planned development of the layout.  The

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plan also  indicates that lands have been reserved  for civic

amenities, open spaces and also for roads. The width of the

street and its alignment, the building line and the proposed

sites abutting the streets, have been perfectly drawn.   

36. The appellant has contended that the disputed property

falls in the middle of the layout.  However, the 3rd respondent

has contended that the disputed property is situated in the

southern end of the layout.   Whether the disputed property

falls in the middle of the layout or in the southern end makes

no difference so long as it is within the layout.  It is also clear

from the materials on record that a portion of the disputed

property has  been earmarked  as a civic amenity and the

remaining portion abutting the street has been proposed for

residential sites. If the order of de­notification is allowed to

stand, the very object of the planned  development of the

layout would be lost. There will be shortage of civic amenity

sites in the layout and it would no longer be possible to set

the street alignment and the building line as per the approved

plan. This will have adverse impact on the planned

29

development of the layout leading to public inconvenience.  It

will nullify the object and the purpose for which Planning Act

and the BDA Act have been enacted by the Legislature.  

37. Experience has shown us that the lands are being de­

notified before taking possession or dropped from acquisition

before the issuance of declaration by the government are

mostly at the instance of land  mafias in connivance  with

influential  persons; political or otherwise.  These  lands are

generally situated within the layouts in  major cities and

specially in Bangalore city.   After de­notification, multi­

storied complexes come up on these lands comprising of large

number of residential and non­residential units. This has a

direct impact on the existing infrastructure consisting of

water  supply, sewerage  and  lighting.  Similarly, the traffic

movement facility suffers unbearable burden and is often

thrown out of gear because the original scheme/layout plan

did not envisage construction of these complexes.   The civic

amenities provided in the original layout plan were in

proportion to the development proposed in the scheme/plan.

30

The purchasers of residential sites, who wish to have a roof

over their  heads, fall  prey to the  designs of  unscrupulous

land mafias.  We may not  hesitate  to add that irreparable

damage has already been done to many layouts in Bangalore

and in other places by allowing construction of multi­storied

buildings within the layouts.    

38. We are of the considered view that the government

should refrain from de­notifying or dropping any land being

acquired for the formation of a layout, under Section 48 of

the L.A Act or under any other law.   The courts should also

be very strict  while considering the plea of the  landowners

seeking de­notification of the lands which are being acquired

or quashing of the notification on the ground of lapsing of the

scheme or on any other grounds in respect of the acquired

lands for  the formation of the  layout. It  has to be kept  in

mind that private interest always stands subordinated to the

public good.

39. It is also to be noted here that the area reserved for civic

amenity should not be diverted for any other purpose other

31

than the purpose for which it was reserved in the sanctioned

scheme or the approved layout plan. The plan for building in

the layout should be sanctioned strictly in accordance with

the building bye­laws. If a site is earmarked for residential

purpose, no plan should be sanctioned for construction of a

non­residential  building at such site.  The construction on

the sites by the allottees should be made in accordance with

the plan sanctioned by the competent authority.  

40. It is no doubt true that right to build on one's own land

is a right incidental to the ownership of the land.  This right

has been regulated in the interest of the community residing

within the limits of the city in general and the layout in

particular.   This has to be strictly implemented for the

planned development of the city.  If it is not controlled, it will

have tremendous burden on the  infrastructure available  in

the layout.

41. We are of the view that Section 14­A of the Planning Act,

which empowers the Planning Authority to grant permission

for change of land use or development, has no application to

32

the lands acquired under Sections 17 to 19 of the BDA Act for

the implementation  of the scheme  or the layout approved

under Section 32 of the said Act.  The position is similar even

in respect of the other Development Authorities in the State of

Karnataka.

42. We make it clear that henceforth, the

planning/development authorities in the State of Karnataka,

including the BDA shall not permit change of land use within

the layout formed  by the  BDA or  a  private layout formed

under Section 32 of the BDA Act or the layout formed by any

other authority contrary to the scheme  sanctioned  by the

State Government or the layout plan approved by the

competent authority. The BDA or the other

planning/development authorities shall not venture to alter

the sanctioned scheme/approved layout plan in any manner.

The  BDA and the  other  planning/development  authorities,

Bruhat Bangalore City Municipal Corporation Bangalore, or

any other authorities in the State of Karnataka authorized to

sanction the plan for construction of the buildings shall not

33

sanction any plan for construction contrary to the sanctioned

scheme/approved layout plan.   The sites reserved for parks,

playgrounds or for providing other amenities shall  be used

strictly for the purpose for which they were reserved. Be it

noted that violation of any of these directions by the

authorities will be viewed strictly.  

43. It is also hereby clarified that if de­notified lands or the

lands  dropped from acquisition  before the issuance  of the

declaration under the BDA Act or any other law are available

within the BDA layout or the private layout approved by the

BDA or the layout formed by any urban development

authorities in the State of Karnataka, the said lands shall be

utilized strictly in accordance with the land utilization

proposed in the scheme/approved layout plan.   Hence,

building   permission or the   sanctioned plans to build on

these lands shall not be issued by   any   authorities contrary

to the land utilization proposed in the scheme/approved

layout plan.

34

44. Now,  let us focus on the conduct of the 3rd  respondent

who had managed to obtain an order of de­notification.  It is

clear from  the  materials on record that even  prior to the

issuance of preliminary notification, M/s. Vijayanagar

Industrial Workers Housing Co­operative Society Ltd had

entered into an agreement on 06.11.1982 with the 3rd

respondent to purchase the land in question.  In fact, the 3rd

respondent had also received partial compensation from the

said society. She has challenged the acquisition proceedings

thereafter by filing writ petition in W.P. No. 12566 of 1986.

During the pendency of this case, she filed a representation

dated 26.09.1990, requesting the State Government to

withdraw from acquisition of the said land. In the said

representation, it was contended that she had sold the said

land long back for the purpose of collecting funds to perform

the marriage of her children and that she had divided the sale

proceeds amongst her children.   It was also contended that

pursuant to the sale, the  purchaser  had  come forward to

construct houses and the Land Acquisition Officer and the

35

appellant had objected to the same.  On the said ground, she

had sought de­notification of the land after the dismissal of

W.P. No. 12566 of 1986. Therefore, the Land Acquisition

Officer passed an award. She filed the second writ petition

challenging the acquisition proceedings in W.P. No. 5558 of

1991,  which was rightly  dismissed by  the High Court  and

intra court appeal filed by her challenging the said order was

also dismissed by the Division Bench. It is obvious that in the

said cases, she had raised the grounds which had been

raised by her in her representation seeking de­notification of

the disputed property.  

45. The appellant has opposed the proposal for de­

notification by filing detailed objections as per Annexure P­

12.  The conduct of 3rd respondent in filing case after case for

quashing the notification issued by the State Government for

acquisition of the land has been brought to the notice of the

government.   It  was also  stated  that  since  the lands have

been notified for acquisition for a public purpose, namely, for

the formation of a layout, a portion of the said land cannot be

36

de­notified as it will adversely affect the layout, causing

public inconvenience.   The 1st respondent, without adverting

any of these contentions, has passed an order of de­

notification.   We are of the view that the said order has been

passed  without application of  mind and it is arbitrary in

nature.

46. In this appeal, the 4th respondent has filed an application

contending that he had purchased certain extent of land out

of the disputed property. In support of his contentions he has

produced sale­deed dated 27.5.1992 executed by 3rd

respondent in favour of his vendor, Smt. P.N. Kanthanna.  In

fact, the 3rd respondent in her statement of objections filed in

this appeal has admitted having sold the land.  However, it is

pleaded that de­notification of the land is necessary in order

to convey better title in favour of the purchasers. It is stated

as under:

"23. The contention that this respondent  has  no  subsisting interest in the land in question as she has sold the land is totally false.   This respondent has to convey better title in

37

favour of the purchasers and therefore her request to denotify the land is not tainted  with any  malafides.  As stated earlier, this respondent has sold certain land to sustain herself and her family."

47. Since the 3rd respondent has already sold certain portion

of the land, she could not have maintained the application for

de­notification of the said portion of the land as she has no

subsisting interest in the said land. We are also of the view

that even the subsequent purchaser of the land cannot seek

de­notification of the land from acquisition as his sale­deed is

void.

48. We have also  noticed that the  State  Government  has

been    de­notifying the lands under Section 48 (1) of the Act

for the past 10­15 years and allegations have been made that

these orders have been passed with ulterior motives.  We are

of the view that the State Government has to re­consider all

these orders and take corrective steps in case it is found that

such orders have been passed in violation of the law.

Perpetuation of illegality has to be ceased, desisted and

deterred at any cost.

38

49. Mr.  Ahmadi, learned senior  counsel, submits that the

appellant is not a bona fide housing society and that 90% of

its members are not eligible to become its members and that

they are not entitled for allotment of sites from the appellant.

It is not possible to consider these contentions of Mr. Ahmadi

in this appeal.   However, if the 3rd  respondent has any

grievance in relation to the bona fides of the society, she may

lodge a suitable complaint before the competent authority.  If

such complaint is filed, we direct the concerned authority to

consider the same in accordance with law.

50. A contention has also been raised by the 3rd  respondent

that the appellant­society has sold sites meant for civic

amenities illegally to various  persons and the show­cause

notice  has been  issued by  the competent authority in  this

regard. The 3rd  respondent has produced the notices issued

by the Pattangere City Municipal  Council,  Bangalore dated

8.7.1998 at R­18 which is as under:

       "Annexure R­18    Pattanagere City Municipal Council

39

 Bangalore, Dated 08/07/1998

The President/Secretary, Sri Vinayaka House Building  Co­operative Society Limited, No.3, Adi chunchanagiri complex, Vijayanagar, Bangalore ­40

Sir,

Sub: Representation with regard to transfer of katha from the City Municipal Council fraudulently in respect of C.A. reserved sites to some of the members of your society contrary to law and rules  of  BDA  in the layout formed at 2nd  Stage, Nagarabhavi and suppressing the information.

­­­

With relation to  the above subject, the  layout formed by Sri Vinayaka House Building Co­operative Society Ltd., is the layout which comes within Ward No.7 of our  City  Municipal Council limits.   It is noticed that the sites have been developed, approval being obtained by the Bangalore Development authority, the sketch/plan has been got sanctioned and the sites have been allotted.

But, the Local City Municipal Council Member, Sri V. Prakash, B.Com., LL.B., Advocate has submitted the complaint in writing on behalf of the general public that the  plan/sketch in respect of certain areas has not been sanctioned by the BDA and  the area which has been reserved for civic amenities by the BDA have been formed in to sites

40

and by giving  wrong information to some of the members and in violation of the rules of government and BDA, the President, C.H. Subboji Rao and the Secretary M.S. Srinivasa Murthy have fraudulently registered the said civic amenities sites to the civilians and cheated the said persons.

Therefore, it has come to the notice of our City Municipal Council that kathas have been effected for 39 members by giving wrong information. I hereby order to give explanation as to why legal action should not be initiated against the President, Secretary and the members who have obtained the sites, within 7 days from the date of receipt of this notice.

Yours faithfully, Sd/­

Commissioner Pattangere CMC Bangalore­39."

                [Emphasis  supplied]

51. The second notice at Annexure R­19 dated 03.08.1998

issued by the  BDA to the  Commissioner, City  Municipal

Corporation, Pattangere reads as under:

            "Annexure R­19

    M.R.C.R. Shopping Complex, Vijayanagar,

Bangalore­560 040.

41

Dated: 03.08.1998 No.BDA/EE(W)/111/98­99.

To:

The Commissioner, City Municipal Corporation, Pattanagere, Bangalore.

Sir,

Sub: Approval layout by Bangalore Development Authority in Sy. Nos. 17, 18, 19, 20, 30, 31, 32, 36/1, 37, 64, 71, 95 to 98, 112/19, 135 to 137(17) of Nagarabhavi Village, Yeshwanthapura Hobli, Bangalore North Taluk in favour of Vinayaka HBCS Reg.,  

**     **    ** With reference to the above subject, B.D.A. has

approved layout plan in respect of Sy. Nos. 17, 18, 19, 20, 30,  31, 32, 36/1,  37, 64, 71,  95 to 98, 112/19, 135 to 137(17) of Nagarabhavi Village, Yeshwanthapura  Hobli, to an extent of 78 Acres from a layout in favour of Sri.Vinayaka HBCS vide resolution No.883 dated 23.01.1988 with a condition after formation of Layout all the roads and C.A.,  Sites has mark to be handed over to B.D.A. through relinquishment.

Accordingly  society  has the layout  and so for about 71% of sites has been released by B.D.A. and the rest of sites  will be released to society after handling over of roads and C.A. site to B.D.A.

42

But now  it is learnt that the society has registered some sites with a Sub Numbers to their Members in the marked C.A. Area and in park Area and  in the  approved layout  plan.  This is illegal. Also it has come to know that Khathas and sanctioning of plan to these illegal site members are being processing in your office.

In the light of the above information it is requested not to accord  making any Khathas or sanctioning of any residential/commercial plans and also  not be regularize any illegal holdings in the preserved area, as the area is can marked as park and civil amenities sites in C.D.P.

Also it is requested to restrain your officials Elected representatives that not to interfering in B.D.A. Jurisdiction.

Any clarification  in this regard may please be obtained from the Executive Engineer (West) B.D.A. Vijayanagar, or Asst. Executive Engineer No.4 West Sub­division, B.D.A. before taking any approval or sanction.   

Yours faithfully, Sd/­

Bangalore Development Authority, M.R.C.R. Complex, Vijayanagar,

Bangalore­560 040."

       [Emphasis  supplied]  

43

52.  The appellant has not denied the above contentions by

filing a rejoinder. It is necessary to notice here that out of 5

acres 33 guntas and 8 guntas of port kharab land in

Sy.No.30, possession of 2 acres 36 guntas has been taken by

the State Government and delivered to the appellant.  The

subject matter of this appeal is only 3 acres 5 guntas of land

in Sy.No.30.   Admittedly, the possession of this land has not

been taken so far.  In the layout plan, a portion of this land is

reserved for civic amenities and the balance of  the  land is

meant for formation of house sites.   

53. An intervener application  has been filed by one  Mrs.

Bhavna Praveen contending that certain sites have been

formed in the disputed property and possession of these sites

have been given to members of the appellant­society, namely,

R.  Dhanabalan, D.  Vinod Kumar and Mrs.  D. Geetha. The

sale­deeds have also been executed in respect of these sites in

their favour.   

54. A Contempt Petition (civil) No.823 of 2018 was filed by S.

Krishnappa complaining of violation of the interim order of

44

status quo  granted by this Court in this Appeal dated

07.01.2009.  It was alleged that the contemnors therein have

trespassed into the disputed property and began to construct

illegally on the said land.  A reply was filed by the appellant

herein contending that site Nos. 501, 526, 527, 528 and 529

have been formed out of 2 acres 36 guntas of land in

Sy.No.30, the possession of which was already delivered to

the appellant and that the sites formed in the said land have

been allotted to the members of the society as per the plan

approved  by  the  BDA prior to the  order  of  de­notification.

Relevant portion of the objection is at paragraph 10 which is

as under:

"10. That, the said Sites No.501, 526, 527, 528 & 529 have been formed out of 2 acres 36 guntas of land in Survey No.30 which has been handed over in favour of the Society  by the Order passed by the Hon’ble High Court of Karnataka in W.P. No. 10249/2003 and the same has been allotted in favour of the members of the society as per the approved BDA and that too, prior to the order of the de­notification dated 27.12.2003 and notification dated

45

12.01.2004  issued by the Government of Karnataka”.

     (Emphasis supplied)

55. Therefore, even according to the appellant, the disputed

property  is  vacant and no allotment/sale of the sites have

been made out of this land.   However, it is evident from the

above referred two letters and other materials on record that

the appellant has illegally formed the sites in the other lands

reserved for civic amenities in the approved plan.  In order to

compensate for the loss of land reserved for civic amenities, it

is just and proper to direct the appellant to reserve the entire

disputed property measuring 3 acres 5 guntas in Sy.No.30 for

civic amenities and play ground. Therefore,  we direct the

appellant to utilize the portion of the disputed property

reserved as a civic amenity site in the layout plan for

providing civic amenities. The competent authorities are

directed to develop the balance of the disputed property as a

park or a playground or both for the benefit of general public.

The appellant shall not allot/sell the disputed property or any

46

portion thereof either to its members or to any other parties.

The Commissioner BDA is directed to ensure compliance of

this order.    

56. If it is found that the appellant has allotted any site in

the disputed property in favour of its members or any other

parties, the appellant has to refund the consideration paid by

them with interest @ 18% p.a. from the date of the allotment

till the date of payment.  Ordered accordingly.

57. The State Government is directed to take possession of

the aforesaid disputed property and transfer the same to the

appellant forthwith for its utilization in terms of paragraph 54

of this judgment.    

58. In the light of the above discussions, we pass the

following orders:

(i) The  judgment and order of the Division Bench as

also  of the learned Single  Judge  impugned herein  are

hereby set aside.

(ii) The order passed by the 1st  respondent dated

27.12.2003 and the consequent notification dated

47

12.01.2004 pertaining to the lands in dispute are hereby

quashed.

59. The appeal and all the pending applications are disposed

of accordingly, without any order as to costs.

60. In view of the above, Contempt Petition(C)  No.823 of

2018 in C.A. No.3600 of 2011 is also disposed of.

61. The Registry is directed to send a copy of this judgment

to the Commissioner, Bangalore Development Authority,

Bangalore forthwith.  

………………………………………J. (ARUN MISHRA)

………………………………………J. (S. ABDUL NAZEER)

………………………………………J. (M.R. SHAH)

New Delhi; August 26, 2019.