Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NOS. 6662-6670 OF 2002

Vasanth Sreedhar Kulkarni and others ……Appellants

Versus

State of Karnataka and others ……Respondents

With

CIVIL APPEAL NOS. 6671-6676 OF 2002

Mumtaz Begum Imam Husen Maribalkar  and others ……Appellants

Versus

State of Karnataka and others ……Respondents

J U D G M E N T

G.S. Singhvi,  J.

1. Whether  Vasanth  Sreedhar  Kulkarni,  Eshwar  Gouda  Burma  

Gouda Patil and Ms. Mehrunnisa Mahazuz Husen Maniyar (appellants  

in C.A. Nos. 6662-6670/2002) had the locus to question the allotment  

of sites to the private respondents from land bearing survey Nos. 533/1,  

534A and 534B of village Kanabargi, Belgaum despite the fact that the  

writ petitions filed by Vasanth Sreedhar Kulkarni and Eshwar Gouda  

Burma Gouda Patil had been dismissed by the High Court in 1996 and  

also the fact that they claim to have sold the acquired land and whether  

the  purchasers  were  entitled  to  contest  writ  petitions  filed  by  the  

allottees  of  the  acquired  land  are  the  questions  which  arise  for  

consideration in these appeals filed against judgments dated 14.12.1999  

and 04.04.2000 of the Division Benches of the Karnataka High Court.

2. In 1976,  the Legislature of the State of Karnataka enacted the  

Karnataka Improvement Boards Act, 1976 to provide for constitution  

of Improvement Trust Boards in some cities with powers and duties for  

ensuring regulated  development  of  urban areas.   The  Belgaum City  

Improvement Trust Board, which was one among several Trust Boards  

constituted by the State Government framed Scheme Nos. 35, 43 and  

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43A for formation of residential and commercial layouts in Kanabargi  

village, Belgaum.  For implementation of Scheme No. 43, notification  

dated 6.11.1987 was issued.  However, before further steps could be  

taken in the matter, the State Legislature enacted the Karnataka Urban  

Development Authorities Act, 1987 (for short, `the 1987 Act’) which  

envisaged the establishment of Urban Development Authorities for the  

planned development of major and important urban areas in the State.  

The  Belgaum Urban Development  Authority  (for  short,  `the  BDA’)  

was constituted under Section 3 of the 1987 Act.  After some time, the  

BDA undertook the task of implementing Scheme Nos. 35, 43 and 43A  

of  Kanabargi  covering  an  area  measuring  336  acres  6  guntas  by  

involving revenue survey Nos. 529, 531 to 549, 553P, 556 to 562, 564  

to  570,  571P,  572  to  677  at  an  estimated  cost  of  Rs.25.35  crores.  

Notification  dated  16.8.1991 was  issued  under  Section  17(1)  of  the  

1987 Act in respect of land comprised in survey Nos. 533/1, 534/A and  

534/B  owned  by  Vasanth  Sreedhar  Kulkarni,  Kashibai  Patil  and  

Eshwar  Gouda  Burma  Gouda  Patil  respectively  for  implementing  

Scheme No.43.   By an order  dated 9.6.1994,  the  State  Government  

accorded sanction under Section 18(3) of the 1987 Act for formation of  

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4065 sites from the aforesaid survey numbers.  The relevant portions of  

the English translation of that order, which has been made available by  

learned counsel for the State of Karnataka are extracted below:

“Belgaum  Urban  Development  Authority,  Belgaum  informed  the  Government  that,  by  preparing  Scheme  No.35,43,43 A of Kanabargi it would form totally 4065 in  an area measuring 336 acres and 06 gunthas by involving  R.S. Nos. 529, 531 to 549, 553P, 556 to 562, 564 to 570,  57IP, 572 to 677, and the estimated cost of the Scheme in  Rs. 25.35 Crores and from the Scheme the income to the  Authority is Rs. 27,88,84,000.00, and the net income to  the Authority would be Rs. 2,53,81,000.00, and this is self  economically aided scheme and the Authority would not  claim any assistance from the Government.  It  is further  stated that in this scheme 20 x 30 sites have reserved for  economically  weaker sections and a provision has been  made  for  water  supply,  drainage  and  electricity  the  estimated  cost  of  the  scheme  and  area  is  reserved  for  garden, playground and Civic Amenity sites, as per Sub  Section (c) and (d) of Section 16 of the Karnataka Urban  Development Authorities Act 1987. Hence, requested for  according administrative approval for the said scheme.  

Government  Order  in  No.HUD/446/MIB,  Bangalore,  Dated 9th June 1994.

After  considering  the  proposal  of  the  letter  the  Commissioner, Belgaum Urban Development Authority, Belgaum in the  above read, the sanction is accorded under section 18(3)  of  the  Karnataka  Urban  Development  Authorities  Act  1987, for formation of 4065 sites at a cost of Rs. Rs. 25.35  

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Crores  to  the  Kanabargi  Scheme  No.35,  43,  43A  of  Belgaum  Urban  Development  Authority,  Belgaum  in  lands  measuring  336  gunthas,  subject  to  the  following  conditions.

xxxx xxxx xxxx”

3. Thereafter  the  State  Government  issued  Notification  under  

Section 19(1), which was published in Karnataka State Gazette dated  

1.9.1994 in respect  of  survey No.533/1 measuring 5 acres  7 guntas  

belonging to Vasanth Sreedhar Kulkarni and survey Nos. 534/A and  

534/B measuring 3 acres and 22 guntas belonging to Smt.  Kashibai  

Patil  and  Eshwar  Gouda  Burma  Gouda  Patil.   The  Special  Land  

Acquisition  Officer,  BDA,  who  was  appointed  by  the  State  

Government to exercise the powers of the Deputy Commissioner under  

Section 3(c) of the Land Acquisition Act, 1894 (for short, `the 1894  

Act’)  issued  public  notice  dated  16.9.1994  and  informed  the  

landowners and persons having interest in the land that various survey  

numbers  including  survey  Nos.  533/1,  534A  and  534B  have  been  

included in Scheme Nos. 35, 43 and 43A.

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4. The award prepared by the Special Land Acquisition Officer was  

approved by the State Government vide order dated 11.12.1995 and  

was published on 13.12.1995.  On the next date i.e., 14.12.1995, notice  

was issued to the landowners under Section 12(2) of the 1894 Act.  The  

possession  of  land  comprised  in  survey  No.534/A+C was  taken  on  

1.1.1996 and name of the BDA was mutated in the revenue records.   

5. In the meanwhile, Vasanth Sreedhar Kulkarni and Eshwar Gouda  

Burma Gouda Patil filed Writ Petition Nos. 30236 and 30237 of 1994  

questioning the notifications issued under Sections 17(1) and 19(1) of  

the 1987 Act.   Smt.  Kashibai Patil  and one Shri  Malappa also filed  

similar writ petition bearing Nos. 30927/1994 and 30928/1994.  All the  

writ petitions were dismissed by the learned Single Judge on 19.4.1996.  

The applications filed by the writ petitioners under Order IX Rule 13  

read with Section 151 CPC for recalling that order on the ground that  

their counsel could not appear on the date of hearing were dismissed by  

the learned Single Judge vide order dated 18.6.1996 by observing that  

the writ petitions had been dismissed on merits.   

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6. After  dismissal  of  the  writ  petitions,  possession  of  land  

comprised  in  survey  Nos.  533/1  and  534/B  was  also  taken  by  the  

competent authority and entries were made in the record of rights in the  

name  of  the  BDA,  which  then  formed  112  sites,  carried  out  

development works like construction of roads at a cost of Rs.43 lacs  

and allotted  82 sites  to  the  eligible  persons  between 31.3.1997 and  

20.3.1999.  45 of the allottees executed lease-cum-sale agreement by  

depositing the entire amount.  8 allottees also started construction of the  

houses.   17  allottees  took  steps  for  execution  of  lease-cum-sale  

agreement and the remaining 22 allottees made partial payment of the  

cost of land.

7. After the issuance of notifications under Sections 17(1) and 19(1)  

of  the  1987  Act,  the  landowners  entered  into  some  clandestine  

transactions with Allahuddin Khan, who was described as their General  

Power of Attorney and the latter created large number of documents on  

ten  rupees  stamps  showing  sale  of  small  parcels  of  land  to  Smt.  

Mumtaz Begum and others.

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8. After  taking  possession  of  the  acquired  land  and  making  the  

allotment  of  sites,  the  BDA  demolished  unauthorized  constructions  

made by some of those to whom small parcels of land are said to have  

been sold by Allahuddin Khan.  At that juncture, Allahuddin Khan and  

others made representation dated 27.2.1998 to the Commissioner, BDA  

for release of land comprised in survey Nos. 533/1, 534/A and 534/B  

by stating that 120 persons belonging to weaker sections of the society  

have  constructed  houses  after  taking  loan  and  even  the  scheme  

sanctioned by the State Government envisages allotment of 52% plots  

to the persons belonging to backward classes and weaker sections of  

the society.

9. The then Chairman and three other members of the BDA made  

spot inspection on 12.3.1998 and prepared a report with the suggestion  

that land measuring 8 acres 29 guntas, which had been unauthorisedly  

sold by the landowners to the poor persons on ten rupees stamp papers  

may be deleted in favour of the purchasers by collecting development  

charges.  The matter was then considered in the meeting of the BDA  

held  on  16.3.1998  and  despite  the  strong  opposition  by  the  

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Commissioner,  it  was  decided  to  recommend  regularization  of  the  

transfers made by the landowners by deleting survey Nos. 531/1, 534/A  

and 534/B from the notifications issued under Sections 17(1) and 19(1)  

of the 1987 Act.   The resolution of the BDA was forwarded to the  

State Government vide letter dated 3/4.6.1998.  After about 3 months,  

the  Commissioner  sent  D.O.  letter  dated  2.9.1998  to  the  Principal  

Secretary,  Urban  Development  Department,  State  Government  

detailing  the  reasons  for  not  deleting  land  comprised  in  3  survey  

numbers.  He pointed out that the plots have already been carved out  

and  allotted  to  different  persons  at  a  price  of  Rs.1,73,56,000/-.  

However,  the  State  Government  accepted  the  recommendations  

contained  in  the  resolution  dated  16.3.1998  and  issued  notification  

dated 24.3.1999 under Section 19(7) of the 1987 Act.

10. Within  few  days  of  deleting  three  survey  numbers  from  the  

process of acquisition, Shri Shankar M. Buchadi took over as Chairman  

of  the  BDA  and  under  the  leadership  of  new  Chairman,  the  

Commissioner, BDA sent letter dated 3.4.1999 to the Secretary to the  

State Government for cancellation of notification dated 24.3.1999.  The  

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matter was also considered in the meeting of BDA held on 15.4.1999  

and a resolution was passed to make a request to the State Government  

to withdraw notification dated 24.3.1999.  The same reads as under:

“The  meeting  of  the  Authority  discussed  regarding  the  problem that has arisen on account of deletion of the land  measuring 08 Acres – 29 Gs out of R.S. No. 533 & 534A &  B  of  Kanbargi  village  from  the  Kanbargi  Scheme  of  Belgaum Urban  Development  Authority,  Belgaum under  Govt.  Notification  No.NA.A.E./172/BEMPRA  VI/98,  dated:24.03.1999.

In the said lands, already 112 sites have been formed out of  which,  82 sites have been allotted & out  of  82 sites,  45  allottees have got executed Lease-cum-Sale Agreement by  depositing entire amount and 08 allottees have undertaken  the  work  of  construction  of  houses  by  expending  Rs.3,00,000/-  and  17  allottees  are  under  the  stage  of  execution of the Lease-cum-Sale Agreements by depositing  entire amount @ 22 allottes have deposited the partial value  of  the  site  and  this  aspect  has  been  considered  in  the  meeting. The meeting opined that, the Authority has to face  the critical position on account of deletion of the said land  from the Scheme of the Authority as this stage by the Govt.

Apart from this, the meeting considered the fact that, the  erstwhile owners of the said lands, tried to get their names  entered  in  the  village  records  illegally  and  without  knowledge  the  Authority.  Further,  the  meeting  also  considered the fact regarding refund of Rs.1.00 Crore to 82  Allottees,  who  have  deposited  the  site  value  &  the  Authority is unable to make arrangement of allotment of  sites to the allottees and now, the Authority is unable to  bear this financial burden. The meeting also opined that, it  

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is not possible to the Authority to bear the expenditure of  Rs.20.00 lakhs incurred for construction of house by the  allottees and to refund the amount incurred by 45 allottees  for  Registration  of  Lease-cum-Sale  Agreements.  The  meeting also noted that the Authority has to bear the loss of  Rs.43.00 lakhs already incurred for Developmental Works,  apart  from  this,  the  allottees  may  approach  the  Courts  against the Authority. Hence, it has been resolved to submit  detailed report to the Govt, to withdraw the D'Notification  of the acquired lands from the Scheme of the Authority in  the interest of public at large.”

11. The  new  Chairman  also  wrote  letter  dated  17.4.1999  to  the  

Karnataka  Minister  for  Urban  Development  for  cancellation  of  

notification dated 24.3.1999.  The relevant portions of that letter are  

extracted below:

“In  Government  Notification  No.UDD  172  BEMPRA  VI/98,  dated:  24.3.1999  the  lands  of  Kanbargi  village  bearing R.S. No. 533, 534A and 534B measuring 8 acres 29  guntas have been deleted from the scheme of the Authority.  In this already 82 sites.   In the meeting of the authority  dated: 15.4.1999 it has been discussed in detail regarding  the problem arose on account of this notification.  In the  said meeting it was considered the fact regarding formation  of 112 sites, allotment of 82 sites, execution of lease cum  sale  agreement  in  respect  of  45  sites,  constructions  of  houses by 7 allottees by incurring Rs.3 lakhs, 17 allottees  about to get the lease cum sale agreement and deposit of  part of value of the sites by 20 allottees.

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Under these circumstances, it is submitted that, in the area  of  the  said  lands,  113  sites  of  different  sizes  have  been  formed,  out  of  the  same  already  82  sites  have  been  distributed to the public, out of these 82 sites, 62 persons  have deposited full value of the sites, out of these lease- cum-sale agreements in respect of 45 sites have been got  executed  20 persons  then  deposited  part  of  value  of  the  sites, as per rules there is scope for depositors the amount  out of 45 allottees who have got executed the lease-cum- sale  agreements,  6  persons  have  obtained  the  building  person for construction of the building over the sites, and in  these the work of construction of houses is under progress.  These 6 houses have been constructed up to slab level and  the  Engineer  of  the  Authority  has  estimated  the  cost  of  construction of Rs.5,50,000/- per house.  Apart from this,  the Authority has already formed roads in these lands by  incurring  expenditure  about  Rs.11,00,000/-  and  about  Rs.24,00,000/-  worth  electrification  and  the  work  of  formation  of  pacca  gutter  is  under  progress  and  Rs.5,05,000/-  is  incurred  under  land  acquisition.  Notwithstanding,  since  the  lands  are  deleted  by  the  Government  from  the  scheme,  82  persons  who  have  already been allotted the sites have sustained loss.  Apart  from  this,  it  is  not  possible  to  the  Authority  to  make  alternative arrangement to them and it would be difficult to  cancel the lease-cum-sale agreement in respect of the sites.  In  this  background,  the  Authority  has to  face  the  severe  objections  from  public  allottees,  and  there  may  be  the  possibility of facing Court litigations.  Therefore, from the  public point of view and in the interest of the Authority it is  suitable to cancel the said notification by reconsidering the  notification issued by the Government by already deciding  to  delete  these  lands  from  the  scheme.   Hence,  kindly  considering these facts, it is requested immediate action for  cancelling the notification.”

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12. In the meanwhile, some of the allottees of sites carved out by the  

BDA  filed  Writ  Petition  Nos.  16003-16008/1998  for  quashing  

notification dated 24.3.1999 by asserting that the State Government did  

not have the jurisdiction to issue notification under Section 19(7) of the  

Act.  They pleaded that after dismissal of the writ petitions filed by the  

landowners, the BDA had carried out development and allotted sites to  

eligible  persons  some  of  whom  had  paid  full  price  and  started  

construction.   They further pleaded that  with a view to frustrate the  

scheme,  the  landowners  executed  power  of  attorney  in  favour  of  

Allahuddin  Khan  who,  in  turn,  sold  the  plots  on  stamp  papers  of  

Rs.10/- obtaining permission from the competent authority and that the  

State Government had illegally denotified the acquired land by relying  

upon the recommendations made by the BDA which was headed by a  

political person.  As a counter blast, Vasanth Sreedhar Kulkarni and  

two others filed Writ Petition Nos. 19264-19266/1999 questioning the  

allotment of sites by the BDA by asserting that the Commissioner had  

no authority to allot any site carved out of survey Nos. 533, 534A and  

534B because the BDA had already passed resolution dated 16.3.1998  

for deleting those survey numbers from the notifications issued under  

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Sections 17(1) and 19(1) of the 1987 Act and the State Government had  

issued notification under Section 19(7) of that Act.

13. During the pendency of the writ petitions, Smt. Mumtaz Begum  

and  50  others  filed  an  application  in  Writ  Petition  Nos.  16003-

16008/1998  for  impleadment  as  parties.   The  learned  Single  Judge  

disposed of all the writ petitions by common order dated 16.7.1999.  He  

first dealt with the application for impleadment and rejected the same  

by making the following observations:

“Before  taking up this  writ  petition  on merits,  it  is  also  necessary to notice that by means of IA.II as many as 51  persons wants to come on record as contesting respondents  to the writ petition. The interest claimed by them is "that all  of them pursuant to an agreement of sale executed by the  land  owners  of  the  acquired  property,  were  put  in  possession  and  they  have  raised  permanent  construction.  Therefore, have an interest".

It  is  not  disputed  that  these  alleged "agreement  of  sale"  were  executed  by  the  land  owners  subsequent  to  the  dismissal of the writ petitions challenging the acquisition  proceedings.  Hence,  on  the  day  or  dates  when  the  land  owners alleged to have executed the agreement of sale, they  had no legal right to sell the property and therefore these  applicant  cannot  be  said  to  have  acquired  any  interest  known to law in the property. Even otherwise, the right of  an agreement holder is only to sue for specific performance  or to enforce the contract. It cannot be said that he would  be having any right to property. Looking from any angle,  

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these applicants cannot be said to have any interest in the  property to come on record and contest the writ petitions.  Hence, the application IA.II is rejected."   

14. The learned Single Judge then considered the question whether  

the  State  Government  had the  power  to  denotify  the  acquired  land.  

After adverting to the grounds on which the allottees had questioned  

notification dated 24.3.1999, the learned Single Judge held that power  

to denotify the acquired land can be exercised only before possession  

thereof is taken and as the BDA had already taken possession, the State  

Government could not have issued notification dated 24.3.1999.  The  

learned Single Judge then referred to Section 19(7) and held that the  

power  to  denotify  or  reconvey  land included in  the  scheme can be  

exercised only by the Authority and not by the State Government.  The  

learned Single Judge also declared that the erstwhile landowners do not  

have  the  locus  to  challenge  the  allotment  of  sites  because  the  writ  

petitions  filed  by  them  questioning  the  notifications  issued  under  

Sections 17(1) and 19(1) of the 1987 Act had been dismissed and the  

acquired land had vested in the BDA.

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15. The  writ  appeal  filed  by  Vasanth  Sreedhar  Kulkarni  and  two  

others was dismissed by the Division Bench, which agreed with the  

learned Single Judge that the State Government did not have the power  

to  denotify  the  acquired  land  by  issuing  notification  under  Section  

19(7).  Writ Appeal Nos. 1711-1716/2000 and 2450-2454/2000 filed by  

Mumtaz Begum and others were dismissed by another Division Bench  

by relying upon order dated 14.12.1999 passed in the writ appeals filed  

by Vasanth Sreedhar Kulkarni and two others.

16. Before this Court several interlocutory applications were filed by  

the  parties.   I.A.  Nos.  20-28/2010 were  filed by appellants  Vasanth  

Sreedhar Kulkarni and two others for placing on record xerox copies of  

notice dated 4.9.1996 issued by the Special Land Acquisition Officer,  

BDA  under  Section  16(2)  of  the  1894  Act  read  with  Karnataka  

(Amendment)  Act,  1961 and  letter  dated  25.10.2008  written  by  the  

Special Land Acquisition Officer to Shri Vasheemkhan stating therein  

that  there is  no mention in the record of the BDA of compensation  

amount regarding survey Nos. 533/1 and 534/B.  Two I.As. including  

I.A. Nos. 56-64/2010 have been filed by Vasanth Sreedhar Kulkarni  

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and two others for permission to urge additional grounds.  They have  

also filed copies of the writ petitions, order dated 14.10.1980 passed by  

the  State  Government  vide  HUD.172/1979,  English  translation  of  

newspaper – Tarun Bharat dated 29.9.1994 and application filed under  

Section 151 CPC before the High Court.  I.A. Nos. 38-46 and 47-55 of  

2010  have  been  filed  on  behalf  of  the  BDA for  permission  to  file  

documents marked Annexures R2/2 to R2/23.

17. In  compliance  of  the  direction  given  by  the  Court,  learned  

counsel appearing for the State filed an affidavit  dated 23.9.2010 of  

Shri  Shambhu  Dayal  Meena,  Secretary  to  the  Government  of  

Karnataka,  Urban  Development  along  with  copies  of  the  gazette  

notifications  dated  7.11.1991,  1.9.1994  and  24.3.1999,  order  dated  

9.6.1994 passed by the State Government under Section 18(3) of the  

1987 Act, the panchnamas and other documents evidencing taking  of  

possession  of  various  parcels  of  land  including  survey  Nos.  533/1,  

534A and 534B and entries made in favour of the BDA in the record of  

rights.

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18. The  first  and  foremost  argument  advanced  by  Shri  Pallav  

Shishodia, learned senior counsel appearing for the appellants is that  

notwithstanding dismissal of Writ Petition Nos. 30236 and 30237 of  

1994 filed by Vasanth Sreedhar Kulkarni and Eshwar Gouda Burma  

Gouda  Patil,  the  notifications  issued  by  the  BDA  and  the  State  

Government under Sections 17(1) and 19(1) respectively are liable to  

be quashed because the 1987 Act does not provide for the acquisition  

of land.  Shri Shishodia submitted that the 1987 Act was enacted by the  

State Legislature with reference to the subject enumerated in Entry 5 of  

List II of the Seventh Schedule of the Constitution and that entry does  

not  empower  the  State  Legislature  to  enact  law  for  compulsory  

acquisition of land.  He further submitted that the State Government  

can acquire land only under the 1894 Act, which has been enacted by  

Parliament  with  reference  to  Entry  42  of  List  III  of  the  Seventh  

Schedule.   Learned  senior  counsel  emphasized  that  the  provisions  

contained in the 1987 Act empower the BDA and the State Government  

to frame and sanction schemes for development of urban areas and also  

earmark/designate the land proposed to be acquired for the execution of  

the development schemes, but there is no provision in the Act under  

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which  they  can  compulsorily  acquire  the  land.    He  argued  that  if  

Sections 17 and 19 of the 1987 Act are read as enabling the BDA and  

the State Government to acquire land for the development schemes, the  

same  would  become  vulnerable  to  the  attack  of  unconstitutionality.  

Learned senior counsel also referred to the provisions of Sections 35  

and 36 of the Act and submitted that for the purpose of acquisition the  

competent authority has to comply with the mandate of Sections 4, 5A  

and 6 of the 1894 Act, which has not been done in these cases.  He  

lastly submitted that the judgment in Bondu Ramaswamy v. Bangalore  

Development  Authority  (2010)  7  SCC  129  requires  reconsideration  

because the proposition laid down therein on the scope of Sections 17  

and 19 of the 1987 Act is contrary to the settled law that compulsory  

acquisition  of  land  can  be  made  only  after  complying  with  the  

provisions of the 1894 Act.

19. Learned  counsel  for  the  respondents  argued  that  appellants’  

indirect challenge to the notifications issued under Sections 17 and 19  

on the ground that the 1987 Act does not provide for the acquisition of  

land should not be entertained because no such plea was raised in the  

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pleadings of the writ petitions filed in 1994 or 1999, writ appeals filed  

against the order of the learned Single Judge and even the memo of  

special leave petitions.  Shri S.N. Bhat, learned counsel appearing for  

the BDA further argued that even on merits, the appellants’ challenge  

to the notifications issued under Sections 17(1) and 19(1) should be  

negatived  because  the  judgment  of  three-Judge  Bench  in  Bondu  

Ramaswamy’s case has been approved by the Constitution Bench in  

Girnar Traders (3) v. State of Maharashtra (2011) 3 SCC 1.

20. For appreciating the rival contentions in a correct perspective, we  

may usefully notice Sections 16, 17, 18 and 19 of the 1987 Act.  The  

same read as under:

“16. Particulars to be provided for  in a development  scheme. – Every development scheme under Section 15, - (1)  shall  within  the  limits  of  the  area  comprised  in  the  scheme, provide for, -

(a) the acquisition of any land which in the opinion  of  the  authority,  will  be  necessary  for  or  affected by the execution of the scheme;

(b) laying  and  relaying  out  all  or  any  land  including the construction and reconstruction of  buildings  and  formation  and  alteration  of  streets;  

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(c) drainage, water supply and electricity; (d) the reservation of not less than fifteen per cent  

of the total area of the layout for public parks  and play grounds and an additional area of not  less than ten per cent of the total  area of the  layout for civic amenities.

(2) may, within the limits aforesaid, provide for,- (a)raising any land which the authority may consider  

expedient to raise to facilitate better drainage; (b)forming open spaces for the better ventilation of  

the area comprised in the scheme or any adjoining  area;

(c)the sanitary arrangements required; and (d)establishment or construction of markets and other  

public requirements or conveniences.

(3) may, within and without the limits aforesaid provide  for construction of houses.

17.  Procedure on completion of scheme.  -  (1)  When a  development scheme has been prepared, the authority shall  draw up a notification stating the fact of a scheme having  been made and the limits of the area comprised therein, and  naming a place where particulars of the scheme, a map of  the area comprised therein, a statement specifying the land  which is proposed to be acquired and of the land in regard  to which a betterment tax may be levied may be seen at all  reasonable hours.

(2) A copy of the said notification shall be sent to the  local  authority,  which  shall,  within  thirty  days  from the  date  of  receipt  thereof,  forward  to  the  Authority  for  transmission  to  the  Government  as  hereinafter  provided,  any representation which the local authority may think fit  to make with regard to the scheme.

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(3) The  Authority  shall  also  cause  a  copy  of  the  said  notification to be published in two consecutive issues of a  local  newspaper  having wide  circulation  in  the  area  and  affixed  in  some  conspicuous  part  of  its  own  office,  the  Deputy  Commissioner's  office,  the  office  of  the  local  authority  and  in  such  other  places  as  the  authority  may  consider necessary.

(4) If  no  representation  is  received  from  the  local  authority within the time specified in sub-section (2), the  concurrence of the local authority to the scheme shall be  deemed to have been given.  

(5) During  the  thirty  days  next  following  the  day  on  which  such  notification  is  published  in  the  local  newspapers  the  Authority  shall  serve  a  notice  on  every  person whose name appears in the assessment list  of the  local  authority  or  in  the  land  revenue  register  as  being  primarily  liable  to  pay  the  property  tax  or  land  revenue  assessment on any building or land which is proposed to be  acquired in executing the scheme or in regard to which the  Authority proposes to recover betterment tax requiring such  person to show cause within thirty days from the date of the  receipt of the notice why such acquisition of the building or  land  and  the  recovery  of  betterment  tax  should  not  be  made.

(6)  The notices shall be signed by or by the order of the  Commissioner and shall be served, -  

(a)by personal delivery of, if such person is absent or  cannot be found, on his agent, or if no agent can  be found, then by leaving the same on the land or  the building; or

(b)by leaving the  same  at  the  usual  or  last  known  place of abode or business of such person; or

(c)by registered post  addressed to the usual  or  last  known place of abode or business of such person.

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18. Sanction  of  scheme.-  (1)  After  publication  of  the  scheme and service of notices as provided in section 17 and  after  consideration  of  representations  if  any,  received  in  respect  thereof,  the  authority  shall  submit  the  scheme  making such modifications, therein as it may think fit to the  Government for sanction, furnishing,-  

(a) a description with full particulars of the scheme  including the reasons for any modifications inserted  therein;  

(b) complete  plans  and  estimates  of  the  cost  of  executing the scheme;

(c) a statement specifying the land proposed to be  acquired;

(d) any  representation  received  under  sub-section  (2) of section 17;

(e) a  schedule  showing  the  rateable  value  as  entered in the municipal assessment book on the date  of the publication of a notification relating to the land  under section 17 or the land assessment of all land  specified in the statement under clause (c); and

(f) such  other  particulars,  if  any,  as  may  be  prescribed.

(2) Where  any  development  scheme  provides  for  the  construction of houses, the Authority shall also submit to  the Government plans and estimates for the construction of  the houses.

(3) After considering the proposal submitted to it to the  Government may, by order, give sanction to the scheme.

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19. Upon sanction, declaration to be published giving particulars of land to be acquired.- (1) Upon sanction of  the scheme,  the  Government shall  publish in  the official  Gazette a declaration stating the fact of such sanction and  that the land proposed to be acquired by the Authority for  the purposes of the scheme is required for a public purpose.  

(2) The declaration shall state the limits within which the  land  proposed  to  be  acquired  is  situate,  the  purpose  for  which  it  is  needed,  its  approximate  area  and  the  place  where a plan of the land may be inspected.  

(3) The said declaration shall be conclusive evidence that  the land is needed for a public purpose and the Authority  shall, upon the publication of the said declaration, proceed  to execute the scheme.

(4) If  at  any  time  it  appears  to  the  Authority  that  an  improvement can be made in any part of the scheme, the  Authority may alter the scheme for the said purpose and  shall subject to the provisions of sub-sections (5) and (6)  forthwith proceed to execute the scheme as altered.

(5) If  the  estimated  cost  of  executing  the  Scheme  as  altered exceeds by a greater sum than five per cent of the  estimated cost of executing the scheme as sanctioned, the  Authority  shall  not,  without  the previous sanction of the  Government, proceed to execute the scheme, as altered.  

(6) If the scheme as altered involves the acquisition other  wise than by agreement,  of  any land other than the land  specified in the schedule referred to in clause (e) of sub- section (1) of section 18, the provisions of sections 17 and  18 and of sub-section (1) of this section shall apply to the  part of the scheme so altered in the same manner as if such  altered part were the scheme.

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(7) The  Authority  shall  not  denotify  or  reconvey  any  land included in the scheme without the specific orders of  the Government.  

(8) The  Authority  shall  not  allot  any  land  to  any  individual, organization or authority, the civic amenity area  earmarked  in  the  scheme  without  the  orders  of  the  Government.”

21. The above noted provisions are pari materia to Sections 15, 16,  

17 and 19 of the Bangalore Development Authority Act, 1976, which  

were interpreted in Bondu Ramaswamy’s case.  An argument similar to  

the one made before us was rejected by three-Judge Bench by making  

the following observations:

“The assumption by the appellants that Chapter III of the  BDA  Act  relating  to  development  schemes  does  not  provide for acquisition is erroneous.  Sections 15 to 19 of  the  BDA Act  contemplate  drawing up of  a  development  scheme  or  additional  development  scheme  for  the  Bangalore Metropolitan Area, containing the particulars set  down in  Section  16 of  the  said  Act,  which includes  the  details  of  the  lands  to  be  acquired  for  execution  of  the  scheme. Section 17 requires the BDA on preparation of the  development  scheme,  to  draw-up  and  publish  in  the  Gazette,  a  notification  stating  that  the  scheme  has  been  made,  showing the  limits  of  the  area  comprised  in  such  scheme and specifying the lands which are to be acquired.  The other provisions of Section 17 make it clear that the  BDA has  to  furnish  a  copy  of  the  said  notification  and  invite  a  representation from Bangalore  City  Corporation,  affix  the  notification  at  conspicuous  places  in  various  offices, and serve notice on every person whose land is to  

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be  acquired.  Thus,  the  notification  that  is  issued  under  Section  17(1)  and  published  under  Section  17(3),  is  a  preliminary notification for acquiring the lands required for  the scheme under the Act.  Section 17(5) and Section 18(1)  requires BDA to give an opportunity to landowners to show  cause against acquisition and consider the representations  received in that behalf. Section 18(1) also requires BDA to  furnish a statement of the lands proposed to be acquired to  the  State  Government  for  obtaining  its  sanction  for  the  scheme  including  the  acquisition.  Sub-section  (1)  of  Section  19  requires  the  Government  to  publish  a  declaration  upon  sanctioning  the  scheme,  declaring  that  such a sanction has been given and declaring that the “lands  proposed to be acquired by the authority” are required for  public purpose. Sub-section (3) of Section 19 makes it clear  that the declaration published under Section 19(1) should  be conclusive evidence that the land is needed for a public  purpose and that the Authority shall,  upon publication of  such declaration, proceed to execute the same. Thus, it is  clear that the acquisition by the Authority for the purposes  of the development scheme is initiated and proceeded with  under the provisions of the BDA Act.

Section 36 of the BDA Act provides that the “acquisition of  land under this Act” shall be regulated by the provisions, so  far as they are applicable of the LA Act.  In view of the  categorical  reference  in  Section  36  of  the  BDA  Act  to  acquisitions under that Act, there cannot be any doubt that  the acquisitions for BDA are not  under the LA Act,  but  under the BDA Act itself.  It is also clear from Section 36  that  the  LA Act,  in  its  entirety,  is  not  applicable  to  the  acquisition  under  the  BDA  Act,  but  only  such  of  the  provisions  of  the  LA  Act  for  which  a  corresponding  provision  is  not  found  in  the  BDA  Act,  will  apply  to  acquisitions under the BDA Act. In view of Sections 17 to  19  of  the  BDA  Act,  the  corresponding  provisions  —  Sections  4  to  6  of  the  LA  Act—will  not  apply  to  acquisitions under the BDA Act.  We therefore reject the  

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contention  that  the  BDA  Act  does  not  contemplate  acquisition and that the acquisition which is required to be  made as a part of the development scheme, should be made  under the LA Act, applying Sections 4, 5-A and 6 of the  LA Act.

The question of repugnancy can arise only where the State  law and the existing Central law are with reference to any  one of the matters enumerated in the Concurrent List. The  question  of  repugnancy  arises  only  when  both  the  legislatures are competent to legislate in the same field, that  is, when both the Union and State laws relate to a subject in  List  III.  Article  254 has no application except where the  two  laws  relate  to  subjects  in  List  III  (see  Hoechst  Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45).  But if the law made by the State Legislature, covered by an  entry in the State List, incidentally touches upon any of the  matters in the Concurrent List, it is well settled that it will  not be considered to be repugnant  to an existing Central  law  with  respect  to  such  a  matter  enumerated  in  the  Concurrent  List.  In  such  cases  of  overlapping  between  mutually exclusive lists, the doctrine of pith and substance  would apply. Article 254(1) will have no application if the  State law in pith and substance relates to a matter in List II,  even if it may incidentally trench upon some item in List  III. (See Hoechst, Megh Raj v. Allah Rakhia AIR 1947 PC  72, and Lakhi Narayan Das v. Province of Bihar, AIR 1950  FC 59).

Where the law covered by an entry in the State List made  by the State Legislature contains a provision which directly  and  substantially  relates  to  a  matter  enumerated  in  the  Concurrent List and is repugnant to the provisions of any  existing law with respect to that matter in the Concurrent  List, then the repugnant provision in the State List may be  void unless it can coexist and operate without repugnancy  to  the  provisions  of  the  existing  law.  This  Court  in  Munithimmaiah   has held that  the BDA Act is  an Act  to    

27

provide for the establishment of a Development Authority  to facilitate and ensure planned growth and development of  the city of Bangalore and areas adjacent thereto, and that  acquisition of any lands, for such development, is merely  incidental  to  the  main  object  of  the  Act,  that  is,  development of Bangalore Metropolitan Area. This Court  held that in pith and substance, the BDA Act is one which  squarely  falls  under  Entry  5  of  List  II  of  the  Seventh  Schedule and is not a law for acquisition of land like the  LA Act,  traceable to Entry 42 of List  III of the Seventh  Schedule, the field in respect of which is already occupied  by the Central  Act,  as amended from time to time.  This  Court held that if at all, the BDA Act, so far as acquisition  of  land  for  its  developmental  activities  is  concerned,  in  substance and effect will constitute a special law providing  for  acquisition for  the  special  purposes  of  BDA and the  same will not be considered to be a part of the LA Act. The  fallacy in the contention of the appellants is that it assumes,  erroneously, that the BDA Act is a law referable to Entry  42 of List III, while it is a law referable to Entry 5 of List  II. Hence the question of repugnancy and Section 6 of the  LA Act prevailing over Section 19 of the BDA Act would  not at all arise.”

(emphasis supplied)

22. The  proposition  laid  down in  Bondu  Ramaswamy’s  case  was  

approved by the Constitution Bench in Girnar Traders (3) v. State of  

Maharashtra (supra) (para 178).  The Constitution Bench also referred  

to the doctrine of pith and substance in the context of challenge to some  

of the provisions of the Maharashtra Regional and Town Planning Act,  

1966 and observed:

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“We have already discussed in great detail that the State  Act  being  a  code  in  itself  can  take  within  its  ambit  provisions of the Central Act related to acquisition, while  excluding  the  provisions  which  offend  and  frustrate  the  object of the State Act. It will not be necessary to create, or  read  into  the  legislations,  an  imaginary  conflict  or  repugnancy  between  the  two  legislations,  particularly,  when they can be enforced in their respective fields without  conflict. Even if they are examined from the point of view  that  repugnancy is  implied between Section  11-A of  the  Land  Acquisition  Act  and  Sections  126  and  127  of  the  MRTP Act, then in our considered view, they would fall  within  the  permissible  limits  of  doctrine  of  “incidental  encroachment” without rendering any part of the State law  invalid.

Once the doctrine of pith and substance is applied to the  facts  of  the  present  case,  it  is  more  than  clear  that  in  substance the State Act is aimed at planned development  unlike the Central Act where the object is to acquire land  and  disburse  compensation  in  accordance  with  law.  Paramount  purpose  and  object  of  the  State  Act  being  planned  development  and  acquisition  being  incidental  thereto,  the  question  of  repugnancy  does  not  arise.  The  State,  in terms of Entry 5 of List  II  of  Schedule VII,  is  competent to enact such a law. It is a settled canon of law  that courts normally would make every effort to save the  legislation  and  resolve  the  conflict/repugnancy,  if  any,  rather than invalidating the statute. Therefore, it will be the  purposive  approach  to  permit  both  the  enactments  to  operate in their own fields by applying them harmoniously.  Thus, in our view, the ground of repugnancy raised by the  appellants, in the present appeals, merits rejection.

A  self-contained  code  is  an  exception  to  the  rule  of  referential legislation. The various legal concepts covering  

29

the  relevant  issues  have  been  discussed  by  us  in  detail  above.  The  schemes  of  the  MRTP  Act  and  the  Land  Acquisition Act do not admit any conflict or repugnancy in  their  implementation.  The  slight  overlapping  would  not  take the colour of repugnancy. In such cases, the doctrine  of  pith  and  substance  would  squarely  be  applicable  and  rigours of Article 254(1) would not be attracted. Besides  that, the reference is limited to specific provisions of the  Land  Acquisition  Act,  in  the  State  Act.  Unambiguous  language  of  the  provisions  of  the  MRTP  Act  and  the  legislative  intent  clearly  mandates  that  it  is  a  case  of  legislation  by  incorporation  in  contradistinction  to  legislation by reference.”

(emphasis supplied)

23. In view of the law laid down in the aforementioned cases, we  

hold that  the  1987 Act not  only provides for  development  of  urban  

areas,  but  also  empowers  the  BDA  and  the  State  Government  to  

compulsorily acquire land for the purpose of execution/implementation  

of the schemes.

24. The  second  argument  of  the  learned  senior  counsel  for  the  

appellants  is  that  under  Section  19(7)  of  the  1987  Act,  the  State  

Government is empowered to release the acquired land and the High  

Court  committed  serious  error  by  nullifying  notification  dated  

24.3.1999 at the instance of those to whom sites were allotted by the  

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BDA.  Shri Shishodia emphasized that the documents like panchnamas  

and record of rights prepared by the Special Land Acquisition Officer  

and other revenue officers are evidence only of symbolic taking over of  

possession, but the actual possession continued with the landowners,  

who carved out plots and sold the same to the members of the weaker  

sections and the State Government had rightly taken note of the plight  

of the citizens belonging to poor strata of the society and denotified the  

land  by  accepting  the  recommendations  made  by  the  BDA.   Shri  

Shishodia  submitted  that  Mumtaz  Begum  and  others  are  innocent  

purchasers and the High Court should have rejected the plea taken by  

the  official  respondents  that  the  State  Government  could  not  have  

issued  notification  under  Section  19(7)  of  the  1987  Act.   Learned  

counsel  for  the  State  and  the  BDA submitted  that  Section  19(7)  is  

similar to Section 48 of the 1894 Act and the power to denotify the  

acquired land cannot be exercised after possession of the acquired land  

is taken by the competent authority and, in any case, that power can be  

exercised only by the Authority and not by the State Government.

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25. In  our  view,  there  is  no  merit  in  the  argument  of  the  learned  

senior counsel for the appellants.  The documents produced before the  

High Court and this Court show that possession of land comprised in  

survey Nos. 534/A+C was taken on 1.1.1996 and possession of land  

comprised in survey Nos. 533/1, 534/B was taken after dismissal of  

Writ  Petition  Nos.  30236/1994  and  30237/1994.   After  taking  of  

possession, the name of the BDA was entered in the record of rights.  

The appellants  have not  produced any evidence before  the  Court  to  

show  that  Panchnamas  evidencing  take  over  of  possession  were  

fabricated by the Special Land Acquisition Officer and entries in the  

record of rights were manipulated by the concerned revenue authorities.  

Therefore,  the  bald  statement  made  by  the  landowners  that  they  

continued to  be  in  possession of  the  acquired land cannot  be  relied  

upon for recording a finding that denotification of the acquired land  

was  valid.   In  Banda  Development  Authority,  Banda  v.  Motilal  

Agarwal (2011) 5 SCC 394, this Court examined in detail the mode and  

manner of taking possession of the land acquired under the 1894 Act,  

referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat  

(1976) 1 SCC 700, Balmokand Khatri Educational and Industrial Trust,  

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Amritsar v. State of Punjab (1996) 4 SCC 212, P.K. Kalburqi v. State  

of  Karnataka  (2005)  12  SCC  489,  National  Power  Thermal  Power  

Corporation  Ltd.  v.  Mahesh  Dutta  (2009)  8  SCC  339,  Sita  Ram  

Bhandar Society v. Government N.C.T. of Delhi (2009) 10 SCC 501  

and culled out the following principles:

“(i) No hard-and-fast rule can be laid down as to what act  would constitute taking of possession of the acquired land.

(ii) If  the  acquired land is  vacant,  the  act  of  the  State authority  concerned  to  go  to  the  spot  and  prepare  a panchnama  will  ordinarily  be  treated  as  sufficient  to constitute taking of possession.

(iii) If  crop  is  standing  on  the  acquired  land  or building/structure  exists,  mere  going  on  the  spot  by the  authority  concerned  will,  by  itself,  be  not  sufficient for  taking  possession.  Ordinarily,  in  such  cases,  the authority concerned will have to give notice to the occupier  of the building/structure or the person who has cultivated  the land and take possession in the presence of independent  witnesses and get their signatures on the panchnama.  Of  course,  refusal  of  the  owner  of  the  land  or  building/structure  may  not  lead  to  an  inference  that  the  possession of the acquired land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not  be possible for the acquiring/designated authority to take  physical possession of each and every parcel of the land  and it will be sufficient that symbolic possession is taken  by  preparing  appropriate  document  in  the  presence  of  

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independent witnesses and getting their signatures on such  document.  

(v) If  beneficiary  of  the  acquisition  is  an  agency/instrumentality  of  the  State  and 80% of  the  total  compensation is deposited in terms of Section 17(3-A) and  substantial portion of the acquired land has been utilized in  furtherance of the particular public purpose, then the court  may  reasonably  presume that  possession  of  the  acquired  land has been taken.”

26. By applying clause (ii) of the aforesaid principles, we hold that  

possession of the acquired land had been taken by the Special Land  

Acquisition Officer in accordance with law and neither the BDA had  

the  jurisdiction to  make  a  recommendation for  denotification of  the  

acquired land nor the State Government could issue notification under  

Section 19(7) of the 1987 Act.  It also appears to us that both, the BDA  

and the State Government laboured under a mistaken impression that  

the power under Section 19(7) of the 1987 Act can be exercised by the  

latter.  If that was not so and the BDA genuinely felt that a case was  

made out  for deacquisition of land comprised in survey Nos.  533/1,  

534/A and 534/B, then it could have, on its own, issued notification  

under Section 19(7) of the 1987 Act.

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27. The question whether Mumtaz Begum and others who claim to  

have purchased small parcels of land from Allahuddin Khan after the  

issuance of notifications under Section 17(1) of the 1987 Act should be  

allowed to retain the same despite the fact that the BDA had carved out  

sites and allotted plots to more than 100 eligible applicants deserves to  

be answered in negative in view of the law laid down in Yadu Nandan  

Garg v. State of Rajasthan 1996(1) SCC 334, U.P. Jal Nigam, Lucknow  

v. Kalra Properties (P) Ltd. (1996) 3 SCC 124, Sneh Prabha v. State of  

U.P.  (1996)  7  SCC  426,  Ajay  Krishan  Shinghal  v.  Union  of  India  

(1996) 10 SCC 721, Star Wire (India) Ltd. v. State of Haryana (1996)  

11 SCC 698, Jaipur Development Authority v. Daulat Mai Jain (1997)  

1 SCC 35, Meera Sahni v. Lt. Governor of Delhi (2008) 9 SCC 177 and  

Tika Ram v. State of U.P. (2009) 10 SCC 689.

28. In Sneh Prabha v.  State  of  U.P.  (supra),  the  Court  referred to  

some of the earlier judgments and held:  

“. … It is settled law that any person who purchases land  after  publication  of  the  notification  under  Section  4(1),  does so at his/her own peril. The object of publication of  the  notification  under  Section 4(1)  is  notice  to  everyone  that the land is needed or is likely to be needed for public  purpose  and  the  acquisition  proceedings  point  out  an  

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impediment  to  anyone  to  encumber  the  land  acquired  thereunder.  It  authorises  the  designated  officer  to  enter  upon  the  land  to  do  preliminaries,  etc.  Therefore,  any  alienation  of  the  land  after  the  publication  of  the  notification  under  Section  4(1)  does  not  bind  the  Government or the beneficiary under the acquisition.  On  taking possession of the land, all rights, title and interests in  land stand vested in the State, under Section 16 of the Act,  free from all encumbrances and thereby absolute title in the  land is acquired thereunder.”   

The same view has been reiterated in other judgments.

29. In the result,  the appeals are dismissed.  Appellants – Vasanth  

Sreedhar  Kulkarni  and Eshwar Gouda Burma Gouda Patil  shall  pay  

cost  of  Rs.1,00,000/-  each  to  the  BDA  for  thrusting  unwarranted  

litigation upon it.  The BDA shall ensure delivery of possession of the  

sites to the allottees within 8 weeks from today.  However, it is made  

clear that this judgment shall not preclude the State Government from  

allotting alternative sites to Mumtaz Begum and others, who are said to  

have  purchased  small  parcels  of  land  from the  landowners  through  

Allahuddin Khan.

….………………….…J.         [G.S. Singhvi]

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                                                             …..…..………………..J.      [Asok Kumar Ganguly]

New Delhi October 14, 2011.

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