# N. A. L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE DEVELOPMENT AUTHORITY & ORS

- **Citation:** [2017] 13 S.C.R. 1053
- **Court:** Supreme Court of India
- **Decided:** 2017-08-09
- **Case number:** Civil Appeal Nos. 9790-9791 of2017
- **Bench:** A.K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-a-l-layout-residents-association-v-bangalore-development-authority-ors-31789
- **Pages:** 36

## Headnote

Land Acquisition Act, 1894 - ss. 4, 6, 16 and 48 - Land (including
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the suit land, survey no.50) acquired by the State - The State took
over the possession of the suit land and handed over the same to
Bangalore Development Authority - Acquisition of suit land was
challenged by the land owners in several rounds of litigations which
were dismissed by the High Court - Thereafter, land owners made
representation before the State Government, which passed
notification dated 12. 04.2001 withdrawing the suit land (survey
no.50) ji-om acquisition - However, the State Government withdrew
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the said notification dated 12.04.2001 vide notification dated
2 2. 03. 2005 -
Writ petition challenging notification dated
22.03.2005, allowed by the single judge - Writ appeal dismissed -
Propriety of- Held: Single Judge committed error by quashing order
dated 22.03.2005 - Division Bench also committed error in
confirming the judgment of the single judge - Jn earlier judgments
of High Court between the parties regarding the acquisition in
question, a finding was returned that acquisition proceedings had
become final and possession was taken Ji-om the land owners in the
year 1984 - High court in writ petition arising out of a notification
by the State dated 22.03.2005 could not have ignored or discarded
the said finding in earlier proceeding regarding delivery of
possession - Single judge committed error in proceeding to reexamine the same issue and gave a contrary finding that possession
was not taken - Further, land owners had earlier filed two writ
petitions, seeking direction to the State to de-notify the suit land,
which were dismissed - Thereafter, the entire exercise by land owners
of approaching the State Government to withdraw from acquisition
of suit land was uncalled for and was not permissible in view of the
dismissal of writ petitions - Res-judicata.
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SUPREME COURT REPORTS
(2017] 13 S.C.R.
Allowing the appeals, the Court
HELD: 1. The Single Judge in judgment dated 30.03.2007
(W.P. No.13404 of 2005) has referred to earlier judgment dated
16.03.1998 (W.P. No.4042of1998) of High Court in which a finding
was returned that possession of land has been taken in the year
1984 and land has absolutely vested in the State. The Single
Judge could not have returned a contrary finding that possession
has not been taken from the petitioners. The dismissal of the
earlier writ petitions (W.P. No.4042 of 1998 and W.P. Nos.1477914781 of 2000 where land owners were seeking a direction to
withdraw survey no.SO from acquisition on the ground that they
are still in possession) and finding to the effect that acquisition
proceedings have become final and possession of the land was
taken back in the year 1984 shall operate as res-judicata in
subsequent writ petition filed by the land owners. Thus, the
opinion of the High Court is unsustainable. [Paras 54, 55 and 611
[1082-A-B; 1083-G-H]
2. The observation of the Single Judge that observation in
earlier judgment dated 16.03.1998 (W.P. No.4042 of 1998) was
made by Judge without reference to any of the record but only
based on the contention of the parties is incorrect and unfounded.
The finding recorded by the High Court was on the basis of
submissions of the parties based on the pleadings and materials
which were placed on the record as well as on the notification
dated 07.05.1985 issued under Section 16(2) evidencing taking
of possession of land on 23.03.1984. Notification dated 07.05.1985
published in official Gazette on 24.10.1985 under Section 16(2)
of the Act 1894(as amended in Karnataka) was an evidence rightly
relied by High Court for coming to the conclusion that possession
was taken as notified in the notification. The Judgment of High
Court dated 16.03.1998 was fully in accordance with the
provisions of Section 16(2) of Act 1894, which provision has not
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even adverted to either by Single Judge or the Division Bench
in the impugned judgment. The findings recorded in the

## Text

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[2017] 13 S.C.R. 1053
N. A. L. LAYOUT RESIDENTS ASSOCIATION
v.
BANGALORE DEVELOPMENT AUTHORITY & ORS.
(Civil Appeal Nos. 9790-9791 of2017)
AUGUST 09, 2017
(A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
Land Acquisition Act, 1894 - ss. 4, 6, 16 and 48 - Land (including
A
B
c
the suit land, survey no.50) acquired by the State - The State took
over the possession of the suit land and handed over the same to
Bangalore Development Authority - Acquisition of suit land was
challenged by the land owners in several rounds of litigations which
were dismissed by the High Court - Thereafter, land owners made
representation before the State Government, which passed
notification dated 12. 04.2001 withdrawing the suit land (survey
no.50) ji-om acquisition - However, the State Government withdrew
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the said notification dated 12.04.2001 vide notification dated
2 2. 03. 2005 -
Writ petition challenging notification dated
22.03.2005, allowed by the single judge - Writ appeal dismissed -
Propriety of- Held: Single Judge committed error by quashing order
dated 22.03.2005 - Division Bench also committed error in
confirming the judgment of the single judge - Jn earlier judgments
of High Court between the parties regarding the acquisition in
question, a finding was returned that acquisition proceedings had
become final and possession was taken Ji-om the land owners in the
year 1984 - High court in writ petition arising out of a notification
by the State dated 22.03.2005 could not have ignored or discarded
the said finding in earlier proceeding regarding delivery of
possession - Single judge committed error in proceeding to reexamine the same issue and gave a contrary finding that possession
was not taken - Further, land owners had earlier filed two writ
petitions, seeking direction to the State to de-notify the suit land,
which were dismissed - Thereafter, the entire exercise by land owners
of approaching the State Government to withdraw from acquisition
of suit land was uncalled for and was not permissible in view of the
dismissal of writ petitions - Res-judicata.
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SUPREME COURT REPORTS
(2017] 13 S.C.R.
Allowing the appeals, the Court
HELD: 1. The Single Judge in judgment dated 30.03.2007
(W.P. No.13404 of 2005) has referred to earlier judgment dated
16.03.1998 (W.P. No.4042of1998) of High Court in which a finding
was returned that possession of land has been taken in the year
1984 and land has absolutely vested in the State. The Single
Judge could not have returned a contrary finding that possession
has not been taken from the petitioners. The dismissal of the
earlier writ petitions (W.P. No.4042 of 1998 and W.P. Nos.1477914781 of 2000 where land owners were seeking a direction to
withdraw survey no.SO from acquisition on the ground that they
are still in possession) and finding to the effect that acquisition
proceedings have become final and possession of the land was
taken back in the year 1984 shall operate as res-judicata in
subsequent writ petition filed by the land owners. Thus, the
opinion of the High Court is unsustainable. [Paras 54, 55 and 611
[1082-A-B; 1083-G-H]
2. The observation of the Single Judge that observation in
earlier judgment dated 16.03.1998 (W.P. No.4042 of 1998) was
made by Judge without reference to any of the record but only
based on the contention of the parties is incorrect and unfounded.
The finding recorded by the High Court was on the basis of
submissions of the parties based on the pleadings and materials
which were placed on the record as well as on the notification
dated 07.05.1985 issued under Section 16(2) evidencing taking
of possession of land on 23.03.1984. Notification dated 07.05.1985
published in official Gazette on 24.10.1985 under Section 16(2)
of the Act 1894(as amended in Karnataka) was an evidence rightly
relied by High Court for coming to the conclusion that possession
was taken as notified in the notification. The Judgment of High
Court dated 16.03.1998 was fully in accordance with the
provisions of Section 16(2) of Act 1894, which provision has not
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even adverted to either by Single Judge or the Division Bench
in the impugned judgment. The findings recorded in the judgment
dated 16.03.1998 could not have been discarded in such slipshod
manner by Single Judge. [Para 57] [1082-G-H; 1083-A-BJ
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3. High Court lost sight of the fact that Notification dated
12.04.2001(issued to withdraw survey no.SO from acquisition) was
N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
1055
DEVELOPMENT AUTHORITY & ORS.
issued after 16 years of taking of the possession. In the meantime, A
BDA has proceeded with the development of the land. Roads
were constructed and society's allotment was also passed in the
year 1985 itself, layout sanctioned in the year 1988 itself. [Para
60) [1083-EJ
4. There is one other reason due to which the Judgment of B
High Court cannot be sustained. Land owners have filed two Writ
Petitions, seeking a direction to the State to de-notify the land
i.e. Survey No.50 i.e. by exercising power under Section 48. Both
the above Writ Petitions were dismissed. After dismissal of the
aforesaid Writ Petitions where relief of withdrawing from the
acquisition of the Survey No.50 was refused, land owners without
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disclosing the relevant facts approached the State Government
in the year 2001 by submitting a representation that they are in
possession and acquisition of Survey No.50 be withdrawn. [Paras
62, 67) [1084-C; 1086-D-EJ
5. When the Writ Petitions, praying for similar relief i.e.
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withdrawal of Survey No.50 from acquisition have been dismissed
by the High Court, the petitioners could not have approached
the State Government praying for same relief. [Para 68](1086-E-F)
6. Both the judgments of the High Court i.e. judgment dated
16.03.1998 in W.P. No.4042 of 1998 as well as judgment dated
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16.08.2000 in Writ Petition Nos.14779-14781 of 2000 were not
brought into notice of the State Government by the land owners
and they succeeded obtaining a Notification on 12.04.2001 which
was cancelled within one month. [Para 69] [1086-F-GJ
7. When the two Writ Petitions, filed by land owners for
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same relief have been dismissed by the High Court, the
petitioners could not have approached the State Government by
representation thereafter praying the State Government to
exercise its power under Section 48 to withdraw Survey No.50
from acquisition. Thus, the entire exercise by the land owners of G
approaching the State Government to withdraw from acquisition
of Survey No.50 was uncalled for and was not permissible in view
of the dismissal of their Writ Petitions by High Court where the
same relief was prayed and refused. (Para 70) (1086-G-H; 1087-A)
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[2017] 13 S.C.R.
A
Ba/want Narayan Bagde v. N. B. Bhagwat & Ors. (1976)
1 SCC 700 : [1975] Suppl. SCR 250; Balmokund Khatri
Educational and industrial Trust, Amritsar v. State of
Punjab (1996) 4 SCC 212 : [1996[ 2 SCR 643;
Tamilnadu Housing Board v. A Wiswam (1996) 8 SCC
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c
D
E
F
G
H
259 : 11996] 2 SCR 402; Sitaram Bhandar Society, New
Delhi v. Lieutenant Governor, Government of NCT. Delhi
& Ors. (2009) 10 SCC 501 : 12009[ 14 SCR 507; HubliDharwad
Urban
Development
Authority
v.
Shekharagowda Chennabasannagowda Phakirgowdar
(2016) 9 SCC 13; Larsen & Toubro Ltd. v. State of
Gujarat and Others (1998) 4 SCC 387 : [1998[ 2 SCR
339; State of Madhya Pradesh and Others v. Vishnu
Prasad Sharma and Others AIR 1966 SC 1593 : [1966]
SCR 557; Ba/want Narayan Bhagde v. MD.Bhagwat
And Others (1976) 1 SCC 700 : [1975] Suppl. SCR
250; Balmokand Khatri Educational And industrial
Trust, Amritsar v. State Of Punjab and Others (1996) 4
SCC 212 : [1996] 2 SCR 643; Banda Development
Authority, Banda v. Moti Lal Agarwal and Others (2011)
5 SCC 394 : [2011 J 7 SCR 435; PK. Kalburqi v. State
of Karnataka and Others (2005) 12 SCC 489 - referred
to.
Case Law Reference
11975] Suppl. SCR 250
referred to
Para 16
[1996) 2 SCR 643
referred to
Para 16
11996[ 2 SCR 402
referred to
Para 16
[2009] 14 SCR 507
referred to
Para 16
(2016) 9 sec 13
referred to
Para 16
[1998) 2 SCR 339
referred to
Para 31
[1966) SCR 557
referred to
Para 33
[1996] 2 SCR 643
referred to
Para 44
12011 I 7 SCR 435
referred to
Para45
(2005) 12 sec 489
referred to
Para 46
N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
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DEVELOPMENT AUTHORITY & ORS.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9790A
9791 of2017
From the Judgment and Order dated 11.12.2008 in Writ Appeal
No. 936 of2007 and Writ Petition No. 6253 of2004 of the High Court of
Karnataka at Bangalore
WITH
C. A. Nos. 9792-9793 of2017.
Rajesh Mahale, Mis. Khaitan & Co., Advs. for the Appellants.
K. Radhakrishnan, Sr. Adv., Navin Prakash, Ms. N. Annapoorani,
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S. J. Amith, Dr. (Mrs.) Vi pin Gupta, Ms. Anitha Shenoy, Raghvendra S.
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Srivastsa, S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, R.
Gopalakrishnan, Joseph Aristotle S., Ms. PriyaAristotle, Ashish Yadav,
Ms. Romsha Raj, Ad vs. for the Respondents.
Respondent-in-person.
The Judgment of the Court was delivered by
ASHOKBHUSHAN,J. I. The issue raised in these two appeals
centres around the Notification dated 12.04.200 I, issued by State
Government, withdrawing Survey No.50, area 6 acres, 20 guntas from
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the acquisition made by the State Government by Notification under
Section 4 dated 19.09.1977 and declaration under Section 6 dated
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07.02.1978 of the of the LandAcquisitionAct, 1894 (hereinafter referred
to as "Act 1894").
2. All the appeals have been filed against the Division Bench
judgment dated 11.12.2008 dismissing the Writ Appeal filed against the
judgment dated 30.03.2007 in Writ Petition No.13404 of2005. Writ Petition
No.13404 of2005 was filed by the land owners challenging the Notification
dated 22.03.2005 issued by the State Government by which the State
Government had withdrawn the earlier Notification dated 12.04.2001.
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The learned Single Judge had allowed the Writ Petition, setting aside the
Notification dated 22.03.2005 and restoring the earlier Notification dated
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12.04.2001 by which Survey No.50 was withdrawn from acquisition.
3. Land acquisition proceeding for acquisition of various plots
including Survey No.50 (which is the subject matter of dispute) has a
chequered history. It is necessary to note the series of events and various
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[2017] 13 S.C.R.
litigations undertaken by the parties and their predecessors before we
consider the issues raised in these appeals.
4. The Bangalore Development Authority framed a Scheme for
formation of layout known as BTM layout which was sanctioned by
State ofKarnataka. For the above purpose the State ofKarnataka decided
to acquire land to the extent of 1703-10 acres. A Notification
under Section 4 dated 19.09.1977 was published on 29.09.1977.
Declaration under Section 6 dated 07.02.1978 was issued, which was
published on 09.03.1978, acquiring large extent of land. The acquired
land included Survey No.50, 51 and 52 of the Tavarekere Village. Notice
under Section 9 of the Act was published on 05.06.1978. Land owners
filed W.P.Nos.21097-21107 of 1983, praying for quashing the Notification
dated 19.09.1977 under Section 4 and Notification dated 07 .02.1978 under
Section 6. The Writ Petitions were dismissed by the High Court vide its
judgment and order dated 10.02.1984. Writ Appeal Nos.271-281 of 1984,
challenging the judgment of the Single Judge were also dismissed. The
award was passed on 08.02.1984, which was approved by the competent
authority on 19.03.1984. On23.03.1984, the possession ofSurveyNo.50
at Tavarekere Village was taken and handed over to the Bangalore
Development Authority by going on to the spot and preparing a Mahazer.
Compensation for Survey No.50 was also deposited in the Civil Court. A
Notification dated 07.05.1985 under Section 16(2) of the Act was also
published in the Karnataka Gazette on 24.10.1985 notifying the taking
of possession of the land.
5. The Writ Petition No.5508of1984 was filed by Munivenkatappa,
one of the co-land owners, challenging Notification under Section 4 to 6.
The Writ Petition was dismissed by Karnataka High Court vide its
judgment dated 14.12.1984. The High Court in its judgment also held
that the development plan has been completed by the Bangalore
Development Authority and the Scheme is in process of implementation.
N.A.L. Employees Co-operative Housing Society Ltd. had made a
request to Bangalore Development Authority for allotment for forming a
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housing colony. BOA passed a resolution dated 17 .11.1982, allotting an
area of 8 acres of land for forming a housing colony. The Sale Deed
dated 09.05.1985 was executed by BOA in favour ofNAL Employees
Co-operative Housing Society Ltd. which included land in Survey Nos.50,
51 and 52. In spite of sale, in favourofN .A.L. Employees Co-operative
Housing Society Ltd.(hereinafter referred to as 'Society'), family
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N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
1059
DEVELOPMENT AUTHORITY & ORS. [ASHOK BHUSHAN, J]
members of the owners attempted to interfere in the possession of the
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society. Hence, the OS No.1492 of 1985 was filed for permanent
injunction. Trial Court granted a temporary injunction, which was
confirmed by the order dated 04.01.1986. Munivenkatappa also filed
OS No.2294 of 1988, claiming that he was in possession of the land,
which was sold to society, which suit came to be dismissed.
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Allotment in favour of society was unsuccessfully challenged by
Munivenkatappa by filing a W.P. No.18360 of 1988 which too was
dismissed.
6. The daughter of Munivenkatappa, namely, Papamma filed a
W.P. No.4042of1998, praying that respondents be directed not to proceed
with the acquisition in respect of Survey No.50. It was claimed in the
Writ Petition that recommendation dated 30.06.1981 by the Special Land
Acquisition Officer has been sent for de-notifying the acquisition of 6
acres and 20 guntas of Survey No.50. In the said Writ Petition, it was
submitted by the respondent that possession of the land was taken and
Notification under Section 16(2) has already been issued on 07 .05.1985.
The High Court, noticing the aforesaid facts held that the acquisition
proceeding has become final and the possession has already been taken
as early as in 23.03.1984, the Writ Petition has no merit and was dismissed
on 16.03.1998.
7. Further, W.P. Nos.14779-14781 of 2000 were filed by one
S.M.Bhimanna @ Subbanna, S/o Munivenkatappa and two others,
seeking a direction to respondents to consider the representation of the
petitioners to drop the acquisition proceedings in respect of!and in Survey
No.50. In the said representation, it was contended on behalf of the
BDA that after issuance of final Notification in 1978, the award was
passed and possession was taken by publishing a Notification under
Section 16(2), hence, the petitioners are not entitled to any relief. After
considering the submission of the parties, the Writ Petition was dismissed
by this Court vide its judgment and order dated 16.08.2000.
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8. One K.R.Rajakumar proprietor of Mis Veeranjeya Auto
Engineering Works, claiming to be a lessee vide Lease Deed dated
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08.04.1985 from land owners of Survey Nos.50, 51 and 52, filed an OS
No.5511 of 1995 for injunction against the land owners as well as the
society, which was imp leaded as defendant No. 7. In the suit, defendant
No.7 pleaded that possession of land was taken in the year 1984.
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[2017] 13 S.C.R.
Acquisition has become final. The suit for iajunction was dismissed.
R.F.A.No.58/99 was filed by Shri K.R.Rajakumar against the society
which too was dismissed by Karnataka High Court vide its order dated
07.03.2000.
9. It appears that land owners having failed to obtain any favourable
order against acquisition proceeding from the High Court or any order
from the Civil Court approached the State Government by filing a
representation, praying for withdrawal ofacquisition in respect of Survey
No.50. The State Government issued a Notification dated 12.04.200 l,
exercising its power under Section 48 of the Act, withdrawing Survey
No.50 from acquisition. The Bangalore Development Authority which
was not informed prior to issuance of order dated I 2.04.2001, immediately,
brought to notice of the State Government that possession of land has
already been taken in the year 1984, no order can be passed under
Section 48. The State Government immediately, issued another order on
09.05.2001, cancelling the Notification dated 12.04.200 I.
I 0. Land owners challenged the order dated 09.05.200 l by filing
a W.P. No.37577 of 2002, Shri Bhimanna @ Subbanna S/o
Munivenkatappa vs. State ofKarnataka. The Writ Petition was allowed
by learned Single Judge vide its judgment dated 04. l I .2003 on the ground
that the State Government before taking a decision on 09.05.2001 has
not issued a notice to the petitioner for whose benefit Notification under
Section 48(1) dated 12.04.2001 was issued. On the above ground, the
Notification dated 09.05.2001 was set aside and Writ Petition against
the said order was allowed. Subsequent to the judgment oflearned Single
Judge dated 04. l l.2003, the State Government issued notice to land
owners and after taking into consideration the material on record issued
a Notification dated 22.03.2005, withdrawing/ cancelling the Notification
dated 12.04.2001.
I I. Land owners filed a Writ Petition No. l 3404 of2005, challenging
the Notification dated 22.03.2005 issued by the State Government in
which Writ Petition the allottees of society, namely, respondent Nos.3 to
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2 I got imp leaded. The Writ Petition, after hearing the parties was allowed
by the learned Single Judge vide its judgment and order dated 30.03.2007.
The Bangalore Development Authority filed a Writ Appeal against
judgment ofleamed Single Judge, which was dismissed by Division Bench
of the Karnataka High Court vide dated 11.12.2008 against which
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judgment all the above Civil Appeals have been filed.
N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
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DEVELOPMENT AUTHORITY & ORS. [ASHOK BHUSHAN, J]
12. Civil Appeal arisingoutofSLP(C) Nos.29553-29554 of201 l
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has been filed by the appellant, who claimed allotment ofa part ofland
of Survey No.SO in public auction conducted on 30.07.2003. Appellant
claimed to have paid the entire sale consideration of Rs.24,41,775/-. But
the Sale Deed has yet not been executed in favour of appellant. Appellant
claimed to have filed applications for impleadment i.e. I.A.Nos.3-4 of B
2010 in SLP(C) Nos.20190-20191 of 2009 filed by Bangalore
Development Authority in which notices were issued by this Court and
order of status quo was granted. However, the said SLP(C) Nos.2019020191 of2009 have been withdrawn on 02.03.2011. Hence, the appellant
has filed these appeals, questioning the judgment of the Division Bench
dated 11.12.2008, affirming the judgment of the Single Judge dated
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30.03.2007, quashing the notification dated 22.03.2005.
13. Civil Appeals filed by the P.M. Anoop Kumar refer to similar
facts and grounds, challenging the judgments of the Karnataka High
Court. Reference of pleadings and judgments in Civil Appeal Nos.97909791 of2017 (arisingoutofSLP(C) Nos.5911-5912 of20!0) shall be
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sufficient for deciding all the Civil Appeals.
14. Shri B. H. Marlapalle, senior counsel appearing for the appellant
submits that the appeal filed by appellant is fully maintainable and the
appellant has /orns standi to file this appeal, this Court has already
granted permission to file SLP by its order dated 15.02.2010. BDAhad
allotted the land to N .A.L. Employees Co-operative Housing Society,
the predecessors in interest of appellant. For espousing the cause of its
members the appellant has ample locus standi to challenge the judgment
of High Court, restoring the Notification dated 12.04.2001. lt is submitted
that the W.P. No.13404 of2005 filed by Muniamma, the widow oflate
Bhimanna who was one of the three sons of Munivenkatappa, was not
maintainable on the ground of doctrine of stare decisis and doctrine of
res judicata. Further, there was delay and !aches and non-joinder of
necessary parties in the Writ Petition. The writ-petitioners never
challenged the Notification dated 07 .05 .1985 issued under Section 16(2)
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of the Land Acquisition Act (Karnataka amendment). Hence, it was not
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open for the writ-petitioners to contend that possession ofland was not
taken over by the State. It is submitted that in W.P. No.4042 of 1998
filed by the Papamma, daughter of Munivenkatappa this Court, while
dismissing the Writ Petition has held that acquisition proceedings having
reached finality by taking possession of the land in March, 1984. Further,
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[20 l 7] 13 S.C.R.
same finding of possession was taken in the year, 1984 was rendered by
this Court in W.P. Nos. 14779-14781 of2000.
15. The appellant was necessary party in the Writ Petition since,
land in favour of the society was allotted by the BDA on l 8.05.1985.
The appellant is registered Association of members who have been
allotted land in the above land and has sufficient interest to be necessary
party, pertaining to any litigation of land in question .
. 16. Learned counsel further contends that learned Single Judge
committed an error in holding that actual possession was not taken by
the State in March, 1984. It is submitted that possession was taken by
Special Land Acquisition Officers of the State by going on to the spot on
23.03.1984. Learned counsel for the appellant, referring to Mahazer
contends that it has been specifically recorded in the Mahazer that owners
of the land and building were present and they refused to hand over the
land and building. Learned counsel further relied on judgment of this
Court in Ba/want Narayan Bagde vs. N. B. Bhagwat & Ors. (1976)
I SCC 700, Balmok11nd Khatri Ed11cational and lnd11strial Tr11st,
Amritsar vs. State of Punjab, (1996) 4 SCC 212, Tamilnad11 Ho11sing
Board vs. A Wiswam (1996) 8 SCC 259, Sitaram Bhandar Society,
New Delhi vs. Lie11tenant Governor, Government of NCT, Delhi &
Ors (2009) JO SCC 501 and H11bli -Dharwad Urban Development
A11thority
vs.
Slrekharagowda
Chennabasannagowda
Phakirgowdar, (2016) 9 SCC 13.
17. Learned counsel for the appellant has further attacked the
Survey Report dated Ol.04.2017 filed by the BDA, which was prepared
in pursuance of the order dated 22.02.2017 passed in this appeal. He
submits that the allegation that society has encroached 5 guntas in Survey
No.50, in excess of what was allotted to it, is incorrect. It is submitted
that Survey Nos.50, 51 and 52 were included in the registered Sale Deed
dated 09.05.1985. The BDA cannot be allowed to make submission that
appellant does not have any land in Survey No.50.
18. Shri K.V. Vishwanathan, senior counsel appearing for
respondent Nos.2(a) to 2(g), refuting the submission of the learned
counsel for the appellant contends that the appeals filed by the appellant
are neither maintainable nor appellant has locus standi to challenge the
judgment of the High Court. It is submitted that original allottee was
N.A.L Employees Co-operative Housing Society which is a registered
N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
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DEVELOPMENT AUTHORITY & ORS. [ASHOK BHUSHAN, J]
Society having a separate and distinct identity from the appellant. In any
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view of the matter the appellant cannot espouse the cause beyond 8
acres ofland which was originally allotted to Housing Society. Referring
to Survey conducted by BDA on 22.03.2017 and its report, learned
counsel submits that the appellant Association is in enjoyment of 8 acres
24 guntas as has been reported, which is against the sanctioned allotment
of 8 acres. It is further submitted that BDA which was the beneficiary
ofacquisition having itself withdrawn the SLP(C) Nos.20190-20191 of
2009, the appellant cannot claim to be on better footing to challenge the
impugned judgment. The Association having themselves wrongfully
encroached upon the land no interference of this Court is called for in
exercise of its jurisdiction under Article 136. Learned Single Judge after
perusing the original records has returned the findings that physical
possession was not taken by the State which findings have been affirmed
by the Division Bench. When the physical possession was never taken
by the State, there was no impediment in exercise of power under Section
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48 of the Act, 1894. Both learned Single Judge and Division Bench
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have held that the symbolic/paper possession taken under Section 16 of
the 1894 was not in conformity with Karnataka Amendment, where it is
Deputy Commissioner to take possession and notify the same in the
Official Gazette.
19. Learned counsel further submits that the learned Single Judge
has also recorded a finding regarding discriminatory treatment to the
land owners since various Survey Nos. which were acquired by the
same acquisition Notifications were released from acquisition under
Section 48 of Act, 1894 whereas respondent land owners were not
extended the same benefit. Learned Counsel further contends that after
issuance of Notification under Section 48(1) dated 12.04.2001, the said
Notification could not have been withdrawn by the State. It is contended
that Section 21 of General Clauses Act, 1897 was not applicable in the
present case, so as to, empower the State to issue Notification dated
09.05.2001. lt is submitted that at the time of the conducting the auction
on 26.09.2002, 30.7 .2003, 14.08.2003 and 26.08.2003, the Notification
dated 12.04.2001 was in subsistence, hence, there is no legal sanctity to
any of the acts of auction of the sites.
20. Replying the submission of the learned counsel for the appellant
in Civil Appeals filed by P.M. Anupkumar, it is submitted that there is
already an order dated 22.05.2009 in W.P. No.5814 of2008, directing
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the BDA to execute the Sale Deed in favour of Anupkumar in respect
of site No.58 and in view of the Survey No.50 being de-notified, the said
order in W.P. No.5814 of2008 cannot be implemented, by the BDA. It
is further submitted that in the Writ Petition of Anupkumar answering
respondents were not parties, the Special Leave Petitions filed by
Anupkumar and SLP deserves to be dismissed.
•
21. Respondent Nos.3 to 21 have supported the submissions made
by learned counsel for the appellant. Respondent No.21 who has
appeared in person, has also adopted the submission made by learned
counsel for the appellant. Respondent No.3 to 21 have further submitted
that a joint memo in W.P. No.13404 of2005 was filed by land owners
and respondent Nos.3-21 wherein, it was agreed between the land owners
and respondent Nos.3-21 that the rights and title of respondent Nos.321 shall not be affected in any manner and the land owners have
recognized the rights of respondent Nos.3-21, who were auction
purchaser of sites after investing the huge amount. It is submitted that
learned Single Judge while disposing of the Writ Petition on 30.03.2007
has already held that right, title and interest acquired by respondent Nos.321 could not be affected by any of the observations made in the Writ
Petition and the Writ Petition was disposed of in terms of the joint memo
entered into between the writ-petitioner(land owners) and the respondent
Nos.3-2l(auction purchasers). It is thus submitted that in any view of
the matter rights of the respondent Nos.3-21 are safe and protected. It
is submitted that BDA has already executed Sale Deed in favour of the
respondent Nos.3-21 and BDA has also issued a Possession Certificate
in their favour. Residential Plots sold in public auction by the BDA in
favour ofrespondent Nos.3 to 21 are all part of Survey No.50 and they
are clearly demarcated as per the Allotment Plan prepared by the BDA.
22. We have considered the submissions of both the parties and
have perused the record.
23. From the facts, as noted above following facts emerge:
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(i) The Notification dated 19 .09 .1977 was issued under Section 4
of the Land Acquisition Act, proposing to acquire large chunk of
land including Survey No.50, a declaration under Section 6 dated
07.02.1978 was issued acquiring the land for Bangalore
Development Authority, including Survey No.50.
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(ii) The State Government proceeded to take possession of Survey
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No.SO on 23.03.1984 and after taking over possession, handed
over the same to Bangalore Development Authority.
(iii) The Land owners filed several Writ Petitions, challenging the
Notification under Section 4 & 6, which were dismissed by this
Court on 10.02.1984 and 14.12.1984.
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(iv) The Society filed Suit No.1492 of 1984, seeking permanent
injunction against the owners in which temporary injunction was
confirmed and Suit decreed.
(v) A Civil SuitNo.2294of1988 was filed by Munivenkatappa, a
co-owner of the land, claiming to be in the possession, which was
subsequently dismissed.
(vi) W.P.No.4042 of 1998 was filed by daughter of
Munivenkatappa, seeking a direction to BDA not to proceed with
the acquisition proceeding on the ground that an application before
the Government for de-notifying the 6 acres 20 guntas of Survey
No.SO had been made on which favourable recommendations have
been obtained on 30.06.1981. The W.P. was dismissed on
16.03.1998.
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(vii) Another W.P.Nos.14779-14781 of 2000 were filed by
Munivenkatappa and another co-owners praying for a direction
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to the State to consider representation ofland owners for dropping
the acquisition proceedings with regard to Survey No.SO. The
Writ Petitions were dismissed on 16.08.2000.
(viii) A representation was submitted by the land owners in the
year 200 I before the State Government. Notification under Section
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48 of the Act dated 12.04.2001 was issued withdrawing Survey
No.SO from acquisition without giving any notice or opportunity to
the BDA for whose benefit the land was acquired.
(ix) On the State Government having been apprised about the
correct fact by the BDA that acquisition has already been finalized
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and possession taken in the year 1984, the State Government,
immediately, withdrew the Notification dated 12.04.2001 vide
Notification dated 09 .OS.200 I
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(x) W.P. N0.37577 of2002 was filed by land owners, challenging
the Notification dated 09.05.200 l, which was allowed on
04.11.2003 by the High Court on the ground that before issuing
the Notification dated 09.05.200 l, no notice was given to the land
owners.
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(xi) The state Government after giving notice to the land owners
issued another Notification on 22.03.2005 withdrawing the
Notification dated 12.04.2001. The State Government thus,
refosed to withdraw the Survey No.50 from acquisition in exercise
of power under Section 48.
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(xii) The Writ Petition No.13404 of2005 was filed by land owners,
challenging the Notification dated22.03.2005, which was allowed
by learned Single Judge on 30.03.2007. Writ appeal filed by BDA
was dismissed on 11.12.2008.
24. The sum total of aforesaid events indicate that acquisition of
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Survey No.50 was challenged by land owners in several rounds which
were repelled by the High Court.
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25. The State Government initially issued an orderon 12.04.2001,
withdrawing Survey No.50 from the acquisition which order itself was
withdrawn after notice to the land owners on 22.03.2005. The State
Government thus, refused to withdraw Survey No.50 from the acquisition.
26. The learned Single Judge allowed Writ Petition, quashing the
order dated 22.03.2005. Basically, two reasons have been given by learned
Single Judge for quashing the Notification dated 22.03.2005. Firstly, the
possession of Survey No.50 was not taken by the State Government in
accordance with law and secondly, although, the State Government has
withdrawn various survey numbers on the representation made by
owners of the land, whereas, petitioners have been discriminated by
refusing to give similar and equal treatment.
27. Shri K.Y. Yishwanathan learned counsel appearing for land
owners has challenged the maintainability of the appeals as well as locus
of appellant to file the appeals. Hence, it is necessary to consider the
above preliminary submissions at the very outset. The appeals have been
filed with the leave granted under Article 136 of Supreme Court of India.
Although, the appellant was not party in the writ proceeding before the
Karnataka High Court but this Court in its discretion by order dated
N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
DEVELOPMENT AUTHORITY & ORS. [ASHOK BHUSHAN, J]
15.02.2010 granted permission to the appellant to file S.L.P. and this
Court has granted leave on 25.07.2017. The Constitution did not for best
of reasons choose to fetter or circumscribe the power exercisable under
Article 136 in any way. The jurisdiction of this Court under Article 136 is
discretionary and equitable in nature. Article 136 begins with non
obstante clause "notwithstanding anything''. The words 'notwithstanding
anything' in Chapter IV of Part V are words of overriding effect and
clearly indicate the intention of the framers of the Constitution that it is a
special jurisdiction and residuary power unfettered by any statute or
other provisions of Chapter IV of Part V of the Constitution. We thus do
not find any substance in the arguments of the learned counsel for the
respondent, questioningthe maintainability of the appeals.
28. Now, we come to the submissions raised by the counsel for
the respondent, questioning the locus of appellant to file the appeal. The
appellant Association is a registered Association with Registration
No.753/2003-04. As noted above, Bangalore Development Authority
auctioned various sites in the year 2002-03 in the acquired land. The
N .A.L. Employees Co-operative Housing Society after allotment of 8
acres land in Survey Nos.50, 51 and 52 has formed the layout which
layout was sanctioned by the BDA on 15.06.1998. After the sites were
auctioned to various individuals, they formed the appellant Association
to espouse the cause of residents. The appellant has been espousing
cause of its members, which~ has also been reflected from the various
actions taken by it in the interest of members of the Association. In this
context reference is made to the letter dated 06.07.2009,Annexure P.16
to the appeals filed by the Association, where Association has written to
the Commissioner, BBMP, bringing in notice of the Commissioner
regarding the health hazard due to inaction of the BBMP Officials.
29. The Association which has been espousing the cause of its
members, who are allottees of different sites thus has sufficient locus to
file this appeal. It is further relevant to note that against the judgment of
the Division Bench, BDA has also filed SLP(C) Nos.20190-20191 of
2009. SLP(C) Nos.5911-5922 of2010 were tagged with these vi de order
dated 15.02.2010. SLPs filed by BDA have been withdrawn on
02.03.2011. We thus find sufficient justification to accept the locus of
the appellant to file the present appeal. We thus do not find any substance
in preliminary objections raised by the learned counsel for the
respondents.
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30. Another submission raised by K.V. Vishwanathan learned
senior counsel for the respondents needs to be considered. It is submitted
by Shri K.V. Vishwanathan that after issuance of Notification dated
12.04.2001 under Section 48 of the Act, 1894, the State Government
had no jurisdiction to withdraw such Notification. He contends that
Section 2 l of the General Clauses Act, 1897 is not applicable. He submits
that under Section 48 land vested already in the land owners, hence,
recourse under Section 2 l of the General Clauses Act to withdraw the
Notification under Section 48 cannot be taken. Section 2 l of General
Clauses Act, l 897 provides as follows:
"21. Power to issue. to incl11de power to add to, amend, vary
or rescind notifications, orders. rules or bye-laws.-Where, by
any [Central Act} or Reg11lations a power to [iss11e
notifications.] orders, rules or bye-laws is conferred, then
that power includes a power, exercisable in the like manner
and subject to the like sanction and conditions (if any), to
add to, amend, vary or rescind any [notifications.] orders.
rules or bye-laws so [issued]."
31. According to Section 21 power to issue Notification conferred
by any Central Act includes the power, exercisable in the like manner
and subject to like sanctions and conditions, if any, to add to, amend,
vary or rescind any Notification so issued. Although, Section 48 does not
refer to the issuance of any Notification, however, this Court has laid
down in Larsen & Toubro Ltd. versus State of Gujarat and Others,
(1998) 4 sec 387 that withdrawal from acquisition has to be notified.
Following was stated in Para 30 & 31:
"30. It was submitted by Mr. Salve that Section 48 of the Act
did not contemplate iss11e of any notification and withdrawal
from the acquisition could be by order simpliciter. He said
that Sections 4 and 6 talked of notifications being issued under
those provisions but there was no s11ch mandate in Section
48. It was thus contended that when the statute did not require
to issue any notification for withdrawal from the acquisition,
reference to Section 21 of the General Clauses Act was not
correct. Section 21 of the General Cla11ses Act is as 11nder:
"21. Power to issue, to include power to add to, amend, vary
or rescind, notifications, orders. rules or bye-laws.-Where
N.A.L. LAYOUT RESIDENTS ASSOCIATION v. BANGALORE
1069
DEVELOPMENT AUTHORITY & ORS. [ASHOK BHUSHAN, J]
by any Central Act, or Regulation, a power to issue
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notifications, orders. rules, or bye-laws is conferred. then that
power includes a power. exercisable in the like manner and
subject to the like sanction and conditions (if any) to add to.
amend, vary or rescind any notifications, orders, rules or byelaws so issued. "
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Mr Salve said that Section 21 express~v referred to the powers
being given to iss11e notifications etc. 11nder an Act or
Regulation and under this that power incl11ded power to
withdraw or rescind any notification in a similar fashion. It
was therefore submitted that when Section 48 did not empower
the State Government to iss11e any notification and it could C
not be read into that provision that withdrawal had to be issued
by a notification. His argument, therefore. appeared to be
that on correct interpretation of Section 21 of the General
Clauses Act before reaching the stage of Section 48, the State
Government could withdraw notifications 11nder Sections 4
and 6 of the Act by issuing notifications withdrawing or
rescinding earlier notifications and that would be the end to
the acquisition proceedings. We do not think that Mr Salve is
quite right in his submissions. When Sections 4 and 6
notifications are issued, much has been done towards the
acquisition process and that process cannot be reversed merely
by rescinding those notifications. Rather it is Section 48 under
which, after ·withdrawal from acquisition is made,
compensation due for any damage s1iffered by the owner
during the course of acquisition proceedings is determined
and given to him. It is, therefore, implicit that withdrawal from
acquisition has to be notified. "
"31 .... Principles of law are, therefore, well settled. A
notification in the Official Gazette is req11ired to be issued if
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the State Government decides to withdraw from the acq11isition
under Section 48 of the Act of any land of which possession
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has not been taken.