Karnataka High Court

Bangalore Development Authority vs Sri.L.Chandrashekar on 30 June, 2021

Author: Alok Aradhe Chandangoudar

                            1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF JUNE 2021

                        PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

 THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

            W.A. NO.946 OF 2016 (LA-BDA)
                         IN
            W.P.No.40076/2014 (LA-BDA)
BETWEEN:

1.   BANGALORE DEVELOPMENT AUTHORITY
     BY ITS COMMISSIONER
     KUMARA PARK WEST
     T. CHOWDAIAH ROAD
     BANGALORE-560 020.

2.   THE SPECIAL LAND ACQUISITION OFFICER
     BANGALORE DEVELOPMENT AUTHORITY
     T. CHOWDAIAH ROAD
     KUMARA PARK WEST, BANGALORE-560 020.

APPELLANTS 1 & 2 ARE BEING THE DIFFERENT SECTION
OF THE SAME AUTHORITY, BOTH ARE
REPRESENTED BY ITS ADDL. LAND ACQUISITION OFFICER.

                                            ... APPELLANTS

(BY SRI. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
    SRI. K. KRISHNA, ADV.,)

AND:

1 . SRI. L. CHANDRASHEKAR
    S/O LATE T. LAKSHMINARAYANA
    AGED ABOUT 63 YEARS.
                              2



   SINCE DECEASED BY HIS LR'S
   SMT. N. DHANALAKSHMI
   W/O LATE SRI. L. CHANDRASHEKAR
   AGED MAJOR
   NO.123A (OLD NO.120), 1ST MAIN
   SAINT THOMAS ROAD
   BENGALURU-560001.

    (AMENDMENT AS PER COURT ORDER
    DATED 30.06.2021)
2 . SRI. L. MANJUNATH
    S/O LATE T. LAKSHMINARAYANA
    AGED ABOUT 54 YEARS.

   BOTH ARE RESIDING AT NO.120/A
   KARIYANNA PALYA
   SAINT THOMAS ROAD
   BANGALORE-560 004.

3 . GOVERNMENT OF KARNATAKA
    REP BY ITS SECRETARY
    URBAN DEVELOPMENT DEPARTMENT
    VIKASA SOUDHA
    DR. B.R. AMBEDKAR VEEDHI
    BANGALORE-560 001.

                                            ... RESPONDENTS

(BY SRI. B. RAVINDRANATH, ADV., FOR R2
    SRI. MATAPATHI, AGA FOR R3)

                            ---

     THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN
THE WRIT PETITION NO.40076/2014 DATED 10.03.2016.


     THIS   W.A.   COMING   ON    FOR    ORDERS,   THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
                                3




                           JUDGMENT

In this intra Court appeal under Section 4 of the

Karnataka High Court Act, 1961, the appellant has assailed

the validity of the order dated 10.03.2016 passed by the

learned Single Judge in W.P.No.40076/2014. The learned

Single Judge has, inter alia, held that the provisions of Right

to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (hereinafter

referred to as 'the 2013 Act' for short) apply to the

proceeding initiated for acquisition of land under Bangalore

Development Authority Act, 1976 (hereinafter referred to as

'the BDA Act' for short). The learned Single Judge has held

that the proceedings are lapsed in terms of Section 24(2) of

the BDA Act on the ground that the deposit has not been

made by the authority as mandated in law.

2. At the outset, learned Senior counsel for the

appellant submitted that the controversy involved in this

appeal is no longer res integra and has been answered in

favour of the authority by two Division Bench decisions of

this Court in W.A.No.1415/2018 (L.RAMA REDDY VS.

STATE OF KARNATAKA & ORS.) and W.A.No.9476/2016

(BANGALORE DEVELOPMENT AUTHORITY & ANR. Vs.

VISHWANATHA REDDY & ORS.) decided on 01.12.2020

and 02.03.2021. The aforesaid submission could not be

disputed by the learned counsel for the respondents.

3. The issue which arises for consideration in this

appeal is whether the provisions of 2013 Act apply to a

proceeding initiated for acquisition of land under the BDA

Act. The Division Bench of this Court in L.RAMA REDDY,

supra, in paragraphs 28 and 44 has held as under:

28. Next, it is necessary to discuss Smt. K.M. Chikkathayamma and others vs. The State of Karnataka and others [ILR 2016 KAR 1603], which is a judgment rendered by a learned Single Judge of this Court.

(a) One of the points for determination in the said case was:

"Whether the provisions of the LA Act, 1894 or the LA Act, 2013, should be applied to acquisition proceedings under the provisions of the KUDA Act and the BDA Act, if the proceedings are not completed as on the date of coming into force of the LA Act, 2013".

Learned Single judge has culled out the ingredients of the said sub-section which is extracted later.

b) The primary contention canvassed in the aforesaid case was, as to, whether 2013 Act would be applicable to acquisitions initiated under the provisions of the Karnataka Urban Development Authorities Act, 1987 (KUDA Act) and BDA Act. If the answer to the same was in the affirmative, then the acquisition proceeding in the aforesaid case which concerned BDA Act also was deemed to have lapsed.

c) In that case, the contention of learned Senior Counsel and learned Counsel for the petitioners was, where a statute is cited by a reference (the cited statute) (LA Act, 1894) into an another statute (the referring statute) (BDA Act/KUDA Act) any repeal or amendment of the cited statute is automatically carried over or reflected in the referring statute. This was in contrast, to a case of legislation by incorporation wherein the repeal or amendment of the incorporated statute does not automatically affect the incorporating statute. It was further contended in the said case that in Offshore Holdings Private Limited, the Hon'ble Supreme

Court held, Section 36 of the BDA Act (a provision in pari materia with Section 36 of KUDA Act) to be a case of legislation by incorporation. But, the repeal of LA Act, 1894 and substitution of 2013 Act created an exception and when the exception applied, the effect would be one of legislation by reference. It was contended that, if LA Act, 1894, was to be applied to acquisitions made under the KUDA Act post 01.01.2014, the quantum of compensation to the land owners in relation to acquisitions under the KUDA Act would be lesser than the compensation vis-à-vis acquisition made under 2013 Act, even though the purpose of the acquisition is same (urban or town planning and allotment of house sites). Similarly, the additional benefits in relation to rehabilitation and resettlement of affected families would also not be available to the land owners even though the purpose of the acquisition remains the same. It was emphasized in that case that the provisions of 2013 Act are more beneficial to the land owners and affected families in land acquisition proceedings. The discriminatory effect as regards compensation and other benefits would occur because there is a complete change in the legislative approach in relation to land acquisition, rehabilitation and resettlement under 2013 Act

which is more beneficial to the land owners. It was further contended in the said case that the land owners would thus be entitled to different rates of compensation and other resettlement and rehabilitation benefits, depending upon which Act the acquisition is made, whether under the BDA Act or KUDA Act or the central land acquisition enactments resulting in a discriminatory effect being in violation of Article 14 of the Constitution.

d) Per contra, the State through learned Advocate General submitted in the said case that the intention of Section 24 in 2013 Act is different and distinct in that the said section has specific reference to acquisition proceedings initiated under LA Act, 1894. That the object and purpose of Section 24 is not only to save acquisition initiated under LA Act, 1894, but also to declare lapse of acquisition under sub-section (2) of Section 24 and to also give the benefit of the 2013 Act under certain circumstances. It was further contended that Section 27 of KUDA Act as well as BDA Act provide for lapse of scheme of development and consequent in-operation of Section 36 of the Act. That BDA Act being a complete code by itself, lapse of acquisition has to be considered under that Act only. It was further contended that

Section 24 is more in the nature of a transitory provision and an exception and operates as a link between LA Act, 1894 and 2013 Act.

e) While considering point No.2 extracted above, learned Single Judge in the said case held with regard to interpretation of sub-section (2) of Section 24 of the 2013 Act as under:-

"Section 24(2) of the LA Act, 2013 provides for lapse of acquisition proceedings commenced under the LA Act, 1894, on the satisfaction of certain conditions, which are as follows:

a. The award of compensation should have been passed five years or more prior to the commencement of the LA Act, 2013. In that, it should have been passed prior to 01.01.2009;

AND b. Physical possession of the land has not been taken;

OR c. Compensation has not been paid.

The Apex Court has interpreted the requirement of possession being taken under Section 24(2) of the LA Act, 2013, to mean that actual physical possession has to be taken and mere symbolic possession would not suffice."

(emphasis by us)

Although learned Single Judge has noticed that sub-section (2) of Section 24 of the 2013 Act applies to acquisition proceedings commenced

under the LA Act, 1894, nevertheless has also held that the "answer to the second point for consideration is that it is the LA Act, 2013 that shall be applied to acquisition proceedings under the BDA Act and KUDA Act, that have remained without being completed in all respects as on 1.1.2014, and proceedings that have been initiated thereafter".

f) Thus, learned Single Judge after referring to Section 24 of 2013 Act, held that it was applicable even to acquisitions made under the provisions of the BDA Act as well as KUDA Act. Learned Single Judge however noted that sub-section (2) of Section 24 is a substantive provision of law which saves acquisition as well as affords the prospect of land sought to be acquired reverting to the land owner under certain conditions.

29. The said decision was rendered on 10.03.2016. The said decision has been appealed against by the BDA and a Division Bench of this Court has stayed the order passed in the said case. In the case of M/S. Evershine Monuments vs. State of Karnataka reported in ILR 2018 Kar. 731, one of us (Nagarathna. J.,) considered the correctness of the decision in Chikkathayamma and several other similar decisions were considered at

length and it was observed at paragraph Nos.37-39 as under:-

"37. In my humble opinion, the judgment in Chikkathayamma's case as well as similar judgments in other cases, in the context of KUDA, 1987 and BDA Act have been rendered without making an analysis of Section 24 of the 2013 Act, with regard to its applicability to acquisitions initiated under those Acts as opposed to acquisitions initiated under LA Act, 1894. Further, judgments of Hon'ble Supreme Court in that regard have not been considered and followed and without bearing in mind the distinction in the object and scheme of the LA Act, 1894 and the BDA Act, as well as the decisions rendered by the Hon'ble Supreme Court in that regard. Learned Single Judge by his order has granted relief under sub- section (2) of Section 24 of 2013 Act. While a reference has been made to the decisions of the Hon'ble Supreme Court in the case of Bondu Ramaswamy, Munithimmaiah, and Offshore Holdings Pvt. Ltd., the said reference is not in depth, as a detailed consideration of the aforesaid judgments, which have been rendered on a detailed comparison of LA Act, 1894 with BDA Act, would have thrown light on the object and scope of Section 24 of 2013 Act.

38. Reliance placed on the observations made by Hon'ble Supreme Court in the aforesaid decisions referred to above in detail would clearly indicate that the object and scheme of the LA Act, 1894 and the BDA Act, being distinct and meant for different purposes, it cannot be construed that acquisition initiated under the provisions of the BDA Act, is an acquisition initiated

under the provisions of the LA Act, 1894.

More significantly, the judgment in Chikkathayamma's case does not take into consideration the dicta of the Hon'ble Supreme Court in the case of Sukhbir Singh which is directly on the issue of applicability of sub-section (2) of Section 24 of the 2013 Act to only acquisitions initiated under LA Act, 1894.

39. With respect, the judgment in the case of Chikkathayamma and other judgments which are similar in nature cannot be considered to be binding precedent as they are contrary to the dicta of the Hon'ble Supreme Court referred to above as well as the provision of Section 24 of the 2013 Act and hence cannot be applied to the present cases which deal with acquisition under BDA Act. There are also additional reasons for holding so."

We are in complete agreement with the aforesaid observations. xxxx

44. In the circumstances, it is concluded and held that Section 24 does not take within its scope nor does it apply to acquisitions which have been initiated under the provisions of any other enactment particularly, State enactment, such as, BDA Act. The said Section is restricted to only those acquisitions which have been initiated under the provisions of the LA Act, 1894 only. Subject to compliance of the conditions mentioned under sub- section (2) of Section 24, the land owner would be

entitled to the deeming provision regarding lapse of acquisition and not otherwise.

xxx

45. It is further held, with respect, that the order in Chikkathayamma and other orders which have followed the said case, having regard to the dicta of Hon'ble Supreme Court in the case of Munithimmaiah, Bondu Ramaswamy, Offshore Holdings Private Limited, are per incuriam and not applicable as binding precedent in the present case. xxx

46. Therefore, in our view, Section 24(2) of the Act, 2013 would also not apply in the instant case, in view of the position of law discussed above. xxx"

4. The aforesaid decision has been followed by another

Division Bench of this Court vide judgment dated 02.03.2021

passed in W.A.No.947/2016.

5. For the reasons assigned by the Division Bench of

this Court in 'L.RAMA REDDY', supra, it is held that the

provisions of the 2013 Act do not apply to the proceedings

initiated for acquisition of land under the BDA Act.

6. In the result, order dated 10.03.2016 passed by the

learned Single Judge in W.P.No.40076/2014 is set aside and

the writ petition preferred by the respondent Nos.1 and 2 is

dismissed.

Accordingly, the appeal is allowed.