Offshore Holdings Pvt. Ltd. Versus Bangalore Development Authority & Ors.
JUDGMENT
Swatanter Kumar, J.
Leave granted. A two Judge Bench of this Court in the case of Girnar Traders v. State of Maharashtra [(2004) 8 SCC 505] had considered the question whether all the provisions of the Land Acquisition Act, 1894, (for short, the `Land Acquisition Act' or the `Central Act') as amended by the Land Acquisition (Amendment) Act,1984 (hereinafter referred to as the `Central Act 68 of 1984'), can be read into the provisions under Chapter VII of the Maharashtra Regional and Town Planning Act, 1966 (for short, `the MRTP Act') for acquisition of land there under. The Bench was of the opinion that the observations made by another Bench of this Court in the case of State of Maharashtra v. Sant Joginder Singh [(1995) Supp (2) SCC 475] did not enunciate the correct law by answering the said question in the negative and, thus, requires reconsideration by a larger Bench. While recording variety of reasons for making a reference to the larger Bench the learned Judges in paragraphs 20 and 21 of the Order observed as under:
"20. We, therefore, see no good reason as to why the provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984 should not be read into an acquisition under Chapter VII of the MRTP Act, to the extent not precluded by the MRTP Act, 1966. Section 11-A being one such section, it may have to be applied to the acquisition under Chapter VII of the MRTP Act. 21. For these reasons, in our considered view, the decision in Sant Joginder Singh requires reconsideration by a larger Bench." This appeal came up for hearing before a larger Bench consisting of three learned Judges along with other matters in Girnar Traders v. State of Maharashtra [(2007) 7 SCC 555] (hereinafter referred to as `Girnar Traders-II).In those appeals, inter alia, arguments were addressed as to the interpretation of Sections 126 and 127 of the MRTP Act as well as reading the provisions of the Land Acquisition Act, including Section 11A, into the provisions of the MRTP Act as legislation by reference.
There was some divergence of opinion between the learned Judges hearing that matter. P.K. Balasubramanyan, J. (as he then was) expressed an opinion that both the questions; in regard to interpretation of Sections 126 and 127 of the MRTP Act as well as incorporation of Section 11A of the Land Acquisition Act into that Act should be referred for consideration to a larger Bench. Expressing the majority view, B.N. Agrawaland P.P. Naolekar, JJ. (as they then were) agreed that Section 11A of the Land Acquisition Act is part of the law which creates and defines rights and is not an adjective law which defines method of enforcing rights. For this and other reasons assigned by P.K. Balasubramanyan, J., they agreed that the question involved required consideration by a larger Bench. However, in para 3 of the majority judgment, they regretfully declined to make reference on interpretation of Section 127 of the MRTP Act to a larger Bench and decided the matter in that regard on merits. While setting aside the judgment of the High Court under appeal, the minority view expressed by Balasubramanyan, J. is as under:
"123. I would, therefore, hold that there has been sufficient compliance with the requirement of Section 127 of the MRTP Act by the authority under the Act by the acquisition initiated against the appellant in the appeal arising out of SLP (C) No. 11446 of 2005 and the reservation in respect of the land involved therein does not lapse by the operation of Section 127 of the Act. But since on the main question in agreement with my learned Brothers I have referred the matter for decision by a Constitution Bench, I would not pass any final orders in this appeal merely based on my conclusion on the aspect relating to Section 127 of the MRTP Act. The said question also would stand referred to the larger Bench. 124. I therefore refer these appeals to a larger Bench for decision. It is for the larger Bench to consider whether it would not be appropriate to hear the various States also on this question considering the impact of a decision on the relevant questions.
The papers be placed before the Hon'ble Chief Justice for appropriate orders." While the majority view, expressed by B.N. Agrawal and P.P.Naolekar, JJ., is as under : "3. A two-Judge Bench of this Court in State of Maharashtra v. Sant Joginder Singh Kishan Singh has held that Section 11-A of the LA Act is a procedural provision and does not stand on the same footing as Section 23 of the LA Act. We find it difficult to subscribe to the view taken. Procedure is a mode in which the successive steps in litigation are taken. Section 11-A not only provides a period in which the land acquisition proceedings are to be completed but also provides for consequences, namely, that if no award is made within the time stipulated, the entire proceedings for the acquisition of the land shall lapse. Lapsing of the acquisition of the land results in owner of the land retaining ownership right in the property and according to us it is a substantive right accrued to the owner of the land, and that in view thereof we feel Section 11-A of the LA Act is part of the law which creates and defines right, not adjective law which defines method of enforcing rights. It is a law that creates, defines and regulates the right and powers of the party. For this and the other reasons assigned by our learned Brother, we are in agreement with him that the question involved requires consideration by a larger Bench and, accordingly, we agree with the reasons recorded by my learned Brother for referring the question to a larger Bench.
However, on consideration of the erudite judgment prepared by our esteemed and learned Brother Balasubramanyan, J., regretfully we are unable to persuade ourselves to agree to the decision arrived at by him on interpretation of Section 127 of the MRTP Act and also reference of the case to a larger Bench. 67. In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to the relief claimed, and the other question argued on the applicability of the newly inserted Section 11-A of the LA Act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case. 68. For the aforesaid reasons, the impugned judgment and order dated 18-3-2005 passed by the Division Bench of the Bombay High Court is set aside and this appeal is allowed. As no steps have been taken by the Municipal Corporation for acquisition of the land within the time period, there is deemed de reservation of the land in question and the appellants are permitted to utilise the land as permissible under Section 127 of the MRTP Act." (emphasis supplied)
This is how the above cases were listed before the Constitution Bench for answering the question framed in the order of Reference. A number of other matters were ordered to be tagged with Girnar Traders-II (supra). Similarly, when the present appeal came up for hearing on 17th July, 2009, a two Judge Bench passed the following order: "Issue notice. Interim stay of the High Court judgment. Tag with Girnar Traders v. State of Maharashtra referred to the Constitution Bench." The question in the referred matter was related to Section 11A of the Land Acquisition Act being read as part of the MRTP Act on the doctrine of legislation by reference. In the present case, we are concerned with the provisions of the Bangalore Development Authority Act, 1976 (for short, the `BDA Act' or the` State Act').
The statutory provisions and scheme under the two State laws, in regard to acquisition of land for planned development, are significantly different. Therefore, and rightly so, it was stated at the Bar that the case relating to B D A Act should be heard and decided separately and so was it heard separately and reserved for judgment. Facts The land admeasuring 2 acre and 34 guntas located in Survey No. 9/2of Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk was owned by M/s Uttanallappa, Munishamappa etc. The Bangalore Development Authority(for short, `the Authority') had issued a preliminary notification dated 3rd January,1977 for acquisition of land of which, the land in question was a part. Non-finalisation of acquisition proceedings resulted in filing of the Writ Petition by the owners of the land being W.P. Nos. 16065-69 of 1987 before the High Court of Karnataka praying for quashing of preliminary as well as the final notification dated 2nd August, 1978. On the representation of the said owners, the Authority passed Resolution No.1084 dated 28th June, 1988 de-notifying to the extent of1 acre and 2 guntas of the land from acquisition.
Thus, out of the total land of the said owners, land admeasuring 1 acre 32 guntas was acquired, while according to the appellant, remaining land was de-notified by the said resolution. In view of the resolution having been passed by the Authority, theWrit Petition was withdrawn. Thereafter the Deputy Commissioner of the said Authority issued an endorsement on 11th March, 1991 in favour of one of the owners of the land informing him that by virtue of the aforesaid ResolutionNo.1084 there was no acquisition of the land to the extent of 1 acre 2 guntas. The present appellant purchased the said land by means of seven different sale deeds executed by the said owners in favour of the present appellant. It is averred that permission was granted by the Authority to the erstwhile owners to construct culvert/bridge on the storm water drain abutting their land at their own cost.
The appellant submitted the drawings to Respondent No.3 for permission for the said construction which was granted vide order dated 24th February,2001 in furtherance to which the appellant commenced the construction. In the meantime, Respondent No.3 issued a letter to the appellant stating that the said permission was temporarily withdrawn until further orders. This was followed by another letter dated 30th August, 2001 in which Respondent No.3 informed the appellant that de-notification of the land for acquisition vide Resolution No.1084 had been withdrawn vide Resolution No.325/97 dated 31st December,1997 passed by the Authority and the appellant was not entitled to raise any construction on the land in question.
The appellant made certain enquiries and it was discovered that as a result of Resolution No.325/97 acquisition proceedings had already been revived. Aggrieved by the action of the respondents, appellant filed Writ Petition No.41352 of 2001 before the Karnataka High Court praying for quashing of Resolution No.325/97 and acquisition proceedings initiated from the preliminary and final notification dated3rd January, 1977 and 2nd August, 1978 respectively. The principal argument raised by the appellant before the High Court was that the provisions of Section11A are applicable to the BDA Act and the award having been made after a period of more than two years from the date of declaration under Section 6 of the Land Acquisition Act, the acquisition proceedings have lapsed.
The learned Single Judge of Karnataka High Court, vide his judgment dated 25th January,2007, rejected all the contentions raised holding that the appellant herein has no locus-standi to question the acquisition proceedings and withdrawal of the earlier Resolution by the subsequent Resolution was not bad in law. The correctness of the judgment of the learned Single Judge was questioned before the Division Bench of that Court in Writ Appeal No.1012 of 2007. This Writ Appeal also came to be dismissed vide judgment dated 16th October, 2008 and the Court declined to interfere with the reasoning recorded by the learned Single Judge which resulted in filing of the present Special Leave Petition. We are not concerned with various grounds on which challenge is made to the legality and correctness of the impugned judgment as we have to answer the question of law that has been referred to the Constitution Bench. The learned counsel appearing for the appellant has contended that the provisions of Section 11A of the Land Acquisition Act are to be read into the provisions of the BDA Act and that would result in lapsing of the acquisition proceedings upon expiry of the period specified therein. Thus, the land of the appellant shall be deemed to be de-notified and available to him free of any reservation or restriction even under the provisions of the BDA Act. The learned counsel raised the following issues in support of his principal contention:
1. `Acquisition and requisitioning of property' is relatable only to Entry 42 of the Concurrent List (List III) of Schedule VII, read with Article 246 of the Constitution of India. This, being a `stand alone entry', cannot be incidental to any other law. The State has legislative competence to enact BDA Act with reference to Article 246 read with Entry 5 and/or 18 of List II of Schedule VII to the Constitution. State Legislature may even combine both the laws but cannot make `Acquisition' incidental to State law.
2. Since Entry 42 in List III provides a concurrent subject matter of legislation, both the Parliament and the State Legislature would be competent to enact their respective laws covering the subject matter of acquisition and requisitioning of property. The Parliament has enacted a law with reference to Entry 42, List III. The law could be enacted by the State in combination of subject matters covered under other entries, i.e., Entries 5 and 18 of List II. The law enacted by the Centre would take precedence and the State Act, insofar as it provides to the contrary, shall be repugnant. Thus, the field being covered by the Central law, Section 11A of the Land Acquisition Act will prevail and has to be read into the provisions of Section 27 of the BDA Act.
3. The provisions of Land Acquisition Act, as amended by the Central Act 68 of 1984, are adopted vide Section 36 of the BDA Act by the principle of legislation by reference as opposed to legislation by incorporation, i.e. writing of the provisions by pen and ink. Thus, the amended provisions of the Central Act shall be read into the State Act and Section 11A, being one of such provisions, would form an integral part of the State Legislation.
4. There is no repugnancy between the two legislations. They operate in different areas. The BDA Act does not provide for lapsing of acquisition but refers only to lapsing of the scheme under Section 27. Lapsing of acquisition is contemplated only under Section 11A of the Land Acquisition Act. Thus, the contention is that the acquisition, as a result of default in terms of Section 11A of the Land Acquisition Act, shall always lapse.
5. Provisions of Section 11A can purposefully operate as a part of the scheme under the BDA Act. Such approach would be in consonance with the larger policy decision of balancing the rights of the individuals, who are deprived of their properties by exercise of the State power of eminent domain. The public authorities would be required to act with reasonable dispatch. Lapsing of acquisition does not take away the right of the State to issue fresh notification/declaration within the currency of the scheme. In order to examine the merit or otherwise of these contentions, it is necessary for this Court to examine the scheme of the BDA Act read in conjunction with the provisions of the Land Acquisition Act.
Though the object of the BDA Act may be pari materia to the MRTP Act, there are certain stark distinctions between some of the provisions of the respective Acts, particularly, where they relate to functions and powers of the Authority in preparation of plans as well as with respect to acquisition of the land. Hence, it will be appropriate for the Court to examine the scheme of the BDA Act at this juncture itself. Scheme under the Bangalore Development Authority Act, 1976 Different authorities like City of Bangalore Municipal Corporation, the City Improvement Trust Board, the Karnataka Industrial Area Development Board, the Housing Board and the Bangalore City Planning Authority were exercising jurisdiction over Bangalore City. Due to overlapping functions there were avoidable confusions, besides hampering of coordinated development.
Therefore, in order to set up a single authority to ensure proper development and to check the haphazard and irregular growth as it would not be possible to rectify or correct these mistakes in the future, the BDA Act was enacted by the Karnataka State Legislature in the year 1976. The primary object of the BDA Act was to provide for establishment of the development authority for development of the city of Bangalore and areas adjacent thereto and for the matters connected therewith. For different reasons, various provisions of this Act were amended from time to time. The term `Development' under Section 2(j) of the BDA Act, with its grammatical variations, means the carrying out of building, engineering, or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment. Similarly, Section 2(r)defines the word `to erect' which in relation to any building includes:
i. any material alteration or enlargement of any building;
ii. the conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation;
iii. the conversion into more than one place for human habitation of a building originally constructed as one such place;
iv. the conversion of two or more places of human habitation into a greater number of such places;
v. such alterations of a building as affect an alteration of its drainage or sanitary arrangements, or materially affect its security;
vi. the addition of any rooms, buildings, houses or other structures to any building; and (vii) the construction in a wall adjoining any street or land not belonging to the owner of the wall, or a door opening on to such street or land.
" The definitions afore-stated clearly show that they were given a very wide meaning to ensure that the check on haphazard and unauthorized development is maintained. The Authority came to be constituted in terms of Section 3 of the BDA Act. The object of the Authority has been spelt out in Section 14 of the BDA Act which states that the Authority shall promote and secure the development of the Bangalore Metropolitan Area and for that purpose, the Authority shall have the power to acquire, hold, manage and dispose of moveable and immoveable property, whether within or outside the area under its jurisdiction, to carry out building, engineering and other operations and generally to do all things necessary or expedient for the purpose of such development and for purposes incidental thereto. The language of this section shows that powers of wide magnitude are vested in the Authority and the purpose for which such powers are vested is absolutely clear from the expression `to do all things necessary or expedient for the purpose of such development and for purposes incidental thereto'.
In other words, the primary purpose is planned development and other matters are incidental thereto. The acquisition of immoveable property is, therefore, also for the said purpose alone. Chapter III of the BDA Act deals with development plans. Under Section15, the Authority has to draw up detailed schemes termed as `Development Scheme'. The Government in terms of Section 15(3) is empowered to direct the Authority to take up any development scheme subject to such terms and conditions as may be specified by it. In terms of Section 16(1) of the BDA Act, every development scheme has to provide, within the limits of the area comprised in the scheme, for the acquisition of any land which, in the opinion of the Authority, will be necessary for or affected by the execution of the scheme. It should, inter alia, also provide for laying and re-laying out all or any land including the construction/ reconstruction of buildings and formation and alteration of streets, drainage, water supply and electricity, forming open spaces for betterment and sanitary arrangements.
The Authority may provide for construction of houses within or without the limits of the area comprised in the scheme. It is clear that the development scheme has to provide for every detail in relation to development of the area under the scheme as well as acquisition of land, if any, required. It may be noticed, even at the cost of repetition, that such acquisition is only in regard to the development scheme. Once the development scheme has been prepared, the Authority is expected to draw up a notification stating that the scheme has been made and give all the particulars required under Section 17 of the BDA Act including a statement specifying the land which is proposed to be acquired and land on which betterment tax is to be levied. A copy of this notification is required to be sent to the Government through the Corporation which is obliged to forward the same to the appropriate Government within the specified time along with any representation, which the Corporation may think fit to make, with regard to the scheme.
After receiving the scheme, the Government is required to ensure that the notification is published in the Official Gazette and affixed in some conspicuous part of its own office as well as in such other places as the Authority may consider necessary. In terms of Section 17(5) of the BDA Act, within 30 days from the date of publication of such notification in the Official Gazette, the Authority shall serve a notice on every person whose name appears in the assessment list of the Local Authority or 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 and to issue show cause notice giving thirty days time to the person concerned, as to why such acquisition of building or land and the recovery of betterment tax should not be made. Thus, the provisions of Section 17 of the BDA Act are of some significance.
They describe various time frames within which the Authority/Government is expected to take action. A deemed fiction is introduced in terms of Section17 (4) of the BDA Act where if the Corporation does not make a representation within the time specified under Section 17(2), the concurrence of the Corporation shall be deemed to have been given to enable the authorities to proceed with the matter in accordance with Section 17(5) of the Act. Having gone through the prescribed process, the Authority is required to submit the scheme for sanction of the Government. The Authority has been given power to modify the scheme keeping in view the representations received. The scheme shall also provide for the various details as required under Sections 18(1)(a) to 18(1)(f) and 18(2) of the BDA Act. After considering this proposal, the Government may give sanction to the scheme in terms of Section 18(3). 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.
This declaration shall be conclusive evidence that the land is needed for a public purpose. The Authority has also been given the power to alter or amend the scheme if an improvement can be made. If the scheme, as altered, involves acquisition otherwise than by an agreement, then the provisions of Sections 17, 18 and 19(1) shall apply to the scheme in the same manner as if such altered part were the scheme. This entire exercise is to be taken in terms of Section 19 of the BDA Act post grant of sanction in terms thereof. The next relevant provision for our purpose, which is of significance, is Section 27 of the BDA Act which reads as under:
"27. Authority to execute the scheme within five years.--Where within a period of five years from the date of the publication in the official Gazette of the declaration under sub-section (1) of Section 9, the Authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative." It places an obligation upon the Authority to complete the scheme within a period of five years and if the scheme is not substantially carried out within that period, it shall lapse and the provisions of Section 36 shall become inoperative, i.e. this is a provision which provides for serious consequences in the event the requisite steps are not taken within the specified time. Section 30 of the BDA Act provides that the streets, which are completed under the scheme, shall vest in the Corporation as well as the open spaces as per Section 30(2).
The disputes, if any, between the Authority and the Corporation in respect of Sections 30(1) and 30(2) are to be referred for determination to the Government whose decisions shall be final. Section 31 of the BDA Act puts arider on the right of the Authority to sell or otherwise dispose of sites. Sections32 to 34 of the BDA Act deal with imposition of restriction by virtue of the provisions of the Act where no person shall form or attempt to form any extension or layout for the purposes of constructing building thereon without the express sanction in writing of the Authority and except as per the conditions stated therein.
In terms of Section 32(6) of the BDA Act, the Authority may refuse such sanction but where it does not refuse sanction within six months from the date of application made under sub-section (2) or from the date of receipt of all information asked for under-sub-section (7), such sanction shall be deemed to have been granted and the applicant has the right to proceed to form the extension or layout or to make the street but not so as to contravene any of the provisions of the Act or the Rules made there under. Similarly, alteration, demolition of extension is controlled by Section 33 and in terms of Section 33A, there is prohibition of unauthorized occupation of land belonging to the Authority. Section 34 of the BDA Act empowers the Authority to order work to be carried out or to carry it out itself in the event of default.
It is possible that some land may have to be acquired for the purpose of completing the scheme; such land has to be identified in the scheme itself as per Section 16 of the BDA Act. Chapter IV of the BDA Act deals with` acquisition of land'. This Chapter contains only two sections, i.e. Sections 35and 36 which read as under: "35. Authority to have power to acquire land by agreement.--subject to the provisions of this Act and with the previous approval of the Government, the Authority may enter into an agreement with the owner of any land or any interest therein, whether situated within or without the Bangalore Metropolitan Area for the purchase of such land. 36. Provisions applicable to the acquisition of land otherwise than by agreement.—
(1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894. (2) For the purpose of sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the Authority shall be deemed to be the local authority concerned. (3)After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer upon the Authority agreeing to pay any further costs which may be incurred an account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority.
" These provisions postulate acquisition of land by two modes. Firstly, by entering into an agreement with the owner of the land; and secondly, otherwise than by agreement which shall be regulated by the provisions of Land Acquisition Act, in so far as they are applicable. Where the lands are acquired by agreement, there would be hardly any dispute either on fact or in law. Controversies, primarily, would arise in the cases of compulsory acquisition under the provisions of the Act. The intention of the Legislature, thus, is clear to take recourse to the provisions of the Land Acquisition Act to a limited extent and subject to the supremacy of the provisions of the State Act. A very important aspect which, unlike the MRTP Act, is specified in the BDA Act is that once the land is acquired and it vests in the State Government in terms of Section 16 of the Land Acquisition Act, then the Government upon (a) payment of the cost of acquisition and (b) the Authority agreeing to pay any further cost, which may be incurred on account of acquisition, shall transfer the land to the Authority whereupon, it shall vest in the Authority. The Government is further vested with the power to transfer land to the Authority belonging to it or to the Corporation as per Section 37 of the BDA Act. In terms of Section 69 of the BDA Act, the Government is empowered to make rules to carry out the purposes of the Act.
Under Section 70, the Authority can make regulations not inconsistent with the provisions of the Act, while in terms of Section 71, the Authority is again vested with the powers to make bye-laws not in consistent with the Rules or the Regulations. Both these powers of the Authority are subject to previous approval of the Government. Sections 73 of the BDA Act gives overriding effect to the provisions of this Act and vide Section 77, the BDA Act repealed the Karnataka Ordinance 29 of 1975. It is not necessary for us to deal with other provisions of the BDA Act as they hardly have any bearing on the controversy in question. The provisions of the Land Acquisition Act, which provide for time frame for compliance and the consequences of default thereof, are not applicable to acquisition under the BDA Act.
They are Sections 6 and 11A of the Land Acquisition Act. As per Section 11A, if the award is not made within a period of two years from the date of declaration under Section 6, the acquisition proceedings will lapse. Similarly, where declaration under Section 6 of this Act is not issued within three years from the date of publication of notification under Section 4 of the Land Acquisition Act [such notification being issued after the commencement of the Land Acquisition (Amendment and Validation)Ordinance, 1967 but before the commencement of Central Act 68 of 1984] or within one year where Section 4 notification was published subsequent to the passing of Central Act 68 of 1984, no such declaration under Section 6 of the Land Acquisition Act can be issued in any of these cases.
A three Judge Bench of this Court in the case of Bondu Ramaswamy v. Bangalore Development Authority [(2010) 7 SCC 129] while dealing with the contention that notification issued in terms of Section 17(1) and (3) of the BDA Act appears to be equivalent to Section 4 of the Land Acquisition Act and the declaration under Section 19(1) of the BDA Act appears to be equivalent to the final declaration under Section 6 of the Land acquisition Act, held that all the provisions of the Land Acquisition Act will not apply to the acquisition under the BDA Act and only those provisions of the Land Acquisition Act, relating to stages of acquisition, for which there is no corresponding provision in the BDA Act, are applicable to an acquisition under the BDA Act. The provisions of Sections 4 and 6 of the Land Acquisition Act would not be attracted to the BDA Act as the Act itself provides for such mechanism. Be that as it may, it is clear that the BDA Act is a self-contained code which provides for all the situations that may arise in planned development of an area including acquisition of land for that purpose.
The scheme of the Act does not admit any necessity for reading the provisions of Sections 6 and 11A of the Land Acquisition Act, as part and parcel of the BDA Act for attainment of its object. The primary object of the State Act is to carry out planned development and acquisition is a mere incident of such planned development. The provisions of the Land Acquisition Act, where the land is to be acquired for a specific public purpose and acquisition is the sum and substance of that Act, all matters in relation to the acquisition of land will be regulated by the provisions of that Act. The State Act has provided its own scheme and provisions for acquisition of land.
The co-relation between the two enactments is a very limited one. The provisions of Land Acquisition Act would be attracted only in so far as they are applicable to the State law. Where there are specific provisions under the State Act the provisions of Central Act will not be attracted. Furthermore, reading the provisions of default and consequences thereof, as stated under the Central Act into the State Act, is bound to frustrate the very scheme formulated under the State Act. Only because some of the provisions of the Land Acquisition Act are attracted, it does not necessarily contemplate that all the provisions of the Central Act would per se be applicable to the provisions of the State Act irrespective of the scheme and object contained therein.
The Authority under the BDA Act is vested with complete powers to prepare and execute the development plans of which acquisition may or may not be a part. The provisions of the State Act can be implemented completely and effectively on their own and reading the provisions of the Land Acquisition Act into the State Act, which may result in frustrating its object, is not called for. We would be dealing with various facets which would support this view shortly. The provisions of Section 27 of the BDA Act mandate the Authority to execute the scheme, substantially, within five years from the date of publication of the declaration under sub-section (1) of Section 19. If the Authority fails to do so, then the scheme shall lapse and provisions of Section 36 of the BDA Act will become inoperative.
The provisions of Section 27 have a direct nexus with the provisions of Section 36 which provide that the provisions of the Land Acquisition Act, so far as they are applicable to the State Act, shall govern the cases of acquisition otherwise than by agreement. Acquisition stands on a completely distinct footing from the scheme formulated which is the subject matter of execution under the provisions of the BDA Act. On a conjunct reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses the acquisition may not.
This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act. An argument to the contrary cannot be accepted for the reason that on vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act. Both these Acts do not contain any provision in terms of which property, once and absolutely, vested in the State can be reverted to the owner on any condition.
There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act. What is meant by the language of Section 27 of the BDA Act, i.e. "provisions of Section 36 shall become inoperative", is that if the acquisition proceedings are pending and where the scheme has lapsed, further proceedings in terms of Section 36(3) of the BDA Act, i.e. with reference to proceedings under the Land Acquisition Act shall become inoperative. Once the land which, upon its acquisition, has vested in the State and thereafter vested in the Authority in terms of Section 36(3); such vesting is incapable of being disturbed except in the case where the Government issues a notification for re-vesting the land in itself, or a Corporation, or a local Authority in cases where the land is not required by the Authority under the provisions of Section 37(3) of the BDA Act.
This being the scheme of the acquisition within the framework of the State Act, read with the relevant provisions of the Central Act, it will not be permissible to bring the concept of `lapsing of acquisition' as stated in the provisions of Section11A of the Land Acquisition Act into Chapter IV of the BDA Act. Under the scheme of the BDA Act, there are two situations, amongst others, where the rights of a common person are affected - one relates to levy of betterment tax under Section 20 and property tax under Section 28B of the BDA Act while the other relates to considering the representation made up on drawing up of a notification in terms of Section 17(1) of the said Act in regard to acquisition of building or land and the recovery of betterment tax. For determination of the rights and claims in this regard, a complete adjudicatory mechanism has been provided under the State Act itself.
The competent functionary in the Authority has to consider such representations received and alter or modify the scheme accordingly in terms of Section 18(1) of the BDA Act before its submission to the Government. With regard to levy of betterment tax, the assessment has to be made by the Authority in terms of Section 21 of the State Act. The person concerned, if he does not accept the assessment, can make a reference to the District Court for determining the betterment tax payable by such person under Section 21(4) of the BDA Act. Section 28B of that Act empowers the Authority to levy tax on the land and building and such levy is appealable to an Authority notified by the Government for that purpose being the Appellate Authority in terms of Section 62A of the BDA Act whose decision is final. Besides all this, under Section 63 of the BDA Act, the Government and the Authority are vested with revisional powers. All these provisions show that the BDA Act has provided for a complete adjudicatory process for determination of rights and claims. Only in regard to the matters which are not specifically dealt with in the BDA Act, reference to Land Acquisition Act, in terms of Section 36, has been made, for example acquisition of land and payment of compensation.
This also is a pointer to the BDA Act being a self-contained Act. One of the apparent and unavoidable consequences of reading the provisions of Section 11A of the Central Act into the State Act would be that it is bound to adversely affect the `development scheme' under the State Act and may even frustrate the same. It is a self-defeating argument that the Government can always issue fresh declaration and the acquisition in all cases should lapse in terms of Section 11A of the Central Act. This aspect has been dealt with by us in Girnar Traders v. State of Maharashtra, Civil Appeal No.3703of 2003 decided on January 11, 2011 (hereinafter referred to as `Girnar TradersIII') wherein it was held as under :
"... If this entire planned development which is a massive project is permitted to lapse on the application of Section 11A of the Central Act, it will have the effect of rendering every project of planned development frustrated. It can hardly be an argument that the Government can always issue fresh declaration in terms of Section 6 of the Land Acquisition Act and take further proceedings. Recommencement of acquisition proceedings at different levels of the hierarchy of the State and Planning Authority itself takes considerable time and, thus, it will be difficult to achieve the target of planned development. This clearly demonstrates that all the provisions of the Land Acquisition Act introduced by later amendments would not, per se, become applicable and be deemed to be part and parcel of the MRTP Act. The intent of the legislature to make the State Act a self- contained Code with definite reference to required provisions of the Land Acquisition Act is clear.
" When tested on the touchstone of the principles, `test of un workability',` test of intention' and `test of frustration of the object of the principal legislation' this argument, amongst others, has been specifically rejected. As per the scheme of the two Acts, the conclusion has to be that they can be construed and applied harmoniously to achieve the object of the State Act and it is not the requirement of the same that provisions of Section 11A of the Central Act should be read into the State Act. Another way to look at the controversy in issue is whether the provisions of the BDA Act, specifically or by implication, require exclusion and/or inclusion of certain provisions like Sections 6 and 11A of the Land Acquisition Act.
The obvious animus, as it appears to us, is that the provisions providing time-frames, defaults and consequences thereof which are likely to have adverse effect on the development schemes were intended to be excluded. A three Judge Bench of this Court in the case of Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah [(1976) 4 SCC 9], while dealing with the provisions of the City of Bangalore Improvement Act, 1945 and the Mysore Land Acquisition Act, 1894, held that the expression used in Section27 of the City of Bangalore Improvement Act, 1945 was somewhat similar to Section 36 of the present BDA Act. It provided that acquisition, other than byway of agreement, shall be regulated by provisions, so far as they are applicable, of Mysore Land Acquisition Act, 1894. The Court while taking the view that the provisions of Section 23 of the Mysore Act may be applicable to the acquisitions under the Bangalore Act, other provisions of the same would stand excluded as per the intention of the framers, held as under:
"22. There was some argument on the meaning of the words "so far as they are applicable", used in Section 27 of the Bangalore Act. These words cannot be changed into "insofar as they are specifically mentioned" with regard to the procedure in the Acquisition Act. On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section 16) corresponding with that found in the Acquisition Act [e.g. Section 4(1)]. These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation.
" Applying the above principle to the facts of the case in hand, it will be clear that the provisions relating to acquisition like passing of an award, payment of compensation and the legal remedies available under the Central Act would have to be applied to the acquisitions under the State Act but the bar contained in Sections 6 and 11A of the Central Act cannot be made an integral part of the State Act as the State Act itself has provided specific time-frames under its various provisions as well as consequences of default thereto. The scheme, thus, does not admit such incorporation. These controversies have drawn attention of this Court on different occasions in the past as well.
It will be of great help to discuss the previous judgments of this Court on the issues involved in the present case relating to the same or similar legislations. In the case of H. Narayanaiah (supra), while dealing with the City of Bangalore Improvement Act, 1945 which was repealed by the BDA Act, this Court observed in para 4 of the judgment, "it does not, however, contain a separate Code of its own for such acquisition.........." but, after discussing the scheme under the old Act, the Court held that the provisions of Bangalore Act, 1945 were not similar to those of the Mysore Land Acquisition Act and its general provisions, only in relation to acquisition of land, could be read into the Bangalore Act as other provisions stood excluded by the language of Section 27 of that Act. After the BDA Act came into force, the scheme was subjected to consideration of this Court in Munithimmaiah v. State of Karnataka [(2002) 4 SCC 326] wherein the Court discussed the provisions of the BDA Act vis-`-vis the provisions of the Land Acquisition Act, 1894 as amended by the Central Act 68 of 1984.
The Court took the view that the BDA Act is a complete code in itself. It is an Act which provide for planned development and growth of Bangalore and not just `acquisition of land'. The law relating to acquisition of land, i.e. the Land Acquisition Act, is a special law for a special purpose. Describing the BDA Act as complete code, the Court held that the provisions of Section 11A of the Land Acquisition need not be read into the State Act. After noting the meticulous comparative analysis of the relevant provisions of the BDA Act and the Land Acquisition Act by the High Court this Court further observed that scheme of Land Acquisition Act, as modified by the BDA Act, would only be applicable by reason of provisions of Sections 17, 18, 27 and 36 of the BDA Act and held as under :
"15. So far as the BDA Act is concerned, it is not an Act for mere acquisition of land but an Act to 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 acquisition of lands, if any, there for is merely incidental thereto. In pith and substance the Act is one which will squarely fall under, and be traceable to the powers of the State Legislature under Entry 5 of List II of the Seventh Schedule and not a law for acquisition of land like the Land Acquisition Act, 1894 traceable to Entry 42 of List III of the Seventh Schedule to the Constitution of India, the field in respect of which is already occupied by the Central enactment of 1894, as amended from time to time.
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 was not also considered to be part of the Land Acquisition Act, 1894. It could not also be legitimately stated, on a reading of Section 36 of the BDA Act that the Karnataka Legislature intended thereby to bind themselves to any future additions or amendments, which might be made by altogether a different legislature, be it Parliament, to the Land Acquisition Act, 1894. The procedure for acquisition under the BDA Act vis-`-vis the Central Act has been analysed elaborately by the Division Bench, as noticed supra, in our view, very rightly too, considered to constitute a special and self-contained code of its own and the BDA Act and Central Act cannot be said to be either supplemental to each other, or pari materia legislations.
That apart, the BDA Act could not be said to be either wholly unworkable and ineffectual if the subsequent amendments to the Central Act are not also imported into consideration. On an overall consideration of the entire situation also it could not either possibly or reasonably be stated that the subsequent amendments to the Central Act get attracted or applied either due to any express provision or by necessary intendment or implication to acquisitions under the BDA Act. When the BDA Act, expressly provides by specifically enacting the circumstances under which and the period of time on the expiry of which alone the proceedings initiated there under shall lapse due to any default, the different circumstances and period of limitation envisaged under the Central Act, 1894, as amended by the amending Act of 1984 for completing the proceedings on pain of letting them lapse forever, cannot be imported into consideration for purposes of the BDA Act without doing violence to the language or destroying and defeating the very intendment of the State Legislature expressed by the enactment of its own special provisions in a special law falling under a topic of legislation exclusively earmarked for the State Legislature.
A scheme formulated, sanctioned and set for implementation under the BDA Act, cannot be stultified or rendered ineffective and unenforceable by a provision in the Central Act, particularly of the nature of Sections 6 and 11-A, which cannot also on its own force have any application to actions taken under the BDA Act. Consequently, we see no infirmity whatsoever in the reasoning of the Division Bench of the Karnataka High Court in Khoday Distilleries Ltd. case1 to exclude the applicability of Sections 6 and 11-A as amended and inserted by the Central Amendment Act of 1984 to the proceedings under the BDA Act. The submissions to the contra on behalf of the appellant have no merit whatsoever and do not commend themselves for our acceptance." The principle stated in Munithimmaiah's case (supra) that the BDA Act is a self-contained code, was referred with approval by a three Judge Bench of this Court in the case of Bondu Ramaswamy (supra). The Court, inter alia, specifically discussed and answered the questions whether the provisions of Section 6 of the Land Acquisition Act will apply to the acquisition under the BDA Act and if the final declaration under Section 19(1) is not issued within one year of the publication of the notification under Section 17(1) of the BDA Act, whether such final declaration will be invalid and held as under:
"79. This question arises from the contention raised by one of the appellants that the provisions of Section 6 of the Land Acquisition Act, 1894 ("the LA Act", for short) will apply to the acquisitions under the BDA Act and consequently if the final declaration under Section 19(1) is not issued within one year from the date of publication of the notification under Sections 17(1) and (3) of the BDA Act, such final declaration will be invalid. The appellants' submissions are as under: the notification under Sections 17(1) and (3) of the Act was issued and gazetted on 3-2-2003 and the declaration under Section 19(1) was issued and published on 23-2-2004. Section 36 of the Act provides that the acquisition of land under the BDA Act within or outside the Bangalore Metropolitan Area, shall be regulated by the provisions of the LA Act, so far as they are applicable. Section 6 of the LA Act requires that no declaration shall be made, in respect of any land covered by a notification under Section 4 of the LA Act, after the expiry of one year from the date of the publication of such notification under Section 4 of the LA Act.
As the provisions of the LA Act have been made applicable to acquisitions under the BDA Act, it is necessary that the declaration under Section 19(1) of the BDA Act (which is equivalent to the final declaration under Section 6 of the LA Act) should also be made before the expiry of one year from the date of publication of notification under Sections 17(1) and (3) of the BDA Act [which is equivalent to Section 4(1) of the LA Act].80. The BDA Act contains provisions relating to acquisition of properties, up to the stage of publication of final declaration. The BDA Act does not contain the subsequent provisions relating to completion of the acquisition, that is, issue of notices, enquiry and award, vesting of land, payment of compensation, principles relating to determination of compensation, etc. Section 36 of the BDA Act does not make the LA Act applicable in its entirety, but states that the acquisition under the BDA Act, shall be regulated by the provisions, so far as they are applicable, of the LA Act. Therefore it follows that where there are already provisions in the BDA Act regulating certain aspects or stages of acquisition or the proceedings relating thereto, the corresponding provisions of the LA Act will not apply to the acquisitions under the BDA Act. Only those provisions of the LA Act, relating to the stages of acquisition, for which there is no provision in the BDA Act, are applied to the acquisitions under the BDA Act. 81.
The BDA Act contains specific provisions relating to preliminary notification and final declaration. In fact the procedure up to final declaration under the BDA Act is different from the procedure under the LA Act relating to acquisition proceedings up to the stage of final notification. Therefore, having regard to the scheme for acquisition under Sections 15 to 19 of the BDA Act and the limited application of the LA Act in terms of Section 36 of the BDA Act, the provisions of Sections 4 to 6 of the LA Act will not apply to the acquisitions under the BDA Act. If Section 6 of the LA Act is not made applicable, the question of amendment to Section 6 of the LA Act providing a time-limit for issue of final declaration, will also not apply." We may notice that, in the above case, the Court declined to examine whether the provisions of Section 11A of the Central Act would apply to the acquisition under the BDA Act but categorically stated that Sections 4 and 6 of the Central Act were inapplicable to the acquisition under the BDA Act.
It will be useful to notice that correctness of the judgment of this Court in the case of Bondu Ramaswamy (supra) was questioned in the case of K.K. Poonacha v. State of Karnataka [(2010) 9 SCC 671]. It was argued that the three Judge Bench judgment required reconsideration on the grounds that ithad not noticed other relevant judgments of this Court as well as the BDA Act had not been reserved for and received the assent of the President as per the requirement of Article 31(3) of the Constitution and, thus, this law, being in conflict with the Central law, was void and stillborn. These contentions were rejected by the Bench and in para 13 of the judgment, it held that the judgment of this Court in Bondu Ramaswamy (supra) needs no reconsideration by the Constitution Bench and more importantly, it specifically referred and reiterated the principles stated in the cases of Munithimmaiah and Bondu Ramaswamy(supra).
Sequitur to the above principle is that the BDA Act has already been held to be a valid law by this Court not repugnant to the Land Acquisition Act as they operate in their respective fields without any conflict. For the reasons afore-referred as well as the detailed reasons given by us in the case of Girnar Traders III (supra), which reasoning would form part of this judgment, we have no hesitation in concluding that the BDA Act is a self-contained code. The language of Section 36 of the BDA Act clearly mandates legislation by incorporation and as per the scheme of the two Acts, effective and complete implementation of the State law without any conflict is possible. The object of the State law being planned development, acquisition is merely incidental there to and, therefore, such an approach does not offend any of the known principles of statutory interpretation.
Points 3 to 5 of submissions raised on behalf of the appellant, as noticed above relate to:
a. Whether it is a case of legislation by reference or legislation by incorporation?
b. Whether the BDA Act is a complete code in itself?
c. Whether the BDA Act and Land Acquisition Act can co-exist and operate without conflict?
d. Whether, there being no contravention between the two laws, they can be harmoniously applied and Section 11A of the Land Acquisition Act can be read into the BDA Act without disturbing its scheme?
Most of these submissions have been specifically dealt with by us in the reasons afore recorded but usefully reference can be made to some of the important principles stated and conclusions arrived at in the case of Girnar Traders III (supra).
In light of this discussion, submissions 3 to 5 advanced on behalf of the appellant are liable to be rejected. Having dealt with contentions 3 to 5, raised by the appellant, now we will proceed to discuss the merit or otherwise of the contentions 1 and 2respectively. Both these contentions have a commo
