Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4097  OF 2010 (Arising out of SLP (C) No. 4318 of 2006)

Bondu Ramaswamy ……. Appellant

Vs.

Bangalore Development Authority & Ors. ….… Respondents  

WITH

C.A.No.  4133  of 2010 @ SLP(C) No. 3414 of 2006

C.A.No.  4098  of 2010 @ SLP(C) No. 3573 of 2006   

C.A.No.  4099 of 2010 @ SLP(C) No. 4320 of 2006  

C.A.No.  4100 of 2010 @ SLP(C) No. 4596 of 2006

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C.A.No. 4117 of 2010 @ SLP(C) No. 8742 of 2006

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C.A.No. 4119 of 2010 @ SLP(C) No. 9046 of 2006

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C.A.No. 4124 of 2010 @ SLP(C) No. 12683 of 2006

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C.A.No. 4132 of 2010 @ SLP(C) No. 15496 of 2006

C.A.No. 4179-4180 of 2010 @ SLP(C)No.14099-14100 of 2010 @  

SLP(C) ....CC No. 5682 of 2006

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J  U D G M E N T  

R. V. RAVEENDRAN J.,  

Leave granted.  These appeals relate to the challenge of acquisition  

of lands for formation of Arkavathi layout on the outskirts of Bangalore  

by the Bangalore  Development  Authority  [for  short  ‘BDA’] under the  

Bangalore  Development  Authority Act,  1976 (‘BDA Act’  or  ‘Act’  for  

short).

2. On 2.1.2001 the Executive Engineer (North) of BDA submitted a  

scheme report with detailed estimates for formation of a proposed new  

layout in an area of 1650 acres spread over twelve villages, to be called as  

‘Hennur Devanahalli Layout’.  On 7.10.2002 after an initial survey, the  

Additional  Land  Acquisition  Officer  of  BDA  submitted  a  report  

proposing that 3000 acres of land in the said twelve villages and two  

adjoining  villages  (Chellakere  and  Kempapura)  and  suggested  that  

scheme may be called as ‘Arkavathi Town or layout’ instead of ‘Hennur  

Devanahalli  layout’.  The  Commissioner  agreed  with  the  proposal  on  

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8.10.2002 and placed the matter before the Authority (that is the members  

constituting the Bangalore Development Authority).  The Authority in its  

meeting held on 10.12.2002 considered the proposal and decided to issue  

preliminary notification under sub-sections (1) and (3) of section 17 of  

BDA Act  proposing  to  acquire  in  all  about  3000 acres  of  land in  14  

villages. After the said resolution, lands in two more villages (Nagavara  

and Hebbala) were also included to provide better access to the layout. A  

preliminary notification dated 3.2.2003 under sub-sections (1) and (3) of  

section 17 of BDA Act was issued proposing to acquire 3339 acres 12  

guntas. Certain government lands, tanks, grazing lands, tank catchments  

area,  stone quarry,  burial  grounds  were  shown in  the  Schedule  to  the  

notification  dated  3.2.2003,  but  their  extent  was  not  included  in  the  

abstract  of  lands  proposed  to  be  acquired.  The  abstract  apparently  

referred only to the private lands to be acquired. In the circumstances, a  

modified preliminary notification was issued in August 2003 published in  

the Gazette dated 16.9.2003 showing the total extent of land likely to be  

needed for the purpose of formation of Akravathi Layout as 3839 A, 12 G  

of land.  The said extent of land was situated in the following 16 villages  

:  (1) Dasarahalli (2) Byrathikhane (3) Chellakere (4) Geddalahalli (5) K.  

Narayanapura  (6)  Rachenahalli  (7)  Thanisandra  (8)  Amaruthahalli  (9)  

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Jakkur  (10)  Kempapura  (11)  Sampigehalli  (12)  Srirampura  (13)  

Venkateshapura (14)  Hennur (15)  Hebbala and (16)  Nagavara.  

3. Notices were issued to land owners under section 17(5) of the Act  

giving an opportunity to show cause why the acquisition should not be  

made.  Public  notice  was  also  issued  in  the  newspapers  inviting  

objections. No objections were received in regard to 91 acres 7 Guntas.  

The  objections  received  in  regard  to  2658  acres  were  considered  and  

rejected. The Authority decided to seek the sanction of the government  

for the acquisition of 2750 acres of land, after deleting 1089 A 12 G acres  

of land from the proposed scheme. On 3.2.2004, the authority passed a  

resolution  to  obtain  the  approval  of  the  state  government  for  

implementation of the Arkavathi layout under Section 15(2)  of BDA Act  

and requesting sanction for acquisition of 2750 acres for formation of  

28600  sites  of  different  dimensions.  The  scheme  as  modified  at  an  

estimated cost of Rs. 981.36 crores (in view of the reduction of the area  

to 2750 acres), along with the draft final notification and relevant records  

was forwarded by the BDA to the State Government, under cover of letter  

dated  13.2.2004.  After  securing  certain  clarification,  by  Government  

Order dated 21.2.2004, the State government accorded sanction for the  

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scheme  under  Section  18(3)  of  the  Act.  In  pursuance  of  it,  the  final  

declaration dated 23.2.2004 was issued by the State Government, under  

section 19(1) of the Act (published in the Karnataka Gazette on the same  

day) stating that sanction had been granted for the scheme and declaring  

that the lands specified in the Schedule thereto in all 2750 acres (a little  

more  or  less)  were  needed  for  the  public  purpose  of  formation  of  

Arkavathi Layout. According to BDA, in pursuance of the same, it made  

several awards from 12.5.2004 onwards in regard to extent of 1618.38  

acres took possession of 1459.37 acres of private land and 459.16 acres  

of government land in all 1919.13 acres, and formed the layout by laying  

14103 plots, apart from roads, drains etc.

4. Several  writ  petitions  were  filed  challenging  the  acquisition.  A  

learned  Single  Judge  of  the  Karnataka  High  Court  by  order  dated  

15.4.2005 allowed the writ petitions and quashed the entire acquisition  

holding as follows:  

(i) BDA had no jurisdiction or authority to take up any development  

scheme in Bangalore Metropolitan Area having regard to parts IX and  

IXA  of  the  Constitution  read  with  section  503B  of  the   Karnataka  

Municipal Corporation Act, 1976.  

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(ii) There were several  discrepancies  in the scheme and the scheme  

was not properly framed. There was also no application of mind by the  

State  Government  or  proper  consideration  of  the  scheme,  before  

according sanction under section 18(3) of the BDA Act.  

(iii) BDA Act has to yield to the provisions of the Land Acquisition  

Act,  1894 (‘LA Act’  for  short)  which  is  a  central  legislation  and the  

mandatory procedures laid down in the said Central Act had to be applied  

and followed even in regard to acquisitions under the BDA Act to have a  

uniformity. Neither the procedures laid down under the LA Act nor the  

procedures laid down under BDA Act were followed by BDA in regard to  

this acquisition.  

(iv) As BDA is not elected body having the mandate of the people, and  

as BDA is subordinate to the state government, it cannot acquire lands for  

public purpose and the notification under Section 17(1) of BDA Act is  

bad in law, for non-issue of a notification under Section 4(1) of LA Act  

by the State Government.  

(v) The Acquisition cannot be said to be for public purpose, as BDA  

did not demonstrate that 3000 acres were required for 28600 plots and no  

valid reasons were assigned for deleting a large extent of land from the  

acquisition.

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(vi) The Commissioner  of BDA could not  authorise his  subordinate,  

namely,  the  Addl.  Land  Acquisition  Officer,  to  perform duties  under  

section 4(2) of LA Act.  

(vii) The ‘enquiry’ by the Authority to consider the objections to the  

acquisition was not fair, reasonable or in compliance with the principles  

of natural justice.   

(viii) The  action  of  BDA in  forming  sites  for  allotment,  even  before  

issuing a notification under section 16(2) of the LA Act (as amended in  

Karnataka), declaring that possession has been taken, was bad in law.  

(ix) The  amendment  to  BDA  (Allotment  of  Sites)  Rules,  1984,  

removing the restrictions on the allottee in regard to alienation/use, had  

the  effect  of  reducing BDA, a  statutory  development authority,  into  a  

mere dealer/estate agent in real estate.  

(x) Deletion  of  lands  similar  to  and contiguous  to  the  lands  of  the  

appellants, while acquiring their lands, amounts to hostile discrimination  

violative of Article 14 of the Constitution.

5. Feeling aggrieved, the BDA filed writ appeals which were allowed  

by a division bench of the High Court,  by a common judgment dated  

25.11.2005  and  upheld  the  acquisition.  The  Division  Bench  however  

affirmed the finding of discrimination in acquisition of some lands while  

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deleting similarly placed adjacent lands and gave liberty to land owners  

to file applications seeking withdrawal from acquisition on the ground of  

discrimination. The Division Bench held:

(i) BDA is not a municipality and the provisions of the BDA Act, which  

is a special legislation, are not inconsistent with Parts IX and IX(a) of the  

Constitution  of  India  or  the  provisions  of  the  Karnataka  Municipal  

Corporations Act, 1976 or the Karnataka Municipalities Act, 1964; and  

the provisions of BDA Act are neither impliedly nor expressly repealed  

by Part IX or IX(A) of the Constitution.  

(ii)  BDA  Act  is  a  special  self-contained  Code  enacted  by  the   State  

Government  for  development  of  Bangalore  Metropolitan  Area  under  

power traceable to Entry 5 of List II of Seventh Schedule. Sections 4, 5A  

and 6 of LA Act are not applicable and do not override the provisions of  

Section 17 to 19 of the BDA Act and the provisions of LA Act do not  

override the provisions of BDA Act.

(iii) The acquisition was for a public purpose and there is no violation  

of Article 19 or Article 21 of the Constitution of India.  

(iv) The Commissioner of BDA, in his capacity as its Chief Executive  

and Administrative Officer is empowered to authorise his subordinates to  

enter upon the lands in question to carry out survey and measurements.  

The error in invoking Section 4(2) of LA Act instead of Section 52 of  

BDA Act  for  entry and measurements  is  only mentioning  of  a wrong  

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provision of law and does not vitiate the authorisation under Section 52  

of BDA Act.  

(v) The  sanction  accorded  by  the  State  Government  under  Section  

18(3) of BDA Act is  valid and does not suffer from the vice of non-

application  of  mind.  The  procedure  adopted  namely  Chief  Minister  

approving  the  scheme  subject  to  ratification  by  the  Cabinet  and  the  

subsequent ratification is valid and not open to question by appellants.  

(vi) Though there was discrimination in the matter of acquisition, that  

would not invalidate the acquisition and the same could be set right by  

consequential directions.  

6. The Division Bench therefore set aside the order of the learned  

Single  Judge.  It  also  allowed  a  writ  appeal  filed  by  a  former  Chief  

Minister and expunged certain unwarranted remarks against the former  

Chief Minister in para 30 of the learned Single Judge’s order and further  

held as follows :  

(C). The  acquisition  of  the  lands  for  the  formation  of  Akravathi  Layout is upheld subject to the following conditions :  

(a) In so far as the site owners are concerned they are entitled to the  following reliefs :  

(i) These site owners/writ  petitioners shall register themselves as  applicants  for  allotment  under  the  Bangalore  Development  Authority (Allotment of Site) Rules 1984 within a period of two  months from today (extendable by another one month by BDA,  if  sufficient  cause is shown).  Petitioners will have to pay the  registration fee. They need not pay initial deposit as their sites  

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have  been  acquired  and  they  have  agree  not  to  receive  compensation in regard to the sites under this arrangement.  

(ii) The petitioners shall file applications for allotment of sites to  BDA within three months from today in the prescribed form  stating that they are applicants who were the petitioners in these  writ petitions. Petitioners shall file their documents with BDA  within  a  period of  two months  to  enable  BDA to  verify  the  same.  

(iii) BDA  will  treat  them  as  applicants  entitled  to  priority  in  allotment and allot each of them a site measuring 30 x 40 in  Arkavathi layout or in any other nearby layouts in Bangalore at  the prevailing allotment prices subject to petitioners satisfying  the twin requirements for allotment under the BDA (Allotment  of  sites)  Rules  1984,  that  they  must  be  the  residents  of  Bangalore (ten year  domicile)  and should not be owning any  residential property in Bangalore.  

(iv) If there are no rival claimants for compensation in regard to the  plots  claimed  by  petitioners,  and  if  the  ownership  of  the  petitioners in regard to their respective sites which have been  acquired is not disputed, BDA shall calculate the compensation  payable  to  the  petitioners  and  give  credit  to  the  same  by  adjusting the same towards the allotment price for the site to be  allotted  and  call  upon  the  petitioners  to  pay  the  balance.  Petitioners shall be given six months time for making payment.  [To  enable  petitioners  to  know  the  amount  of  compensation  which they will be entitled and to ascertain how much balance  they should pay].  

(v) If there are rival claimants in regard to the survey numbers or  the  sites  or  if  any  petitioners  title  in  regard  to  the  sites  are  challenged,  BDA  shall  make  a  reference  in  regard  to  the  compensation in regard to such site/land in question, to the civil  court under section 30 of the Land Acquisition Act, 1894, and  the  petitioners  will  have  to  sort  out  the  matter  before  the  reference court. In that event, such petitioners will have to pay  the  full  allotment  price  within  the  time  stipulated,  without  seeking adjustment of compensation for the acquired site.  

(vi) If  any of  the  petitioners  does  not  fulfil  the  requirements  for  allotment,  under  the  allotment  rules,  their  cases  may  be  considered  for  allotment  of  20  x  30  sites  as  per  the  Rules  containing incentive scheme for voluntary surrender of lands.  

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For  the  purpose  of  the  said  scheme,  such  petitioners  will  be  deemed to have voluntarily surrendered the sites.  

(vii) The  above  scheme  will  be  available  to  only  those  who  are  owners, as a consequence of execution of registered sale deeds  in their favour prior to the date of preliminary notification (and  not to GPA/Agreement holders).  

(D) In  so  far  as  the  land  owners  excluding  the  site  owners,  are  entitled to the following reliefs : -  

(i) All  the petitioners  who are the land owners  who are seeking  dropping  of  the  acquisition  proceeding  in  so  far  as  their  respective lands are concerned, on the ground that (a) their lands  are situated within green belt area; (b) they are totally built up;  (c)  properties  wherein  there  are  buildings  constructed  by  charitable, educational and/or religious institutions (d) nursery  lands; (e) who have set up factories (f) their lands are similar to  the lands which are adjoining their  lands but  not notified for  acquisition at all, are permitted to make appropriate application  to  the  authorities  seeking  such  exclusion  and  exemption  and  producing  documents  to  substantiate  their  contentions  within  one month from the date of this order.  

It  is  made  clear  that  the  BDA  shall  consider  such  request  keeping  in  mind  the  status  of  the  land  as  on  the  date  of  preliminary  notification  and  to  exclude  any  developments,  improvements,  constructions  put  up  subsequent  to  the  preliminary notification and they decided whether their cases as  similar to that of the land owners whose lands, are notified for  acquisition, notified and whose objections were upheld and no  final notification is issued.  

In the event of BDA comes to the conclusion that the lands of  those persons are similarly placed, then to exclude those lands  from acquisition.  

(ii) Petitioners who are interested in availing this benefit shall make  appropriate  application  within  30  days  from the  date  of  this  order and thereafter the BDA shall give notice to these persons,  hear them and pass appropriate orders expeditiously.  

(iii) Till  the aforesaid exercise is undertaken by the BDA and the  application filed by the petitioners either for allotment of site or  for  denotifying  or exemption sought for are considered their  possession shall not be disturbed and the existing construction  

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shall not be demolished. After consideration of the applications,  in  the  light  of  the  aforesaid  directions,  if  the  lands  are  not  excluded  then  the  BDA  is  at  liberty  to  proceed  with  the  acquisition.  

(E) The BDA is  directed to exclude the land bearing Sy.  No.9/1  measuring 0.27, 10/2 measuring 1.16 and 10/3 measuring 1.02 of land  which  are the  subject  matter  of  WP Nos.  1353-54 of  2005 filed  by  University  of  Agricultural  Science  Employees  House  Building  Cooperative Society from acquisition.  

(F) W.P. No.28087 of 2004 is allowed and acquisition of land in  respect  of 53 acres of land in Nagavara village which is the subject  matter of the aforesaid writ petition is quashed.  

7. The  said  judgment  is  challenged  by  the  land-losers  on  several  

grounds.  On  the  contentions  urged,  the  following  questions  arise  for  

consideration :  

(i) Whether  BDA  Act,  in  so  far  as  it  provides  for  compulsory  acquisition of property, is still-born and ineffective as it did not receive  the  assent  of  the  President,  as  required  by  Article  31(3)  of  the  Constitution of India.

(ii) Whether the provisions of the BDA Act, in particular section 15  read with section 2(c)  dealing with the power of the Authority to draw up  schemes  for  development  for  Bangalore  Metropolitan  Area  became  inoperative,  void or was impliedly repealed, by virtue of Parts IX and  IX(A) of the Constitution inserted by the 73rd and 74th Amendments to the  Constitution.  

(iii) Whether the sixteen villages where the lands have been acquired,  fall outside the Bangalore Metropolitan Area as defined in section 2(c) of  the BDA Act and therefore, the Bangalore Development Authority has no  territorial jurisdiction to make development schemes or acquire lands in  those villages.

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(iv) Whether the amendment to section 6 of the LA Act requiring the  final declaration to be issued within one year from the date of publication  of the preliminary notification is applicable to the acquisitions under the  BDA Act; and whether the declaration under section 19(1) of BDA Act,  having  been  issued  after  the  expiry  of  one  year  from the  date  of  the  preliminary  notification  under  section  17(1)  and  (3)  of  BDA  Act,  is  invalid.  

(v) Whether the provisions of sections 4, 5A, 6 of LA Act, would be  applicable in regard to acquisitions under the BDA Act and whether non- compliance with those provisions, vitiate the acquisition proceedings.  

(vi) Whether the development scheme and the acquisitions are invalid  for non-compliance with the procedure prescribed under sections 15 to 19  of the BDA Act in regard to :   

(a) absence of specificity and discrepancy in extent of land to be  acquired;  

(b) failure to furnish material particulars to the government as  required  under  section  18(1)  read  with  section  16  of  the  BDA Act; and  

(c) absence  of  valid  sanction  by  the  government,  under  section 18(3) of the BDA Act.  

(vii) Whether  the  deletion  of  1089  A.12G.  from  the  proposed  acquisition, while proceeding with the acquisition of similar contiguous  lands of appellants amounted to hostile discrimination and therefore the  lands of appellants also required to be withdrawn from acquisition.

Question  (i)  –  Re  :  Invalidity  on  account  of  non-compliance  with  Article 31(3) of the Constitution.

8. The  contention  of  the  appellants  is  as  under  :  BDA  Act  was  

enacted by the Karnataka Legislature, received the assent of the Governor  

on 2.3.1976, was published in the Karnataka Gazette dated 8.3.1976 and  

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brought into force with retrospective effect from 20.12.1975. BDA Act  

provides  for  compulsory  acquisition  of  property,  vide  provisions  

contained in Chapters III and IV. When the BDA Act was enacted and  

brought into effect, Articles 19(1)(f) and 31 of the Constitution were in  

force.  Article  31(3)  provided  that  no  law providing  for  acquisition  of  

property  for  public  purposes,  made  by  a  State  Legislature  shall  have  

effect  unless  such  law has  been reserved  for  the  consideration  of  the  

President and has received his assent. BDA Act was not reserved for the  

consideration  of  the  President,  nor  received  his  assent.  Therefore,  the  

BDA Act, in so far as it provides for acquisition of property, is still-born  

and ineffective. It is submitted that though Article 19(1)(f) and Article 31  

were omitted from the Constitution with effect from 20.6.1979, as such  

omission  was  not  with  retrospective  effect,  any  law  made  prior  to  

20.6.1979 should be tested on the touchstone of the said articles.

9. Article 31 of the Constitution dealt with compulsory acquisition of  

property. Clauses (1) to (3) of the said Article relevant for our purpose are  

extracted below:

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“(1) No  person  shall  be  deprived  of  his  property  save  by   authority of law.

(2) No property, movable or immovable, including any interest   in,  or  in  any  company  owning  any  commercial  or  industrial   undertaking, shall be taken possession of or acquired for public   purposes under any law authorising the taking of such possession  of such acquisition, unless the law provides for compensation for   the property taken possession of or acquired and either fixes the   amount of the compensation, or specifies the principles on which,   and the manner in which, the compensation is to be determined   and given.     

(3) No such law as is referred to in clause (2) made by the   Legislature of a State shall  have effect  unless such law, having  been reserved for the consideration of the President, has received   his assent.”

By the Constitution (Forty Fourth Amendment) Act, 1978, the right to  

property was deleted from the list of fundamental rights by omitting sub-

clause (f) of clause (1) of Article 19. Simultaneously, Article 31 was also  

deleted  with  effect  from 20.6.1979  by  the  Constitution  (Forty  Fourth  

Amendment) Act, 1978. It is no doubt true that the BDA Act received  

only the assent of the Governor and was neither reserved for the assent of  

the President nor received the assent of the President. As clause (3) of  

Article 31 provided that a law providing for acquisition of property for  

public  purposes,  would  not  have  effect  unless  such  law  received  the  

assent of the President, it was open to a land owner to contend that the  

provisions relating to acquisition in the BDA Act did not come into effect  

16

for want of President’s assent. But once Article 31 was omitted from the  

Constitution on 20.6.1979, the need for such assent disappeared and the  

impediment for enforcement of the provisions in the BDA Act relating to  

acquisition also disappeared. Article 31 did not render the enactment a  

nullity, if there was no assent of the President. It only directed that a law  

relating  to  compulsory  acquisition  will  not  have  effect  unless  the  law  

received the assent of the President. As observed in  Munithimmaiah v.   

State of Karnataka  [2002 (4) SCC 326], acquisition of property is only  

an incidental and not the main object and purpose of the BDA Act. Once  

the requirement of assent stood deleted from the Constitution, there was  

absolutely no bar for enforcement of the provisions relating to acquisition  

in  the  BDA  Act.  The  Karnataka  Legislature  had  the  legislative  

competence to enact such a statute, under Entry 5 of List II of the Seventh  

Schedule to the Constitution. If any part of the Act did not come into  

effect  for  non-compliance  with  any provision of  the  Constitution,  that  

part of the Act may be unenforceable, but not invalid.  

10. Our  view  is  fortified  by  the  following  observations  of  a  

Constitution Bench of this Court in M.P.V. Sundararamier & Co. v. The  

State of Andhra Pradesh & Anr. [AIR 1958 SC 468] :

17

“Now,  in  considering  the  question  as  to  the  effect  of  unconstitutionality of a statute,  it  is  necessary to remember that  unconstitutionality might arise either because the law is in respect  of a matter not within the competence of the legislature, or because  the matter itself being within its competence, its provisions offend  some constitutional  restrictions.  In a  Federal  Constitution where  legislature  powers  are  distributed  between  different  bodies,  the  competence of the legislature to enact a particular law must depend  upon whether the topic of that legislation has been assigned by the  Constitution Act to that legislature. Thus, a law of the State on an  Entry in List I, Schedule VII of the Constitution would be wholly  incompetent and void. But the law may be on a topic within its  competence,  as  for  example,  an  Entry  in  List  II,  but  it  might  infringe restrictions imposed by the Constitution on the character  of the law to be passed, as for example, limitations enacted in Part  III  of  the  Constitution.  Here  also,  the  law to  the  extent  of  the  repugnancy will be void. Thus, a legislation on a topic not within  the  competence  of  the  legislature  and  a  legislation  within  its  competence but violative of constitutional limitations have both the  same  reckoning  in  a  court  of  law;  they  are  both  of  them  unenforceable. But does it follow from this that both the laws are  of the same quality and character, and stand on the same footing  for  all  purposes?  This  question  has  been  the  subject  of  consideration in numerous decisions in the American Courts, and  the preponderance of authority is in favour of the view that while a  law on a matter not within the competence of the legislature is a   nullity, a law on a topic within the competence but repugnant to   the  constitutional  prohibitions  is  only  unenforceable.  This  distinction has a material  bearing on the present discussion. If a  law is  on a  field  not  within  the domain  of  the  legislature,  it  is  absolutely null and void, and a subsequent cession of that   field to  the legislature will not have the effect of breathing life into what  was a still-born piece of legislation and a fresh legislation on the  subject would be requisite. But if the law is in respect of a matter   assigned  to  the  legislature  but  its  provisions  disregard  constitutional  prohibitions,  though  the  law  would  be   unenforceable by reason of those prohibitions, when once they are   removed, the law will become effective without re-enactment.”  

(emphasis supplied)

18

11. The appellants relied upon the following observations in  

Mahendra Lal Jain v. State of UP & Ors. [1963 Supp (1) SCR  912] :-

"Parliament and the Legislatures of States have power to make  laws in respect of any of the matters enumerated in the relevant  Lists  in  the Seventh Schedule and that  power  to make laws is  subject  to the provisions of the Constitution,  including Art.  13,  i.e., the power is made subject to the limitations imposed by Part  III of the Constitution. The general power to that extent is limited.  The  Legislature,  therefore,  has  no  power  to  make  any  law  in  derogation of the injunction contained in Art. 13. Art. 13(1) deals  with  laws  in  force  in  the  territory  of  India  before  the  commencement of the Constitution and such laws insofar as they  are inconsistent with the provisions of Part, III shall to the extent  of such inconsistency be void. The clause, therefore, recognises  the validity of the pre-Constitution laws and only declares that  said  laws  would  be  void  thereafter  to  the  extent  of  their  inconsistency  with  Part  III;  whereas  clause  (2)  of  that  Article  imposes a prohibition on the State making laws taking away or  abridging the rights conferred by Part III, and declares that laws  made in contravention  of  this  clause  shall  to  the  extent  of  the  contravention  be void.  There is  a  clear  distinction between the  two  clauses.  Under  clause  (1)  a  pre-Constitution  law  subsists  except  to  the extent  of its  inconsistency with the provisions of  Part  III,  whereas  no  post-Constitution  law  can  be  made  contravening the provisions of Part III and therefore the law to  that extent, though made, is a nullity from its inception".

(emphasis supplied)

On a careful consideration of the aforesaid observations, we are of the  

view that the said decision does not in any way express any view contrary  

to the clear enunciation of law in  Sundaramier.  In  Mahendra Lal Jain,  

this  court  explained  the  difference  between  pre-constitutional  laws  

governed  by  Article  13(1)  and  post-constitutional  laws  which  are  

19

governed by Article 13(2) and held that any post-constitutional law made  

in contravention of  provisions of Part III, to the extent of contravention  

is a nullity from its inception. Let us now examine whether any provision  

of the BDA Act violated any provisions of Article 31 in part III of the  

Constitution. Clause (1) of Article 31 provided that no person shall be  

deprived of his property save by authority of law. As we are examining  

the validity of a law made by the state legislature having competence to  

make  such  law,  there  is  no  violation  of  Article  31(1).  Clause  (2)  of  

Article  31  provided  that  no  law  shall  authorise  acquisition  unless  it  

provided  for  compensation  for  such  acquisition  and  either  fixed  the  

amount of compensation, or specified the principles on which, and the  

manner  in  which,  the  compensation  was  to  be  determined  and given.  

BDA  Act,  does  not  fix  the  amount  of  compensation,  but  Section  36  

thereof  clearly  provides  that  the  acquisition  will  be  regulated  by  the  

provisions  of  the  Land  Acquisition  Act,  1894  so  far  as  they  are  

applicable.  Thus  the  principles  on  which  the  compensation  is  to  be  

determined  and  the  manner  in  which  the  compensation  is  to  be  

determined set  out  in  the  LA Act,   become applicable  to  acquisitions  

under BDA Act. Thus there is no violation of Article 31(2). Article 31(3)  

merely provides that no law providing for acquisition  shall have effect  

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unless such law has received the assent of the President.  Article 31(3)  

does not specify any fundamental right, but relates to the procedure for  

making a law providing for acquisition.  As noticed above,  it  does not  

nullify  any  laws,  but  postpones  the  enforcement  of  a  law  relating  to  

acquisition, until it receives the assent of the President. There is therefore  

no violation of Part III of the Constitution that can lead to any part of the  

BDA Act being treated as a nullity. As stated above, the effect of Article  

31(3) was that enforcement of the provisions relating to acquisition was  

not  possible/permissible  till  the  assent  of  the  President  was  received.  

Therefore,  once  the  requirement  of  assent  disappeared,  the  provisions  

relating to acquisition became enforceable.

Question (ii) – Re : Invalidity with reference to Parts IX and IX-A of  the Constitution      

12. Part IX and IX-A of the Constitution, relating to Panchayats and  

Municipalities  were  inserted  by  the  Constitution  (Seventy-third  

Amendment)  Act,  1992 and Constitution (Seventy-fourth  Amendment)  

Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993  

respectively. The object of Part-IX was to introduce the Panchayat system  

at grass root level. As Panchayat systems were based on state legislations  

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and  their  functioning  was  unsatisfactory,  the  amendment  to  the  

Constitution  sought  to  strengthen  the  Panchayat  system  by  giving  a  

uniform constitutional base so that the Panchayats become vibrant units  

of administration in the rural area by establishing strong, effective and  

democratic local administration so that there can be rapid implementation  

of rural development programmes. The object of Part-IX as stated in the  

Statement of Objects & Reasons is extracted below:-

“In many States, local bodies have become weak and ineffective on  account of variety of reasons, including the failure to hold regular  elections,  prolonged  supersessions  and  inadequate  devolution  of  powers and functions. As a result, urban local bodies are not able to  perform effectively as vibrant democratic units of self-Government.

Having regard to these inadequacies, it is considered necessary that  provisions  relating  to urban local  bodies  are  incorporated  in the  Constitution, particularly for -

(i) putting on a firmer footing the relationship between the State  Government and the Urban Local Bodies with respect to:

(a) the functions and taxation powers, and  

(b) arrangements for revenue sharing.

(ii) ensuring regular conduct of elections.

(iii) ensuring timely elections in the case of supersession; and

(iv) providing adequate representation for the weaker sections like  Scheduled Castes, Scheduled Tribes and women”.

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13. We may first refer to the provisions of Part IX in brief. Clause (d)  

and (e) of Article 243 define ‘Panchayat’ and ‘Panchayat area’. Article  

243B  deals  with  constitution  of  Panchayats,  Article  243C  deals  with  

composition of Panchayats. Article 243D relates to reservation of seats.  

Article  243E  stipulates  the  duration  of  Panchayats.  Article  243F  

prescribes the disqualification for membership.  243G refers to powers,  

authorities  and  responsibilities  of  Panchayats.  Article  243H  refers  to  

power   to  impose  taxes  by  Panchayats  and  funds  of  the  Panchayats.  

Article 243I directs the constitution of Finance Commissions to review  

the  financial  position.  Article  243J  relates  to  audit  of  accounts  of  

Panchayats. Article  243K relates to election to Panchyats. Article 243M  

enumerates  the  areas  to  which  the  part  will  not  apply.  Article  243N  

provides for continuance of existing laws and Panchayats.   

14. Similarly,  in  Part  IX-A  relating  to  Municipalities,  the  terms  

‘Metropolitan Area’, ‘Municipal Area’, and ‘Municipality’ are defined by  

Clauses (c), (d) and (e) of Article 243P. Article 243Q and Article 243R  

deals  with  the  constitution  and  composition  of  Municipalities.  Article  

243S  deals  with  constitution  and  composition  of  Ward  Committees.  

Article  243T deals  with  reservation  of  seats.  Article  243U deals  with  

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duration of Municipalities. Article 243V prescribes the disqualifications  

for  membership.  Article  243W  enumerates  the  powers,  authority  and  

responsibilities of Municipalities. Article 243X empowers the legislature  

by  law authorise  municipalities  to  levy,  collect  and appropriate  taxes,  

duties,  tolls  and  fees.  Article  243Y requires  the  Finance  Commission  

constituted  under  Article  243I  to  review  the  financial  position  of  

Municipalities and make recommendations, Article 243Z requires audit  

of accounts of Municipalities. Article 243ZA relates to elections.  Article  

243ZC refers to the areas to which the part will not apply. Article 243ZD  

requires  the  constitution  of  Committees  for  district  planning.  Article  

243ZE requires the constitution of  Metropolitan Planning Committees  

for every Metropolitan Area and preparation of a draft development plan  

for the Metropolitan Area as a whole.  Article  243ZF provides for the  

continuance of existing laws and Municipalities for a period of one year.

15. We  may  now  extract  some  of  the  Articles  in  Part-IXA  with  

reference to Municipalities, relevant for our purpose:-

“243P.  Definitions.-  In  this  Part,  unless  the  context  otherwise  requires-

x x x x x x  x x x

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(c) "Metropolitan area" means an area having a population of ten  lakhs or more, comprised in one or more districts and consisting of  two or more Municipalities or Panchayats or other contiguous areas,  specified by the Governor by public notification to be a Metropolitan  area for the purposes of this Part;

(d) "Municipal area" means the territorial area of a Municipality as is  notified by the Governor;

(e)  "Municipality"  means  an  institution  of  self-government  constituted under article 243Q;

x x x x x x  x x x

“243Q.  Constitution  of  Municipalities.-   (1)  There  shall  be  constituted in every State,-

(a) a Nagar Panchayat (by whatever name callled) for a transitional  area, that is to say, an area in transition from a rural area to an urban  area;

(b) a Municipal Council for a smaller urban area; and

(c) a Municipal Corporation for a larger urban area, in accordance  with the provisions of this Part:”

x x x x x x  x x x

“243W.  Powers,  authority  and  responsibilities  of  Municipalities,   etc.--- Subject to the provisions of this Constitution, the Legislature of  a State may, by law, endow-

(a)  the  Municipalities  with  such  powers  and  authority  as  may  be  necessary to enable them to function as institutions of self-government  and such law may contain provisions for the devolution of powers and  responsibilities upon Municipalities, subject to such conditions as may  be specified therein, with respect to-  

(i)  the  preparation  of  plans  for  economic  development  and  social  justice;

(ii) the performance of functions and the implementation of schemes  as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;

25

(b)  the  Committees  with  such  powers  and  authority  as  may  be  necessary to enable  them to carry out  the responsibilities  conferred  upon  them  including  those  in  relation  to  the  matters  listed  in  the  Twelfth Schedule”.

x x x x x x  x x x   “243ZD.  Committee  for  district  planning.-(1)  There  shall  be  constituted in every State at the district level a District Planning  Committee  to  consolidate  the  plans  prepared by the  Panchayats  and  the  Municipalities  in  the  district  and  to  prepare  a  draft  development plan for the district as a whole.”

x x x x x x  x x x

“243ZE.  Committee  for  Metropolitan  planning.-(1)  There  shall  be  constituted  in  every  Metropolitan  area  a  Metropolitan  Planning  Committee to prepare a draft development plan for the Metropolitan  area as a whole.

(2)  The  Legislature  of  a  State  may,  by  law,  make  provision  with  respect to-

(a) the composition of the Metropolitan Planning Committees;

(b) the manner in which the seats in such Committees shall be filled:

Provided  that  not  less  than  two-thirds  of  the  members  of  such  Committee  shall  be  elected  by,  and  from  amongst,  the  elected  members of the Municipalities and Chairpersons of the Panchayats in  the Metropolitan area in proportion to the ratio between the population  of the Municipalities and of the Panchayats in that area;  (c) the representation in such Committees of the Government of India  and  the  Government  of  the  State  and  of  such  organisations  and  institutions as may be deemed necessary for carrying out the functions  assigned to such Committees;

(d) the functions relating to planning and coordination for the Metropolitan area which may be assigned to such Committees;

(e) the manner in which the Chairpersons of such Committees shall be  chosen.

(3) Every Metropolitan Planning Committee shall,  in preparing the  draft development plan,-

26

(a) have regard to-

(i)  the plans prepared by the  Municipalities  and the  Panchayats  inthe Metropolitan area;

(ii)  matters  of  common  interest  between the  Municipalities  and  thePanchayats,  including  coordinated  spatial  planning  of  the  area,  sharing  of  water  and  other  physical  and  natural  resources,  theintegrated  development  of  infrastructure  and  environmentalconservation;

(iii)  the  overall  objectives  and priorities  set  by the  Government  ofIndia and the Government of the State;

(iv)  the  extent  and  nature  of  investments  likely  to  be  made  in  theMetropolitan area by agencies of the Government of India and of  the  Government  of  the  State  and  other  available  resources  whetherfinancial or otherwise;

(b) consult  such institutions and organisations as the Governor  may,by  order, specify.

(4)  The  Chairperson  of  every  Metropolitan  Planning  Committee  shallforward the development plan, as recommended by such Committee,  to the Government of the State.

“243ZF.  Continuance  of  existing  laws  and  Municipalities.-   Notwithstanding anything in this Part,  any provision of any law  relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment)  Act, 1992, which is inconsistent with the provisions of this Part,  shall  continue  to  be  in  force  until  amended  or  repealed  by  a  competent  Legislature  or  other  competent  authority  or  until  the  expiration  of  one  year  from such  commencement,  whichever  is  earlier:

Provided that  all  the  Municipalities  existing immediately  before  such  commencement  shall  continue  till  the  expiration  of  their  duration,  unless  sooner  dissolved by a  resolution passed to  that  effect by the Legislative Assembly of that State or, in the case of a  State  having  a  Legislative  Council,  by  each  House  of  the  Legislature of that State”.

27

In  Karnataka,  the  Municipal  Corporations  for  larger  urban  areas  are  

constituted and governed by the Karnataka Municipal Corporations Act,  

1976  (‘KMC  Act’  for  short)  and  the  Municipal  Councils  for  smaller  

urban areas are constituted and governed by the Karnataka Municipalities  

Act, 1964 (‘KM Act’ for short).  Regulation of planned growth of land  

use  and  development  and  making  and  execution  of  town  planning  

schemes in the State of Karnataka is governed by the Karnataka Town  

and Country Planning Act, 1961 (‘Town Planning Act’ for short).

16. The KMC Act was exhaustively amended by Amendment Act 35  

of  1994 to bring the said Act in conformity with Chapter  IXA of the  

Constitution of India.  Section 3 empowers the Governor to specify by  

notification larger urban areas, having regard to the factors mentioned in  

Clauses (a) to (f) of Sub-section (1) and the requirements of Clause (a) to  

(d) of the proviso to that Sub-Section. Sub-section (1A) provides that any  

area specified as a larger urban area by the Governor under sub-section  

(1) shall be deemed to be a city and a Corporation shall be established for  

the said city.   Section 503-A relating to preparation of a development  

plan and Section 503-B relating to constitution of Metropolitan Planning  

28

Committees, inserted in KMC Act by Amendment Act 35 of 1994 are  

extracted below:

“503-A. Preparation  of  development  plan: Every  Corporation  shall prepare every year a development plan and submit to the District  Planning  Committee  constituted  under  Section  310  of  the  Karnataka  Panchayat  Raj  Act,  1993,  or  as  the  case  may  be  the  Metropolitan  Planning Committee constituted under Section 503B of this Act.”.

“503-B. Metropolitan Planning Committee: (1) The Government  shall constitute a Metropolitan Planning Committee for the Bangalore  Metropolitan Area to prepare a draft development plan for such area as a  whole.  

Explanation:  For the purpose of this section “Bangalore Metropolitan  Area” means an area specified by the Governor to be a metropolitan area  under clause (c) of Article 243-P of the Constitution of India.

(2) The Metropolitan Planning Committee shall consist of thirty persons  of which –  

(a)  such  number  of  persons,  not  being  less  than  two-thirds  of  the  members of the committee, as may be specified by the Government shall  be elected in the prescribed manner by, and from amongst, the elected  members  of  the  Corporations,  the  Municipal  Councils  and  Town  Panchayats, and the Adhyakshas and Upadhyakshas of Zila Panchayats,  Taluk  Pachayats  and  Grama  Panchayats  in  the  metropolitan  area  in  proportion  to  the  ratio  between  the  population  of  the  city  and  other  municipal  area  and  that  of  the  areas  in  the  jurisdiction  of  Zilla  Panchayat, Taluk Panchayat and Grama Pachayat;  

(b) such number of representatives of –

(i) The Government of India and the State Government as may be  determined by the State Government, and nominated by the Government  of India or as the case may be, the State Government; (ii) such organisations and institutions as may be deemed necessary  for carrying out of functions assigned to the committee, nominated by  the State Government;  

(3) All  the  members  of  the  House  of  the  People  and  the  State  Legislative Assembly whose constituencies lie within the Metropolitan  area and the members of the Council of State and the State Legislative  

29

Council who are registered as electors in such area shall be permanent  invitees of the committee.  

(4) The Commissioner, Bangalore Development Authority shall be  the Secretary of the Committee.

(5) The Chairman of the Metropolitan Planning Committee shall be  chosen in such manner as may be prescribed.

(6) The  Metropolitan  Planning  Committee  shall  prepare  a  draft  development plan for the Bangalore Development Area as a whole.

(7) Metropolitan  Planning Committee  shall,  in  preparing the  draft  development plan –

(a) have regard to- (i) the  plans  prepared  by the  local  authorities  in  the  

Metropolitan Area; (ii) matters  of  common  interest  between  the  local  

authorities  including  co-ordinated  spatial  planning  of the area, sharing of water and other physical and  natural  resources,  the  integrated  development  of  infrastructure and environmental conservation;  

(iii) the  overall  objectives  and  priorities  set  by  the  Government of India and the State Government;

(iv) the extent and nature of the investments likely to be  made in the Metropolitan area by agencies of the  Government of India and of the State Government  and  the  available  resources  whether  financial  or  otherwise;  

(a) Consult such institutions and organisations as the Governor may, by  order, specify.

(8) The  Chairman  of  the  Metropolitan  Planning  Committee  shall  forward the development plan, as recommended by such committee, to  the State Government”.

17. The BDA Act was enacted to establish a development authority for  

the development of city of Bangalore and areas adjacent thereto and for  

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matters connected therewith. The statement of objects and reasons of the  

said Act reads thus:

“Bangalore  City with its  population (as per last  census)  is  a  Metropolitan  City.  Different  Authorities  like  the  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 are  exercising jurisdiction over the area. Some of the functions of  these bodies like development,  planning etc., are overlapping  creating  thereby avoidable  confusion,  besides  hampering  co- ordinated development. It is, therefore, considered necessary to  set up a single authority like the Delhi Development Authority  for the city areas adjacent to it  which in course of time will  become part of the city.  

For the speedy implementation of the above said objects as also  the 20-point programme and for establishing a co-coordinating  Central Authority, urgent action was called for. Moreover, the  haphazard and irregular growth would continue unless checked  by the Development Authority and it may not be possible to  rectify or correct mistakes in the future.”

Section 3 of BDA Act relates to constitution and incorporation of the  

Bangalore Development Authority. It provides for the State Government,  

by notification, constituting an Authority for the Bangalore Metropolitan  

Area, to be called as Bangalore Development Authority.   Section 2(c) of  

the BDA Act defines ‘Bangalore Metropolitan Area’ as follows:

“Bangalore Metropolitan Area” means the area comprising the  City of Bangalore as defined in the City of Bangalore Municipal  Corporation Act,  1949 (Karnataka  Act  69 of  1949),  the areas  where the City of Bangalore Improvement Act, 1945 (Karnataka  Act 5 of 1945) was immediately before the commencement of  this Act in force and such other areas adjacent to the aforesaid as  the Government may from time to time by notification specify.  

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Clause  (j)  of  Section  2  of  the  BDA  Act  defines  “development”  as  

follows:

“Development” 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.

Section 15 empowers Authority to undertake works and incur expenditure  

for development etc. The said section is extracted below:-

“15. Power of Authority to undertake works and incur expenditure for   development, etc .- (1) The Authority may,-  

(a) draw up detailed schemes (hereinafter referred to as "development  scheme") for the development of the Bangalore Metropolitan Area ;  and   

(b)  with the  previous approval  of  the Government,  undertake from  time  to  time  any  works  for  the  development  of  the  Bangalore  Metropolitan  Area  and  incur  expenditure  therefor  and  also  for  the  framing and execution of development schemes.  

(2) The Authority may also from time to time make and take up any  new or additional development schemes,-  

(i)  on its own initiative,  if  satisfied of the sufficiency of its  resources, or  

(ii) on the recommendation of the local authority if the local  authority places at the disposal of the Authority the necessary  funds  for  framing  and  carrying  out  any  scheme;  or   

(iii) otherwise.  

(3) Notwithstanding anything in this Act or in any other law for the  time  being  in  force,  the  Government  may,  whenever  it  deems  

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necessary require the Authority to take up any development scheme or  work and execute it subject to such terms and conditions as may be  specified by the Government”.

Section 16 enumerates the particulars to be provided in a development  

scheme and the said section is extracted below:-  

“16. Particulars to be provided for in a development scheme.-  Every  development scheme under section 15,-  

(1)  shall,  within  the  limits  of  the  area  comprised  in  the  scheme,  provide for,-  

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

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

(c) drainage, water supply and electricity ;  

(d) the reservation of not less than fifteen percent of the total area of  the layout for public parks and playgrounds and an additional area of  not  less  than  ten  percent  of  the  total  area  of  the  layout  for  civic  amenities.  

(2) may, within the limits aforesaid, provide for,-  

(a) raising any land which the Authority may consider expedient to  raise to facilitate better drainage ;  

(b)  forming  open  spaces  for  the  better  ventilation  of  the  area  comprised in the scheme or any adjoining area ;  

(c) the sanitary arrangements required ;  

[(d) x x x [omitted by Act 17 of 1984].  

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

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Section  17  lays  down the  procedure  on  completion  of  scheme  and is  

extracted below:-

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

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

(3) The Authority shall also cause a copy of the said notification to be  published  in  [  x  x  x  ]  the  official  Gazette  and  affixed  in  some  conspicuous part of its own office, the Deputy Commissioner's Office,  the office of the Corporation and in such other places as the Authority  may consider necessary.  

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

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

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

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

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

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

Section 18 requires sanction of the scheme by the Government and  reads  

thus :  

“18. Sanction of scheme .- (1) After publication of the scheme  and  service  of  notices  as  provided  in  section  17  and  after  consideration  of  representations,  if  any,  received  in  respect  thereof,  the Authority shall submit the scheme, making such  modifications therein as it may think fit, to the Government for  sanction, furnishing,-   (a) a description with full particulars of the scheme including  the reasons for any modifications inserted therein ;  

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

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

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

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

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

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

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houses.   

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

Section 19 requires declaration to be published giving particulars of the  

land to be acquired, upon sanction of the scheme by the Government.  

18. The contentions urged by learned counsel for appellants based on  

Parts IX and IX-A of the Constitution can be summarised thus :  

(i) BDA Act is a legislation relatable to Article 243W and some of the  

matters listed in the Twelfth Schedule. Therefore BDA Act is deemed to  

be a law relating to Municipalities. Having regard to Article 243 ZF, any  

provision  inconsistent  with  the  provisions  of  Part  IXA  of  the  

Constitution, law relating to municipalities ceased to be in force on the  

expiry of  one year from 1.6.1993 - the date  of commencement  of the  

Constitution 74th Amendment Act, 1992.

(ii) After the insertion of Part IXA of the Constitution, there cannot be  

any ‘metropolitan area’ other than what is declared by the Governor as a  

metropolitan  area,  as  provided  under  Article  243P(c).  Only  an  area  

having a  population of  10 lakhs or  more in one or  more districts  and  

consisting  of  two  or  more  municipalities  or  Panchayats  or  other  

contiguous areas and specified by the Governor by a public notification   

to be a Metropolitan Area  can be a ‘Metropolitan Area’. Consequently,  

the ‘Bangalore Metropolitan Area’ as defined under section 2(c) of the  

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BDA Act had ceased to exist and therefore BDA could not draw up any  

development scheme for Bangalore Metropolitan Area.

(iii) A development scheme or an additional development scheme for  

Bangalore Metropolitan area which the BDA is required to draw up under  

Section 15 of the BDA Act are conceptually and in effect same as the  

development plan with reference to a municipality referred to in Article  

243W and  a  development  plan  for  a  metropolitan  area  referred  to  in  

Article  243ZE.  After  the  insertion  of  Part  IXA in  the  Constitution,  a  

development plan for a metropolitan  area  can only be drawn up by a  

democratically  elected  representative  body  that  is  the  Metropolitan  

Planning  Committee  by  taking  into  account  the  factors  mentioned  in  

Clause (3) of Article 243ZE. Therefore on the expiry of one year from  

1.6.1993 (the date on which Part IXA of the Constitution was inserted),  

BDA has no authority to draw up any development scheme.

19. Any statute  or  provision  thereof  which  is  inconsistent  with  any  

constitutional provision will be struck down by courts. Consequently, if  

BDA Act or any provision of the BDA Act is found to be inconsistent  

with any provision of Part IXA of the Constitution, it will be struck down  

by courts as violative of the constitution. In regard to any provision of  

any law relating to municipalities, Article 243ZF suspends such invalidity  

or  postpones  the  invalidity  for a  period of  one year  from 1.6.1993 to  

enable  the  competent  Legislature  to  remove  the  inconsistency  by  

37

amending or repealing such law relating to municipalities to bring it in  

consonance  with  the  provisions  of  Part  IXA  of  the  Constitution.  

Article 243ZF is a provision enabling continuance of any provision of a  

law relating to municipalities in spite of such provision being inconsistent  

with the provisions of Part IXA of the Constitution for a specified period  

of one year. It does not extend the benefit of continuance to any law other  

than  laws  relating  to  municipalities;  it  also  does  not  provide  for  

continuance of a law for one year, if the violation is in respect of any  

constitutional provision other than Part IXA; and it does not declare any  

provision of a statute to be inconsistent with it nor declare any statute to  

be invalid. The invalidity of a statute is declared by a court when it finds  

that  a  statute  or  its  provision  to  be  inconsistent  with  a  constitutional  

provision.  

20. The benefit  of Article 243ZF is available only in regard to laws  

relating  to  ‘municipalities’.  The  term  ‘municipality’  has  a  specific  

meaning assigned to it under Part IX-A.  Article 243P(c) defines the word  

as meaning  an institution  of  self-government constituted under Article  

243Q. Article 243Q refers specifically to three types of municipalities,  

that is, a Nagar Panchayat for a transitional area, a municipal council for  

38

a smaller urban area and a municipal corporation for a larger urban area.  

Thus, neither any city improvement trust nor any development authority  

is a municipality, referred to in Article 243ZF. Thus Article 243ZF has no  

relevance to test the validity of the BDA Act or any provision thereof. If  

BDA Act or any provision thereof is found to be inconsistent with the  

provisions of Part IXA, such inconsistent provision will be invalid even  

from 1.6.1993, and the benefit of continuance for a period of one year  

permitted under Article 243ZF will not be available to such a provision of  

law, as BDA Act is not a law relating to Municipalities.          

21. The Constitution (Seventy-Fourth Amendment) Act, 1992 inserting  

Part  IX-A  in  the  Constitution,  seeks  to  strengthen  the  system  of  

municipalities in urban areas, by placing these local self-governments on  

sound and effective footing and provide measures  for  regular  and fair  

conduct  of  elections.  Even before the  insertion of  the said Part  IX-A,  

Municipalities existed all over the country but there were no uniform or  

strong  foundations  for  these  local  self-governments  to  function  

effectively.   Provisions  relating  to  composition  of  Municipalities,  

constitution and composition of Ward Committees, reservation of seats  

for  weaker  sections,  duration  of  Municipalities,  powers,  authority,  

39

responsibilities  of  Municipalities,  power  to  impose  taxes,  proper  

superintendence  and  centralised  control  of  elections  to  Municipalities,  

constitution  of  Committees  for  District  Planning  and  Metropolitan  

Planning, were either not in existence or were found to be inadequate or  

defective in the state laws relating to municipalities.  Part IX-A seeks to  

strengthen the democratic political governance at grass root level in urban  

areas by providing constitutional status to Municipalities, and by laying  

down minimum uniform norms and by ensuring regular and fair conduct  

of  elections.  When  Part  IX-A  came  into  force,  the  provisions  of  the  

existing laws relating to municipalities which were inconsistent with or  

contrary to the provisions of Part IX-A would have ceased to apply. To  

provide continuity for some time and an opportunity to the concerned  

State  Governments  to  bring  the  respective  enactments  relating  to  

municipalities  in  consonance  with  the  provisions  of  Part  IX-A in  the  

meanwhile, Article 243ZF was inserted.  The object was not to invalidate  

any law relating to city improvement trusts or development authorities  

which operate with reference to specific and specialised field of planned  

development  of  cities  by  forming  layouts  and  making  available  

plots/houses/apartments to the members of the public.

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22. To  enable  the  municipalities  (that  is  municipal  corporations,  

municipal councils and Nagar Panchayats) to function as institutions of  

self-government,  Article  243W authorises  the  legislature  of  a  state  to  

endow  to  the  municipalities,  such  powers  and  authority  as  may  be  

necessary, by law. Such law made by the state legislature may contain  

provision  for  the  devolution  of  powers  and  responsibilities  upon  

municipalities, with respect to the following:

(i) The preparation of plans for economic development and social justice; and  

(ii) The  performance  of  functions  and  implementation  of  schemes  as  may  be  entrusted to them including those in relation to the following matters (earmarked in  the twelfth schedule):

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings.

3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and commercial purposes.

6. Public health, sanitation conservancy and solid waste management.

7. Fire services.

8. Urban  forestry,  protection  of  the  environment  and  promotion  of  ecological aspects.

9. Safeguarding the interests of weaker sections of society, including the  handicapped and mentally retarded.

10. Slum improvement and upgradation.

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11. Urban poverty alleviation.

12. Provision  of  urban  amenities  and  facilities  such  as  parks,  gardens,  playgrounds.

13. Promotion of cultural, educational and aesthetic aspects.

14. Burials  and  burial  grounds;  cremations,  cremation  grounds;  and  electric crematoriums.

15. Cattle pounds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

17. Public amenities including street lighting, parking lots, bus stops and  public conveniences.

18. Regulation of slaughter houses and tanneries.

The aforesaid powers and authority (enumerated in the twelfth Schedule)  

may also be endowed to the Ward Committees which are required to be  

constituted, by Article 243S.

23. On the other hand, the purpose and object of the BDA is to act as a  

development authority for the development of the city of Bangalore and  

areas adjacent thereto. The Preamble of BDA Act describes it as ‘an Act  

to  provide  for  the  establishment  of  a  Development  Authority  for  the  

development of the city of Bangalore and areas adjacent thereto and for  

matters connected therewith. The development contemplated by the BDA  

Act is “carrying out of building, engineering or other operations in or  

42

over or under land or the making of any material change in any building  

or  land  and  includes  redevelopment”  (vide  Section  2(j)  of  BDA Act.  

Therefore, the purpose is to make lay outs, construct buildings or carry  

out other operations in regard to land. Municipalities are not concerned  

with nor entrusted with functions similar to those entrusted to BDA under  

the BDA Act, that is building, engineering or other operations by forming  

layout of plots with all amenities, construction of houses and apartments,  

as a part of any scheme to develop a city. Municipalities are concerned  

with the overall  economic development providing social  justice (urban  

poverty  alleviation  and  slum  improvement)  regulating  land  use  and  

constructions,  providing  amenities  (roads,  bridges,  water  supply,  fire  

services,  street  lighting,  parking,  bus  stops,  public  conveniences),  

promoting education and culture etc.  Neither urban town planning nor  

regulation of land use and construction, is similar to the ‘development’ as  

contemplated  in  BDA  Act,  that  is  carrying  out  building,  engineering  

operations in or over or under land. It would thus be seen that the object  

and functions of a Municipal Corporations are completely different from  

the object and purpose of a development authority like BDA. BDA is not  

a  municipality.  Therefore,  it  cannot  be  said  that  mere  existence  of  

Municipal Corporations Act, duly amended to bring it in conformity with  

43

Part IX-A of the Constitution, will nullify or render redundant, the BDA  

Act.

24. Article 243ZE no doubt provides that there shall be constituted in  

every metropolitan area, a Metropolitan Planning Committee to prepare a  

draft  development  plan  for  the  metropolitan  area  as  a  whole.  The  

metropolitan  area  is  defined  in  clause  (c)  of  Article  243P as  an  area  

having  a  population  of  10  lakhs  or  more  comprised  in  one  or  more  

districts and consisting of two or more municipalities or panchayats or  

other contiguous areas specified by the Governor by a public notification  

to be a metropolitan area for the purpose of Part  IXA. The Bangalore  

Development  Authority  is  constituted  inter  alia to  draw up a  detailed  

scheme  for  the  Bangalore  Metropolitan  Area.  The  Bangalore  

Metropolitan Area is defined in Section 2(c) of the BDA Act and the said  

definition  need  not  necessarily  be  the  same  as  or  equivalent  to  any  

metropolitan  area  declared  with  reference  to  Bangalore  under  Article  

243P(c) of the Constitution.  It was submitted before the High Court that  

the Governor had not issued any public notification specifying any area  

as  metropolitan  area,  with  reference  to  Bangalore  city.  Further  the  

declaration of metropolitan area by the Governor, as provided in clause  

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(c) of Article 243P is specifically with reference to the law relating to  

municipalities.  The  Bangalore  Metropolitan  Area  as  defined  in  the  

Bangalore  Development  Authority  Act  is  only  for  the  purpose  of  

development  i.e.  development  by  way  of  building  or  engineering  

operations  in  or  over  or  under  land.  Therefore  neither  the  provision  

defining  ‘metropolitan  area’  in  Article  243P(c)  nor  the  provision  for  

constitution of a Metropolitan planning committee for preparing a draft  

development plan for such metropolitan area under Article  243ZE has  

any  relevance  or  bearing  to  the  Bangalore  Metropolitan  Area  with  

reference to which BDA has been constituted.  

25. Next  contention  urged  by  the  appellant  is  that  in  pursuance  of  

Article  243ZE,  KMC Act  has  been  amended  inserting  Section  503-B  

providing  for  constitution  of  a  Metropolitan  Planning  Committee  for  

preparing a draft development plan for the Bangalore Metropolitan Area  

and  therefore  the  Bangalore  Development  Authority  can  no  longer  

function as an authority for development of metropolitan area, nor can it  

draw development schemes therefor. Development scheme to be drawn  

up  by  the  BDA  for  development  of  Bangalore  Metropolitan  Area  is  

specific i.e. acquisition of land, laying out or re-laying plots, formation of  

45

roads,  construction of  buildings,  providing drainage,  water  supply and  

electricity and allot them to members of the public. On the other hand, the  

development plan for the metropolitan area as a whole, to be prepared by  

Metropolitan  Planning  Committee  constituted  under  the  KMC  Act  

involves  making a  plan for  overall  development  with  reference  to  the  

various functions enumerated in the twelfth Schedule, that is, plans for  

economic  and  social  justice,  planning  for  economic  and  social  

development,  slum  improvement  and  upgradation,  urban  poverty  

alleviation, and providing several urban amenities and facilities referred  

to in the twelfth Schedule.  It would thus be seen that the ‘development  

scheme’  formulated  for  Bangalore  Metropolitan  Area  by  BDA  has  

nothing  to  do  with  a  ‘development  plan’  that  has  to  be  drawn  by  a  

municipality or by Metropolitan Planning Committee. The development  

plan to be drawn for a metropolitan area,  by a Metropolitan Planning  

Committee  should  not  be  confused with  a  development  scheme to  be  

drawn by a development authority like BDA for a metropolitan area.  It  

should  also  be  noticed  that  insofar  as  Bangalore  is  concerned,  the  

Bangalore Metropolitan Area as defined in Section 2(c) of the BDA Act  

is the area comprising the City of Bangalore as defined in the City of  

Bangalore Municipal Corporation Act, 1949, the area where the city of  

46

Bangalore  Improvement  Act,  1945  was  immediately  before  the  

commencement of the BDA Act in force, and such other areas adjacent to  

the aforesaid, as the Government may from time to time by notification  

specify.  On the other hand, the Bangalore Metropolitan Area, referred to  

in Section 503-B of KMC Act is an area to be specified by the Governor  

by public notification under Article 243P(c)  of the Constitution of India.  

In fact the Governor had not even specified the Bangalore Metropolitan  

Area for the purpose of KMC Act. Neither the Bangalore Metropolitan  

Area nor a Metropolitan Planning Committee is in existence under the  

KMC Act. In these circumstances, the contentions that the BDA Act, is  

no longer in force and that BDA has no jurisdiction or authority to draw  

up a development scheme to form layouts and acquire land to form lay  

outs  in  pursuance  of  any  development  scheme  for  Bangalore  

Metropolitan Area, is wholly untenable.

26. The  appellants  submitted  that  the  powers,  authority  and  

responsibilities,  to  be  endowed  by  the  State  Legislatiure  upon  the  

Municipalities  are  enumerated  in  Article  243W  read  with  Twelfth  

Schedule; that Articles 234ZD and 243ZE require the state government to  

constitute  a  District  Planning  Committee  at  District  Level  and  a  

47

Metropolitan Planning Committee for every Metropolitan Area; that such  

Metropolitan  Planning  Committee  is  required  to  prepare  a  draft  

development plan for the Metropolitan Area as a whole. It was contended  

that  the  BDA  Act  was  a  Legislation  which  related  to  some  of  the  

responsibilities  and  functions  of  Municipalities,  enumerated  in  the  

Twelfth Schedule to the Constitution read with Article 243W and that its  

provisions,  in  particular,  sections  15  to  19  were  inconsistent  with  the  

provisions of Part IXA of the Constitution; that no law can entrust powers  

and responsibilities referred to in Article 243W including those relating  

to  matters  listed  in  Twelfth  Schedule  to  an  authority  other  than  an  

authority  having  popular  mandate;  and  that  therefore  the  BDA  Act  

entrusting  such  powers  and  responsibilities  to  a  non-elected  authority  

ceases to be in force.  

27. While  it  is  true  that  BDA  is  not  an  elected  body  like  the  

municipality, it has several elected representatives as members. Section 3  

relates  to  the  Constitution  of  the  Authority  and  provides  that  the  

Authority shall consist of 22 members and made up as follows :  

- Six officers of the BDA viz., The Chairman, The Finance Member,  The  Engineering  Member,  The  Town  Planning  Member,  The  Commissioner  and Secretary  of  the  Authority.  (All  of  them are  

48

full-time  employees,  three  of  them  are  specialists  in  finance,  engineering and town planning.

- Four  elected  representatives,  that  is,  two  members  of  state  legislature assembly and two counsellors of Bangalore Municipal  Corporation.

- One representative of the state government and four representatives  of statutory corporations, that is, the Commissioner of Bangalore  Municipal  Corporation  and  representatives  of  Bangalore  Water  Supply  Sewerage  Board,  Karnataka  Electricity  Board,  and  Karnataka State Road Transport Corporation.  

- Six  members  of  the  public  (with  minimum of  one woman,  one  person belonging to SC/ST, and one representing labour)

- One Architect.

It  would  thus  be  seen  that  members  of  the  BDA  represent  different  

interests  and  groups,  technical  persons  and  elected  representatives.  

Further,  no  development  scheme  can  be  finalised  or  put  into  effect  

without the sanction of the State Government which in turn has to take  

note of  any representation by the Bangalore  Municipal  Corporation in  

regard to the development scheme. Therefore, the mere fact that BDA is  

not wholly elected body as in the case of a municipal corporation will  

make no difference.  The membership pattern is more suited to fulfil the  

requirements of a specialist agency executing development schemes.  We  

therefore  find no merit  in  the  contention  that  provisions  of  BDA Act  

49

become inoperative,  on Parts IX and IX-A of the Constitution coming  

into force.

28. The BDA Act empowers the Bangalore Development Authority to  

formulate schemes for the development of Bangalore Metropolitan Area.  

The  word  ‘development’  refers  to  building,  engineering  or  other  

operations in regard to land, that is making layouts and making available  

plots for allotment to members of the public. It is authorised to acquire  

lands  for  execution  of  development  schemes,  prepare  layouts  and  

construct  buildings,  provide  drainage,  water  supply  and  electricity,  

provide sanitary arrangements, form open spaces, lease, sell or transfer  

the plots/immovable properties. The area in which the BDA Act operates  

is totally different from the areas in which Part IX A of the Constitution  

and KMC Act which relate to local self-government operate.  

Question (iii) – Re : BDA lacking territorial jurisdiction to draw up  the development scheme  

29. The  contention  of  appellants  is  that  the  villages  in  which  the  

acquired lands are situated do not fall within the Bangalore Metropolitan  

Area as defined in section 2(c) of the BDA Act, and consequently the  

50

BDA has no jurisdiction to either acquire lands or make a development  

scheme in regard to those areas. As noticed above, section 15 empowers  

the  BDA to draw up development  schemes  or  additional  development  

schemes  for  the  development  of  the  Bangalore  Metropolitan  Area.  

Bangalore  Metropolitan  Area  is  defined  in  section  2(c)  as  the  area  

comprising (i)  the City of Bangalore as defined in the City Bangalore  

Municipal  Corporation  Act,  1949;  (ii)  the  areas  where  the  City  of  

Bangalore  Improvement  Act,  1945  was  immediately  before  the  

commencement of this Act was in force; (iii) such other areas adjacent to  

the  aforesaid  areas  as  the  government  may  from  time  to  time  by  

notification  specify.  The  areas  in  which  the  City  of  Bangalore  

Improvement  Act,  1945  was  in  force  immediately  before  the  

commencement of BDA Act was the City of Bangalore and other areas  

adjoining the city specified by the state government from time to time by  

notification (vide section 1(2) of the said Act).  

30. The  Government  of  Karnataka  issued  a  notification  

dated  1.11.1965,  under  section  4A  (1)  of  the  ‘Town  Planning  Act’  

declaring the area comprising the City of Bangalore and other areas (218  

villages)  enumerated  in  Schedule  I  thereto  to  be  the  ‘Local  Planning  

51

Area’ for the purposes of the said Act to be called as the Bangalore City  

Planning Area and the limits of the said planning area were as described  

in  Schedule  II  thereto.  All  the  16  villages  in  which  the  lands  were  

acquired  for  Arkavathi  Layout  fell  within  the  said  Bangalore  City  

Planning  Area  (that  is  within  the  ‘other  areas’  described  in  the  I  

Schedule).  

31. The  Government  of  Karnataka  issued  another  notification  dated  

13.3.1984 under section 4A (1) of the Town Planning Act declaring that  

the  area  comprising  325  peripheral  villages  around  Bangalore  as  

indicated in Schedule I to be Local Planning Area for the environs of  

Bangalore and the limits of the said planning area shall be as indicated in  

Schedule II  thereto.  It  may be mentioned that the areas added by this  

notification  were  beyond  the  core  area  (Bangalore  City)  and  the  first  

concentric circle area which were already notified as the Bangalore City  

planning area under the notification dated 1.11.1965. Schedule II to the  

notification  dated  13.3.1984  gave  the  boundaries  of  the  entire  local  

planning area of Bangalore which included not only 325 villages which  

were  added  by  the  said  notification  but  the  original  planning  area  

described and declared in the notification dated 1.11.1965. The following  

52

note was added after the Schedule II to the notification dated 13.3.1984 :  

“This  excludes  the  Bangalore  city  local  planning  area  declared  (by)  

government notification No.PLN/42/MNP/65/SO/3446 dated 1.11.1965.”  

32. Thereafter,  the  Government  of  Karnataka  issued  a  notification  

dated  6.4.1984  under  section  4A  (3)  of  the  Town  Planning  Act,  

amalgamating  the  ‘Local  Planning  Area  of  Bangalore’  declared  under  

notification dated 1.11.1965 and the ‘Local Planning Area’ declared for  

the  environs  of  Bangalore  by  notification  dated  13.3.1984.  The  said  

notification  called  the  amalgamated  Local  Planning  Area  as  the  

‘Bangalore City Planning Area’ with effect from 1.4.1984. Schedule I to  

the said notification consolidated the areas shown in Schedule I to the  

notification dated 1.11.1965 and the Schedule I to the notification dated  

13.3.1984 and contained the names of 538 villages. It also confirmed that  

the limits of the planning area shall be as indicated in II Schedule to the  

notifications dated 1.11.1965 and 13.3.1984.  

33. The Government of Karnataka issued a notification dated 1.3.1988  

in exercise of the power under section 2(c) of the Bangalore Development  

Authority Act, 1976 specifying the villages, indicated in I Schedule and  

within the boundaries indicated in II Schedule to the notification dated  

53

13.3.1984,  to  be  the  areas  for  the  purpose  of  the  said  clause.  The  

contention of the petitioner is that the notification dated 1.3.1988 only  

specifies  the  villages  indicated  in  the  notification  dated  13.3.1984  as  

Bangalore Metropolitan area; that therefore, the areas that were earlier  

declared as a local planning area under the notification dated 1.11.1965,  

were  not  part  of  Bangalore  Metropolitan  area;  and  that  as  all  the  16  

villages which were the subject matter of the impugned acquisition, were  

part  of  the  local  planning  area  declared  under  notification  dated  

1.11.1965,  but  not  part  of  the  local  planning  area  declared  under  the  

notification dated 13.3.1984, the said 16 villages do not form part of the  

Bangalore Metropolitan Area for the purpose of section 2(c) of the BDA  

Act; and consequently, BDA cannot execute any development scheme in  

regard to the said 16 villages under section 15 of the BDA Act.  

34. A careful reading of the notification dated 1.3.1988 would show  

that the clear intention of the state government was to declare the entire  

area declared under the notification dated 1.11.1965 and the notification  

dated  13.3.1984,  together  as  the  Bangalore  Metropolitan  Area.  The  

notification  dated  1.3.1988  clearly  states  that  the  entire  area  situated  

within  the  boundaries  indicated  in  Schedule  II  to  the  notification  

54

dated 13.3.1984 was the area for the purpose of section 2(c) of BDA Act.  

There is no dispute that the boundaries indicated in Schedule II to the  

notification  dated  13.3.1984  would  include  not  only  the  villages  

enumerated in I Schedule to the notification dated 13.3.1984 but also the  

area  that  was  declared  as  planning  area  under  the  notification  

dated  1.11.1965.  This  is  because  the  areas  declared under  notification  

dated  1.11.1965  are  the  core  area  (Bangalore  City)  and  the  area  

surrounding the core area that is 218 villages forming the first concentric  

circle; and the area declared under the notification dated 13.3.1984 (325  

villages)  surrounding  the  area  declared  under  the  notification  

dated  1.11.1965  forms  the  second  concentric  circle.  Therefore,  the  

boundaries of the lands declared under the notification dated 13.3.1984,  

would also include the lands which are declared under the notification  

dated  1.11.1965  and  therefore,  the  16  villages  which  are  the  subject  

matter  of  the  impugned  acquisition,  are  part  of  the  Bangalore  

Metropolitan Area.  

35. The learned counsel for the Appellants contended that the note at  

the end of II Schedule to the notification dated 13.3.1984 excluded the  

Bangalore  city  planning  area  declared  under  the  notification  

55

dated 1.11.1965. As the planning area that was being declared under the  

notification dated 13.3.1984, was in addition to the area that was declared  

under the notification dated 1.11.1965, it was made clear in the note at  

the end of the notification dated 13.3.1984 that the area declared under  

the notification dated 1.11.1965 is  to be excluded. The purpose of the  

note  was  not  to  exclude  the  area  declared  under  the  notification  

dated  1.11.1965  from  the  local  planning  area.  The  intention  was  to  

specify what was being added, to the local planning area declared under  

the notification dated 1.11.1965. But in the notification dated 1.3.1988,  

what is declared as the Bangalore Metropolitan Area is the area that is  

within  the  boundaries  indicated  in  schedule  II  to  the  notification  

dated 13.3.1984, which as noticed above is the area notified on 1.11.1965  

as  also  the  area  notified  on  13.3.1984.  The  note  in  the  notification  

dated  13.3.1984  was  only  a  note  for  the  purposes  of  the  notification  

dated 13.3.1984 and did not form part of the notification dated 1.3.1988.  

There is therefore no doubt that the intention of the state government was  

to include the entire area within the boundaries described in Schedule II,  

that  is  the  area  declared  under  two  notifications  dated  1.11.1965  

and 13.3.1984, as the Bangalore Metropolitan Area.  

56

36. In fact ever since 1988, everyone had proceeded on the basis that  

the  Bangalore  Metropolitan  Area  included  the  entire  area  within  the  

boundaries mentioned in Schedule II to the notification dated 13.3.1984.  

Between 1988 and 2003, BDA had made several development schemes  

for the areas in the first concentric circle around Bangalore City (that is,  

in  the  218  village  described  in  I  Schedule  to  the  notification  

dated 1.11.1965) and the state government had sanctioned them. None of  

those  were  challenged  on  the  ground  that  the  area  was  not  part  of  

Bangalore Metropolitan Area.  

37. It  is  true  that  the  wording  of  the  notification  is  clumsy  and  

ambiguous. It  refers to the villages indicated in Schedule I and it  also  

refers to villages within the boundaries of Schedule II. It also states that  

the  area  stated  in  the  notification  is  the  area  for  the  purpose  of  

section 2(c) of BDA Act. It is well settled that when there is vagueness  

and ambiguity, an interpretation that would avoid absurd results should  

be adopted.  The interpretation  put  forth  by  the  appellants,  if  accepted  

would mean the outer centric circle of Bangalore which consists of only  

the peripheral  villages would be the Bangalore Metropolitan Area and  

neither the Bangalore city nor the 218 villages immediately adjoining and  

57

surrounding  the  Bangalore  city  would  form  part  of  Bangalore  

Metropolitan Area. This, to say the least, is absurd  and will be in direct  

violation of section 2(c) of BDA Act which states that Bangalore City  

and the areas surrounding it where City of Bangalore Improvement Act,  

1945 was in force, will form part of Bangalore Metropolitan Area.   

38. Let us view it from another angle. Bangalore City forms the central  

core area or the innermost circle. The adjoining 218 villages enumerated  

in the notification dated 1.11.1965 surrounding Bangalore City form the  

first concentric circle. The peripheral villages described in Schedule I to  

the notification dated 13.3.1984 form the second concentric circle which  

surrounds the central core area and the areas within the first concentric  

circle. To interpret Bangalore Metropolitan Area as referring only to the  

peripheral villages and not the core city area and its adjoining villages  

would be like saying the outer skin of a fruit is the fruit and the entire  

fruit inside does not form part of the fruit.  

39. The  learned  counsel  for  the  appellants  submitted  that  if  the  

notification  dated  1.3.1988 is  interpreted  as  including  the  inner  areas,  

then it would amount to reading the words “Government of Karnataka  

hereby  specifies  the  villages  indicated  in  Schedule  I  and  within  the  

58

boundaries indicated in Schedule II to the notification dated 13.3.1984 to  

be the area for the purpose of the said Clause” as follows :

“Government of Karnataka hereby specifies the villages indicated  in Schedule I and  the villages  within the boundaries indicated in  Schedule II to the notification dated 13.3.1984 to be the areas for  the purpose of the said clause”.   

It is submitted that a  casus omissus cannot be supplied by courts where  

the language is clear and unambiguous and is capable of an intelligible  

interpretation.  Reliance is placed on the decisions of this court in  Dr.  

Baliram Waman Hiray v. Justice B. Lentin & Ors. -  1988 (4) SCC 419,  

and  S.R. Bommai & Ors. v. UOI & Ors. -  1994 (3) SCC 1 and several  

decisions following them, to contend that the court cannot, in interpreting  

a provision,  supply any  casus omissus.  The doctrine of  casus omissus  

was  explained  thus  in  American  Jurisprudence,  2nd Series  Vol.  73  at   

page 397 :  “It is a general rule that the court may not by construction  

insert  words or phrases in a statute or supply a casus omissus  by giving  

force and effect to the language of the statute when applied to a subject  

about which nothing whatever is said, and which, to all appearances, was  

not in the mind of the legislature at the time of the enactment of law”. But  

the position will  be different where the language is ambiguous and an  

intelligible  interpretation  would  require  addition  of  words  particularly  

59

when the intention of the State Government is clear and evident and it is  

reiterated by the State Government and the BDA. Justice G.P. Singh in  

his  Principles  of  Statutory  Interpretation (2008  Edition  –  Page  65)  

expresses  the view that  when the object  or  policy of  a statute  can be  

ascertained, imprecision in its language should not be readily allowed in  

the way of adopting a reasonable construction which avoids absurdities  

and incongruities and carries out the object or policy. This Court has also  

repeatedly emphasised that although a court cannot supply a real  casus  

omissus,  nor can it  interpret  a Statute to create a  casus omissus  when  

there is really none. In Padma Sunder Rao v. State of Tamil Nadu  2002  

(3) SCC 533, a Constitution Bench of the this Court held :  

“….. a  casus omissus  cannot be supplied by the court by judicial  interpretative  process,  except  in  the  case  of  clear  necessity  and  when reason for it is found in the four corners of the statute itself,  but at the same time a casus omissus should not be readily inferred  and for that purpose all the parts of a Statute or section must be  construed  together  and  every  clause  of  a  section  should  be  construed with reference to the context and other clauses thereof so  that the construction to be put on a particular provision makes a  consistent enactment of the whole Statute.”  

40. Let  us  now  refer  to  the  wording  and  the  ambiguity  in  the  

notification.   Section 2(c)  of  BDA Act makes it  clear  that  the city of  

Bangalore  as  defined  in  the  Municipal  Corporation  Act  is  part  of  

60

Bangalore Metropolitan Area. It also makes it clear that the areas where  

the city of Bangalore Improvement Act, 1945 was in force, is also part of  

Bangalore Metropolitan Area. It contemplates other areas adjacent to the  

aforesaid areas being specified as part of Bangalore Metropolitan Area by  

a notification. Therefore, clearly, the area that is contemplated for being  

specified in a notification under Section 2(c) is “other areas adjacent” to  

the areas specifically referred to in Section 2(c). But it is seen from the  

notification dated 1.3.1988 that it does not purport to specify the “such  

other areas adjacent” to the areas specifically referred to in section 2(c),  

but purports to specify the Bangalore Metropolitan Area itself as it states  

that it is specifying the “areas  for the purpose of the said clause”.  If the  

notification  specifies  the  entire  Bangalore  Metropolitan  Area,  the  

interpretation put forth by the appellants that only the villages included in  

Schedule I to the notification dated 13.3.1984 would be the Bangalore  

Metropolitan Area, would result in an absurd situation. Obviously the city  

of Bangalore and the adjoining areas which were notified under the city  

of  Bangalore  Improvement  Act  1945  are  already  included  in  the  

Bangalore  Metropolitan  Area  and  the  interpretation  put  forth  by  the  

appellants  would  have  the  effect  of  excluding  those  areas  from  the  

Bangalore Metropolitan Area. As stated above, the core area or the inner  

61

circle area, that is Bangalore City, is a part of Bangalore Metropolitan  

Area  in  view  of  the  definition  under  Section  2(c).  The  218  villages  

specified in the notification dated 1.11.1965 are the villages immediately  

surrounding and adjoining Bangalore city and it forms the first concentric  

circle area around core area of Bangalore city. The 325 villages listed in I  

Schedule to the notification dated 13.3.1984 are situated beyond the 218  

villages and form a wider second concentric circle around the central core  

area and the first concentric circle area of 218 villages. That is why the  

notification dated 1.3.1988 made it clear that the Bangalore Metropolitan  

Area would be the area within the boundaries indicated in II Schedule to  

the  notification  dated  13.3.1984.  It  would  mean  that  the  three  areas,  

namely, the central core area, the adjoining 218 villages constituting the  

first concentric circle area and the next adjoining 325 villages forming the  

second  concentric  circle  are  all  included  within  the  Bangalore  

Metropolitan Area. What is already specifically included by Section 2(c)  

of BDA Act cannot obviously be excluded by notification dated 1.3.1988  

while  purporting to  specify the additional  areas  adjoining to  the  areas  

which were already enumerated. Therefore, the proper way of reading the  

notification dated 1.3.1988 is to read it as specifying 325 villages which  

are described in the First Schedule to the notification dated 13.3.1984 to  

62

be added to the existing metropolitan area and clarifying that the entire  

areas  within  the  boundaries  of  Second  Schedule  to  the  notification  

dated 13.3.1984 would constitute the Bangalore Metropolitan Area. There  

is  no  dispute  that  the  boundaries  indicated  in  the  notification  

dated  13.3.1984  would  clearly  include  the  16  villages  which  are  the  

subject mater of the acquisition.  

41. We therefore, reject the contention of the appellant that Bangalore  

Development Authority does not have territorial jurisdiction to form any  

development scheme in regard to the 16 villages which are the subject  

matter of the final declaration dated 23.2.2004.  

Question (iv) – Re : Invalidity of final declaration with reference to  time limit in section 6 of Land Acquisition Act.

42. This  question  arises  from  the  contention  raised  by  one  of  the  

appellants that the provisions of section 6 of the Land Acquisition Act,  

1894 (‘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  

63

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  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 LA Act. As the  

provisions of LA Act have been made applicable to acquisitions under  

BDA Act, it is necessary that the declaration under Section 19(1) of 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 BDA Act  

(which is equivalent to Section 4(1) of LA Act).   

43. BDA Act contains provisions relating to acquisition of properties,  

up to the stage of publication of final declaration.  BDA Act does not  

contain  the  subsequent  provisions  relating  to  completion  of  the  

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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 BDA Act does not make the LA Act  

applicable in its entirety, but states that the acquisition under BDA Act,  

shall be regulated by the provisions, so far as they are applicable, of 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 LA Act will  

not apply to the acquisitions under the BDA Act. Only those provisions  

of LA Act,  relating to the stages of acquisition,  for which there is no  

provision in the BDA Act, are applied to the acquisitions under BDA Act.  

BDA Act contains specific provisions relating to preliminary notification  

and final declaration. In fact the procedure up to final declaration under  

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  

BDA Act and the limited application of LA Act in terms of section 36 of  

BDA Act, the provisions of Sections 4 to 6 of LA Act will not apply to  

the acquisitions under BDA Act.  If section 6 of LA Act is not made  

applicable, the question of amendment to section 6 of LA Act providing a  

65

time limit for issue of final declaration, will also not apply.  

44. Learned counsel for the BDA submitted that the issue is no longer  

res  integra.  He submitted  that  in   Munithimmaiah  vs.  State  of   

Karnataka -   2002 (4) SCC 326, this Court held that the BDA Act is a  

special and self-contained code; that BDA and LA Act cannot be said to  

be either supplemental  to each other,  or  pari materia legislations;  that  

BDA  Act  could  not  be  said  to  be  either  wholly  unworkable  and  

ineffectual if the subsequent amendments to the LA Act are not imported  

into BDA Act; and that the amendments to LA Act subsequent to the  

enactment of the BDA Act did not get attracted or become applicable to  

acquisitions  under  the  BDA  Act  either  by  express  provision  or  by  

necessary  intendment  or  implication.  He  therefore  submitted  that  the  

appellants  cannot  rely  upon  the  amendment  to  Section  6  of  LA  Act  

requiring publication of the final  declaration within one year from the  

date  of  publication of the preliminary notification,  to contend that  the  

final  declaration under the BDA Act should be made within one year  

from the date of preliminary notification.  The learned counsel for the  

appellants submitted that the issue whether the provisions of LA Act as  

amended  would  apply  to  acquisitions  under  laws  relating  to  town  

66

planning  has  been  referred  to  a  larger  Bench  of  this  Court  and  the  

decision therein will have a bearing on the issue whether amendments to  

the provisions of LA Act would apply to acquisition under laws relating  

to  City  Improvement  Trusts  and  development  authorities.  It  is  

unnecessary to enter into the controversy whether the amendments to LA  

Act  inserting  Section  11A  would  apply  to  acquisitions  under  Town  

Planning Laws or City Improvement/ Development Laws, as that issue  

does not arise here. As noticed above, when section 6 of the LA Act itself  

is  inapplicable  to  acquisition  under  BDA  Act,  the  question  whether  

amendment to Section 6 will apply will not arise. We accordingly hold  

that  the  final  declaration  dated  23.2.2004  does  not  suffer  from  any  

infirmity  on  account  of  the  same  having  been  published  a  few  days  

beyond  one  year  from  the  date  of  publication  of  the  preliminary  

notification under sections 17 (1) and (3) of the BDA Act.

Question (v) -  Re : Applicability of sections 4, 5A and 6 of LA Act  

45. The appellants contend that the provisions of sections 4, 5A and 6  

of  LA  Act  apply  to  the  acquisitions  under  the  BDA  Act  and  the  

acquisition  is  liable  to  be  quashed,  as  being  in  violation  of  the  said  

67

provisions.  Different  appellants  have raised two distinct  and somewhat  

inconsistent  contentions  to  say  that  sections  4  to  6  of  LA  Act  are  

applicable.    

46. The  first  contention  is  as  follows  :  The  BDA  Act  relates  to  

development  of  Bangalore  Metropolitan  Area.  It  is  not  an  Act  for  

acquisition of property. Sections 15 and 19 when read with section 36 of  

BDA Act, can lead to only a conclusion that for acquisition of lands for its  

development schemes, BDA has to resort only to the provisions of LA  

Act, in entirety and BDA Act does not provide for or empower BDA to  

make  acquisitions.  Section  15  enables  the  authorities  to  draw-up  

development  schemes  or  additional  development  schemes  for  

development of Bangalore Metropolitan Area. Section 15 does not confer  

any power to acquire land. Section 16 only specifies the particulars to be  

provided for in the development schemes and does not empower BDA to  

acquire land. The reference to acquisition in clause (1)(a) of section 16 is  

not to empower acquisition, but merely to provide that every development  

scheme  shall,  within  the  limits  of  the  area  comprised  in  the  scheme  

provide for acquisition of any land which will be necessary for or affected  

by the execution of the scheme. Section 16(1)(a) therefore refers to only  

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identifying the lands to be acquired and does not authorise acquisition.  

Section 17 contains the procedure to be followed when the development  

scheme has been prepared. Section 18 refers to the need for the BDA to  

submit  the  scheme  to  the  Government  for  its  sanction,  and  grant  of  

sanction by the Government. Neither section 17 nor section 18 authorise  

the BDA to acquire land. Section 19 requires a declaration to be published  

by the Government stating that it had sanctioned a development scheme of  

BDA, and the lands proposed to be acquired by the authority are required  

for  a  public  purpose.  Therefore,  the  actual  acquisition  as  such  should  

follow the  declaration  under  section  19  of  the  BDA Act  by  issuing  a  

preliminary notification under section 4, by an inquiry under section 5A  

and a final declaration under section 6 of the LA Act,  followed by an  

award,  reference  etc.  Section  36  of  the  BDA  Act  provides  that  

acquisitions shall be regulated by the provisions of LA Act, as far as they  

are applicable. This makes it clear that the entire acquisition will have to  

be  made  under  the  provisions  of  the  LA  Act.  BDA  has  all  along  

proceeded  on  a  wrong  assumption  that  it  has  the  power  to  acquire  

property under the BDA Act when it has no such power.  

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47. The assumption by the appellant that Chapter III of the BDA Act  

relating  to  development  schemes  does  not  provide  for  acquisition  is  

erroneous. Sections 15 to 19 of the BDA Act contemplate drawing-up of a  

development scheme or additional development scheme for the Bangalore  

Metropolitan Area, containing the particulars set down in section 16 of the  

said  Act,  which  includes  the  details  of  the  lands  to  be  acquired  for  

execution of the scheme. Section 17 requires the BDA on preparation of  

the  development  scheme,  to  draw-up  and  publish  in  the  Gazette,  a  

notification stating that the scheme has been made, showing the limits of  

the area comprised in such scheme and specifying the lands which are to  

be acquired. The other provisions of section 17 make it clear that the BDA  

has to furnish a copy of the said notification and invite a representation  

from the Bangalore City Corporation, affix the notification at conspicuous  

places in various offices, and serve notice on every person whose land is  

to be acquired. Thus, the notification that is issued under section 17(1)  

and  published  under  section  17(3),  is  a  preliminary  notification  for  

acquiring the lands required for the scheme under the Act. Section 17(5)  

and section 18 (1) requires BDA to give an opportunity to landowners to  

show cause against acquisition and consider the representations received  

in that behalf. Section 18 (1) also requires BDA to furnish a statement of  

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the lands proposed to be acquired to the State Government for obtaining  

its sanction for the scheme  including the acquisition. Sub-section (1) of  

section  19  requires  the  Government  to  publish  a  declaration  upon  

sanctioning the scheme, declaring that such a sanction has been given and  

declaring that the “lands proposed to be acquired by the authority” are  

required for public purpose. Sub-section (3) of section 19 makes it clear  

that the declaration published under section 19(1) should be conclusive  

evidence  that  the  land  is  needed  for  a  public  purpose  and  that  the  

Authority shall, upon publication of such declaration, proceed to execute  

the same. Thus, it  is clear that the acquisition by the Authority for the  

purposes of the development scheme is initiated and proceeded with under  

the provisions of the BDA Act. Section 36 of BDA Act provides that the  

“acquisition of land under this Act”, shall be regulated by the provisions,  

so far as they are applicable of the LA Act. In view of the categorical  

reference in section 36 of the BDA Act, to acquisitions under that Act,  

there cannot be any doubt that the acquisitions for BDA is not under the  

LA Act, but under the BDA Act itself. It is also clear from section 36 that  

LA Act, in its entirety, is not applicable to the acquisition under the BDA  

Act,  but  only  such  of  the  provisions  of  the  LA  Act  for  which  a  

corresponding  provision  is  not  found  in  the  BDA  Act,  will  apply  to  

71

acquisitions under the BDA Act.  In view of sections 17 to 19 of the BDA  

Act, the corresponding provisions – Sections 4 to 6 of the LA Act—will  

not  apply  to  acquisitions  under  the  BDA Act.  We therefore  reject  the  

contention that the BDA Act does not contemplate acquisition and that the  

acquisition which is required to be made as a part  of the development  

scheme, should be made under the LA Act, applying sections 4, 5A and 6  

of  LA Act.

48. The second contention urged by the appellants is as follows : A  

development authority is a City Improvement Trust referred to in Entry 5  

of  the  State  List  (List  II  of  the  Seventh  Schedule).  ‘Acquisition  of  

property’ is a matter enumerated in Entry 42 in the Concurrent List (List  

III of the Seventh Schedule). LA Act relating to acquisition of property, is  

an existing law with  respect  to a  matter  (Entry 42) enumerated in the  

Concurrent List. BDA Act providing for acquisition of property is a law  

made  by  the  State  Legislature  under  Entry  42  of  the  Concurrent  List.  

Article 254 of the Constitution provides that if there is any repugnancy  

between a law made by the State Legislature (BDA Act) and an existing  

central law in regard to a matter enumerated in the Concurrent List (LA  

Act),  then  subject  to  the  provisions  of  clause  (2)  thereof,  the  existing  

72

Central law shall prevail and the State law, to the extent of repugnancy,  

shall be void. Clause (2) of Article 254 provides that if the law made by  

the State Legislature in regard to any matter enumerated in the Concurrent  

List, contains any provision repugnant to an existing law with respect to  

that matter, then, the law so made by the State Legislature, if it had been  

reserved for the consideration of the President and has received his assent,  

shall prevail in that State. It is contended that the provisions of section 19  

of the BDA Act are repugnant to the provisions of section 6 of the LA  

Act;  and  as  BDA Act  has  not  been  reserved  for  consideration  of  the  

President and has not received his assent, section 6 of LA Act will prevail  

over section 19 of BDA Act.

49. This contention also has no merit. The question of repugnancy can  

arise  only  where  the  State  law  and  the  existing  Central  law are  with  

reference to any one of the matters enumerated in the Concurrent List.  

The question of  repugnancy arises  only when both the  legislatures  are  

competent to legislate in the same field, that is, when both the Union and  

State laws relate to a subject in List III. Article 254 has no application  

except where the two laws relate to subjects in List III [See: M/s. Hoechst   

Pharmaceuticals vs. State of Bihar - 1983 (4) SCC 45]. But if the law  

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made  by  the  State  Legislature,  covered  by  an  Entry  in  the  State  List,  

incidentally touches upon any of the matters in the Concurrent List, it is  

well-settled that it will not be considered to be repugnant to an existing  

Central law with respect to such a matter enumerated in the Concurrent  

List. In such cases of overlapping between mutually exclusive lists, the  

doctrine of pith and substance would apply. Article 254(1) will have no  

application if the State law in pith and substance relates to a matter in List  

II,  even if  it  may incidentally  trench upon some item in List  III.  (See  

Hoechst (supra),  Megh  Raj  v.  Allah  Rakhia AIR  1947  PC  72,  Lakhi   

Narayan v. Province of Bihar AIR 1950 FC 59). Where the law covered  

by an Entry in the State List  made by the State Legislature contains a  

provision which directly and substantially relates to a matter enumerated  

in the Concurrent List and is repugnant to the provisions of any existing  

law with respect to that matter in the Concurrent List, then the repugnant  

provision in the State List may be void unless it can co-exist and operate  

without repugnancy to the provisions of the existing law. This Court in  

Munithimmiah (supra) has  held that the BDA Act is 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 that acquisition of any lands, for such development,  

74

is merely incidental to the main object of the Act, that is development of  

Bangalore Metropolitan area. This Court held that in pith and substance,  

the BDA Act is one which squarely falls under Entry 5 of List II of the  

Seventh Schedule and is not a law for acquisition of land like the LA Act,  

traceable  to  Entry  42 of  List  III  of  the  Seventh Schedule,  the  field in  

respect of which is already occupied by the Central Act, as amended from  

time to time. This Court held that if at all, BDA Act, so far as acquisition  

of  land for  its  developmental  activities  is  concerned,  in  substance  and  

effect will constitute a special law providing for acquisition for the special  

purposes of BDA and the same will not be considered to be a part of the  

LA Act. The fallacy in the contention of the appellants is that it assumes,  

erroneously, that BDA Act is a law referable to Entry 42 of List III, while  

it  is  a  law  referable  to  Entry  5  of  List  II.  Hence  the  question  of  

repugnancy and Section 6 of the LA Act prevailing over Section 19 of  

BDA Act would not at all arise.

50. We  may  next  refer  to  the  argument  that  there  is  no  enquiry  as  

contemplated under section 5A of the LA Act. The assumption that a final  

declaration under section 19 has to be preceded by an inquiry, similar to  

what is contemplated under section 5A of LA Act, is without any basis.  

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Section 5A of LA Act relates to hearing of objections.  Sub-section (1)  

thereof provides that any person interested in any land which has been  

notified under section 4(1) as being needed or likely to be needed, for a  

public purpose, may, within thirty days from the date of the publication of  

the notification, object to the acquisition. Sub-section (2) of section 5A of  

LA Act provides that every objection under sub-section (1) of section 5A  

shall be made to the Collector and the Collector shall give the objector an  

opportunity of being heard in person or by any person authorised by him  

in that behalf or by a pleader and shall after hearing all such objections  

and  after  making  such  further  inquiry,  if  any,  as  he  thinks  necessary,  

either make report/s in respect of the land which has been notified under  

section  4(1)  to  the  appropriate  Government,  containing  the  

recommendations  on  the  objections,  together  with  the  record  of  the  

proceedings  held  by  him for  the  decision  of  the  Government,  and the  

decision of the appropriate Government on the objection shall  be final.  

We have already held that section 5A is inapplicable to acquisitions under  

the BDA Act. The scheme of BDA Act also contemplates consideration of  

objections  but  does  not  require  any  personal  hearing  or  inquiry.  Sub-

section (5) of section 17 of the BDA Act requires that during the thirty  

days next following the date on which the preliminary notification under  

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section 17(1) and (3) is published, the authorities shall serve a notice on  

every  person  whose  name appears  in  the  assessment  list/land  revenue  

register, requiring such person to show-cause within thirty days from the  

date of receipt of the notice why such acquisition should not be made.  

Sub-section  (1)  of  section  18  provides  that  the  authority  shall,  after  

service of notices as provided in section 17 and after consideration of the  

representations,  if  any  received  in  respect  thereof,  shall  submit  the  

scheme,  making  such  modifications  therein  as  it  may  think  fit  for  

Government for sanction. It would thus be seen that while the scheme for  

acquisition under the LA Act and the BDA Act contemplates notice to the  

landholders/persons  interested,  the  procedure  thereafter  is  markedly  

different.  While  LA  Act  requires  an  ‘enquiry’  where  the  Dy.  

Commissioner is required to give the objectors opportunity of being heard  

in  person  and  conducting  such  further  inquiry  as  he  thinks  necessary,  

BDA Act requires issuing notices to the persons interested to show-cause  

why  acquisition  should  not  be  made  and  consider  the  representations  

received. No personal hearing or ‘enquiry’ is contemplated. Therefore, it  

is impermissible to import the requirement of section 5A of LA Act in  

regard to acquisitions under the BDA Act.      

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51. In view of the above, the contention that the BDA Act has to yield  

to LA Act and consequently, the provisions of sections 4, 5 and 6 of LA  

Act will be applicable and have to be complied with for acquisitions under  

the BDA Act, does not have any merit and the same is rejected.   

Question (vi) – Re : Non-compliance with section 15 to 19 of the BDA  Act.  

52. The  appellants  contend  that  a  clear  and  specific  development  

scheme is fundamental pre-requisite for an acquisition and in the present  

case there was no such scheme before the acquisition was initiated. It is  

submitted that sanction of the Government to the development scheme is  

a condition precedent for publication of a declaration under Section 19(1)  

of the Act. It  is submitted that the requirement of a sanction has been  

reduced to an empty formality, firstly by BDA not placing the necessary  

material  before  the  Government,  secondly,  by  government  by  rushing  

through the entire process without proper application of mind and thirdly  

by the Chief Minister giving administrative sanction, without placing the  

matter  before  the  Cabinet  as  required  by  the  relevant  Transaction  of  

Business Rules. We will deal with each of these submissions separately.  

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(a)         Absence of specificity and discrepancy in extract.    

53. Chapter III of BDA Act relates to development schemes. Section  

15  provides  that  authority  may  draw  up  a  detailed  scheme  for  the  

development of the Bangalore Metropolitan Area. It also provides that the  

Authority can also from time to time make and take up new or additional  

development  schemes  either  on  its  own  initiative  or  on  the  

recommendation of the local authority or otherwise. Section 16 provides  

that the development scheme under section 15 shall, within the limits of  

the area comprised in the scheme, provide for acquisition of land which  

will be necessary for execution of the scheme, laying and re-laying out of  

land (including construction or reconstruction of buildings) and formation  

and  alteration  of  streets,  drainage,  water  supply,  electricity,  and  

reservation  of  space  for  public  parks  and  playgrounds  and  civic  

amenities.  When the  development  scheme is  prepared  the  authority  is  

required to draw up a notification as stated in Section 17(1).  The said  

notification has to be published in the Official Gazette, and a copy thereof  

sent to the Bangalore City Corporation for its comments. Notices have to  

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be served on the land holders to show cause why the land should not be  

acquired.  After  such  publication  and  service  of  notices  and  after  

consideration of the representations the authority is required to submit the  

scheme making such modification as it may think fit to the Government  

for sanction furnishing the documents/details as stated in Sub-section (1)  

of  Section  18.   On  consideration  of  the  development  scheme,  the  

Government may grant sanction for the same. Upon such sanction, the  

Government  shall  publish  a  declaration  stating  that  sanction  has  been  

granted and the land proposed to be acquired by the authority for the  

purpose of the scheme is required for the public purpose.  

54. Let us consider whether the said provisions have been complied  

with in this case. On 2.1.2001 the Executive Engineer (North) of BDA,  

submitted  a  scheme report  dated 1.1.2001 for  development  of  Hennur  

Devanahalli Road Extension covering an area of 1650 acres in 12 villages  

(that  is  Hennur,  Geddalahalli,  Byrathi  Khare,  Thanisandra,  K.  

Narayanapura, Rachenahalli, Sriramapura, Venkateshpura, Sampigehalli,  

Amruthahalli, Dasarahalli, and Jakkur). It contemplated the execution of  

the development in three stages: laying 4524 sites in 300 acres in the first  

stage, 12817 sites in 850 acres in the second stage and 7539 sites in 500  

80

acres  in  the  third  stage,  in  all  24880  sites.  It  also  gave  the  detailed  

working of the cost of the development scheme and the amount expected  

to be realised by allotment/sale of plots and made it clear that it will be a  

self-financing scheme.  

55. On receipt of the said scheme report, the Surveyors of BDA made a  

survey and reported that about 3000 acres of land will be available in 14  

villages,  that  is,  the  twelve  villages  mentioned  in  the  report  

dated  2.1.2001  and  two  other  villages  namely  Kempapura  and  

Challakere. Therefore, the Addl. Land Acquisition Officer placed a note,  

reporting  that  surveyors  had  located  about  3000  acres  of  land  and  

suggesting that the layout may be named as Arkavathi layout instead of  

Hennur  Devanahalli  Road  layout.  The  Commissioner  agreed  with  the  

proposal   on 8.10.2002 and placed the scheme before the Authority.  The  

Authority considered it in its meeting dated 10.10.2002 and approved the  

proposal and decided to issue a preliminary notification for 3000 acres of  

land in regard to 14 villages. Subsequently with a view to have proper  

access  to the layout certain lands in Hebbala and Nagavara were also  

added.  Thereafter,  the  preliminary  notification  dated  3.2.2003  under  

section 17(1) was published by the Commissioner,  BDA, proposing to  

81

acquire  the  lands  shown  in  the  Schedule  to  the  notification.  The  

preliminary notification also contained an abstract of the extents of lands  

proposed to be acquired for formation of Arkavathi layout. It is stated that  

the proposal contemplated of utilisation of about 500 acres of government  

land also which did not require acquisition and consequently, the total  

extent  was  shown as  3389A.12G in  the  abstract.  A  corrigendum was  

issued showing the extent as 3889A.12G. A copy of the notification was  

forwarded to the Bangalore City Corporation and notices were also issued  

to  the  persons  registered  as  the  owners  of  the  lands  proposed  to  be  

acquired requiring them to show cause why such acquisition should not  

be made. After consideration of the representations the authority modified  

the scheme by deleting 1089.12 acres and submitted the modified scheme  

for acquisition of 2750 acres  in 16 villages  to the Government for its  

sanction.  The  Government  sanctioned  the  scheme  for  formation  of  

Arkavathi  layout  vide  Government  Order  No.  UDD  193  MNX  204  

dated  21.2.2004.  Thereafter  a  final  notification  dated  23.2.2004  was  

issued by the Government of Karnataka under section 19(1) of the Act  

and published in the Gazette on the same day. The said notification stated  

that the Government has sanctioned the layout and the lands stated in the  

Schedule therein were required for the public purpose for formation of  

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the Arkavathi layout.  We have repeated the reference to the events in  

detail to show that there has been due compliance with the provisions of  

Sections 15 to 19 of the Act.  

56. The mere fact that there were modifications from time to time or  

that some of the lands originally proposed were thereafter omitted will  

not in any way affect the validity of the scheme.  Similarly the fact that  

acquisition  was  initially  contemplated  in  regard  to  lands  in  only  12  

villages  and  that  two  villages  were  added  by  the  authority  in  

October,  2002  for  making  a  bigger  layout  or  the  fact  that  two  other  

villages were also added to provide better access to the layout will not be  

in violation of the scheme. Such additions were all made by the Authority  

prior  to the issue of  preliminary notification.  The fact  that  there were  

changes  in  extent  does  not  make  the  scheme  vague  or  uncertain.  

Necessarily a preparation of a development scheme would contemplate  

survey and ascertainment of suitable available land for acquisition and  

preparation  of  a  scheme.  Before  the  scheme  is  finalised  there  will  

necessarily  be  modifications  and  changes.  Even  publication  of  a  

notification  under  sections  17(1)  and  (3)  of  the  Act  stating  that  the  

scheme has been made and specifying the lands which are proposed to be  

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acquired  is  subject  to  a  revision  on  consideration  of  

representations/objections  and deletions  warranted.  Therefore  the  mere  

fact that there were some modifications from time to time between 2001  

when the initial  proposal  was mooted till  the  issue of  the notification  

under Sections 17(1) and (3) or that some lands were omitted/deleted in  

the  declaration  under  Section  19(1)  will  not  effect  the  validity  of  the  

scheme.  In fact  deletion of some items of land or  reducing the extent  

proposed  to  be  acquired  in  some  items  of  land,  when  issuing  final  

declaration is made is quite common and is indeed a result of the process  

prescribed under any Act providing for  acquisitions.  The changes and  

modifications  are  infact  contemplated  in  the  process  of  making  the  

scheme under Sections 15 to 19 of BDA Act.  

(b)         Non-furnishing of material particulars to the Government for    purpose of sanction.

57. The appellants submitted that for obtaining sanction the BDA had  

to submit the scheme, after making such modifications as it may think fit,  

to  the  Government  for  sanction,  furnishing  (a)  a  description  with  full  

particulars  of  the  scheme  including  the  reasons  for  any  modifications  

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

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

acquired;  (d) any representation received under section 17(2) of the BDA  

Act  from the  Bangalore  City  Corporation;  (e)  a  schedule  showing  the  

rateable value, as entered in the Municipal assessment Book relating to  

the land under section 17 or the land assessment of all lands specified in  

the statement under clause (c); and (f) any other particulars as may be  

prescribed.  

58. The  Commissioner,  addressed  a  letter  dated  13.2.2004  to  the  

Principal  Secretary  to  Government,  Urban  Development  Department,  

seeking sanction. The said letter referred to the preliminary notification,  

the  subsequent  consideration  of  representations/objections  and  the  

resolution dated 3.2.2004 to acquire 2750 acres of land, preparation of a  

project for formation of a layout with 28,600 sites at a cost of Rs.981.36  

crores under Section 15(2) of BDA Act and requested for sanction under  

section 18(3) of the BDA Act and publication of the final declaration in  

the  Official  Gazette  under  section  19(1)  of  the  Act.  The  Government  

having examined the proposal, sent a letter dated 17.2.2004 seeking the  

following  clarifications/particulars:  (a)  Information  as  to  how  the  

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Authority will bear the expenses for the proposed project and whether it  

will bear it from its own sources; (b) Copies of the project map; and (c)  

Copies of the final declaration. The required particulars were furnished by  

BDA. The state government, after considering them made an order dated  

21.2.2004 granting permission as under (vide Government Order No.NAE  

193 BLA 2004 made in the name of the Governor) :

“(3) The Bangalore Development Authority has obtained the approval  of the General Body to procure the sanction of the Government  to the  Arkavathi Layout Scheme and to procure issuances of a final notification  under Section 19(1) of the Bangalore Development Authority Act, 1976  for the purpose of formation of the layout over available 2750 acres of  land as per the No.43/2004 in the meeting of the Authority dated 2.3.2004.  As per the approval of the General Body, the Authority has in the letters  referred to above put forward a proposal seeking for the sanction of the  Government for the Arkavathy Layout Scheme as well as for the issuance  of the Final Notification. The Authority has informed that it will meet out  of  its  coffers  the  entire  expenditure  that  would  be  incurred  for  the  proposed  scheme.  After  executing  589  acres  12  guntas  from the  total  extent of 3339 acres 12 guntas notified in the preliminary notification, the  proposal for sanction of the scheme as per Section 18(3) of the Bangalore  Development Authority Act, 1976 for the Arkavathy Layout Scheme in  2750 acres of land involving the following scheme particulars have been  considered.

Sy. No.

Name  of  the Layout

Approxi mate  Extent Acres  Guntas

Extent  of  land  proposed  to  be  acquired  Acres  Guntas

No.  of  sites  proposed  to  be formed

Executed  recovery  (Rs.  In  crores)

Expecte d  total  saving  (Rs.  in  crores)

1 Arkavathy 933-47 2750-00 28600  of  varying  dimensions

981.36 47.89

The approximate cost of the Arkavathy Layout, which is being referred to  in  the  Proposal  of  the  Bangalore  Development  Authority,  is  Rs.933.47  crores. The approval has been given under Section 18(3) of the Bangalore  Development Authority Act, 1976 subject to the following conditions:  

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1. The  Bangalore  Development  Authority  shall  bear all the expenses to be incurred for the implementation of the scheme  from its own resources and shall not expect any financial assistance from  the Government for the same.

2. For the implementation of the said scheme, the  Government shall not be the guarantor for any of the loans that may be  taken by the BDA. It shall be the sole responsibility of the BDA to repay  the said loan amount.  

3. The  Government  shall  to  be  party  to  any  transactions that  the BDA may enter  into with respect  to  the proposed  scheme.  

4. With respect to the proposed scheme if the land  has to be converted for using it, it shall be mandatory to get pre-approval  from the Government”.

The zonal regulation shall be strictly followed and the requisitions shall be  complied with.”  

59. The appellants contended that the fact that the non-furnishing of the  

said information/documents showed that the scheme was not finalised or  

complete when the proposal was sent to the Government for approval and  

BDA had not even prepared a map of the area to be acquired and therefore  

there was non-compliance with the requirements of section 18(1) of the  

BDA Act by BDA and that in the absence of necessary material,  there  

could not have been proper application of mind by the Government for  

granting the sanction.

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60. Section 18 is clear about the material to be furnished by the BDA  

for seeking sanction of the scheme. On examining the records of the BDA  

and the Government, the Division Bench recorded a finding that all the  

required particulars had been furnished so that the Government can apply  

its  mind.  In  fact,  the  notings  show  that  in  response  to  the  further  

information  sought  by  the  Government  on  17.2.2004,  the  Authority  

furnished the  required  information,  that  is,  the  Authority  will  bear  the  

entire expenses for Akravathi layout project from its own sources, it also  

noted that the BDA had informed that the preparation of the project map  

was at the final stage and will be furnished after completion thereof. This  

of course shows that the project map was not ready either on 17.2.2004  

when the BDA sent its reply to the letter dated 17.2.2004 or at the time the  

Government granted sanction on 21.2.2004. But what is  relevant  to be  

noticed is that the project map was not one of the documents that had to  

be furnished by the BDA while seeking sanction of the scheme. We have  

already referred to the documents and particulars to be furnished by the  

BDA. The project map was not one of the items that had to be furnished.  

In fact the scheme report had been submitted by the Executive Engineer,  

North Division of BDA to the Engineer Member on 5.2.2004 itself and  

that had been made available to the Government. The Government in its  

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reply stated that whatever particulars that were required to be furnished,  

had been furnished and they were satisfied that the scheme required to be  

sanctioned. It is only thereafter sanction was granted. We therefore reject  

the contention that the material required for seeking sanction had not been  

furnished by the BDA to the Government.          

(c)         Absence of valid sanction by the Government   

61. As far as the BDA is concerned, there is thus due compliance with  

Sections 18 and 19 also. But the appellants would contend having regard  

to the provisions of the Karnataka Government Transaction of Business  

Rules,  1977,  the  sanction  for  the  scheme  under  Section  18(3)  could  

validity  be given only by a decision of  the Cabinet;  and that  in these  

cases,  the  decision  of  the  Government  was  based on the  order  of  the  

Chief  Minister  and not  the Cabinet,  and therefore,  sanction was not  a  

valid  sanction  in  law.  As  noticed  above,  the  BDA  sent  the  scheme  

approved by the authority for the sanction of the Government by writing  

a letter to the Principal Secretary to the Government Urban Development  

Department on 13.2.2004.  By the time the communication reached the  

Government,  there  was  a  demand  for  dissolution  of  the  House  on  

16.2.2004 and the House was dissolved on 21.2.2004. In the meanwhile,  

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certain clarifications were sought on 17.2.2004 which were furnished on  

the same day. The file was processed and the matter was placed before  

the Chief Minister who had the dual capacity of Chief Minister and the  

Minister-in-charge  of  Bangalore  Development  Authority.  The  Chief  

Minister approved the proposal on 20.2.2004. The noting placed by the  

concerned  Ministry  and  the  order  of  the  Chief  Minister  thereon  are  

extracted below :  

“(10) The above receipt  is kept at page no.11. Kindly peruse note  para 1 to 6. On the background of paras 6 to 9, few information from  authority  (page  10)  was  sought,  the  authority  has  furnished  to  the  required information (page-11). The authority has informed in the said  letter that it will bear the expenses required for the Arkavati layout  Extension Project  from its sources itself and the preparation project  map is at final stage, it will be furnished after completion. And also the  construction work of the Arkavati layout extension  has to be taken  immediately and the sites has to be distributed to the publics hence the  authority  has  requested  to  give  approval  for  the  Arkavathi  layout  extension  and the final notification has to be published.  

(11) The authority has informed that it will bear the expenses for the  proposed project out of its source its self hence the necessity of getting  ratification of the Finance Department for this proposal does not arise.  

(12) According to Rule 15 of Government of Karnataka (Execution  of Business) Rules 1977, the ratification of the Cabinet is required for  the expenses of project works which is more than 500 lakh rupees. On  this background, the ratification of Cabinet has to be obtained for the  below mentioned points :   

(a) To  issue  Government’s  approval  for  the  Arkavathi  Layout  extension  project  approximately  of  Rs.981.36  crores  under  section  18(3) of Bangalore Development Authority Act.  

(b) To publish final notification under section 19(1) of Bangalore  Development  Authority  Act  for  the  available  2750  acres  land  for  construction of Arkavathi layout extension (page 138-1212). It may be  

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requested  Hon’ble  Chief  Minister  for  according  ratification  before  tabling the file for ratification of the Cabinet.  

xxxxxxxx

Chief Minister,  

PSCM 1180/2004/20.2.2004

(14) Pending  ratification  by  the  Cabinet,  para  12(a)  and  (b)  is  approved.  

Sd/- (S.M. Krishna)

Chief Minister”

Subsequently the matter was placed before the Cabinet and ratified.  

62. The appellants contend that such an order by the Chief Minister  

and ratification thereof were invalid, having regard to Rules 12, 20 and 21  

read with Entry 36 in the First Schedule of the Karnataka Government  

(Transaction of Business) Rules 1977. Rule 12 provides that there shall  

be a Committee of the Council of Ministers to be called the Cabinet and  

all matters referred to in the First Schedule to the Rules shall ordinarily  

be considered at a meeting of the Cabinet. Rule 20 provides that cases  

specified in the First Schedule to the Rules shall be brought before the  

Cabinet  after  submission  to  the  Minister-in-charge  of  the  Department;  

and  cases  other  than  those  specified  in  the  First  Schedule  should  be  

brought before the Cabinet by the direction of the Chief Minister, or the  

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Minister-in-Charge  of  the  Department  with  the  consent  of  the  Chief  

Minister. Rule 21 provides that subject to provisions of Rule 20 all cases  

specified in the First Schedule to the Rules shall be brought before the  

Cabinet.  Entry  36  of  the  First  Schedule  relates  to  “all  self-financing  

schemes of local bodies including the Urban Development Authorities,  

the Karnataka Housing Board and such other statutory bodies”. In this  

case the matter (relating to sanction under section 18(3) of BDA Act) was  

placed before the Chief Minister who also happened to be the Minister–

in-Charge on 20.2.2004. He granted the approval subject to ratification by  

the Cabinet. In view of the subsequent ratification by the Cabinet there is  

nothing irregular in the procedure adopted. The delay in ratification was  

on account of the dissolution of the house.  

63. The contentions that the sanction is void, is untenable. As noticed  

above, Rule 12 requires that the matter should ordinarily be considered at  

a meeting of the Cabinet. This itself shows that there can be exceptional  

circumstances where it will not be possible to place it before the Cabinet.  

The approval granted by the Chief Minister, subject to the ratification of  

the  Cabinet  was  treated  by  the  Urban  Development  Department  as  

approval for the sanction under Section 18(3) and a Government order  

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was made on 21.2.2004 in the name of the Governor granting sanction  

under section 18(3) of the BDA Act. The State Government also issued a  

final declaration under Section 19(1) of BDA Act. It is thus evident that  

the State Government proceeded on the basis that the order of approval of  

the Chief Minister for the sanction, was sufficient for grant of sanction.  

Even if it  is to be assumed that such approval was irregular as it  was  

made subject to ratification, as the ratification was subsequently made,  

the challenge for want of proper approval of the Cabinet for the sanction  

cannot be accepted.  

Question (vii) : Re : Discrimination, malafides and arbitrariness :

64. We may start with the following preliminary facts :

Date Stage Area proposed  to be acquired

(i) 2.1.2001 Initial proposal by the Executive Engineer  (North)

1650 Acres  (12 villages)

(ii) 10.12.2002 Resolution of Bangalore Development  Authority to issue a preliminary notification  under sections 17(1) and (3) of the Act  

3000 Acres  (14 villages)

(iii) 3.2.2003 Area notified in the preliminary notification  under section 17(3) of BDA Act

3339 acres  12 guntas (in 16 villages)

(iv) 16.9.2003 Corrigendum regarding notification u/s. 17(3)  of BDA Act

3839 acres  12 guntas (in 16 villages)

(v) 3.2.2004 Resolution of BDA to implement Arkavathy  Scheme  

2750 acres  (in 16 villages)

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(vi) 23.2.2004 Declaration under section 19(1) of BDA Act. 2750 acres  (in 16 villages)

The proposal placed before the Authority and resolution dated 3.2.2004 of  

the Authority (approving the scheme to be placed before the Government  

for sanction) proceeded on the basis that the total area notified proposing  

acquisition  was  3339 acres  12  guntas,  and the  area  deleted/withdrawn  

from the said area notified in the preliminary notification on examining  

the  representations  was  589  acres  12  guntas  and  therefore  the  final  

declaration for acquisition was for 2750 acres. This was the scheme that  

was  placed  for  approval  before  the  state  government.  The  state  

government also in the sanction order dated 21.2.2004 granted sanction  

for acquisition of 275 acres after noting that 589 acres 12 guntas  was  

excluded  from  the  proposed  extent  of  3339  acres  12  guntas,  after  

considering the representations  received in  pursuance of  notices  issued  

under Section 17(5) of BDA Act. But when the cases came up before the  

High Court and this court, the categorical case of BDA is that the total  

area  notified  under  section  17(1)  and  (3)  of  the  BDA Act,  was  3839  

acres  12 guntas  and that  the  area  deleted/excluded  was 1089 acres  12  

guntas.  How the  preliminary  notification  extent  area  increased  by  500  

acres and how the area deleted also increased exactly by 500 acres is not  

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properly explained and is virtually a mystery. Different explanations have  

been given at different points of time.

65. On behalf of BDA, an affidavit dated 14.3.2007 was filed before us  

wherein it is disclosed that in regard to a question put regarding deletion  

in  the  Karnataka  Legislative  Assembly,  the  following  particulars  were  

furnished on 25.1.2006:

(i) Extent of land acquired : 2626 acres 13 guntas

(ii) Extent dropped in the final : 1089 acres 12 guntas Notification  

(iii) Extent of government lands : 487 acres 11 guntas Included in formation of  Arkavathi layout

In a statement furnished in this Court on 20.3.2006, BDA gave the break  

up as under:

(i) Extent as per preliminary : 3839 acres 12 guntas Notification

(ii) Extent deleted after preliminary : 1089 acres 12 guntas Notification

(iii) Extent of government lands :  459 acres  acquired as per final notification

(iv) Extent of private land acquired : 2291 acres    2750 acres           as per final notification

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Another  statement  furnished to  us  shows 500 acres  have been deleted  

under the heading “religious institutions”.

66. The  appellants  contended  that  the  deletion  of  as  much  as  1089  

acres 12 guntas from out of 3839 acres 12 guntas proposed to be acquired  

under the preliminary notification would mean that more than 28% was  

deleted. Several deletions formed islands within the acquired areas. Some  

of  the  deletions  in  some villages  were  of  such a  magnitude  that  what  

remained of the acquisition in those villages were small and negligible  

islands  completely  surrounded  by  acquired/deleted  lands  making  it  

difficult  or  impossible  to  effectively  use  such  remaining  land  for  

development. Such an extensive deletion can lead to the following two  

inferences:  (i)  that  there  was  total  non  application  of  mind  when  the  

proposal was made and without proper survey and by completely ignoring  

the ground realities about the constructed areas, suitability and availability  

for acquisition and other relevant circumstances, BDA in extreme haste  

had proposed acquisition;  and/or   (ii)   the  deletion of  such vast  areas  

showed that the deletions were arbitrarily made or to favour a chosen few.

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67.  The learned Single Judge after examining the facts held that there  

were  improper  inclusions  and  exclusions  which  amounted  to  hostile  

discrimination.  He  held  that  the  acquisition  of  certain  lands  and  non-

acquisition or deletion from acquisition of some other similarly situated  

lands situated in the same area, was arbitrary and discriminatory, violative  

of Article 14 of the Constitution. He further held that the BDA had failed  

to  furnish  any  plan  showing  the  details  of  the  lands  proposed  for  

acquisition, lands deleted from acquisition, built up areas and the lands  

originally not included in the acquisition, even though they were in the  

midst of the acquired lands. The learned Single Judge also noticed that in  

regard to the deletion of 500 acres, no reasons have been assigned.

68. The Division Bench agreed with the single Judge that there were  

improper  inclusions  and  exclusions  amounting  to  discrimination.  The  

Division Bench was of the view that though the single Judge was justified  

in holding that there was discrimination in acquiring the land, that alone  

cannot be a ground for quashing the entire acquisition of 2750 acres. The  

Division  Bench  also  noticed  that  the  BDA  had  not  traversed  the  

allegations regarding discrimination specifically and even a bare perusal  

of the map showed that 2750 acres sought to be acquired, did not form a  

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contiguous  area.  In  particular  he  referred  to  the  haphazard  manner  in  

which  the  acquisition  of  deletions  were  made  in  Kempapura  and  

Srirampura  villages.  The  Division  Bench  noticed  that  even  in  other  

villages small extents of acquired lands were completely surrounded by  

large  chunks  of  areas  which  were  either  not  acquired or  deleted  from  

acquisition,  making  access  to  such  notified  land  difficult.  In  the  

circumstances instead of setting aside the acquisition, in view a memo and  

the  memo filed  by  the  BDA proposing  certain  remedial  measures,  the  

Division  Bench  decided  to  give  an  opportunity  to  all  the  landowners  

(excluding site owners) who had taken the plea of discrimination to file an  

appropriate application before the BDA for deletion of their lands from  

acquisition  and  to  substantiate  their  contention  by  producing  such  

evidence as was available with them.

69. The BDA does not seriously dispute the fact that there were some  

amount of arbitrariness and discrimination in the matter of inclusions and  

exclusions. Apart from that we find that even in this court the BDA has  

not come up with true and correct position. As noticed above the break up  

of deletions and the reasons for such deletions have not been disclosed.  

The extent of deletion without explanation has jumped from 589.12 acres  

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to 1089 acres 12 guntas. The BDA has not chosen to explain the exact  

extent of the government land involved.

70. Even the map produced showing the 2750 acres of acquired land  

and 1089 acres 12 guntas of deleted area contains several discrepancies.  

For  example,  in  regard  to  Sampigehalli,  the  map  produced  before  us  

shows that the entire extent of the village has been acquired except the  

village proper (Abadi) and survey Nos.10 and 11. But we find that survey  

Nos.10 and 11 are not in fact  deleted and the declaration shows those  

survey nos. as acquired. In the same village a perusal of the preliminary  

notification and final  declaration shows that  Survey Nos.38/2A, 44/10,  

44/11,  44/13,  44/14,  44/15  and  46/4  have  been  omitted  in  the  final  

declaration but the plan shows no such omission. On the other hand, it  

shows the entire village as having been acquired.

71. We give below the particulars of the area notified and deleted to get  

a  true  picture  of  the  magnitude  of  deletions  and  the  resultant  

discrimination:

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S.No. Name  of  the  village  

Extent notified  in  the  preliminary  notification dt.  3.2.2003

Total  extent  notified  in  the  final  declaration  dated 23.2.2004 (in Acre.Gunta)

Extent  dropped  from  acquisition  while  issuing  final  declaration  (in Acre.Gunta)

1. Dasarahalli 380.04 225.18 154.22 2. Byrathikhare 86.07 77.25 8.22 3. Chellakere 155.03 135.14 19.29 4. Geddalahalli 210.22 133.24 76.38 5. K. Narayanpura 195.13 133.05 62.08 6. Rachenahalli 396.29 298.03 98.26 7. Thanisandra 557.04 482.07 74.37 8. Amruthahalli 196.11 139.01 56.10 9. Jakkur 422.28 360.24 62.04 10. Kempapura 55.13 26.38 28.15 11. Sampigehalli 401.39 256.20 145.21 12. Sriramapura 196.35 94.13 102.22 13. Venkateshpura 95.65 60.13 34.28 14. Hennur 262.22 140.21 122.01 15. Hebbala 59.01 59.14 16. Nagavara 169.16 127.00 42.16

Total 3839 A.12G. 2750 A. 1089 A. 12 G.

72. The acquisition was for  planned development  of  the  city  and to  

avoid  haphazard  growth.  But  when  the  layout  plan  is  examined  with  

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reference  to  the  preliminary  notification  and  final  declaration,  several  

startling facts emerge. We may first refer to the pick and choose method  

adopted with reference to Kempapura and Sriramapura villages, to which  

the division bench made specific reference.

(i) In Kempapura village, large areas, that is nearly 50% of the area of  

the village (Sy. No.2, 4 to 16, 23, 24, 30, 31) had not been included in the  

preliminary notification, even though the entire surrounding area had been  

notified. Only 55.13 acres were notified in the preliminary notification but  

the final declaration was only in regard to 26A.38G and the remaining  

28A.15G  (more  than  51%  of  what  was  notified)  were  deleted.  After  

deletion of Sy. No.1, 3, 18(Part) and 33 the entire northern portion (north  

of the Road bisecting the village) is free from acquisition (except part of  

Sy.  No.17).  Even  in  the  southern  portion  of  the  village,  there  are  

haphazard deletions.  

(ii) In Srirampura village, quite a few lands (Sy. No.2, 3, 7(Part), 13,  

62, 64, 65) were not included in the preliminary notification even though  

all the surrounding areas had been notified. Further, out of total area of  

196A.35G notified in the preliminary notification, only 94A.13G find a  

place in the final  declaration  and the remaining 102A.22G (more than  

52% of what was notified) were deleted. The acquired lands of 94A.13G  

are  not  in  a  contiguous  block,  but  in  eleven odd shaped pockets.  The  

deletions  and  initial  omissions  make  it  impossible  to  have  orderly  

development in regard to acquisition in this village.  Some of the pockets  

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are of such odd shape and size that BDA proposes to leave them as stand  

alone parks/open spaces/community centres, without any development.   

73. We find the haphazard and arbitrary exclusions are in several other  

villages also, though not to the extent in Kempapura and Sriramapura. We  

may refer to some of them :

(i) Venkateshapura is a comparatively small village. All the lands were  

proposed for acquisition under the preliminary notification (except a block  

consisting of Sy. No.6, 7 and 8) in all measuring 95A.05G. Virtually the  

entire southern and western portions of the village have been omitted in  

the  final  declaration  and  only  60A.13G  are  included  in  the  final  

declaration. But the entire southern portion of the village (about 30 acres)  

have been deleted except four small pockets which have not been deleted :

(a) Sy. No.30 and 31 measuring 24 Guntas and 25 Guntas in all one  acre and nine guntas.

(b) Sy.  No.33  and  34  measuring  2A.06G  and  1A.18G,  in  all  3A.24G;  

(c) Sy No.37/2 measuring 2A.10G.  

(d) Sy. No.19/1 measuring 3A.31G.   

There is no explanation as to why, when all surrounding lands are deleted  

these small four pockets are acquired.  

(ii) In  Nagavara  and  Hennuru  villages,  the  southern  portions  of  the  

villages were not notified for acquisition. But deletions are haphazard and  

have left some small pockets of acquired lands. For example, in Nagavara,  

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Sy. No.107 measuring 1A.4G, portion of Sy. No. 7 measuring 21 Guntas,  

Sy. No.70 measuring 25 Guntas, Sy. No.152 measuring 6A.4G bifurcated  

by a road form islands of acquired lands. In the entire southern part of  

Nagavara which runs into hundreds of acres, only part of Sy. No.152 is  

proposed to be acquired. In Hennuru Sy. No.103 is a small  pocket (28  

Guntas) which is acquired, is surrounded by lands not acquired/deleted.  

There are several other islands in Hennuru which are not capable of being  

developed due to their small extents. Their Survey Numbers are not clear  

in the map produced.  

(iii) In Challakere also we find haphazard deletions. We may refer to  

two stand alone pockets, that is land to the east of Sy. No.104 and the land  

to the east of 100.  

What we have referred above is illustrative and not exhaustive.  Similar  

pockets of small extents of acquired lands surrounded by lands which are  

not acquired/deleted, exist in other villages also.  

74. The object of establishing a development authority like BDA is to  

provide  for  orderly  and  planned  development  so  that  the  haphazard  

growth of a city is checked. The disastrous effects of unauthorised and  

illegal development by some unscrupulous colonisers/developers are well  

known. In a planned and authorised standard residential developments,  

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about 30% to 35% of the total area is used to provide broad and adequate  

roads and footpaths, drains etc., and at least another 10% to 15% of the  

land is earmarked for parks, playgrounds and community development or  

civic  amenities  (schools,  hospitals,  police  stations,  post  offices,  mini  

markets,  community  halls  etc).  Further  the  layout  will  have  adequate  

provision for drainage of rain water as well as sewerage water, adequate  

water  supply  and  electricity,  well  laid  metalled  roads  which  properly  

connect  the  layout  to  Main  Roads  and  other  surrounding  areas,  by  

providing  approaches  and  linkages.  But  in  an  unauthorised  or  illegal  

development, the roads are narrow and minimal, virtually no open spaces  

for parks and playgrounds,  and no area earmarked for civic amenities.  

There will be no proper water supply or drainage; and there will be a  

mixed use of the area for residential, commercial and industrial purposes  

converting the entire area into a polluting concrete jungle. The entries and  

exits from the layouts will be bottlenecks leading to traffic jams. Once  

such illegal colonies come up with poor infrastructure and amenities, it  

will not be possible to either rectify and correct the mistakes in planning  

nor provide any amenities even in future. Residents of such unauthorised  

layouts are forever be condemned to a life of misery and discomfort. It is  

to  avoid  such  haphazard,  unhealthy  development  activities  by  greedy  

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illegal  colonisers  and  ignorant  land-owners,  the  State  Legislatures  

provided for City Improvement Trusts and Development Authorities so  

that  they  could  develop  well  planned citizen  friendly  layouts  with  all  

amenities and facilities. In this background large tracts of lands running  

into hundreds of acres are acquired to have integrated layouts. Only when  

a layout is formed on a large scale, adequate provision can be made for  

good  size  parks,  playgrounds  and  community/civil  amenities.  For  

example, if a layout is made in 1000 acres of land, the developer can  

provide a good sized park of twenty acres and one or two small parks of 2  

to  5  acres,  have  playgrounds  of  5  to  10  acres.  Instead  of  such  an  

integrated large layout, if 200 small individual layouts are made in areas  

ranging from 2 to 10 acres, there will obviously be no provision for a  

park or  a playground nor  any space for civil  amenities.  Further  small  

private  colonies/layouts  will  not  have  well  aligned  uniform roads  and  

accesses. While it is true that Municipal and Town Planning authorities  

can  by  strict  monitoring  and  licensing  procedures  arrest  haphazard  

development, it is seldom done. That is why formation of small layouts  

by developers is discouraged and development authorities take up large  

scale developments. If 200 acres of land on the outskirts of a city, has to  

be developed, and if 30 to 50 private developers proceed to develop areas  

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ranging from 2 to 15 acres, it will be impossible for them to provide for  

parks  or  any  playgrounds  of  reasonable  size  or  make  provision  for  

planned civil amenities. Further, there will be no alignment in regard to  

roads. Each layout will have roads to suit their own convenience and this  

will lead to mis-alignment and bottlenecks leading to traffic snarls. The  

width of the roads also will differ from layout to layout depending upon  

the ‘greed’  of  each private  developer,  resulting in  the  size,  shape and  

alignment of roads varying for every stretch of 200 to 500 meters. There  

will  be no proper drainage of rain water or sewerage water leading to  

constant flooding or stagnation. Therefore large integrated layouts were  

found to be the answer for orderly development. No small developer can  

develop a good township in a few acres of land. It was also thought that  

developers will be mainly profit motivated and will try to minimise the  

roads, open spaces and community areas. It is therefore that legislature  

constituted  statutory  development  authorities  to  undertake  large  scale  

developments without any profit motive.  

75. If authorities like BDA notify 3000 acres of land for development  

and  then  delete  from the  proposed  acquisition  several  pockets  which  

aggregate to about 1000 to 1500 acres, then the result is obvious. There  

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will  be  no  integrated  development  at  all.  What  was  intended  to  be  a  

uniform, contiguous and continuous layout of 3000 acres will get split  

into small pockets which are not connected with the other pockets or will  

be  intersected  by  own  illegal  pockets  of  private  colonies  thereby  

perpetuating what was intended to be prevented, that is haphazard growth  

without  proper  infrastructure.  It  will  then  not  be  possible  to  provide  

proper  road  connections  and  drainage  and  impossible  to  provide  

appropriate  parks,  playgrounds  and civic  amenities  of  appropriate  and  

adequate  size  and  situation.  When  a  development  authority  starts  

developing pockets of lands measuring 2 acres to 5 acres, obviously it  

also cannot provide open spaces and civic amenities and may end up with  

one pocket having plots, another far away pocket having a playground  

and another far away pocket having a park and their being no uniformity  

or continuity of roads. As noticed above, a large layout enables formation  

of  long and straight  roads for easy movement  of  traffic.  On the other  

hand,  short  and  disjointed  roads  affect  smooth  movement  of  traffic.  

Therefore,  if  a  development authority having acquired a large tract  of  

land  withdraws  or  deletes  huge  chunks,  the  development  by  the  

development  authority  will  resemble  haphazard  developments  by  

unscrupulous private developers rather than being a planned and orderly  

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development expected from a Development Authority. Therefore when a  

large layout is being planned, the development authorities should exercise  

care and caution in deleting large number of pockets/chunks of land in  

the  middle  of  the  proposed  layout.  There  is  no  point  in  proposing  a  

planned layout but then deleting various portions of land in the middle  

merely on the ground that there is a small structure of 100 sq.ft or 200  

sq.ft. which may be authorized or unauthorized. Such deletions make a  

mockery  of  development.  Further  such  deletions/exclusions  encourage  

corruption and favouritism and bring discontent among those who are not  

favourably treated.  

76. The  complaint  by  appellants  is  that  in  the  proposed  Arkavathi  

layout, rich and powerful with “connections” and “money power” were  

able to get their lands, (even vacant lands) released, by showing some  

imaginary  structure  or  by  putting  up  some  unauthorised  structure  

overnight.  Though we do not propose to go into motives, the concurrent  

finding by the learned Single Judge and Division Bench is that there are  

arbitrary unexplained deletions. While we may not comment on policy, it  

is  obvious  that  deletion  from proposed  acquisition  should  be  only  in  

regard to areas which are already well developed in a planned manner.  

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Sporadic  small  unauthorised  constructions  in  unauthorised  colonies/  

layouts,  are  not  to  be  deleted  as  the  very  purpose  of  acquisition  for  

planned  development  is  to  avoid  such  unauthorised  development.  If  

hardship is the reason for such deletion, the appropriate course is to give  

preference to the land/plot owners in making allotments and help them to  

resettle and not to continue the illegal and haphazard pockets merely on  

the  ground  that  some  temporary  structure  or  a  dilapidated  structure  

existed therein.  A development authority should either provide orderly  

development or should stay away from development. It cannot act like  

unscrupulous  private  developers//colonisers  attempting  development  of  

small  bits  of  land  with  only  profit  motive.  When  we  refer  to  private  

developers/colonisers  by  way  of  comparison,  our  intention  is  not  to  

deprecate  all  private  developers/colonisers.  We are  aware  that  several  

private  developers/colonisers  provide  large,  well  planned  authorized  

developments,  some  of  which  are  even  better  than  developments  by  

development  authorities.  What  is  discouraged  and deprecated  is  small  

unauthorized layouts without any basic amenities. Be that as it may.   

77. What do we say about a ‘development’, where with reference to  

the total extent of a village, one-third is not notified at all, and more than  

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half is deleted from proposed acquisition of the remaining two-third and  

only  the  remaining  about  20% to  30% area  is  acquired,  that  too  not  

contiguously, but in different parcels and pockets. What can be done with  

such acquisition? Can it be used for orderly development? Can it avoid  

haphazard and irregular growth? The power of deletion and withdrawal  

unless exercised with responsibility and fairly and reasonably, will play  

havoc  with  orderly  development,  will  add  to  haphazard  and  irregular  

growth and create discontent  among sections of society who were not  

fortunate to have their lands deleted.   

78. Learned Single Judge as also the Division Bench have concurrently  

found  that  BDA  had  indulged  in  pick  and  choose  deletions  and  

acquisitions.  The  learned  Single  Judge  and  the  Division  Bench  have  

found discrimination and irregularities, both in initial omission of certain  

lands and in deleting of some lands which were notified. They have also  

recorded  a  finding  that  having  regard  to  the  nature  of  deletions,  the  

acquisition  lands  do  not  form  a  continuous  or  contiguous  area  and  

acquisition of small extents of land surrounded by large chunks of un-

acquired  lands  and  lands  which  have  been  omitted  from  acquisition  

would make the development of acquired pockets exceedingly difficult.  

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79. The Division Bench was of the view that quashing of the entire  

acquisition  may  not  the  remedy.  It,  therefore,  decided  to  salvage  the  

situation by issuing a series of directions, whereby the land owners were  

permitted to apply for deletion of their lands also from acquisition on the  

ground that  (a)  the lands were situated within green belt  area;  (b)  the  

lands were totally built  up;  (c) the lands had buildings constructed by  

charitable,  educational  and/or  religious  institutions;  (d)  the  lands were  

used for nurseries; (e) lands where running factories had been set up; and  

(f) lands were similar to the adjoining lands which were not notified for  

acquisition. The Court directed that if the BDA comes to the conclusion  

that the lands of applicants were released are similar to those which have  

been excluded from acquisition their lands should also be deleted from  

acquisition.  This direction requires clarification.  

80. The principles relating to grant of relief in cases of discrimination  

are well settled. The classic statement is found in Chandigarh Admn. &  

Anr. v. Jagjit Singh & Anr. [1995 (1) SCC 745], wherein this Court held:

“Generally  speaking,  the  mere  fact  that  the  respondent-authority  has  passed a particular order in the case of another person similarly situated  can never be the ground for issuing a writ in favour of the petitioner on the  plea of discrimination. The order in favour of the other person might be  

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legal and valid or it might not be. That has to be investigated first before it  can be directed to be followed in the case of the petitioner. If the order in  favour of the other person is found to be contrary to law or not warranted  in the facts and circumstances of his case, it is obvious that such illegal or  unwarranted order cannot be made the basis of issuing a writ compelling  the  respondent-authority  to  repeat  the  illegality  or  to  pass  another  unwarranted  order.  The  extra-ordinary  and  discretionary  power  of  the  High Court cannot be exercised for such a purpose. Merely because the  respondent-authority has passed one illegal/unwarranted order, it does not  entitle the High Court to compel the authority to repeat that illegality over  again and again. The illegal/unwarranted action must be corrected, if it can  be done according to law - indeed, wherever it is possible, the court should  direct the appropriate authority to correct such wrong orders in accordance  with law - but even if it cannot be corrected, it is difficult to see how it can  be made a basis for its repetition. By refusing to direct the respondent- authority  to  repeat  the  illegality,  the court  is  not  condoning the earlier  illegal  act/order  nor  can  such  illegal  order  constitute  the  basis  for  a  legitimate complaint of discrimination. Giving effect to such pleas would  be prejudicial to the interests of law and will do incalculable mischief to  public interest. It will be a negation of law and the rule of law. Of course,  if in case the order in favour of the other person is found to be a lawful  and justified one it can be followed and a similar relief can be given to the  petitioner  if  it  is  found that  the petitioners'  case is  similar  to  the other  persons' case. But then why examine another person's case in his absence  rather than examining the case of the petitioner who is present before the  court and seeking the relief. Is it not more appropriate and convenient to  examine the  entitlement  of  the  petitioner  before  the  court  to  the  relief  asked for in the facts and circumstances of his case than to enquire into the  correctness of the order made or action taken in another  person's case,  which other person is not before the case nor is his case. In our considered  opinion, such a course - barring exceptional situations - would neither be  advisable nor desirable. In other words, the High Court cannot ignore the  law and the well-accepted norms governing the writ jurisdiction and say  that because in one case a particular order has been passed or a particular  action has been taken, the same must be repeated irrespective of the fact  whether such an order or action is contrary to law or otherwise. Each case  must be decided on its own merits, factual and legal, in accordance with  relevant legal principles”.

In Gurshanan Singh & Ors. v. New Delhi Municipal Committee & Ors.   

1996 (2) SCC 459 this court held:

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“There appears to be some confusion in respect of the scope of Article 14  of the Constitution which guarantees equality before law to all citizens.  This guarantee of equality before law is a positive concept and it cannot be  enforced by a citizen or court  in a negative manner. To put it  in other  words, if an illegality or irregularity has been committed in favour of any  individual  or  a  group  of  individuals,  the  others  cannot  invoke  the  jurisdiction of the High Court or of this Court, that the same irregularity or  illegality be committed by the State or an authority which can be held to  be a State within the meaning of Article 12 of the Constitution, so far such  petitioners are concerned, on the reasoning that they have been denied the  benefits which have been extended to others although in an irregular or  illegal manner. Such petitioners can question the validity of orders which  are said to have been passed in favour of persons who were not entitled to  the same, but they cannot claim orders which are not sanctioned by law in  their favour on principle of equality before law. Neither Article 14 of the  Constitution conceives within the equality clause this concept nor Article  226 empowers the High Court to enforce such claim of equality before  law. If such claims are enforced, it shall amount to directing to continue  and  perpetuate  an  illegal  procedure  or  an  illegal  order  for  extending  similar  benefits  to  others.  Before  a  claim  based  on  equality  clause  is  upheld, it must be established by the petitioner that his claim being just  and legal, has been denied to him, while it has been extended to others and  in this process there has been discrimination”.

In  State of Haryana v. Ram Kumar Mann -- 1997 (3) SCC 321 -- this  

court held that the doctrine of discrimination is found upon existence of  

an enforceable right and that Article 14 would apply only when invidious  

discrimination  is  meted  out  to  equals  and  similarly  circumstanced  

without any rational basis or relationship in that behalf. This court further  

held that a person who has no legal right cannot be given relief merely  

because such relief has been wrongly given to others and a wrong order  

cannot be the foundation for claiming equality, nor does a wrong decision  

by the Government give a right to enforce the benefit thereof and claim  

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parity or equality. There are several other decisions which reiterate this  

position. It is not necessary to refer to all of them.  

81. We are conscious of the fact that when a person subjected to blatant  

discrimination,  approaches  a  court  seeking equal  treatment,  he expects  

relief similar to what others have been granted.  All that he is interested is  

getting relief  for himself,  as others.  He is  not  interested in getting the  

relief illegally granted to others, quashed. Nor is he interested in knowing  

whether others were granted relief legally or about the distinction between  

positive  equality  and negative  equality.  In  fact  he  will  be  reluctant  to  

approach courts for quashing the relief granted to others on the ground  

that it is illegal, as he does not want to incur the wrath of those who have  

benefited from the wrong action. As a result, in  most cases those who  

benefit  by  the  illegal  grants/actions  by  authorities,  get  away  with  the  

benefit,  while  others  who  are  not  fortunate  to  have  ‘connections’  or  

‘money power’ suffer.  But these are not the grounds for courts to enforce  

negative equality and perpetuate the illegality. The fact that an Authority  

has extended favours illegally in the case of several persons cannot be a  

ground for  courts  to issue a mandamus directing repetition thereof,  by  

applying the principle of equality. Article 14 guarantees equality before  

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law and not  equality  in subverting law nor equality in securing illegal  

benefits.  But courts cannot be silent bystanders if acquisition process is  

used by officers of the Authority with ulterior or malafide motives. For  

example, let us take a case where 2000 acres are required for a project as  

per the Development Scheme, but the preliminary notification is issued in  

respect of 3000 acres; and when the land owners ‘apply’ or ‘approach’ the  

Authority, 1000 acres of lands are released. Or take a case where a project  

required 1000 acres of contiguous land for a development  project,  and  

preliminary  notice  is  accordingly  issued  for  acquisition  of  a  compact  

contiguous  extent  of  1000  acres;  but  thereafter  without  any  logical  

explanation or perceivable reason, several large areas in the midst of the  

proposed layout, are denotified or deleted making it virtually impossible  

to  execute  the  development  scheme,  as  proposed.  In  the  absence  of  

satisfactory explanations in such a case, it may be necessary to presume  

that there was misuse or abuse of the acquisition process. Be that as it  

may.  

82. We may illustrate the principle relating to positive and negative  

equality with reference to following notional acquisition cases:  

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(i) Where a petitioner’s land and his neighbour’s land are of similar  

size and have similar structures and are similarly situated, and the policy  

of the Development Authority is to withdraw the acquisition in respect of  

lands which are ‘constructed’, if the neighbour’s land is deleted from the  

proposed acquisition on the ground that  it  has a construction of 1000  

sq.ft.  and the petitioner’s land is  not so deleted, the petitioner will  be  

entitled to relief on the ground of discrimination.  But if the neighbour’s  

land measures  2000 sq.ft.  and contains  a  house  of  1000 sq.ft  and the  

petitioner’s land measures one acre and contains a house measuring 1000  

sq.ft.,  the  petitioner  cannot  obviously  contend  that  because  his  

neighbour’s property was deleted from acquisition, being a land with a  

construction, his one acre land should also be deleted in entirety from the  

acquisition, as it had a 1000 sq.ft. construction. But it may be possible for  

him  to  contend  that  an  extent  equal  to  what  was  released  to  his  

neighbour, should be released.  

(ii) Where the lands owned by two neighbours are equal in size having  

similar  structures,  but  one  was  constructed  before  the  preliminary  

notification after obtaining a licence and the other was constructed after  

the preliminary notification unauthorisedly, the owner of the land with  

the unauthorised structure cannot obviously claim parity with the owner  

of  the  land  with  the  authorised  structure,  for  seeking  deletion  from  

acquisition.   

(iii) Where  the  vacant  lands  of  ‘A’  and  ‘B’  –  two  neighbours  are  

acquired.  The  Authority  had  a  policy  to  delete  properties  with  

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constructions,  as  on  the  date  of  preliminary  notification.  Both  put  up  

unauthorised  structures  clandestinely  overnight,  after  the  preliminary  

notification. The land of ‘B’ is deleted from acquisition on the ground  

that it has a construction. If ‘A’ approaches court and claims release of  

his land claiming parity with ‘B’, the claim will have to be rejected. But,  

where the Authority admits that B’s land was deleted even though the  

construction was subsequent to preliminary notification,  the court may  

direct the Authority to take appropriate action in accordance with law for  

cancelling the deletion.

(iv) If in a village all the lands are notified and subsequently all lands  

except two or three small pockets are deleted without any valid ground,  

the persons whose lands were acquired can also seek deletion, on the  

ground that all the surrounding lands have been deleted. Court cannot  

direct  deletion merely  because  the  surrounding lands were deleted,  as  

those deletions were illegal and not based on any valid policy. But the  

petitioners  can contend that  the  very purpose  of  acquisition had been  

rendered  infructuous  by  deletion  of  the  majority  of  lands  from  the  

proposed acquisition, and the project or the scheme has ceased to exist  

and cannot be executed only with reference to their lands. In such a case,  

relief can be granted not on the ground that there has been discrimination,  

but on the ground that the proposed development scheme became non-

existent on account of most of the lands being deleted from acquisition.   

Therefore, a land owner is not entitled to seek deletion of his land from  

acquisition, merely on the ground that lands of some others have been  

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deleted. He should make out a justifiable cause for deleting his land from  

acquisition. If the Rules/Scheme/Policy provides for deletion of certain  

categories of land and if the petitioner falls under those categories,  he  

will be entitled to relief. But if under the Rules or Scheme or policy for  

deletion, his land is not eligible for deletion, his land cannot be deleted  

merely on the ground that some other land similarly situated had been  

deleted  (even  though  that  land  also  did  not  fall  under  any  category  

eligible  to  be  deleted),  as  that  would  amount  to  enforcing  negative  

equality. But where large extents of land of others are indiscriminately  

and arbitrarily deleted, then the court may grant relief, if on account of  

such  deletions,  the  development  scheme  for  that  area  has  become  

inexecutable  or  has  resulted  in  abandonment  of  the  scheme.  

Alternatively, if a common factor can be identified in respect of other  

lands  which  were  deleted,  and  if  the  petitioner’s  land  also  has  that  

common factor, relief can be granted on the ground that the Authority  

had adopted the common factor as the criterion in the case of others and  

therefore adopting the same yardstick, the land of petitioners also should  

be deleted. These principles  may be kept in view while implementing  

direction in para 105D(i)(f) of the Judgment of the Division Bench of the  

High Court.  

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83. It is necessary to refer another aspect of land acquisition for urban  

development.  ‘Public  purposes’  may  be  of  different  degrees  of  

importance/priority/urgency. An acquisition for laying a road or a water  

supply  canal  may  be  of  higher  priority  category  when  compared  to  

acquisitions for formation of an urban residential layout. Planned urban  

development by forming residential  layouts,  is  carried out  not  only by  

statutory  development  authorities,  but  also  by  private  developers/  

colonisers.  The  reason  why  legislature  has  created  Development  

Authorities  for  executing  development  schemes,  is  because  they  can  

undertake large scale developments providing better quality facilities with  

no  profit  motives.  But  in  trying  to  achieve  planned  development  and  

thereby benefit the urban middle class or urban poor by providing them  

housing plots,  the interests of agriculturists/land owners who lose their  

livelihood on account of such acquisition, should not be ignored. Though  

the  legislature  intended  that  the  land-loser  should  get  reasonable  

compensation at the time of dispossession or immediately thereafter,  it  

seldom happens in practice. This court had occasion to refer to the travails  

of land-losers in getting the compensation in  Special  Land Acquisition  

Officer v. Mahaboob [2009 (3) SCALE 263] thus:  

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“The Collector (LAO) is supposed to offer fair compensation by taking  all  relevant  circumstances  relating  to  market  value  into  account.  To  safeguard the interests of the land-loser, the Act requires the collector to  make the award before the land owner is dispossessed. The intention is  that the land-loser will immediately be able to draw compensation and  purchase some other suitable land or make appropriate arrangements for  his  livelihood.  But  in  practice  the  Collectors  (LAOs)  seldom  make  reasonable  offers.  They tend to  err  on  the  ‘safer’  side  and invariably  assess very low compensation. Such meagre awards force the land-loser  to seek reference to civil court for increase in compensation in regard to  almost every award made by the LAO.  In fact, many a time, even the  reference courts are conservative in estimating the market value and it  requires further appeals by the land-loser to the High Court and Supreme  Court to get just compensation for the land. We can take judicial notice of  the fact that in several States the awards of the reference court  or the  judgments of the High Court and this court increasing the compensation,  are not complied with and the land-losers are again driven to courts to  initiate  time  consuming  execution  process  (which  also  involves  considerable expense by way of lawyers fee) to recover what is justly  due. Resultantly the land-losers seldom get a substantial portion of proper  compensation  for  their  land  in  one  lump  sum  immediately  after  the  acquisition. The effect may be highlighted by the following illustration:  

“A farmer owns 3 acres of land in a village, which is his sole means of  livelihood. The land is acquired for some project in the year 1990. The  true market value of the land was around Rs.1,50,000/- per acre in 1990.  If he got the said price, that is, Rs. 4,50,000/- with solatium, additional  amount and interest in the year 1991, he has a reasonable opportunity of  purchasing some alternative land, so that he can eke out his livelihood  and continue to live with dignity. But this rarely happens in practice. The  final notification is made in 1992 and the LAO makes an award in the  year 1993 offering Rs.50,000/- per acre. So the land-loser is constrained  to seek a reference to the court. The reference court takes three to four  years to decide the reference and increases the compensation to Rs. one  lakh per  acre in  the year  1996.  The increased amount  is  deposited  in  1997-1998. The land-loser is constrained to file a further appeal to the  High Court  and the High Court  takes another  three to four  years  and  increases the compensation to Rs.1.5 lakh per acre in the year 2000 and  such increase is deposited in the year 2001-02. That is, the loser is forced  to fight at least in two courts to get the compensation commensurate with  the market value of Rs.1.5 lakhs per acre. To add to his woes, when the  reference  court  or  the  High  Court  increases  the  compensation,  the  Government does not pay the increased amount immediately and drives  him to execution proceedings also. This means that the land owner gets  compensation piecemeal, that is, Rs. 50,000/- per acre in 1993, another  Rs.  50,000/-  per  acre in  1997-98, and another  Rs.50,000/-  per acre in  

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2001-02.  At every stage he has to incur expenses for litigation. As he  does  not  get  the  full  compensation  in  one  lump sum,  he  is  not  in  a  position to purchase an alternative land. When the land is acquired, he  loses his means of livelihood, as he knows no other type of work. The  result is, he is forced to spend the compensation received in piecemeal,  on sustenance of his family when he fights the legal battles for increasing  the compensation and for recovering the increases granted, by levying  execution.  The  result  is  that  whatever  compensation  is  received  piecemeal, gets spent for the sustenance of the family, and litigation cost  during the course of prolonged litigation. At the end of the legal battle, he  is hardly left with any money to purchase alternative land and by then the  prices of land would have also increased manifold, making it impossible  to purchase even a fraction of the land which he originally possessed.  Illiteracy,  ignorance,  and lack of counselling add to his  woes and the  piecemeal compensation is dissipated leaving him with neither land, nor  money to buy alternative land, nor any means of livelihood. In short, he is  stripped of his land and livelihood.”

84. Frequent complaints and grievances in regard to the following five  

areas, with reference to the prevailing system of acquisitions governed by  

Land  Acquisition  Act,1894,  requires  the  urgent  attention  of  the  state  

governments and development authorities:

(i) absence  of  proper  or  adequate  survey  and  planning  before  embarking upon acquisition;  

(ii) indiscriminate use of emergency provisions in section 17 of the LA  Act;

(iii) notification of areas far larger than what is actually required, for  acquisition, and then making arbitrary deletions and withdrawals  from the acquisitions;  

(iv) offer  of  very low amount as compensation by Land Acquisition  Collectors, necessitating references to court in almost all cases;  

(v) inordinate delay in payment of compensation; and  

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(vi) absence of  any rehabilitatory  measures.  

While the plight of project oustees and landlosers affected by acquisition  

for industries has been frequently highlighted in the media, there has been  

very little  effort  to draw attention  to  the  plight  of  farmers  affected by  

frequent acquisitions for urban development.

85. There  are  several  avenues  for  providing  rehabilitation  and  

economic  security  to  landlosers.  They  can  be  by  way  of  offering  

employment, allotment of alternative lands, providing housing or house  

plots,  providing  safe  investment  opportunities  for  the  compensation  

amount to generate a stable income, or providing a permanent regular  

income by way of annuities. The nature of benefits to the landlosers can  

vary  depending  upon  the  nature  of  the  acquisition.  For  this  limited  

purpose,  the acquisitions can be conveniently divided into three broad  

categories:  

(i) Acquisitions  for the benefit  of  the general  public  or in national   

interest.  This will include acquisitions for roads, bridges, water supply  

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projects, power projects, defence establishments, residential colonies for  

rehabilitation of victims of natural calamities.  

(ii) Acquisitions for economic development and industrial growth. This  

will  include  acquisitions  for  Industrial  Layouts/Zones,  corporations  

owned or controlled by the State, expansion of existing industries, and  

setting up Special Economic Zones.

(iii) Acquisitions for planned development of urban areas.   This will  

include acquisitions for formation of residential layouts and construction  

of apartment Blocks, for allotment to urban middle class and urban poor,  

rural poor etc.  

86.  In acquisitions falling under the first category, the general public  

are the direct beneficiaries. In the second category, the beneficiaries are  

industrial  or  business  houses,  though ultimately,  there  will  be indirect  

benefit  to the public by way of generation of employment and overall  

economic  development.  In  the  third  category,  the  beneficiaries  are  

individual members of public who, on account of allotment of plots/flats,  

will  be  able  to  lead  a  better  quality  of  life  by  having  a  shelter  with  

comforts, apart from the fact that the planned development of cities and  

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towns is itself in public interest. At present, irrespective of the purpose, in  

all cases of acquisition, the landloser gets only monetary compensation.  

Acquisitions of the first kind, does not normally create any resistance or  

hostility. But in acquisitions of the second kind, where the beneficiaries  

of acquisition are industries, business houses or private sector companies  

and in acquisitions of the third kind where the beneficiaries are private  

individuals,  there is  a  general  feeling among the land-losers  that  their  

lands are taken away, to benefit other classes of people; that these amount  

to  robbing  Peter  to  pay  Paul;  that  their  lands  are  given  to  others  for  

exploitation  or  enjoyment,  while  they  are  denied  their  land  and  their  

source  of  livelihood.  When  this  grievance  and  resentment  remains  

unaddressed, it leads to unrest and agitations. The solution is to make the  

land-losers also the beneficiaries of acquisition so that the land-losers do  

not feel alienated but welcome the acquisition.

87. It  is  necessary  to  evolve  tailor-made  schemes  to  suit  particular  

acquisitions,  so  that  they  will  be  smooth,  speedy,  litigation  free  and  

beneficial to all concerned.  Proper planning, adequate counselling, and  

timely mediation with different groups of landlosers, should be resorted.  

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Let us consider the different types of benefits that will make acquisitions  

landloser-friendly.

87.1) In acquisitions of the first kind (for benefit of general public or in  

national interest) the question of providing any benefit other than what is  

presently  provided  in  the  Land  Acquisition  Act,  1894  may  not  be  

feasible.  The  State  should  however  ensure  that  the  landloser  gets  

reasonable compensation promptly at the time of dispossession, so that he  

can make alternative arrangements for his rehabilitation and survival.  

87.2) Where  the  acquisition  is  for  industrial  or  business  houses  (for  

setting-up  industries  or  special  economic  zones  etc.),  the  Government  

should play not only the role of a land acquirer but also the role of the  

protector of the land-losers.  As most of the agriculturists/small  holders  

who  lose  their  land,  do  not  have  the  expertise  or  the  capacity  for  a  

negotiated  settlement,  the  state  should act  as  a benevolent  trustee  and  

safeguard  their  interests.  The Land  Acquisition Collectors  should also  

become  Grievance  Settlement  Authorities.  The  various  alternatives  

including  providing  employment,  providing  equity  participation,  

providing annuity benefits ensuring a regular income for life, providing  

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rehabilitation  in  the  form  of  housing  or  new  businesses,  should  be  

considered and whichever is found feasible or suitable, should be made  

an integral process of the scheme of such acquisitions. If the government  

or  Development  Authorities  act  merely  as  facilitators  for  industrial  or  

business  houses,  mining  companies  and  developers  or  colonisers,  to  

acquire large extent of land ignoring the legitimate rights of land-owners,  

it  leads  to  resistance,  resentment  and  hostility  towards  acquisition  

process.   

87.3) Where  the  acquisition  is  of  the  third  kind,  that  is,  for  urban  

development (either by formation of housing colonies by Development  

Authorities  or  by  making  bulk  allotment  to  colonisers,  developers  or  

housing  societies),  there  is  no  scope  for  providing  benefits  like  

employment or a share in the equity. But the landlosers can be given a  

share in the development itself, by making available a reasonable portion  

of  the  developed  land  to  the  landloser  so  that  he  can  either  use  it  

personally or dispose of a part and retain a part or put it to other beneficial  

use. We may give by way of an illustration a model scheme for large scale  

acquisitions  for  planned  urban  development  by  forming  residential  

layouts:  Out  of  the  total  acquired  area,  30% of  the  land  area  can  be  

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earmarked  for  roads  and  footpaths;  and  15% to  10% for  parks,  open  

spaces  and  civic  amenities.  Out  of  the  remaining  55%  to  60%  area  

available for forming plots, the Development Authority can auction 10%  

area as plots, allot 15% area as plots to urban middle class and allot 15%  

area as plots to economically weaker sections (at cost or subsidised cost),  

and release the remaining 15% to 20% area in the form of plots to the  

land-losers whose lands have been acquired, in lieu of compensation. (The  

percentages mentioned above are merely illustrative and can vary from  

scheme to  scheme depending  upon the  local  conditions,  relevant  Bye-

laws/Rules, value of the acquired land, the estimated cost of development  

etc.).  Such  a  model  makes  the  land-loser  a  stake-holder  and  direct  

beneficiary  of  the  acquisition  leading  to  co-operation  for  the  urban  

development scheme.   

88. In the preceding para, we have touched upon matters that may be  

considered to be in the realm of government policy. We have referred to  

them as acquisition of lands affect the vital rights of farmers and give rise  

to  considerable  litigations  and  agitations.  Our  suggestions  and  

observations  are  intended  to  draw  attention  of  the  government  and  

development  Authorities  to  some  probable  solutions  to  the  vexed  

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problems associated with land acquisition, existence of which can neither  

be denied nor disputed, and to alleviate the hardships of the land owners.  

It  may be possible for the government  and development authorities  to  

come  up  with  better  solutions.  There  is  also  a  need  for  the  Law  

Commission  and  the  Parliament  to  revisit  the  Land  Acquisition  Act,  

1894, which is more than a century old. There is also a need to remind  

Development Authorities that they exist to serve the people and not vice   

versa.  We have come across Development Authorities which resort  to  

‘developmental  activities’  by acquiring lands and forming layouts,  not  

with  the  goal  of  achieving  planned  development  or  provide  plots  at  

reasonable  costs  in  well  formed layouts,  but  to  provide  work  to  their  

employees and generate funds for payment of salaries.  Any development  

scheme should be to benefit the society and improve the city, and not to  

benefit the development authority. Be that as it may.  

89. When  BDA  prepares  a  development  Scheme  it  is  required  to  

conduct an initial survey about the availability and suitability of the lands  

to be acquired. While acquiring 16 villages at a stretch, if in respect of any  

of  the  villages,  about  30%  area  of  the  village  is  not  included  in  the  

notification under section 4(1) though available for acquisition, and out of  

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the remaining 70% area which is notified, more than half (that is about  

40% of the village area) is deleted when final notification is issued, and  

the acquisition is only of 30% area which is non-contiguous, it means that  

there was no proper survey or application of mind when formulating the  

development scheme or that the deletions were for extraneous or arbitrary  

reasons. Inclusion of the land of a person in an acquisition notification, is  

a traumatic experience for the landowner, particularly if he was eking out  

his livelihood from that land. If large areas are notified and then large  

extents  are  to  be  deleted,  it  breeds  corruption  and  nepotism  among  

officials. It also creates hostility, mutual distrust and disharmony among  

the villagers, dividing them on the lines of ‘those who can influence and  

get  their  lands deleted’  and ‘those who cannot’.  Touts  and middlemen  

flaunting political connections flourish, extracting money for getting lands  

deleted.  Why  subject  a  large  number  to  citizens  to  such  traumatic  

experience? Why not  plan properly  before embarking upon acquisition  

process? In this case, out of the four villages included at the final stages of  

finalising the development scheme, irregularities have been found at least  

in  regard  to  three  villages,  thereby  emphasising  the  need  for  proper  

planning and survey before embarking upon acquisition.  

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90. Where  arbitrary  and  unexplained  deletions  and  exclusions  from  

acquisition,  of  large  extents  of  notified  lands,  render  the  acquisitions  

meaningless, or totally unworkable, the court will have no alternative but  

to quash the entire acquisition. But where many landlosers have accepted  

the acquisition and received the compensation, and where possession of  

considerable  portions  of  acquired  lands  has  already  been  taken,  and  

development activities  have been carried  out  by laying plots  and even  

making provisional or actual allotments, those factors have to be taken  

note of, while granting relief. The Division Bench has made an effort to  

protect  the  interests  of  all  parties,  on  the  fact  and  circumstances,  by  

issuing detailed directions.  But implementation of these directions may  

lead to further litigations and complications. To salvage the acquisition  

and to avoid hardships to BDA and its allottees and to avoid prolonged  

further round litigations emanating from the directions of the High Court,  

a  more equitable way would be to uphold the decision of the division  

bench,  but  subject  BDA’s  actions  to  certain  corrective  measures  by  

requiring it  to re-examine certain aspects  and provide an option to the  

landlosers to secure some additional benefit, as an incentive to accept the  

acquisition.  A direction to provide an option to the land-losers to seek  

allotment of developed plots in lieu of compensation or to provide for  

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preferential  allotment  of  some  plots  at  the  prevailing  market  price  in  

addition to compensation will meet the ends of justice. Such directions  

will not be in conflict with the BDA (Allotment of sites) Rules, as they are  

intended to save the acquisitions. If the acquisitions are to be quashed in  

entirety by accepting the challenges to the acquisition on the ground of  

arbitrary deletions and exclusions, there may be no development scheme  

at all, thereby putting BDA to enormous loss.  The directions of the High  

Court and this Court are warranted by the peculiar facts of the case and  

are not intended to be general directions applicable to regular acquisitions  

in accordance with law, without any irregularities.  

Conclusion  

91. In view of the foregoing, we affirm the directions of the Division  

Bench subject to the following further directions and clarifications:  

(i) In regard to the acquisition of lands in Kempapura and Srirampura,  

BDA is directed to re-consider the objections to the acquisitions having  

regard  to  the  fact  that  large  areas  were  not  initially  notified  for  

acquisition,  and  more  than  50%  of  whatever  that  was  proposed  for  

acquisition was also subsequently deleted from acquisition. BDA has to  

consider  whether  in  view  of  deletions  to  a  large  extent,  whether  

development  with  respect  to  the  balance  of  the  acquired  lands  has  

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become illogical and impractical, and if so, whether the balance area also  

should  be  deleted  from acquisition.  If  BDA proposes  to  continue  the  

acquisition, it shall file a report within four months before the High Court  

so that consequential orders could be passed.

(ii) In  regard  to  villages  of  Venkateshapura,  Nagavara,  Hennur  and  

Challakere where there are several very small pockets of acquired lands  

surrounded by lands which were not acquired or which were deleted from  

the proposed acquisition, BDA may consider whether such small pockets  

should also be deleted if they are not suitable for forming self contained  

layouts.  The acquisition thereof cannot be justified on the ground that  

these small islands of acquired land, could be used as a stand alone park  

or   playground in  regard  to  a  layout  formed in  different  unconnected  

lands in other villages. Similar isolated pockets in other villages should  

also be dealt with in a similar manner.

(iii) BDA shall give an option to each writ petitioner whose land has  

been acquired for Arkavathy layout:  

(a) to  accept  allotment  of  15%  (fifteen  percent)  of  the  land  

acquired  from  him,  by  way  of  developed  plots,  in  lieu  of  

compensation  (any  fractions  in  excess  of  15%  may  be  charged  

prevailing rates of allotment).

OR

(b) in cases where the extent of land acquired exceeds half an  

acre,  to  claim in  addition to  compensation  (without  prejudice  to  

seek reference if he is not satisfied with the quantum), allotment of  

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a plot  measuring 30’ x 40’ for every half acre of land acquired  at  

the prevailing allotment price.              

(iv) Any allotment made by BDA, either by forming layouts or by way  

of bulk allotments, will be subject to the above.

The appeals are disposed of accordingly.  All  pending applications also  

stand disposed of.   

…………………………CJI. (K. G. Balakrishnan)

…………………………..J. (R. V. Raveendran)

New Delhi; ……………………………J. May 5, 2010.                                       (D. K. Jain)   

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