2010 Supreme(SC) 408

2010 (4) Supreme 546
SUPREME COURT OF INDIA
CJI, K. G. Balakrishnan, R.V. Raveendran and D. K. Jain, JJ.
Bondu Ramaswamy — Appellant
versus
Bangalore Development Authority & Ors. — Respondents
Civil Appeal No. 4097 of 2010
With
Civil Appeal Nos. 4133, 4098, 4099, 4100, 4101, 4102, 4103, 4104, 4105, 4106, 4107, 4108, 4109, 4110, 4111, 4112, 4113, 4114, 4115, 4116, 4117, 4118, 4119, 4120, 4121, 4122, 4123, 4124, 4125, 4126, 4127, 4128, 4129, 4130, 4131, 4132 & 4179-80 of 2010
(Arising out of SLP (C) No. 4318 of 2006)
Decided on : 5-05-2010

IMPORTANT POINTS
Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court has no alternative but to quash the entire acquisition. But where many landlosers have accepted 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.
2. It is well settled that when there is vagueness and ambiguity, an interpretation that would avoid absurd results should be adopted.
3. If the law made by the State Legislature, covered by an Entry in the State List, incidentally touches upon any of the matters in the Concurrent List, it is well-settled that it will not be considered to be repugnant to an existing Central law with respect to such a matter enumerated in the Concurrent List. In such cases of overlapping between mutually exclusive lists, the doctrine of pith and substance would apply.
4. A development authority should either provi de 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.
5. 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

Headnote:Bangalore Development Authority Act, 1976- Acquisition of lands for formation of Arkavathi layout on outskirts of Bangalore by Bangalore Development Authority-Challenge thereagainst-Plea that BDA Act, in so far as it provided for compulsory acquisition of property, was still-born and ineffective as it did not receive assent of the President, as required by Article 31(3) of Constitution of India-Held any post-constitutional law made in contravention of provisions of Part III, to the extent of contravention is a nullity from its inception- Clause (1) of Article 31 provided that no person shall be deprived of his property save by authority of law- Clause (2) of Article 31 provided that no law shall authorise acquisition unless it provided for compensation for such acquisition and either fixed amount of compensation, or specified the principles on which, and manner in which, compensation was to be determined and given-BDA Act, does not fix the amount of compensation, but Section 36 thereof clearly provides that acquisition will be regulated by provisions of Land Acquisition Act, 1894 so far as they are applicable- Thus principles on which 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 was no violation of Article 31(2)- Article 31(3) merely provides that no law providing for acquisition shall have effect 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- It does not nullify any laws, but postpones 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 BDA Act being treated as a nullity- 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-Hence, once the requirement of assent disappeared, provisions relating to acquisition became enforceable. (Para 11)

       Bangalore Development Authority Act, 1976- Section 2(c) - Acquisition of lands for formation of Arkavathi layout on outskirts of Bangalore by Bangalore Development Authority-Challenge thereagainst-Plea that sixteen villages where the lands had been acquired, since fell outside the Bangalore Metropolitan Area as defined in section 2(c) of the BDA Act Bangalore Development Authority had no territorial jurisdiction to make development schemes or acquire lands in those villages-Held Section 2(c) of BDA Act clearly provided that city of Bangalore as defined in Municipal Corporation Act was part of Bangalore Metropolitan Area- It also provided that areas where city of Bangalore Improvement Act, 1945 was in force, was also part of Bangalore Metropolitan Area- It contemplated other areas adjacent to aforesaid areas being specified as part of Bangalore Metropolitan Area by a notification- Hence, clearly, area that was contemplated for being specified in a notification under Section 2(c) was “other areas adjacent” to areas specifically referred to in Section 2(c)- But it was seen from notification dated 1.3.1988 that it did not purport to specify the “such other areas adjacent” to the areas specifically referred to in section 2(c),but purported to specify the Bangalore Metropolitan Area itself as it stated that it was specifying the “areas for the purpose of the said clause”- If the notification specified entire Bangalore Metropolitan Area, interpretation put forth by appellants that only the villages included in Schedule I to the notification dated 13.3.1984 would be Bangalore Metropolitan Area, would have resulted in an absurd situation- What was already specifically included by Section 2(c) of BDA Act could not obviously be excluded by notification dated 1.3.1988 while purporting to specify the additional areas adjoining to the areas which were already enumerated- No dispute that boundaries indicated in the notification dated 13.3.1984 clearly included 16 villages which were the subject matter of the acquisition-Hence contention of appellant that Bangalore Development Authority did not have territorial jurisdiction to form any development scheme in regard to the 16 villages which were the subject matter of the final declaration dated 23.2.2004 was held liable to be rejected. (Paras 40, 41)

       Bangalore Development Authority Act, 1976- Land Acquisition Act,1894-Section 6- Acquisition of lands for formation of Arkavathi layout on outskirts of Bangalore by Bangalore Development Authority-Challenge thereagainst- Plea that amendment to section 6 of LA Act requiring final declaration to be issued within one year from date of publication of preliminary notification was applicable to the acquisitions under the BDA Act-Held 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 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- Hence held that where there were 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- Hence, 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 would not apply to acquisitions under BDA Act- If section 6 of LA Act was not made applicable, the question of amendment to section 6 of LA Act providing a time limit for issue of final declaration, would also not apply. (Para 43)

       Bangalore Development Authority Act, 1976- Acquisition of lands for formation of Arkavathi layout on outskirts of Bangalore by Bangalore Development Authority-Challenge thereagainst- Held 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 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 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- In this case, out of four villages included at the final stages of finalising the development scheme, irregularities were found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition- Division Bench had 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 preferential allotment of some plots at the prevailing market price in addition to compensation would meet the ends of justice- Such directions would not be in conflict with the BDA (Allotment of sites) Rules, as they were 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- Hence directions of the Division Bench affirmed subject to directions and clarifications. (Paras 89, 90, 91)

       Bangalore Development Authority Act, 1976- Acquisition of lands for formation of Arkavathi layout on outskirts of Bangalore by Bangalore Development Authority-Challenge thereagainst –Held if the acquisitions were 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- Hence directions of the Division Bench were affirmed subject to directions and clarifications that 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 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- 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- BDA shall give an option to each writ petitioner whose land has been acquired for Arkavathy layout 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- 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 a plot measuring 30' x 40' for every half acre of land acquired at the prevailing allotment price-Appeals disposed off. (Paras 89, 90, 91)

       Facts of the Case :

       Present appeals related to the challenge of acquisition of lands for formation of Arkavathi layout on the outskirts of Bangalore by the Bangalore Development Authority under the Bangalore Development Authority Act, 1976.

       Findings of the Court :

       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 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 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. In this case, out of four villages included at the final stages of finalising the development scheme, irregularities were found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition. Division Bench had 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 preferential allotment of some plots at the prevailing market price in addition to compensation would meet the ends of justice. Such directions would not be in conflict with the BDA (Allotment of sites) Rules, as they were 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. Hence directions of the Division Bench were affirmed subject to directions and clarifications. In regard to the acquisition of lands in Kempapura and Srirampura,BDA was 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 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. 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. BDA shall give an option to each writ petitioner whose land has been acquired for Arkavathy layout 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. 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 a plot measuring 30' x 40' for every half acre of land acquired at the prevailing allotment price. Appeals were disposed of.