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N.K SODHI, C.J. AND N. KUMAR, J.
THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER Appellant
Vs.
STATE OF KARNATAKA AND ANOTHER
Writ Appeal No. 2624 of 2005 connected with Writ Appeal Nos. 2625, 2626, 2712, 2721, 2757, 2760 and 2778 of 2005; Writ Petition Nos. 26664, 28128,36059,38176,39230,40728,40929,40933,41944 , 42871, 44506 to 44508, 44932, 45210, 45397, 45695, 45750, 45972, 46065, 46348, 46383, 46416, 46438, 46459, 46519, 46619 to 46621, 47361, 47422, 47550, 47941, 48022, 48334, 48574. 48578, 48772,
48786, 49009, 49041, 49303, 49333, 49424, 49436, 49468, 49510, 49558, 49565, 49774, 49751, 49932, 50076, 50466, 50504, 50545, 50546, 50819, 50857, 50871, 50897, 50904, 51004, 51006, 51011, 51058, 51119, 51133, 51214, 51216, 51219, 51221, 51225, 51227, 51229, 51234, 51249, 51263, 51268, 51270, 51274, 51282, 51286, 51307, 51311, 51335, 51347, 51350, 51371, 51375, 51391, 51394 to 51397, 51455, 51463, 51482, 51487 and 51555 of 2004; 47, 103, 104, 173, 289, 552, 767, 880 to 883, 917, 1242, 1308, 1331, 1338, 1342, 1418, 1532, 1558, 1608, 1696, 1701, 1718, 1900, 1908, 1990, 2136, 2188, 2296 to 2301, 2303, 2312, 2319, 2533, 2538, 2549, 2573, 2585, 2604, 2781, 2885, 3138, 3170, 3333, 3410, 3699, 3800, 3839, 3894, 3918, 4100, 4182, 4568, 4611, 4765, 4815, 4882, 5077, 5212, 5258, 5267, 5394, 5396, 6046, 6715, 7127, 7250, 7948, 9248 to 9250, 9311, 9384, 9574, 9619, 9621, 9671, 10301, 10552, 10553, 10572, 10596, 10793, 10818, 10884, 11059, 11363, 11365, 11499, 12158, 12268, 12385, 12389, 12392, 12558, 12616, 12708, 13027, 13357, 13665, 13680, 14316, 14353, 14771, 15503, 18357, 18565 and 19634 of 2005.
Decided on 25th November, 2005
Natural Justice -Judicial Strictures -Sustainability -Chief Minister according approval of scheme floated by BDA -Acquisition questioned -CM not made a party -Court passing disparaging remarks against CM -Held, it amounts to violation of principles of natural justice where legal malice or malafides cannot be attributed.
Bangalore Development Authority (Allotment of Sites) Rules, 1984 -Removal of non-alienation clause -Rule 13 -Removal of non-alienation clause -Clause removed by amendment -It was held in WP that persons affordable will buy any number of sites and have monopoly over the same and BDA has no control over the allottees of the sites and that would defeat the very purpose of the rules -Clause brought back -Relevancy of consideration of the aspect in a writ petition challenging acquisition of land -Held, has no relevance.
Bangalore Development Authority Act, 1976 -Acquisition of land by BDA -Section 18(3) -Acquisition of land by BDA -Will it offend Article 19(f)? See, Section 17(1).
Bangalore Development Authority Act, 1976 -Acquisition of land by BDA -Section 18(3) -Acquisition of land by BDA -Will it offend Article 19(f)? See, Section 17(1).
Bangalore Development Authority Act, 1976 -Acquisition of land in violation of Article 19(f) of the Constitution -Section 17(1) -Acquisition of land in violation of Article 19(f) -By 44th amendment clause (f) was omitted -Hence, when State acquires land belonging to a citizen, it does not amount to fundamental right of a citizen being taken away.
Bangalore Development Authority Act, 1976 -Approval by Minister-in-charge -Section 19(1) -Approval by Minister-in-charge -In case of urgency, the Chief Minister can permit the Minister-in-charge for administrative approval which otherwise requires approval of cabinet -Hence, where the Chief Minister himself was in charge of BDA, his approval does not vitiate the Scheme.
Bangalore Development Authority Act, 1976 -Bangalore Development Authority - Whether a municipality -Section 29 -Bangalore Development Authority, whether a municipality -By no stretch of imagination BDA can be termed as a municipality. [N. K. Sodhi CJ, and N. Kumar, J]: Section 28A deals with duty to maintain streets till the streets formed by the BDA are vested in the Corporation and the drainage sanitary arrangement and water supply which is formed by the BDA. During the period of maintenance under Section 28B BDA is empowered to levy tax on land and buildings. Only for the purpose of levy and collection of education cess, health cess, library cess, beggary cess under Section 28C BDA shall be deemed to be a local authority. However, Section 29 empowers the Government by a notification to confer on the BDA or the Commissioner the powers and functions of the Corporation. A reading of the aforesaid provisions makes it very clear that the powers conferred on the BDA under the BDA Act to perform the aforesaid functions are not in respect of the entire area which falls within the Corporation. It is in respect of the area which the BDA develops, before it is handed over to the Corporation or during the said period temporarily handed over to the BDA by the Corporation. The very fact that the Government has to issue a notification conferring the powers on the BDA or the commissioner, shows that without the said notification the BDA or the commissioner has no power of the Corporation. Again such power is conferred for a temporary period to meet a particular situation and mostly in respect of the areas/layouts which are developed by the BDA till it is fully developed and handed over to the Corporation. Once this scheme is so understood, the legislative intent becomes clear and by no stretch of imagination or by liberal interpretation it could be said that the BDA is a municipality as defined under Part- IXA of the Constitution.
Bangalore Development Authority Act, 1976 -Bangalore Metropolitan Area -Section 2(c) -Bangalore Metropolitan Area -Notification in regard to -Effect. [N. K. Sodhi CJ, and N. Kumar, J]: The Bangalore Metropolitan Area has been defined under Section 2( c) of the BDA Act. It consists of the following areas: - ( a) area comprising the City of Bangalore as defined in the City of Bangalore Municipal Corporation Act, 1949 which is now replaced by Karnataka Municipal Corporation Act, 1976; (b) the areas where the City of Bangalore Improvement Act, 1945 was immediately before the commencement of the BDA Act, 1976 was in force and (c) Such other areas adjacent to the aforesaid as the Government from time to time by notification specify. It is clear in respect of areas which are adjacent to the City of Bangalore or outside the City of Bangalore, the Government has to issue a notification specifying the said area for it to fall within the Bangalore Metropolitan Area. Thus, once a notification is issued as aforesaid the Bangalore Metropolitan Area includes the areas which fall within the City Municipal Councils adjoining and around the City of Bangalore.
Bangalore Development Authority Act, 1976 -Concept of robbing Peter and paying Paul -Sections 15, 16, 17(1), 18(3) and 19(1) -Concept of robbing Peter and paying Paul -BDA inviting applications for allotment and collecting money along with application even before formation of layout -Will it amount to robbing Peter and paying Paul? No. [N. K. Sodhi CJ, and N. Kumar, J]: In the instant case, a scheme was formulated under Section 15 and 16 of the BDA Act, and preliminary notification was issued under Section 17(1) and after obtaining sanction from the government under section 18(3), final notification was issued under Section 19(1) of the Act. It is only after following the aforesaid procedure prescribed under law, applications were called for under the Rules prescribed. Therefore, the action of the BDA was not only, authorised and it was not opposed to any provisions of the BDA Act. In fact after the impugned order the BDA has returned the money paid by all the applicants which shows their bona fides and absence of any fraud on the public as alleged. Therefore, there is no substance in that contention also.
Bangalore Development Authority Act, 1976 -Consistency -Consistency -Act enacted under Entry 5 of List II of VII Schedule of Constitution -Operate in separate and distinct field -Not inconsistent with any other enactment enacted under the Entry. [N. K. Sodhi CJ, and N. Kumar, J]: Entry 5 of List II in the VII Schedule enables a State Legislature to make laws pertaining to Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Local Government includes a Local Self Government and other authorities such as improvement trust and mining settlement authorities. The Karnataka Legislature has enacted the KM Act and KMC Act which pertain to Municipal Corporations, within the meaning of Entry 5 of List II. The Karnataka Legislature has also passed laws such as Karnataka Town and Country Planning Act, 1961, for short KTCP Act and BDA Act which falls under the category of improvement Trusts. All these legislations are operating in separate and distinct fields. Even if there is any overlapping, there is no inconsistency between any of the provisions.
Bangalore Development Authority Act, 1976 -Development plan as referred to in Parts IX and IX-A of the Constitution -Development plan as referred to in Chapters IX and IX-A -Meaning. [N. K. Sodhi CJ, and N. Kumar, J]: The development plan referred to in the said Chapters is not for carrying out building, engineering or other operations in or over or under land or the making of any material change in any building or land. It is a plan for economic development and social justice for the whole area comprised in the Panchayat or the Municipality. It is a plan for all round economic and social development of the people of the area, who have been denied a say in the institution of self government, by giving them the power and authority to enable them to perform effectively as vibrant democratic units of self government. The stress was on holding elections regularly, conferring power to levy taxes and duties, implementation of developmental schemes, as may be required to enable them to function as institutions of self government. In the committee constituted, they want to ensure 2/3rd of the members are elected representatives. In other words those committees in the nature of things are elected bodies and not specialized agencies.
Bangalore Development Authority Act, 1976 -Development scheme -Section 15(1) -Development scheme -Scope and ambit. [N. K. Sodhi CJ, and N. Kumar, J]: The detailed scheme to be drawn up by the authority under Section 15( 1) of the BDA Act, though is for the development of Bangalore Metropolitan Area, it is not a scheme or development plan for the whole area. The said scheme is confined to the areas comprised 11 me scheme, for development of which, the land is yet to be acquired. The said scheme has to provide for the particulars mentioned in Section 16 of the BDA Act. This development scheme refers to undeveloped area within or adjacent to the city of Bangalore. The Act has no application to the developed areas within the city of Bangalore, which has already vested with the Municipality or the city of Corporation. Therefore, this development scheme is only in respect of a portion of the land which is yet to be acquired and developed, and the word "complete plans" referred to in Section 18( 1 )(b) refers to the plan of this development scheme. This complete plan does not refer to the whole of the city of Bangalore or the Bangalore Metropolitan Area. It also does not refer to any other aspect of development other than development of land as defined under Section 2(1) of the BDA Act.
Bangalore Development Authority Act, 1976 -Discrimination -Section 17 -Discrimination -BDA omitting to notify certain lands abutting the lands proposed to acquire -Petitioner/land owners to prove that, their lands are similar to those lands omitted from acquisition -If proved, their lands should also be excluded.
Bangalore Development Authority Act, 1976 -Existence of -Section 2(c) -Existence of -Provision is not inconsistent with Part IX and IXA of the Constitution or Karnataka Municipalities and Karnataka Municipal Corporation Acts -Finding in Sharadamma s case that, by virtue of 74th Amendment to Constitution the provision is not on the statute book, cannot be sustained -The result is, Bangalore Development Authority has jurisdiction to initiate acquisition proceedings.
Bangalore Development Authority Act, 1976 -Nature and scope -Nature and scope -Act and Land Acquisition Act are not supplemental to each other or pari materia legislations -Act is a self contained code -Actions taken under the Act cannot be stultified or rendered ineffective by a provision in the Land Acquisition Act -Contrary finding in Sharadamma s Case is liable to be set aside. [N. K. Sodhi CJ, and N. Kumar, J]: The BDA Act is one which will squarely fall under and traceable to the powers of the State Legislature under Entry 5 of List II of VII Schedule in the Constitution of India. The BDA Act so far as acquisition of land for its developmental activities are concerned in substance and effect will constitute a special law providing for acquisition for the said purpose of the BDA and, therefore, it cannot be considered to be part of the LA Act. Thus a scheme formulated, sanctioned and set for its implementation under BDA Act, cannot be stultified or rendered ineffective and unenforceable by a provision in the Central Act, particularly of the nature of Section 4 or 5A which has no application to the actions taken under the BDA Act.
Bangalore Development Authority Act, 1976 -Plan -Plan -Not synonymous with the word plan used in Articles 243-G, 243-W, 243-ZD and 243-ZE of the Constitution or Sections 503-A and 503-B of Karnataka Municipal Corporation Act or 302-A of Karnataka Municipalities Act. [N. K. Sodhi CJ, and N. Kumar, J]: In the BDA Act the said word has been used in a very narrow sense and confined to only development of a small area of undeveloped land for formation of residential and civic amenities sites, roads, drainage and parks. Whereas in all the aforesaid other provisions it is used in a very broader sense. It connotes III the systematic development of a community or an area so falling within the Municipality, or a Panchayat, including political, economic and social rights.
Bangalore Development Authority Act, 1976 -Preamble -Preamble -Applicability of Part IX A of the Constitution -BDA is not a municipality -Hence, the part is not applicable to it. [N. K. Sodhi CJ, and N. Kumar, J]: Part-IXA of the Constitution has no application to the BDA Act. None of the provisions of the BDA Act could be said to be inconsistent with any of the provisions contained in Part-DCA of the Constitution and therefore none of the provision of the BDA Act cease to be in force after the expiry of one year from the date of the Seventy fourth Amendment Act.
Bangalore Development Authority Act, 1976 -Preamble -Preamble -Development -Meaning. [N. K. Sodhi CJ, and N. Kumar, J]: The word "development" in the BDA Act is defined as 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. Therefore, the meaning of the word "development" as given in the BDA Act is very narrow.
Bangalore Development Authority Act, 1976 -Preamble -Preamble -Object of Bangalore Development Authority -Bangalore Development Authority is constituted for performing one of several functions which a local authority may perform. [N. K. Sodhi CJ, and N. Kumar, J]: "BDA" is constituted for the specific purpose of the development of Bangalore according to plan . Planned development of towns is a governmental function which is traditionally entrusted by the various Municipal Acts in different States to Municipal Bodies. With growing specialization, along with the growth of titanic metropolitan cities, legislatures have felt the need for the creation of separate town planning or development authorities or improvement trusts for individual cities. The BDA is one such authority. It is thus an authority, to which is entrusted by statute, a governmental function, ordinarily entrusted to Municipal bodies. The BDA is constituted for performing one of the several functions which a local authority may perform. It is a local authority but not a local self Government.
Sri M.R Achar, Senior Counsel for Sri Almt Legal Advocates for Appellant in W.A. No. 2757of 2005;
Sri A.G. Holla, Senior Advocate with Sri K Shashikiran Shetty, Advocates for Appellants in W.A. No. 2760 of 2005;
Sri S. Vijayashankar, Senior Counsel with Sri C.B. Srinivasan for Sri Basavaraj V. Sabarad and Sri A.N. Venugopala Gowda, Advocates for Appellants in W.A. No. 2624 of 2005;
Sriyuths S. Vijayashankar, Senior Advocate with C.B. Srinivasan and A.N. Venugopal Gowda, Advocates for Appellants in W.A. No. 2778 of 2005;
Sri A.Y.N. Gupta and Sri J. Aravind Babu, Advocates for Petitioners in W.P. No. 26664 of 2004;
Sri R. Chandrashekar, Advocate for Petitioners in W.P. Nos. 28128, 38176 and 51286 of 2004; 4882, 9671 and 14353 of 2005;
Sri M.B. Chandra Chooda, Advocate for Petitioners in W.P. Nos. 36059 of 2004 and 11363 of 2005;
Sri P.S. Rajagopal, Advocate for Petitioner in W.P. No. 39230 of 2004;
Sri RP. Somashekaraiah, Advocate for Petitioners in W.P. Nos. 40728 and 45397 of 2004;
Sri C.G. Gopalaswamy, Advocate for Petitioners in W.P. Nos. 40929, 40933, 45750, 46619 and 46620 of 2004 and 12158 of 2005;
Sri P.N. Nanja Reddy, Advocate for Petitioners in W.P. Nos. 41944, 50857 and 51391 of 2004;
Sri S.S. Naganand, Senior Counsel for M/s. Sundaraswamy Ramdas and Anand, Advocates for Petitioners in W.P. Nos. 44506, 44507 and 44508 of 2004;
Sri Ramesh Rao and Associates, Advocates for Petitioner in W.P. No. 44932 of 2004;
Sri R. Anand Kumar, Advocate for Petitioner in W.P. No. 45210 of2004;
Sri T. Seshagiri Rao and M. Geetha, Advocates for Petitioners in W.P. No. 45695 of 2004;
Sri M.S. Narayana Rao, Advocate for Petitioners in W.P. No. 45972 of 2004;
Sri Manjunath K.V., Advocate for Petitioner in W.P. No. 46065 of 2004;
M/s. Vagdevi Associates, Advocates for Petitioners in W.P. No. 46348 of 2004;
Sri M.V. Seshachala, Advocate for Petitioners in W.P. Nos. 46383, 46416, 46438, 51249, 51263, 51268, 51270 and 51274 of 2004;
Sri S. Parthasarathi, Advocate for Petitioner in W.P. No. 46519 of 2004;
Sri R. Nataraj , Advocate for Petitioners in W.P. Nos. 46621, 50504 and 51282 of 2004; 2296.2297,2298,2299,2300,2301,2303,2312,2549 and 10572 of2005;
M/s. Bangalore Law Associates, Advocates for Petitioner in W.P. No. 47361 of 2004;
Sri C. Lakshminarayana Rao, Advocate for Petitioner in W.P. No. 47422 of 2004;
Sri KH. Somasekhar, Advocate for Petitioners in W.P. No.4 7550 of 2004;
Sri J.M. Rajannasetty, Advocate for Petitioners in W.P. Nos. 47941 and 49751 of 2004 and 3138 of 2005;
Sri P.V. Chandrashekar, Advocate for Petitioners in W.P. Nos. 48022 of 2004 and 18565 of 20(1);
M/s. B.M. Shyam Prasad and Associfltes, Advoc.ates for Petitioners in W.P. Nos. 48334 and 49468 of2004;
Sri T. Seshagiri Rao, Advocate for Petitioners in W.P. Nos. 48574 of 2004 and 1308 of 2005;
Sri G. Ballakrishna Shastry, Advocate for Petitioners in W.P. Nos. 48578 and 49932 of 2004 and 4182 of 2005;
Sri G. Gangireddy, Advocate for Petitioners in W.P. Nos. 48772, 51119 and 51463 of 2004 find 2533 of 2005;
Sri K Shashi Kiran Shetty for M/s. Shetty and Hegde Associates, Advocates for Petitioners in W.P. No. 48786 of 2004;
Sri C.M. Desai and Sri Arvind C. Desai, Advocates for Petitioners in W.P. Nos. 49009, 49333, 49510, 49558 and 49744 of 2004;
Sri G. Kumar, Advocate for Petitioner in W.P. No. 49041 of 2004;
Sri V.S. Biju, Advocate for Petitioners in W.P. Nos. 49424 of 2004 and 3170 of 2005;
Sri S.N. Bhat and Sri Vijay Narayan, Advocates for Petitioners in W.P. Nos. 49436 and 49565 of 2004;
M/s. B.L. Sanjeev Associates, Advocates for Petitioners in W.P. No. 50076 of 2004; Sri G.S. Prasanna Kumar, Advocate for Petitioners in W.P. No. 50466 of 2004;
Sri M.S. Rajendra Prasad, Advocate for Petitioners in W.P. Nos. 50545 and 50546 of 2004;
Sri Mohammed Jaffar Shah, Advocate for Petitioners in W.P. No. 50819 of 2004;
Sri V. Krishna Murthy, Advocate for Petitioners in W.
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