Supreme Court of India
M/S. VINAYAK HOUSE BUILDING COOPERATIVESOCIETY LTD.versusTHE STATE OF KARNATAKA & ORS.
- Citation
- 2019 INSC 952
- Decided
- 26 August 2019
- Disposal
- Disposed off
- Bench
- ARUN MISHRA
Holding
Section 48(1) allows withdrawal of acquisition only before possession is taken and must be exercised bona fide for public purpose; the State's de‑notification without hearing and contrary to the approved layout was arbitrary and therefore quashed.
Summary
The appellant, a cooperative housing society, was allotted 78 acres 16 guntas of land by the Karnataka Government for a housing layout, including 5 acres 33 guntas in Survey No.30. Respondent No.3, claiming ownership of that portion, challenged the acquisition and later sought de‑notification of 3 acres 5 guntas under Section 48 of the Land Acquisition Act, even after the acquisition proceedings had been dismissed. The State Government issued a withdrawal (de‑notification) order without hearing the appellant, which the appellant contested in successive writ petitions that were dismissed by the High Court. The Supreme Court examined the scope of Section 48(1) and held that withdrawal is permissible only before possession is taken and must be exercised bona fide for public interest, not arbitrarily to benefit private parties. Consequently, the Court quashed the de‑notification order, directed the disputed land to be used for civic amenities as per the approved layout, and set aside the lower courts' orders.
Issues considered
- The validity of the State Government's de‑notification of land under Section 48(1) of the Land Acquisition Act when possession has not been taken.
- Whether the de‑notification order is void for lack of a hearing to the appellant.
- The standing of Respondent No.3 to seek de‑notification after having sold the land.
- The impact of de‑notification on the public purpose of the approved layout and civic amenity reservations.
- The purpose and compensation provisions of Section 48(2) of the Land Acquisition Act.
Legislation cited
- Bangalore Development Act, 1976
- Bangalore Development Authority Act (BDA Act)s. 16, s. 18, s. 32
- Karnataka Town and Country Planning Act, 1961
- Land Acquisition Act, 1894s. 4(1), s. 48, s. 6(1)
Subjects
land acquisitionSection 48de‑notificationpublic purposeBangalore Development Authoritycivic amenitiesplanned layoutcompensationarbitrary exercise of power
Judgment
[2019][2019]
11 S.C.R. 1
11 S.C.R. 243 243
M/S. VINAYAK HOUSE BUILDING COOPERATIVE A
SOCIETY LTD.
v.
THE STATE OF KARNATAKA & ORS.
(Civil Appeal No. 3600 of 2011) B
AUGUST 26, 2019
[ARUN MISHRA, S. ABDUL NAZEER AND
M. R. SHAH, JJ.]
Land Acquisition Act, 1894 – ss.4(1), 6(1) and 48 –
C
Withdrawal notification of the acquired land – State Government
acquired 78 acres 16 guntas of land for public purpose – The State
executed an agreement of the said land in favour of the appellant-
cooperative society which included survey no.30 measuring 5 acres
33 guntas – Respondent no.3 claimed to be the owner of the survey
no.30 – Before the acquisition proceedings, respondent no.3 had D
sold a certain portions of land to a third party – Thereafter,
respondent no.3 filed writ petition questioning the acquisition and
later filed another writ petition questioning the award determining
the market value of the land – Both writ petitions were dismissed by
the High Court – Out of the total 5 acres 33 guntas, 2 acres 36
guntas of land was handed over to the appellant by the State – E
Respondent no.3 sought de-notification of the remaining 3 acres 5
guntas i.e. the disputed property in survey no.30 – Inspite of dismissal
of writ petitions rejecting the challenge made by the respondent
no.3, the State Government issued a withdrawal notification u/s. 48
of the Act in respect of the disputed property, even without affording F
an opportunity of being heard to the appellant – Aggrieved,
appellant filed writ petition before the High Court, which was
dismissed – Writ appeal was also dismissed – On appeal, held: It is
clear that sub-section (1) of s.48 of the L.A. Act empowers the
government to withdraw from acquisition proceedings of the land
of which possession has not taken place – In the instant case, the G
State had acquired 78 acres 16 guntas of land in favour of appellant
including the land in survey no.30 and possession was also taken
except the disputed land to an extent of 3 acres 5 guntas in survey
no.30 – Further, the lands were notified for public purposes – The
approved layout plan was issued by the government in compliance
H
243
244 SUPREME COURT REPORTS [2019] 11 S.C.R.
A with the provisions of the BDA Act and the planning Act – The
disputed property was within the layout – Materials on record also
made clear that the disputed property was earmarked as civic
amenity – If the order of the de-notification is allowed to stand, the
very object of the planned development of the layout would be lost
– Thus, order of de-notification passed by the State was without
B application of mind and was arbitrary in nature – Further,
respondent no.3 had already sold 1/3rd of the 3 acres 5 guntas of
land in survey no.30, so she could not have maintained the
application for de-notification of the said portion of the land as
she had no subsisting interest in the said land – Karnataka Town
C and Country Planning Act, 1961 – Bangalore Development Act,
1976.
Land Acquisition Act, 1894 – s.48 – Purpose of – Held: A
combined reading of sub-section (1) and sub-section (2) of s.48 of
the L.A. Act makes it clear that the purpose of s.48 was mainly to
D ensure that the State Government is not compelled to acquire the
land when the acquisition ceases to be beneficial for the intended
purpose – That is why, sub-section (2) of s.48 provides for payment
of compensation to the owner, whose land was notified for
acquisition but not acquired for the reason that such an acquisition
is against the public interest and public revenue.
E
Land Acquisition Act, 1894 – s.48 – Precautions under – Held:
The government should refrain from de-notifying or dropping any
land being acquired for the formation of a layout, u/s.48 of the L.A
Act or under any other law – The courts should also be very strict
while considering the plea of the landowners seeking de-notification
F of the lands which are being acquired or quashing of the notification
on the ground of lapsing of the scheme or on any other grounds in
respect of the acquired lands for the formation of the layout – It
has to be kept in mind that private interest always stands
subordinated to the public good.
G Disposing of the appeal, the Court
HELD: 1. It is clear that sub-section (1) of Section 48 of
the Land Acquisition Act, 1894 empowers the government to
withdraw from acquisition proceedings of the land of which
possession has not been taken. It is further provided that when
H the government withdraws from acquisition, the Collector shall
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 245
THE STATE OF KARNATAKA
determine the amount of compensation due for the damages A
suffered by the owner in consequence of notice or proceedings
thereunder. A combined reading of sub-section (1) and sub-
section (2) of Section 48 of the L.A. Act makes it clear that the
purpose of Section 48 was mainly to ensure that the State
Government is not compelled to acquire the land when the
acquisition ceases to be beneficial for the intended purpose. That B
is why, sub-section (2) of Section 48 provides for payment of
compensation to the owner, whose land was notified for
acquisition but not acquired for the reason that such an acquisition
is against the public interest and public revenue. [Para 27] [256-
G-H; 257-A-C] C
2. It has come to the notice of this Court that of late the
State Government has been de-notifying the lands acquired for
public purpose for the benefit of the authorities like BDA or other
urban development authorities and for the formation of private
housing layouts, adversely affecting the planned development of D
the city of Bangalore and other cities in the State of Karnataka.
The instant case is a classic example where the power has been
blatantly misused ignoring larger public interest. [Para 33] [259-
C-D]
3. As noticed above, the State Government had accorded
E
sanction for initiation of acquisition proceedings for the benefit
of the appellant in the year 1982 itself. The State Government
executed the agreement in the month of August 1984, undertaking
to acquire 78 acres 16 guntas of land in favour of the appellant,
including the land in Sy.No.30 belonging to the 3rd respondent.
Notifications under Sections 4(1) and 6(1) of the L.A Act were F
issued and possession was taken except the disputed land to an
extent of 3 acres 5 guntas. [Para 34] [259-E]
4. The approved layout plan was issued by the government
in compliance with the provisions of the BDA Act and the Planning
Act. The layout plan produced by the appellant would indicate G
that meticulous planning has been undertaken for planned
development of the layout. The plan also indicates that lands have
been reserved for civic amenities, open spaces and also for roads.
The width of the street and its alignment, the building line and
the proposed sites abutting the streets, have been perfectly
drawn. [Para 35] [259-F-G] H
246 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 5. The appellant has contended that the disputed property
falls in the layout. It is also clear from the materials on record
that a portion of the disputed property has been earmarked as a
civic amenity and the remaining portion abutting the street has
been proposed for residential sites. If the order of de-notification
is allowed to stand, the very object of the planned development
B of the layout would be lost. There will be shortage of civic amenity
sites in the layout and it would no longer be possible to set the
street alignment and the building line as per the approved plan.
This will have adverse impact on the planned development of
the layout leading to public inconvenience. It will nullify the object
C and the purpose for which Planning Act and the BDA Act have
been enacted by the Legislature. [Para 36] [259-H; 260-A-C]
6. This Court is of the considered view that the government
should refrain from de-notifying or dropping any land being
acquired for the formation of a layout, under Section 48 of the
L.A Act or under any other law. The courts should also be very
D
strict while considering the plea of the landowners seeking de-
notification of the lands which are being acquired or quashing of
the notification on the ground of lapsing of the scheme or on any
other grounds in respect of the acquired lands for the formation
of the layout. It has to be kept in mind that private interest always
E stands subordinated to the public good. [Para 38] [260-G-H;
261-A]
7. The appellant has opposed the proposal for de-
notification by filing detailed objections. The conduct of 3 rd
respondent in filing case after case for quashing the notification
F issued by the State Government for acquisition of the land has
been brought to the notice of the government. It was also stated
that since the lands have been notified for acquisition for a public
purpose, namely, for the formation of a layout, a portion of the
said land cannot be de-notified as it will adversely affect the layout,
causing public inconvenience. The 1 st respondent, without
G adverting any of these contentions, has passed an order of de-
notification. The said order has been passed without application
of mind and it is arbitrary in nature. [Para 45] [263-A-B]
8. According to the appellant, the disputed property is
vacant and no allotment/sale of the sites have been made out of
H this land. However, it is evident from the referred two letters
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 247
THE STATE OF KARNATAKA
and other materials on record that the appellant has illegally A
formed the sites in the other lands reserved for civic amenities
in the approved plan. In order to compensate for the loss of land
reserved for civic amenities, it is just and proper to direct the
appellant to reserve the entire disputed property measuring 3
acres 5 guntas in Sy.No.30 for civic amenities and play ground.
Therefore, we direct the appellant to utilize the portion of the B
disputed property reserved as a civic amenity site in the layout
plan for providing civic amenities. The competent authorities are
directed to develop the balance of the disputed property as a
park or a playground or both for the benefit of general public.
The appellant shall not allot/sell the disputed property or any C
portion thereof either to its members or to any other parties.
The Commissioner BDA is directed to ensure compliance of this
order. [Para 55] [268-C-E]
Special Land Acquisition Officer, Bombay and Ors. v.
M/s Godrej and Boyce (1988) 1 SCC 50 : [1988] 1
D
SCR 590 – relied on.
B.K. Srinivasan and Ors. v. State of Karnataka and Ors.
(1987) 1 SCC 658 : [1987] 1 SCR 1054 ; State
Government Houseless Harijan Employees’ Association
v. State of Karnataka and Others (2001) 1 SCC 610 :
[2000] 5 Suppl. SCR 483 – referred to. E
Case Law Reference
[1987] 1 SCR 1054 referred to Para 1
[1988] 1 SCR 590 relied on Para 26
[2000] 5 Suppl. SCR 483 referred to Para 28 F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3600
of 2011.
From the Judgment and Order dated 07.08.2008 of the High
Court of Karnataka at Bangalore in W.A. No. 2583 of 2004 (LA-HS)
G
With
Contempt Petition (C) No. 823 of 2018.
Basava Prabhu Patil, Huzefa Ahmadi Sr. Advs., Anand Sanjay
M. Nuli, Suraj Kaushik, Ms. Rachita Hiremath (for M/s. Nuli & Nuli),
Darpan K. M., Hetu Arora Sethi, Joseph Aristotle S., Mrs. Priya Aristotle, H
248 SUPREME COURT REPORTS [2019] 11 S.C.R.
A Rijuk Sarkar, Sanjay Jain, Yatinder Singh, T. R. B. Sivakumar, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
S. ABDUL NAZEER, J.
B 1. “Bangalore was a beautiful city – once” said Justice O.
Chinnappa Reddy, in one of his judgments of the year 1987 (B.K.
Srinivasan and Ors. v. State of Karnataka and Ors.1). He went on to
say “It was a city with magic and charm, with elegant avenues, gorgeous
flowers, lovely gardens and plentiful spaces. Not now. That was before
the invasion of concrete and steel, of soot and smoke, of high rise and
C the fast buck. Gone are the flowers, gone are the trees, gone are the
avenues, gone are the spaces……” Indeed, Bangalore was a beautiful
city. It had luscious gardens, beautiful lakes, well-laid roads, plenty of
open spaces and wonderful weather throughout the year. It was one of
the most beautiful cities in the country. It was rightly called the “Garden
D City” and a “Pensioner’s Paradise”. These are things of the past. The
city’s environment is degraded so much and so fast that the time will not
be far away for us to say “once upon a time Bangalore was a
beautiful city.” Traffic jams, over-crowding, haphazard constructions,
dying lakes, destruction of the flora, shrinking of lung spaces etc have
E become the order of the day. Its clear cool foggy air has turned into grey
smoke and brown dust. All this has happened in the name of development.
Of course, the development in today’s time comes at a cost that the city
of Bangalore has very dearly paid. What is lost has already been lost
and no amount of work or effort can bring back the glorious garden days
of Bangalore. The only thing that can be done and must be done is to
F at least wake up now, meticulously plan and develop the city in order
to maintain whatever little is left of the old Bangalore city and develop
the ever-growing city on the broad lines of the glorious days of the
past.
2. Keeping the above in mind as a blue print, let us come to the
G facts of this case.
3. The appellant is a society registered under the Karnataka Co-
operative Societies Act 1959, with the objective of inter alia acquiring
lands for formation of house sites and for distributing the same to its
1
H 1(1987) 1 SCC 658)
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 249
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
members. The appellant had requested the State Government to acquire A
an extent of 100 acres of land in Nagarabhavi Village, Yeswanthapura
Hobli, Bangalore. In the year 1982, the State Government accorded
sanction for initiation of proceedings for acquisition of 78 acres 16 guntas
of land for the benefit of the appellant. It appears that even before the
initiation of acquisition proceedings, Vijayanagar Industrial Workers
B
Housing Co-operative Society Ltd had approached the appellant with a
representation that it had already entered into an agreement dated
06.11.1982 with respondent No.3 to purchase the entire extent in Survey
No.30, of which she claimed to be the owner. Accordingly, the said
society requested the appellant to withdraw its request for acquisition of
the said land. This is evident from the agreement at Annexure P1 entered C
into between the 3rd respondent and the said society. Under the said
agreement, out of the total sale consideration of Rs.50,000/- per acre,
respondent No.3 had received a sum of Rs.25,500/- and had parted with
possession of the land in favour of the said society and stated that she
had no objection to the land being acquired by the State Government.
D
4. In compliance with the procedure prescribed under Chapter
VII of the Land Acquisition Act, 1894 (for short ‘L.A. Act’), the State
Government executed an agreement at Annexure P-2, undertaking to
acquire land in favour of the appellant which included Sy.No.30 measuring
5 acres 33 guntas and 8 guntas of pot kharab land. On 16.01.1985, E
notification under Section 4(1) of the L.A. Act was issued proposing to
acquire the required extent of land including Sy.No.30. An enquiry under
Section 5A of the L.A Act was conducted and a report was submitted to
the State Government recommending acquisition.
5. The State Government, having accepted the recommendation F
issued a declaration under Section 6(1) of the L.A Act on 04.03.1986, to
the effect that several extent of land including Sy. No.30 was needed
for the public purpose of the appellant society.
6. The 3rd respondent, claiming to be the owner of an extent 4
acre 16 guntas of land in Sy.No.30, filed W.P. No. 12566 of 1986 before G
the High Court of Karnataka questioning the notifications issued under
Section 4(1) and 6(1) of the L.A Act and obtained an interim order dated
08.07.1986 staying dispossession. Acquisition was challenged on the
ground that 3rd respondent was not issued with any notice; that no enquiry
was held; and that acquisition was not for public purpose. H
250 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 7. Subsequently, awards were passed which were approved by
the State Government. In respect of Sy.No.30, an award was passed
fixing compensation at the rate of Rs.45,000/- per acre. The Land
Acquisition Officer in terms of his letter dated 06.04.1987 (Annexure P-
5) called upon the appellant to deposit Rs.19,76,948/- including the general
B award amount, in compliance whereof the appellant has deposited the
amount.
8. The 3rd respondent made a representation as per Annexure P-
6 dated 26.08.1990 to the State Government for withdrawing the
acquisition proceedings in respect of 3 acres 5 guntas of land in Sy.No.30
C (hereafter referred to as ‘disputed property’). The representation of
respondent No.3 stated that she had sold the land in Sy.No.30 long back.
The purchasers of the sites had come forward to construct the houses
on the sites which was objected to by the Land Acquisition Officer and
the appellant. It was also contended that she had sold the sites as she
had to maintain her family as her children were unemployed and that
D she had to perform the marriages of her sons and daughters.
9. The High Court by its order dated 22.02.1991 dismissed the
writ petition by rejecting all the contentions of respondent No.3.
10. Soon after the dismissal of the writ petition, respondent No.3
E claiming to be the owner of 4 acres 16 guntas of land in Sy.No.30, again
filed W.P. No. 5558 of 1991 before the High Court questioning the award
determining the market value of the acquired land. On 12.03.1991, the
High Court granted an interim order staying the dispossession. The State
Government delivered possession of the land acquired in terms of the
official memorandum dated 13/14.10.1992 to an extent of 68 acres 17
F guntas to the appellant. The extent delivered to the appellant included 1
acre 25 guntas in Sy. No.30 out of total extent 6 acres 1 gunta. Balance
of disputed land measuring 4 acres 10 guntas in Sy.No.30 which formed
subject matter of interim order of stay in W.P. No. 5558 of 1991 was not
delivered to the appellant.
G 11. The High Court by order dated 15.07.1998 dismissed the writ
petition W.P. No. 5558 of 1991 by imposing a cost of Rs.2,000/- on the
ground that the appellant having suffered an order in W.P. No. 12566 of
1986, ought not to have filed another writ petition for the same relief.
Respondent No.3 challenged this order in intra court appeal before the
H Division Bench of the High Court in W.A. No. 4245 of 1998.
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 251
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
12. In spite of dismissal of W.P. No. 12566 of 1986 and W.P. No. A
5558 of 1991 rejecting the challenge made by the respondent No.3 to
the acquisition, the State Government issued a withdrawal notification
dated 19.08.1998 under Section 48 of the L.A Act in respect of the
disputed property, even without affording an opportunity of being heard
to the appellant. The appellant challenged this order by filing writ petition
B
No. 26558 of 1998 before the High Court.
13. Writ appeal No. 4245 of 1998 filed by respondent No.3 came
to be dismissed by the Division Bench in terms of the order dated
18.11.1998, thereby confirming the order in W.P. No. 5558 of 1991. On
the same day, i.e. 18.11.1998, the High Court allowed W.P. No. 26558
of 1998 filed by the appellant on the ground that the appellant had not C
been heard in the matter before issuing the notification under Section 48
of the L.A Act and the matter was remitted to the State Government for
reconsideration after affording opportunity to the appellant. It was
directed that until the time State Government took fresh decision, the
status quo as regards possession and nature of the property would be D
maintained.
14. Respondent No.3 had only sought de-notification of the disputed
property, i.e. 3 acres and 5 guntas in Sy.No.30. However, even out of
the balance 2 acres and 36 guntas, only 1 acre 25 guntas had been
handed over to the appellant. Accordingly, after dismissal of the writ E
appeal W.A. No. 4245 of 1998 filed by respondent No.3, the appellant
requested the State Government to deliver possession of further 1 acre
11 guntas in Sy. No.30 which did not form part of the request made by
the respondent No.3 for de-notification. The State Government having
failed to act, the appellant filed W.P. No. 2592 of 1999 before the High
Court for necessary direction. The High Court in terms of the order F
dated 02.02.1999 allowed the said writ petition directing the State
Government to hand over possession of 1 acre 11 guntas of land to the
appellant and accordingly possession of the said extent was handed over
to the appellant. Thus, a total extent of 2 acres 36 guntas of land was
handed over to the appellant out of 5 acres 33 guntas. The review G
petition filed by respondent No.3 seeking review of the order dated
02.02.1999 in W.P. 2592 of 1999 was dismissed by the High Court
imposing cost of Rs.2500/- with the following observations :
“…thus it is clear that a clever attempt is being attempted
to be made by the petitioner to get over an order this Court H
252 SUPREME COURT REPORTS [2019] 11 S.C.R.
A by creating an impression that the petitioner has attempted
suppression of fact and has practiced fraud. On the contrary
it is clear that the petitioner is playing fraud on this by means
of representing that 1 acre 11 guntas of land restored to the
1st respondent form part of the property, claimed by the
petitioner. This is a clear misrepresentation. I am of the
B
opinion that this writ petition is totally misconceived and is
made with oblique motive. Accordingly this Revision Petition
is dismissed with costs of Rs.2,500/- payable to the 1 st
respondent.”
15. After lapse of about 5 years of the order dated 18.11.1998 in
C
W.P. No. 26558 of 1998, in terms whereof the notification under Section
48 of L.A Act in respect of the disputed property had been quashed, the
State Government issued notice to the appellant regarding its proposal to
de-notify the land. On 28.08.2003, the appellant filed detailed statement
of objections to the proposed de-notification of the acquired land. Ignoring
D objection raised by the appellant, the State Government proceeded to
pass an order deciding to withdraw the aforesaid land measuring 3 acres
5 guntas in Sy.No.30.
16. Being aggrieved by the government order dated 27.12.2003
and the consequential notification dated 12.01.2004 issued under Section
E 48 of the L.A Act, the appellant approached the learned Single Judge of
the High Court by filing W.P. No. 4912 of 2004. The learned Single
Judge dismissed the writ petition on 08.03.2004 and the writ appeal filed
by the appellant in Writ Appeal No. 2583 of 2004 challenging the said
order has been dismissed by the Division Bench on 07.08.2008. The
F appellant has called in question the legality and correctness of the said
order in this appeal.
17. We have heard Mr. Basava Prabhu Patil, learned senior
advocate for the appellant, Mr. Joseph Aristotle S., for respondent Nos.
1 and 2 and Mr. Huzefa Ahmadi, learned senior advocate for respondent
G No.3.
18. Mr. Patil, learned senior counsel, submits that the first
respondent has exercised the power under Section 48 (1) of the L.A Act
in an arbitrary and whimsical manner. The order prejudicially affects the
interest of the appellant. The exercise of power lacks bona fides and
H suffers from vice of arbitrariness. It is further submitted that the disputed
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 253
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
property forms an integral part of the layout formed by the appellant. A A
portion of the disputed property is reserved for civic amenities. If the
land in question is de-notified, it will have adverse impact on the planned
development of the layout leading to public inconvenience. It is further
submitted that the individual interest of respondent No.3 cannot come in
the way of larger public interest. It is also submitted that according to
B
the third respondent, she had already sold 1/3rd of 3.5 acres to the third
parties by a registered sale deed on 28.05.1992. According to her
representation, the purchaser has already formed sites in disputed
property. She cannot maintain an application under Section 48(1) of the
L.A Act for de-notification of the land already sold. Having failed in her
challenge to the acquisition proceedings, she could not have maintained C
the application for de-notification. Section 48 (1) was basically meant
for the State Government to de-notify the land from acquisition when it
is not possible to acquire the said land and not meant for the owners,
particularly when lands are being acquired for public purpose.
19. On the other hand, learned advocates appearing for the D
respondents have sought to justify the impugned order. Mr. Ahmadi,
learned senior counsel, appearing for the 3rd respondent submits that the
appellant society is not a bona fide housing society. It is submitted that
there was no bar for the 3rd respondent to maintain an application for de-
notification under Section 48 (1) of the L.A Act even though her writ E
petition challenging the acquisition proceedings has ended in dismissal.
Taking into account the hardship suffered by the 3rd respondent, the
State Government has de-notified the land in her favour. Accordingly,
the 3rd respondent prays for dismissal of the appeal.
20. We have carefully considered the submissions of the learned F
counsel made at the Bar.
21. Section 48 of the L.A Act corresponds to Section 54 of the old
Act ‘X’ of 1870. For ready reference Section 54 of the old Act is as
under:
G
“54. Except in the case provided for in s. 44, nothing in this
Act shall be taken to compel the Govt. to complete the
acquisition of any land unless an award shall have been
made or a reference directed under the provisions
hereinbefore contained. H
254 SUPREME COURT REPORTS [2019] 11 S.C.R.
A But whenever the Govt. declines to complete any
acquisition, the Collector shall determine the amount of
compensation due for the damage (if any), done to such
land under s. 4 or s. 8 and not already paid for under s. 5,
and shall pay such amount to the person injured”.
B 22. Section 54 of the old Act gave power to the government for
withdrawal of the land which it has proposed to acquire. This power had
to be exercised before the award is made. This was causing great
hardship to the government. The reasons for re-enacting the said
provision in the L.A Act of 1894 can be gathered from the preliminary
report of the Select Committee dated 2nd February, 1893, which is as
C under:
“Section 54 of the Act (10 of 1870) gives to the Govt. or the
public bodies whom it represents the power of withdrawal from
land it has proposed to acquire. This power, however, must be
exercised before the award is made. After award, withdrawal is
D
prohibited whatever may be the circumstances. Experience has
shown that the only occasion on which powers of withdrawal,
would be really useful are when an award has shown that the
Govt. was seriously misled by an underestimate of the value of
the land. A case has been reported in which a municipality has
E been nearly ruined by being compelled to proceed with an
acquisition in which the award was inordinately in excess of the
original valuation. We think, therefore, that power to withdraw
should be given after, as well as before, the award, but that, if so
exercised, it should only be on terms of the most liberal
compensation to the owner and that, if he is dissatisfied with the
F
Collector’s offer, he should have the same rights of reference to
the Judge as in case of acquisition”.
(emphasis supplied)
23. The Select Committee in its second report dated 23rd March,
G 1893 has given certain clarifications, which are as under:
“We have altered the terms of the first clause of s. 48, which
gives certain powers to Govt. to withdraw from a contemplated
acquisition of land so as to make it clear that this withdrawal
may be made at any time before possession is taken but not
H afterwards. Instances were quoted in our Preliminary Report in
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 255
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
which the Collector was proved by the Judge’s award to have A
been seriously misled as to the value of the land and in which the
Govt. would not have acquired the land had it received a correct
appraisement. We think, that a Govt. which provides compensation
from the taxes of the Empire should have larger powers of
withdrawal than are given by the present Act, but we are of opinion
B
that no such power should be given after possession has once
been taken and that each Local Govt. must protect itself by
executive instructions to Collectors to refrain from taking
possession until after the award of the Judge, in every case in
which there is a material difference between the Collector and
the owner as to the value of the property”. C
(emphasis supplied)
24. Section 48 of the L.A. Act of 1894 is as under:
“48. Completion of acquisition not compulsory, but
compensation to be awarded when not completed.--(1) D
Except in the case provided for in section 36, the Government
shall be at liberty to withdraw from the acquisition of any land of
which possession has not been taken.
(2) Whenever the Government withdraws from any such
acquisition, the Collector shall determine the amount of E
compensation due for the damage suffered by the owner in
consequence of the notice or of any proceedings thereunder, and
shall pay such amount to the person interested, together with all
costs reasonably incurred by him in the prosecution of the
proceedings under this Act relating to the said land.
F
(3) The provisions of Part III of this Act shall apply, so far as may
be, to the determination of the compensation payable under this
section”.
25. It is clear that an important change was affected in law in
1894 by enactment of this section. Under the previous Act, the
G
government could not withdraw from the acquisition after an award had
been made or a reference directed. This was causing hardship in cases
where the land turned out to be more valuable than the acquisition was
worth. The difficulty has been removed by fixing the bar at the taking of
possession, an act which can be indefinitely postponed to meet the
occasion. When possession under Section 16 of the L.A. Act is not H
256 SUPREME COURT REPORTS [2019] 11 S.C.R.
A taken, the government can withdraw from acquisition and the person
interested would be entitled to compensation for the damage suffered in
consequence of the acquisition proceedings and also to such costs of the
proceedings as reasonably incurred by him. Section 48, however, will
have no application when once the land has vested in the government
under Section 16 of the L.A. Act.
B
26. The two reports referred to above indicate that the liberty to
withdraw from acquisition under Section 48 (1) of L.A Act was made
available prior to taking possession of the land in order to curtail payment
of exorbitant award amount in cases where it was no longer possible for
the government to effectuate the intended purpose of acquisition. In
C
Special Land Acquisition Officer, Bombay and Ors. v. M/s Godrej
and Boyce2, this Court was considering the de-notification of land before
taking its possession. In this case, the government had intended to acquire
vast piece of land for construction of houses by the State Housing Board
but this land had been overrun by slum dwellers to such an extent that it
D was no longer possible for the government to effectuate the intended
purpose of acquisition. It was observed that the State Government was
not responsible for the occupation of land by trespassers. Therefore, the
State Government cannot be compelled to go ahead with the acquisition
when the purpose of such acquisition could not be achieved. In this
E regard it is beneficial to note the observations of the Supreme Court:
“Where slum dwellers on a large scale occupy pieces of land,
social and human problems of such magnitude arise that it is virtually
impossible for municipalities, and no mean task even for the
government, to get the lands vacated. If the government is reluctant
F to go ahead with the acquisition in view of these genuine difficulties,
it can hardly be blamed. We see no justification to direct the
government to acquire the land and embark on such a venture.
We are also of the opinion that the fact that the government
exercised the power of withdrawal after the writ petition was
filed does not spell mala fides once the existence of circumstances,
G which, in our opinion, justified the government’s decision to
withdraw, is acknowledged”.
27. It is thus clear that sub-section (1) of Section 48 of the L.A
Act empowers the government to withdraw from acquisition proceedings
2
H 1988 (1) SCC 50
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 257
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
of the land of which possession has not been taken. It is further provided A
that when the government withdraws from acquisition, the Collector
shall determine the amount of compensation due for the damages suffered
by the owner in consequence of notice or proceedings thereunder. A
combined reading of sub-section (1) and sub-section (2) of Section 48 of
the L.A. Act makes it clear that the purpose of Section 48 was mainly to
B
ensure that the State Government is not compelled to acquire the land
when the acquisition ceases to be beneficial for the intended purpose.
That is why, sub-section (2) of Section 48 provides for payment of
compensation to the owner, whose land was notified for acquisition but
not acquired for the reason that such an acquisition is against the public
interest and public revenue. C
28. However, from the language employed in sub-section (1) of
Section 48, it can also be inferred that there is no bar to de-notify the
land from acquisition at the request of the landowners. We are of the
view that when an application is made for de-notification of the land, the
D
government has to consider the same with great care and caution. The
government has to consider the application keeping in mind the
subservience of public interest because the lands are being acquired for
public purpose. The government should not exercise this power in an
arbitrary and whimsical manner. The decision of withdrawal from
acquisition should be bona fide and backed by valid reasons. It is settled E
that the government could not withdraw land from acquisition without
giving the beneficiary of acquisition an opportunity of being heard. (See:
State Government Houseless Harijan Employees’ Association v.
State of Karnataka and Others3)
F
29. It is also necessary to emphasize here the need to have planned
development of the city and the importance of planning schemes and the
ill-effects of de-notification of the land from the approved scheme/plan.
Town planning schemes are made for the immediate need of the
community. Town planning is meant for planned development of certain
local areas in order to make utilities and facilities available to the general G
public. Planned development of the city is a sine qua non for its health
and growth, given the rapid increase in population of the city on account
of influx of thousands of people from other parts of the country.
3
(2001) 1 SCC 610 H
258 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 30. The Karnataka Town and Country Planning Act, 1961 (for
short ‘Planning Act’) and the Bangalore Development Act, 1976 (for
short ‘BDA Act’) play an important role in the planned development of
the city of Bangalore. The Planning Act was enacted by the State
Legislature for the regulation of planned growth of land use and
B development and for executing town planning schemes in the State of
Karnataka. The Planning Act has created a Planning Authority which
has been given power to check, survey and locate the area for
development by declaring it as a planning area. It also provides for
preparation of master plan for development of the city after carrying out
the survey of the area within its jurisdiction. The zoning regulations are
C made from time to time, classifying the land use in the planning area.
31. The State Legislature has enacted the BDA Act for the
establishment of a development authority for the development of city of
Bangalore and areas adjacent thereto and for matters connected
therewith. The State Government has constituted Bangalore
D Development Authority to effectuate the purpose of the BDA Act. This
authority is a Planning Authority for the city of Bangalore. The main
object of the BDA Act is planned development of the city of Bangalore
and to check haphazard and irregular growth of the city. BDA is the sole
authority which draws the schemes for formation layouts within the
E Bangalore Metropolitan Area. This Act envisages development of two
types of layouts. The first is formation of a layout by the BDA itself. For
this purpose, BDA has to draw a development scheme. The particulars
to be provided in the development scheme are enumerated in Section 16
of the BDA Act. The development scheme made by the BDA provides
for acquisition of the land, laying and re-laying of all or any land including
F
the construction and re-construction of buildings, formation and alteration
of the streets, provision for drainage, water supply, electricity, reservation
of not less than 15% of the area of the layout for public purpose and
playground and an additional area of not less than 10% of the total area
of the layout for civic amenities. Section 18 of the BDA Act provides
G for sanction of the scheme submitted by the BDA. After acquisition,
State Government vests the acquired land with the BDA for formation
of a layout strictly in accordance with the sanctioned scheme.
32. The second type of layout under the BDA Act is a private
layout. Section 32 of the BDA Act provides for formation of private
H layouts. If any person intends to form an extension or a layout, he has to
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 259
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
make a written application with a plan to the Commissioner, BDA under A
sub-section (2) of Section 32. The said plan has to contain laying out
sites of the area, reservation of land for open spaces, the intended level,
direction and width of the street, street alignment and the building line
and the proposed sites abutting streets, the arrangement for leveling,
paving, metalling, flagging, channelling, sewering, draining, conserving
B
and lighting the streets and for adequate drinking water supply. A private
layout cannot be formed without the approval of the layout plan by the
Commissioner, BDA and such layout has to be formed strictly in
accordance with the approved plan. While forming the layout, the BDA
or a private individual or a society, as the case may be, cannot deviate
from the sanctioned scheme or the approved layout plan. C
33. It has come to the notice of this Court that of late the State
Government has been de-notifying the lands acquired for public purpose
for the benefit of the authorities like BDA or other urban development
authorities and for the formation of private housing layouts, adversely
affecting the planned development of the city of Bangalore and other D
cities in the State of Karnataka. The instant case is a classic example
where the power has been blatantly misused ignoring larger public interest.
34. As noticed above, the State Government had accorded sanction
for initiation of acquisition proceedings for the benefit of the appellant in
the year 1982 itself. The State Government executed the agreement in E
the month of August 1984, undertaking to acquire 78 acres 16 guntas of
land in favour of the appellant, including the land in Sy.No.30 belonging
to the 3rd respondent. Notifications under Sections 4(1) and 6(1) of the
L.A Act were issued and possession was taken except the disputed land
to an extent of 3 acres 5 guntas. F
35. The approved layout plan was issued by the government in
compliance with the provisions of the BDA Act and the Planning Act.
The layout plan produced by the appellant at Annexure P-13 would indicate
that meticulous planning has been undertaken for planned development
of the layout. The plan also indicates that lands have been reserved for G
civic amenities, open spaces and also for roads. The width of the street
and its alignment, the building line and the proposed sites abutting the
streets, have been perfectly drawn.
36. The appellant has contended that the disputed property falls in
the middle of the layout. However, the 3rd respondent has contended H
260 SUPREME COURT REPORTS [2019] 11 S.C.R.
A that the disputed property is situated in the southern end of the layout.
Whether the disputed property falls in the middle of the layout or in the
southern end makes no difference so long as it is within the layout. It is
also clear from the materials on record that a portion of the disputed
property has been earmarked as a civic amenity and the remaining portion
abutting the street has been proposed for residential sites. If the order of
B
de-notification is allowed to stand, the very object of the planned
development of the layout would be lost. There will be shortage of civic
amenity sites in the layout and it would no longer be possible to set the
street alignment and the building line as per the approved plan. This will
have adverse impact on the planned development of the layout leading
C to public inconvenience. It will nullify the object and the purpose for
which Planning Act and the BDA Act have been enacted by the
Legislature.
37. Experience has shown us that the lands are being de-notified
before taking possession or dropped from acquisition before the issuance
D of declaration by the government are mostly at the instance of land
mafias in connivance with influential persons; political or otherwise.
These lands are generally situated within the layouts in major cities and
specially in Bangalore city. After de-notification, multi-storied complexes
come up on these lands comprising of large number of residential and
non-residential units. This has a direct impact on the existing infrastructure
E
consisting of water supply, sewerage and lighting. Similarly, the traffic
movement facility suffers unbearable burden and is often thrown out of
gear because the original scheme/layout plan did not envisage construction
of these complexes. The civic amenities provided in the original layout
plan were in proportion to the development proposed in the scheme/
F plan. The purchasers of residential sites, who wish to have a roof over
their heads, fall prey to the designs of unscrupulous land mafias. We
may not hesitate to add that irreparable damage has already been done
to many layouts in Bangalore and in other places by allowing construction
of multi-storied buildings within the layouts.
G 38. We are of the considered view that the government should
refrain from de-notifying or dropping any land being acquired for the
formation of a layout, under Section 48 of the L.A Act or under any
other law. The courts should also be very strict while considering the
plea of the landowners seeking de-notification of the lands which are
H being acquired or quashing of the notification on the ground of lapsing of
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 261
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
the scheme or on any other grounds in respect of the acquired lands for A
the formation of the layout. It has to be kept in mind that private interest
always stands subordinated to the public good.
39. It is also to be noted here that the area reserved for civic
amenity should not be diverted for any other purpose other than the
purpose for which it was reserved in the sanctioned scheme or the B
approved layout plan. The plan for building in the layout should be
sanctioned strictly in accordance with the building bye-laws. If a site is
earmarked for residential purpose, no plan should be sanctioned for
construction of a non-residential building at such site. The construction
on the sites by the allottees should be made in accordance with the plan C
sanctioned by the competent authority.
40. It is no doubt true that right to build on one’s own land is a
right incidental to the ownership of the land. This right has been regulated
in the interest of the community residing within the limits of the city in
general and the layout in particular. This has to be strictly implemented D
for the planned development of the city. If it is not controlled, it will have
tremendous burden on the infrastructure available in the layout.
41. We are of the view that Section 14-A of the Planning Act,
which empowers the Planning Authority to grant permission for change
of land use or development, has no application to the lands acquired E
under Sections 17 to 19 of the BDA Act for the implementation of the
scheme or the layout approved under Section 32 of the said Act. The
position is similar even in respect of the other Development Authorities
in the State of Karnataka.
42. We make it clear that henceforth, the planning/development F
authorities in the State of Karnataka, including the BDA shall not permit
change of land use within the layout formed by the BDA or a private
layout formed under Section 32 of the BDA Act or the layout formed by
any other authority contrary to the scheme sanctioned by the State
Government or the layout plan approved by the competent authority.
The BDA or the other planning/development authorities shall not venture G
to alter the sanctioned scheme/approved layout plan in any manner. The
BDA and the other planning/development authorities, Bruhat Bangalore
City Municipal Corporation Bangalore, or any other authorities in the
State of Karnataka authorized to sanction the plan for construction of
the buildings shall not sanction any plan for construction contrary to the
H
262 SUPREME COURT REPORTS [2019] 11 S.C.R.
A sanctioned scheme/approved layout plan. The sites reserved for parks,
playgrounds or for providing other amenities shall be used strictly for the
purpose for which they were reserved. Be it noted that violation of any
of these directions by the authorities will be viewed strictly.
43. It is also hereby clarified that if de-notified lands or the lands
B dropped from acquisition before the issuance of the declaration under
the BDA Act or any other law are available within the BDA layout or
the private layout approved by the BDA or the layout formed by any
urban development authorities in the State of Karnataka, the said lands
shall be utilized strictly in accordance with the land utilization proposed
in the scheme/approved layout plan. Hence, building permission or the
C sanctioned plans to build on these lands shall not be issued by any
authorities contrary to the land utilization proposed in the scheme/approved
layout plan.
44. Now, let us focus on the conduct of the 3rd respondent who
had managed to obtain an order of de-notification. It is clear from the
D materials on record that even prior to the issuance of preliminary
notification, M/s. Vijayanagar Industrial Workers Housing Co-operative
Society Ltd had entered into an agreement on 06.11.1982 with the 3rd
respondent to purchase the land in question. In fact, the 3rd respondent
had also received partial compensation from the said society. She has
challenged the acquisition proceedings thereafter by filing writ petition
E
in W.P. No. 12566 of 1986. During the pendency of this case, she filed
a representation dated 26.09.1990, requesting the State Government to
withdraw from acquisition of the said land. In the said representation, it
was contended that she had sold the said land long back for the purpose
of collecting funds to perform the marriage of her children and that she
F had divided the sale proceeds amongst her children. It was also contended
that pursuant to the sale, the purchaser had come forward to construct
houses and the Land Acquisition Officer and the appellant had objected
to the same. On the said ground, she had sought de-notification of the
land after the dismissal of W.P. No. 12566 of 1986. Therefore, the Land
Acquisition Officer passed an award. She filed the second writ petition
G challenging the acquisition proceedings in W.P. No. 5558 of 1991, which
was rightly dismissed by the High Court and intra court appeal filed by
her challenging the said order was also dismissed by the Division Bench.
It is obvious that in the said cases, she had raised the grounds which had
been raised by her in her representation seeking de-notification of the
H disputed property.
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 263
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
45. The appellant has opposed the proposal for de-notification by A
filing detailed objections as per Annexure P-12. The conduct of 3 rd
respondent in filing case after case for quashing the notification issued
by the State Government for acquisition of the land has been brought to
the notice of the government. It was also stated that since the lands
have been notified for acquisition for a public purpose, namely, for the B
formation of a layout, a portion of the said land cannot be de-notified as
it will adversely affect the layout, causing public inconvenience. The 1 st
respondent, without adverting any of these contentions, has passed an
order of de-notification. We are of the view that the said order has been
passed without application of mind and it is arbitrary in nature.
C
46. In this appeal, the 4th respondent has filed an application
contending that he had purchased certain extent of land out of the disputed
property. In support of his contentions he has produced sale-deed dated
27.5.1992 executed by 3rd respondent in favour of his vendor, Smt. P.N.
Kanthanna. In fact, the 3rd respondent in her statement of objections D
filed in this appeal has admitted having sold the land. However, it is
pleaded that de-notification of the land is necessary in order to convey
better title in favour of the purchasers. It is stated as under:
“23. The contention that this respondent has no subsisting interest
in the land in question as she has sold the land is totally false. This E
respondent has to convey better title in favour of the purchasers
and therefore her request to denotify the land is not tainted with
any malafides. As stated earlier, this respondent has sold certain
land to sustain herself and her family.”
47. Since the 3rd respondent has already sold certain portion of F
the land, she could not have maintained the application for de-notification
of the said portion of the land as she has no subsisting interest in the said
land. We are also of the view that even the subsequent purchaser of the
land cannot seek de-notification of the land from acquisition as his sale-
deed is void. G
48. We have also noticed that the State Government has been
de-notifying the lands under Section 48 (1) of the Act for the past 10-15
years and allegations have been made that these orders have been passed
with ulterior motives. We are of the view that the State Government has
to re-consider all these orders and take corrective steps in case it is H
264 SUPREME COURT REPORTS [2019] 11 S.C.R.
A found that such orders have been passed in violation of the law.
Perpetuation of illegality has to be ceased, desisted and deterred at any
cost.
49. Mr. Ahmadi, learned senior counsel, submits that the appellant
is not a bona fide housing society and that 90% of its members are not
B eligible to become its members and that they are not entitled for allotment
of sites from the appellant. It is not possible to consider these contentions
of Mr. Ahmadi in this appeal. However, if the 3rd respondent has any
grievance in relation to the bona fides of the society, she may lodge a
suitable complaint before the competent authority. If such complaint is
C filed, we direct the concerned authority to consider the same in
accordance with law.
50. A contention has also been raised by the 3rd respondent that
the appellant-society has sold sites meant for civic amenities illegally to
various persons and the show-cause notice has been issued by the
D competent authority in this regard. The 3rd respondent has produced the
notices issued by the Pattangere City Municipal Council, Bangalore dated
8.7.1998 at R-18 which is as under:
“Annexure R-18
Pattanagere City Municipal Council
E
Bangalore, Dated 08/07/1998
The President/Secretary,
Sri Vinayaka House Building
Co-operative Society Limited,
F No.3, Adi chunchanagiri complex,
Vijayanagar, Bangalore -40
Sir,
Sub: Representation with regard to transfer of katha
G from the City Municipal Council fraudulently in respect
of C.A. reserved sites to some of the members of your
society contrary to law and rules of BDA in the layout
formed at 2nd Stage, Nagarabhavi and suppressing the
information.
H —-
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 265
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
With relation to the above subject, the layout formed by Sri A
Vinayaka House Building Co-operative Society Ltd., is the layout which
comes within Ward No.7 of our City Municipal Council limits. It is
noticed that the sites have been developed, approval being obtained by
the Bangalore Development authority, the sketch/plan has been got
sanctioned and the sites have been allotted.
B
But, the Local City Municipal Council Member, Sri V. Prakash,
B.Com., LL.B., Advocate has submitted the complaint in writing on
behalf of the general public that the plan/sketch in respect of certain
areas has not been sanctioned by the BDA and the area which has been
reserved for civic amenities by the BDA have been formed in to sites
and by giving wrong information to some of the members and in violation C
of the rules of government and BDA, the President, C.H. Subboji Rao
and the Secretary M.S. Srinivasa Murthy have fraudulently registered
the said civic amenities sites to the civilians and cheated the said persons.
Therefore, it has come to the notice of our City Municipal Council
that kathas have been effected for 39 members by giving wrong D
information. I hereby order to give explanation as to why legal action
should not be initiated against the President, Secretary and the members
who have obtained the sites, within 7 days from the date of receipt of
this notice.
Yours faithfully, E
Sd/-
Commissioner
Pattangere CMC
Bangalore-39.”
F
[Emphasis supplied]
51. The second notice at Annexure R-19 dated 03.08.1998 issued
by the BDA to the Commissioner, City Municipal Corporation, Pattangere
reads as under:
“Annexure R-19 G
M.R.C.R. Shopping Complex,
Vijayanagar,
Bangalore-560 040.
Dated: 03.08.1998
No.BDA/EE(W)/111/98-99. H
266 SUPREME COURT REPORTS [2019] 11 S.C.R.
A To:
The Commissioner,
City Municipal Corporation,
Pattanagere,
B Bangalore.
Sir,
Sub: Approval layout by Bangalore Development
Authority in Sy. Nos. 17, 18, 19, 20, 30, 31, 32, 36/1, 37,
64, 71, 95 to 98, 112/19, 135 to 137(17) of Nagarabhavi
C
Village, Yeshwanthapura Hobli, Bangalore North Taluk
in favour of Vinayaka HBCS Reg.,
** ** **
With reference to the above subject, B.D.A. has approved layout
D plan in respect of Sy. Nos. 17, 18, 19, 20, 30, 31, 32, 36/1, 37, 64, 71, 95
to 98, 112/19, 135 to 137(17) of Nagarabhavi Village, Yeshwanthapura
Hobli, to an extent of 78 Acres from a layout in favour of Sri.Vinayaka
HBCS vide resolution No.883 dated 23.01.1988 with a condition after
formation of Layout all the roads and C.A., Sites has mark to be handed
E over to B.D.A. through relinquishment.
Accordingly society has the layout and so for about 71% of sites
has been released by B.D.A. and the rest of sites will be released to
society after handling over of roads and C.A. site to B.D.A.
But now it is learnt that the society has registered some sites with
F
a Sub Numbers to their Members in the marked C.A. Area and in park
Area and in the approved layout plan. This is illegal. Also it has come to
know that Khathas and sanctioning of plan to these illegal site members
are being processing in your office.
G In the light of the above information it is requested not to accord
making any Khathas or sanctioning of any residential/commercial plans
and also not be regularize any illegal holdings in the preserved area, as
the area is can marked as park and civil amenities sites in C.D.P.
Also it is requested to restrain your officials Elected
H representatives that not to interfering in B.D.A. Jurisdiction.
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 267
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
Any clarification in this regard may please be obtained from the A
Executive Engineer (West) B.D.A. Vijayanagar, or Asst. Executive
Engineer No.4 West Sub-division, B.D.A. before taking any approval or
sanction.
Yours faithfully,
Sd/- B
Bangalore Development Authority,
M.R.C.R. Complex, Vijayanagar,
Bangalore-560 040.”
[Emphasis supplied]
52. The appellant has not denied the above contentions by filing a C
rejoinder. It is necessary to notice here that out of 5 acres 33 guntas and
8 guntas of port kharab land in Sy.No.30, possession of 2 acres 36 guntas
has been taken by the State Government and delivered to the appellant.
The subject matter of this appeal is only 3 acres 5 guntas of land in
Sy.No.30. Admittedly, the possession of this land has not been taken so D
far. In the layout plan, a portion of this land is reserved for civic amenities
and the balance of the land is meant for formation of house sites.
53. An intervener application has been filed by one Mrs. Bhavna
Praveen contending that certain sites have been formed in the disputed
property and possession of these sites have been given to members of E
the appellant-society, namely, R. Dhanabalan, D. Vinod Kumar and Mrs.
D. Geetha. The sale-deeds have also been executed in respect of these
sites in their favour.
54. A Contempt Petition (civil) No.823 of 2018 was filed by S.
F
Krishnappa complaining of violation of the interim order of status quo
granted by this Court in this Appeal dated 07.01.2009. It was alleged
that the contemnors therein have trespassed into the disputed property
and began to construct illegally on the said land. A reply was filed by the
appellant herein contending that site Nos. 501, 526, 527, 528 and 529
have been formed out of 2 acres 36 guntas of land in Sy.No.30, the G
possession of which was already delivered to the appellant and that the
sites formed in the said land have been allotted to the members of the
society as per the plan approved by the BDA prior to the order of de-
notification. Relevant portion of the objection is at paragraph 10 which is
as under: H
268 SUPREME COURT REPORTS [2019] 11 S.C.R.
A “10. That, the said Sites No.501, 526, 527, 528 & 529 have been
formed out of 2 acres 36 guntas of land in Survey No.30 which
has been handed over in favour of the Society by the Order passed
by the Hon’ble High Court of Karnataka in W.P. No. 10249/2003
and the same has been allotted in favour of the members of the
society as per the approved BDA and that too, prior to the order
B
of the de-notification dated 27.12.2003 and notification dated
12.01.2004 issued by the Government of Karnataka”.
(Emphasis supplied)
55. Therefore, even according to the appellant, the disputed
C property is vacant and no allotment/sale of the sites have been made out
of this land. However, it is evident from the above referred two letters
and other materials on record that the appellant has illegally formed the
sites in the other lands reserved for civic amenities in the approved plan.
In order to compensate for the loss of land reserved for civic amenities,
it is just and proper to direct the appellant to reserve the entire disputed
D property measuring 3 acres 5 guntas in Sy.No.30 for civic amenities and
play ground. Therefore, we direct the appellant to utilize the portion of
the disputed property reserved as a civic amenity site in the layout plan
for providing civic amenities. The competent authorities are directed to
develop the balance of the disputed property as a park or a playground
E or both for the benefit of general public. The appellant shall not allot/sell
the disputed property or any portion thereof either to its members or to
any other parties. The Commissioner BDA is directed to ensure
compliance of this order.
56. If it is found that the appellant has allotted any site in the
F disputed property in favour of its members or any other parties, the
appellant has to refund the consideration paid by them with interest @
18% p.a. from the date of the allotment till the date of payment. Ordered
accordingly.
57. The State Government is directed to take possession of the
G aforesaid disputed property and transfer the same to the appellant
forthwith for its utilization in terms of paragraph 54 of this judgment.
58. In the light of the above discussions, we pass the following
orders:
(i) The judgment and order of the Division Bench as also of the
H learned Single Judge impugned herein are hereby set aside.
M/S. VINAYAK HOUSE BUILDING CO-OP. SOCIETY LTD. v. 269
THE STATE OF KARNATAKA [S. ABDUL NAZEER, J.]
(ii) The order passed by the 1st respondent dated 27.12.2003 A
and the consequent notification dated 12.01.2004 pertaining
to the lands in dispute are hereby quashed.
59. The appeal and all the pending applications are disposed of
accordingly, without any order as to costs.
60. In view of the above, Contempt Petition(C) No.823 of 2018 in B
C.A. No.3600 of 2011 is also disposed of.
61. The Registry is directed to send a copy of this judgment to the
Commissioner, Bangalore Development Authority, Bangalore forthwith.
C
Ankit Gyan Appeal disposed of.
D
E
F
G
H
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