THE WRONG DEEDS OF BDA DETECTED BY SUPREME COURT OF INDIA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4097 OF 2010
(Arising out of SLP (C) No. 4318 of 2006)
Bondu Ramaswamy ……. Appellant
Vs.
Bangalore Development Authority & Ors. ……. Respondents
J UDGMENT
R. V. RAVEENDRAN J.,
Leave granted. These appeals relate to the challenge of acquisition of lands for formation of Arkavathi layout on the outskirts of Bangalore by the Bangalore Development Authority [for short `BDA’] under the Bangalore Development Authority Act, 1976 (`BDA Act’ or `Act’ forshort).
2. On 2.1.2001 the Executive Engineer (North) of BDA submitted a scheme report with detailed estimates for formation of a proposed new layout in an area of 1650 acres spread over twelve villages, to be called as `Hennur Devanahalli Layout’. On 7.10.2002 after an initial survey, the Additional Land Acquisition Officer of BDA submitted a report proposing that 3000 acres of land in the said twelve villages and two adjoining villages (Chellakere and Kempapura) and suggested that scheme may be called as `Arkavathi Town or layout’ instead of `Hennur Devanahalli layout’. The Commissioner agreed with the proposal on 8.10.2002 and placed the matter before the Authority (that is the members constituting the Bangalore Development Authority). The Authority in its meeting held on 10.12.2002 considered the proposal and decided to issue preliminary notification under sub-sections (1) and (3) of section 17 of BDA Act proposing to acquire in all about 3000 acres of land in 14 villages. After the said resolution, lands in two more villages (Nagavara and Hebbala) were also included to provide better access to the layout. A preliminary notification dated 3.2.2003 under sub-sections (1) and (3) of section 17 of BDA Act was issued proposing to acquire 3339 acres 12 guntas. Certain government lands, tanks, grazing lands, tank catchments area, stone quarry, burial grounds were shown in the Schedule to the notification dated 3.2.2003, but their extent was not included in the abstract of lands proposed to be acquired. The abstract apparently referred only to the private lands to be acquired. In the circumstances, a modified preliminary notification was issued in August 2003 published in the Gazette dated 16.9.2003 showing the total extent of land likely to be needed for the purpose of formation of Akravathi Layout as 3839 A, 12 G of land. The said extent of land was situated in the following 16 villages : (1) Dasarahalli (2) Byrathikhane (3) Chellakere (4) Geddalahalli (5) K. Narayanapura (6) Rachenahalli (7) Thanisandra (8) Amaruthahalli (9) Jakkur (10) Kempapura (11) Sampigehalli (12) Srirampura (13) Venkateshapura (14) Hennur (15) Hebbala and (16) Nagavara.
3. Notices were issued to land owners under section 17(5) of the Act giving an opportunity to show cause why the acquisition should not be made. Public notice was also issued in the newspapers inviting objections. No objections were received in regard to 91 acres 7 Guntas The objections received in regard to 2658 acres were considered and rejected. The Authority decided to seek the sanction of the government for the acquisition of 2750 acres of land, after deleting 1089 A 12 G acres of land from the proposed scheme. On 3.2.2004, the authority passed a resolution to obtain the approval of the state government forimplementation of the Arkavathi layout under Section 15(2) of BDA Act and requesting sanction for acquisition of 2750 acres for formation of 28600 sites of different dimensions. The scheme as modified at an estimated cost of Rs. 981.36 crores (in view of the reduction of the area to 2750 acres), along with the draft final notification and relevant records was forwarded by the BDA to the State Government, under cover of letter dated 13.2.2004. After securing certain clarification, by Government Order dated 21.2.2004, the State government accorded sanction for the scheme under Section 18(3) of the Act. In pursuance of it, the final declaration dated 23.2.2004 was issued by the State Government, under section 19(1) of the Act (published in the Karnataka Gazette on the same day) stating that sanction had been granted for the scheme and declaring that the lands specified in the Schedule thereto in all 2750 acres (a little more or less) were needed for the public purpose of formation of Arkavathi Layout. According to BDA, in pursuance of the same, it made several awards from 12.5.2004 onwards in regard to extent of 1618.38 acres took possession of 1459.37 acres of private land and 459.16 acres of government land in all 1919.13 acres, and formed the layout by laying14103 plots, apart from roads, drains etc.
65. On behalf of BDA, an affidavit dated 14.3.2007 was filed before us wherein it is disclosed that in regard to a question put regarding deletion in the Karnataka Legislative Assembly, the following particulars were furnished on 25.1.2006:
(i) Extent of land acquired : 2626 acres 13 guntas
(ii) Extent dropped in the final : 1089 acres 12 guntas Notification
(iii) Extent of government lands : 487 acres 11 guntas Included in formation of Arkavathi layout
In a statement furnished in this Court on 20.3.2006, BDA gave the break up as under:
(i) Extent as per preliminary : 3839 acres 12 guntas Notification
(ii) Extent deleted after preliminary : 1089 acres 12 guntas Notification
(iii) Extent of government lands : 459 acres acquired as per final notification
(iv) Extent of private land acquired : 2291 acres 2750 acres as per final notification
Another statement furnished to us shows 500 acres have been deleted under the heading “religious institutions”.
66. The appellants contended that the deletion of as much as 1089 acres 12 guntas from out of 3839 acres 12 guntas proposed to be acquired under the preliminary notification would mean that more than 28% was deleted. Several deletions formed islands within the acquired areas. Some of the deletions in some villages were of such a magnitude that what remained of the acquisition in those villages were small and negligible islands completely surrounded by acquired/deleted lands making it difficult or impossible to effectively use such remaining land for development. Such an extensive deletion can lead to the following two inferences: (i) that there was total non application of mind when the proposal was made and without proper survey and by completely ignoring the ground realities about the constructed areas, suitability and availability for acquisition and other relevant circumstances, BDA in extreme haste had proposed acquisition; and/or (ii) the deletion of such vast areas showed that the deletions were arbitrarily made or to favour a chosen few.
71. We give below the particulars of the area notified and deleted to get a true picture of the magnitude of deletions and the resultant discrimination:
S.No. Name of the Extent notified Total extent Extent dropped
village in the notified in the from acquisition
preliminary final while issuing final
notification dt. declaration declaration
3.2.2003 dated 23.2.2004 (in Acre.Gunta)
(in Acre.Gunta)
1. Dasarahalli 380.04 225.18 154.22
2. Byrathikhare 86.07 77.25 8.22
3. Chellakere 155.03 135.14 19.29
4. Geddalahalli 195.13 133.05 62.08
6. Rachenahalli 396.29 298.03 98.26
7. Thanisandra 557.04 482.07 74.37
8. Amruthahalli 196.11 139.01 56.10
9. Jakkur 422.28 360.24 62.04
10. Kempapura 55.13 26.38 28.15
11. Sampigehalli 401.39 256.20 145.21
12. Sriramapura 196.35 94.13 102.22
13. Venkateshpura 95.65 60.13 34.28
14. Hennur 262.22 140.21 122.01
15. Hebbala 59.01 59.14
16. Nagavara 169.16 127.00 42.16
Total 3839 A.12G. 2750 A. 1089 A. 12 G.
82. We may illustrate the principle relating to positive and negative equality with reference to following notional acquisition cases:
(i) Where a petitioner’s land and his neighbour’s land are of similar size and have similar structures and are similarly situated, and the policy of the Development Authority is to withdraw the acquisition in respect of lands which are `constructed’, if the neighbour’s land is deleted from the proposed acquisition on the ground that it has a construction of 1000 sq.ft. and the petitioner’s land is not so deleted, the petitioner will be entitled to relief on the ground of discrimination. But if the neighbour’s land measures 2000 sq.ft. and contains a house of 1000 sq.ft and the petitioner’s land measures one acre and contains a house measuring 1000 sq.ft., the petitioner cannot obviously contend that because his neighbour’s property was deleted from acquisition, being a land with a construction, his one acre land should also be deleted in entirety from the acquisition, as it had a 1000 sq.ft. construction. But it may be possible for him to contend that an extent equal to what was released to his neighbour, should be released.
(ii) Where the lands owned by two neighbours are equal in size having similar structures, but one was constructed before the preliminary notification after obtaining a licence and the other was constructed after the preliminary notification unauthorisedly, the owner of the land with the unauthorised structure cannot obviously claim parity with the owner of the land with the authorised structure, for seeking deletion from acquisition.
(iii) Where the vacant lands of `A’ and `B’ – two neighbours are acquired. The Authority had a policy to delete properties with constructions, as on the date of preliminary notification. Both put up unauthorised structures clandestinely overnight, after the preliminary notification. The land of `B’ is deleted from acquisition on the ground that it has a construction. If `A’ approaches court and claims release of his land claiming parity with `B’, the claim will have to be rejected. But, where the Authority admits that B’s land was deleted even though the construction was subsequent to preliminary notification, the court may direct the Authority to take appropriate action in accordance with law for cancelling the deletion.
(iv) If in a village all the lands are notified and subsequently all lands except two or three small pockets are deleted without any valid ground, the persons whose lands were acquired can also seek deletion, on the ground that all the surrounding lands have been deleted. Court cannot direct deletion merely because the surrounding lands were deleted, as those deletions were illegal and not based on any valid policy. But the petitioners can contend that the very purpose of acquisition had been rendered infructuous by deletion of the majority of lands from the proposed acquisition, and the project or the scheme has ceased to exist and cannot be executed only with reference to their lands. In such a case, relief can be granted not on the ground that there has been discrimination, but on the ground that the proposed development scheme became non- existent on account of most of the lands being deleted from acquisition.
CONCLUSION
91. In view of the foregoing, we affirm the directions of the Division Bench subject to the following further directions and clarifications:
(i) In regard to the acquisition of lands in Kempapura and Srirampura, BDA is directed to re-consider the objections to the acquisitions having regard to the fact that large areas were not initially notified for acquisition, and more than 50% of whatever that was proposed for
acquisition was also subsequently deleted from acquisition. BDA has to consider whether in view of deletions to a large extent, whether development with respect to the balance of the acquired lands has become illogical and impractical, and if so, whether the balance area also should be deleted from acquisition. If BDA proposes to continue the acquisition, it shall file a report within four months before the High Court so that consequential orders could be passed.
(ii) In regard to villages of Venkateshapura, Nagavara, Hennur and Challakere where there are several very small pockets of acquired lands surrounded by lands which were not acquired or which were deleted from the proposed acquisition, BDA may consider whether such small pockets should also be deleted if they are not suitable for forming self contained layouts. The acquisition thereof cannot be justified on the ground that these small islands of acquired land, could be used as a stand alone park or playground in regard to a layout formed in different unconnected lands in other villages. Similar isolated pockets in other villages should also be dealt with in a similar manner.
(iii) BDA shall give an option to each writ petitioner whose land has been acquired for Arkavathy layout:
(a) to accept allotment of 15% (fifteen percent) of the land acquired from him, by way of developed plots, in lieu of compensation (any fractions in excess of 15% may be charged prevailing rates of allotment).
OR
(b) in cases where the extent of land acquired exceeds half an acre, to claim in addition to compensation (without prejudice to seek reference if he is not satisfied with the quantum), allotment of a plot measuring 30′ x 40′ for every half acre of land acquired at the prevailing allotment price.
(iv) Any allotment made by BDA, either by forming layouts or by way of bulk allotments, will be subject to the above.
The appeals are disposed of accordingly. All pending applications also stand disposed of.