Karnataka High Court
Mr. B Sathyanarayanachar vs The State Of Karnataka on 25 October, 2024
Bench: Krishna S Dixit, M.Nagaprasanna
1
Reserved on : 23.08.2024
Pronounced on : 25.10.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.21760 OF 2023 (GM - RES)
BETWEEN:
MR. B. SATHYANARAYANACHAR
S/O LATE RAGHAVENDRACHAR
AGED ABOUT 91 YEARS
NO.58, T.P.VENUGOPAL LAYOUT
ANANDANAGARA
HEBBAL POST
BENGALURU - 560 024.
... PETITIONER
(BY SRI G.KRISHNAMURTHY, SR.COUNSEL A/W
SRI MADHUSUDHANA G., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
CHIEF SECRETARY
2
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA
DR.B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. BANGALORE DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER
KUMARA PARK WEST
SANKEY ROAD
BENGALURU - 560 001.
3. THE SPECIAL LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST
SANKEY ROAD
BENGALURU - 560 001.
4. JUSTICE A.V.CHANDRASHEKAR COMMITTEE FOR
DR.SHIVRAMA KARANTH LAYOUT
REPRESENTED BY ITS SECRETARY
BANGALORE DEVELOPMENT AUTHORITY
PREMISES 5TH MAIN ROAD
KUMARAPARK WEST
GUTTAHALLI
BENGALURU
KARNATAKA - 560 020.
... RESPONDENTS
(BY SMT.ANUKANKSHA KALKERI, HCGP FOR R-1;
SRI SHVAPRASAD M.SHANTANAGOUDAR,
ADVOCATE FOR R-2 TO R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO a)ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION TO
QUASH AND SET ASIDE THE IMPUGNED PROCEEDINGS PASSED OF
3
THE RESPONDENT NO.4 DATED 08/08/2023, BEARING
NO.JCC.NO./112/2023-24 (ANNEXURE-A) AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.08.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, M. NAGAPRASANNA, J., DELIVERED THE
FOLLOWING:-
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
(PER: HON'BLE MR JUSTICE M.NAGAPRASANNA)
The petitioner is before this Court seeking a writ in the nature
of certiorari to quash proceedings of Justice A.V. Chandrashekar
Committee for Dr. Shivarama Karanth Layout dated 08-08-2023
and the final Notification dated 30-10-2018 issued by the State
insofar as it concerns the land of the petitioner for formation of
Dr. K.Shivaram Karanth Layout or in the alternative, sought for a
mandamus directing the 2ndrespondent/Bangalore Development
Authority to assess and grant compensation under the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
4
and Resettlement Act, 2013 (hereinafter referred to as the 'the Act'
for short).
2. Facts, in brief, germane are as follows:-
The petitioner claims to be the absolute owner of land bearing
Sy.No.11/2 (New No.11/8) of Kempanahalli Village, Yelahanka
Hobli, Bangalore North Taluk to an extent of 1 acre (hereinafter
referred to as the 'subject property'). It is the claim of the
petitioner that he has acquired the subject property through a
registered sale deed dated 13-05-2005 and is said to be in peaceful
possession of the same since then. The petitioner claims to be a
horticulturist and floriculturist by profession. After purchase of the
said land, the petitioner is said to be running a nursery in the name
of 'Sri Govardhana Nursery'. The averment in the petition is that
he is, among other things, growing rose flowers and all other fruit
bearing trees and also ornamental plants in the subject property.
To buttress the said submission, the petitioner has placed on record
certain RTCs for the years 2009-10 and 2011-12 reflecting the
name of the petitioner and certain crops that are grown then.
5
3. The 1st respondent/State issues a preliminary notification
under Section 17(1) and (3) of the Bangalore Development
Authority Act, 1976 (hereinafter referred to as 'the BDA Act' for
short) seeking to form a residential layout called "Dr. Shivarama
Karanth Layout" (hereinafter referred to as 'Layout' for short). The
preliminary notification contained the land of the petitioner. The
petitioner aggrieved by the preliminary notification knocks at the
doors of this Court in Writ Petition Nos. 55863-55865 of 2014. This
Court, in terms of its order dated 16-12-2014, along with connected
cases, declared that the preliminary notification with respect to the
land of the petitioner had lapsed. After the order passed by this
Court in the aforesaid petitions, the Deputy Commissioner, Land
Acquisition attached to the BDA conducts a pre-feasibility study as
directed by this Court for the proposed layout. In the meantime,
the BDA challenges the order passed in the writ petitions noted
supra in Writ Appeal No. 5098 of 2016. The said writ appeal comes
to be dismissed in terms of the order of the Division Bench dated
28-04-2017. The order of the learned single Judge was upheld by
the Division Bench.
6
4. The matter was taken to the Apex Court. The Apex Court,
in terms of its order dated 03-08-2018 passed in Civil Appeal Nos.
7661-63 of 2018 and connected cases set aside the orders passed
by the learned single Judge and the Division Bench of this Court
and upholds the preliminary notification dated 30-12-2008 and
directs the respondent/BDA to publish the final notification in
respect of the layout. The respondent/BDA pursuant to the order of
the Apex Court notified the final notification of acquisition of lands
for the purpose of formation of layout on 30-10-2018. This final
notification included the lands of the petitioner.
5. Several aggrieved persons, venting out various grievances
by issuance of the final notification, preferred miscellaneous
applications before the Apex Court, as the Apex Court had directed
the final notification to be issued. The Apex Court then directed
constitution of a Committee to go into the grievance of varied
nature of number of applicants before the Apex Court. Accordingly,
the 4th respondent Committee comes to be constituted. The
Committee is headed by the former Judge of this Court Justice A.V.
Chandrashekar and two members as appointed by the Apex Court.
7
The petitioner submitted a representation in the form of objections
to the acquisition of his land on the ground that the land of the
petitioner was a nursery and was exempted from acquisition in
terms of Government order dated 1-01-1987 as several such lands
which were subject matter of acquisition from time to time had
been dropped on the score that they were lands utilized for nursery.
6. Based upon the representations so made by various
people, two of the nurseries come to be exempted from acquisition
or dropped from acquisition. The dropping of acquisition of those
two lands which were held to be nurseries was placed before the
Apex Court. The Apex Court records the said report of the
Committee and closes the acquisition insofar as those lands are
concerned. The petitioner again submitted a representation on
10-07-2023 requesting to consider deletion of his land from
acquisition. The Apex Court, in the interregnum, remitted all the
matters that were pending before it, which were based on several
grounds, back to the hands of this Court by directing constitution of
a special Bench. It is, therefore, the writ petitions are placed
8
before this Bench as it concerns acquisition for formation of the
layout.
7. Heard Sri G.Krishna Murthy, learned senior counsel
appearing for the petitioner, Mrs. Anukanksha Kalkeri, learned High
Court Government appearing for respondent No.1 and Sri
Shivaprasad Shantanagoudar, learned counsel appearing for
respondents 2 to 4.
SUBMISSIONS:
Petitioner:
8. The learned senior counsel Sri G.Krishna Murthy takes this
Court through the documents appended to the petition to
demonstrate that the petitioner is running a nursery right from the
day of his possession of the land by purchase through sale deed
from the year 2005. He would place heavy reliance on Government
order dated 01-01-1987 which exempted nurseries from acquisition
wherever the Government or its authorities wanted to acquire the
lands with a condition that those lands so exempted from
9
acquisition should continue to be used as nurseries. Immediately
on issuance of preliminary notification the petitioner submitted a
representation, approached this Court and finally pursuant to the
direction of the Apex Court the petitioner is before this Court
seeking deletion of his land from acquisition. To buttress the
submissions, the petitioner has produced certain photographs
depicting that the land is being used as a nursery for ages and
should be exempted from acquisition following the Government
order dated 01-01-1987.
Bangalore Development Authority:
9. Per contra, the learned counsel Sri Shivaprasad
Shantanagoudar representing respondents 2 to 4 would vehemently
refute the submissions to contend that these nurseries have come
up overnight. As on the date of preliminary notification it was only
vacant land and it was not used as a nursery. The moment final
notification was directed to be issued by the Apex Court and pleas
failed to get the nursery exempted, boards are put up and plants
are stacked in the said land. He would submit that the petitioner
10
cannot claim parity with two of the nurseries that the Committee
exempted, as the Committee rendered elaborate reasons to exempt
only those two nurseries. That situation or circumstance is not
present in the land of the petitioner for him to seek exemption from
acquisition on the ground that it is a nursery.
10. We have given our anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
11. The afore-narrated facts, though not in dispute would
require reiteration as they are hereinabove succinctly stated. The
petitioner comes in possession of the land pursuant to his purchase,
in the year 2005. This is not in dispute. The 1st respondent/State
issues a preliminary notification seeking to acquire lands for the
purpose of formation of the layout. The notification is issued on
30-12-2008. Objections were called and objections were filed to the
preliminary notification by the petitioner. The objections, so filed by
the petitioner to the preliminary notification, read as follows:
"Date: 11-02-2009
From:
11
B.Sathyanarayanachar,
S/o late Raghavendrachar,
Kempanahalli Village,
Yelahanka Hobli,
Bangalore North (Additional) Taluk,
Bangalore.
To
Hon'ble Special Land Acquisition Officer,
Bangalore Development Authority,
Bangalore.
Sir,
Sub: Deletion of my "Govardhana Nursery Farm" from
Dr. K.Shivaramakarantha Lay-out project - reg.
Ref:1. Your office Notification No.BDA/COMMR/DC(LA)
/SLAO/AS/PR283/2008
2.Government order No.HUD/MNX/86/Bangalore
Dated 01-01-1987.
--
With reference to the above subject, your organization
Bangalore Development Authority vide ref (1) has issued
notification wherein my property situated at Sy.no.11/2,
Kempanahalli Village, Yelahanka Hobli, Bangalore North
(Additional) Taluk, Bangalore having an extent of 1 Acre is
included in the Land Acquisition which is very surprising.
Froom the past 04 years I am running “Govardhana
Nursery Farm” in the said premises and I have availed
irrigation pumpset electrical connection vide No.LT-
4/YIP/1669, dated: 04-05-2005. As per the Government
order No.HUD/MNX/86/Bangalore, dated:01-01-1987, I
am entitled for maintaining the Nursery Farm without any
change in land use and there is provision to delete such
nurseries from Land Acquisition. The lines of the
Government order are reproduced as under:
“Government have further examined the request
and hereby order that the lands used for nurseries be
exempt from land acquisition for its development scheme
by the Bangalore Development Authority. If the owners
12of these nurseries discontinue to use those lads for
nurseries, the lands will be acquired by the Bangalore
Development Authority.
This order shall come into force with immediate effect and
until further order”
In this background, I wish to continue to use my land for
Nursery purpose only. I wish to give an undertaking that, if I
wish to forego nursery business, I would hand over the nursery
land to BDA without any objection.
Therefore, you are requested to delete Sy.No.11/2,
Kempanahalli Village, Yelahanka Hobli, Bangalore North
(Additional) Taluk, Bangalore to an extent of 1 Acre. I am
enclosing the certificate issued by the District
Administrator regarding the growth of Coconut trees.
Teak wood trees, Banana Plantation, Rose Garden in the
form of Rights Tenancy and Crops (RTC) with this
application.
Thanking you,
With regards,
Sd/-”
(Emphasis added)
The petitioner relies on the Government order dated 01-01-1987
which exempts a nursery farm from any land acquisition on the
condition, that owner of the land would not change nature of the
land. The objection goes unheeded. He approaches this Court,
along with others in Writ Petition Nos. 55863-55865 of 2014. This
comes to be disposed of on the ground that acquisition has lapsed.
The order passed by the learned single Judge reads as follows:
13
“…. …. ….
4. The respondents have filed the objection statement. In
the objection statement it is contended that since there were
large extents of lands which had been notified, the respondents
require sometime to go through the process and thereafter
complete the acquisition proceedings.
5. In that background, I do not propose to refer to
the contentions in detail for the reason that in respect of
the very same notification, this Court had made a detailed
consideration in W.P.No.9640 of 2014 and connected
petitions on 26-11-2014. During the said consideration,
this Court had taken note of the contention put forth on
behalf of the respondents with regard to the delay that
has occasioned in the process as there were certain
deletions at the initial stages and when subsequent
deletions were made by the Land Acquisition Officer, the
Government has initiated enquiries in that regard and
therefore there was delay. This Court having not
accepted such contention and further relying on a
decision of this Court had arrived at the conclusion that
the delay as explained by the respondents is not
acceptable and therefore, the notification insofar as the
lands of the petitioners therein was held as lapsed. Since
in the instant case also the position is not different from
the said cases, a similar consideration requires to be
made.
6. Accordingly, the notification dated 30-12-2008
assailed in these petitions is held as having lapsed as
against the lands of the petitioners referred to in these
petitions which were included in the said notification.
In terms of the above, these petitions are allowed to that
extent.
In view of the disposal of the main petitions, I.A.No.2/
2014 for dispensation also stands disposed of.”
(Emphasis supplied)
14
In the meantime, the BDA undertook the process of getting the
feasibility report and notices that certain nurseries that would come
in the lands notified for acquisition. The list is as follows:
“2.2.5 Filtration Process – Stage 5:
The Stage-5 of the filtration process eliminates those
survey numbers which are used as nurseries:
Tale 6 - Nursery
Sl Village Name No. of Land Area
No. Sy.No.
Acres Guntas
1. Somashettihalli 1 6 O
2. Lakshmipura 10 14 1
3. Ganigerahalli 4 16 34
4. Byalakere 3 12 6
5. Kalathammanahalli 30 40 7
6. Gunlagrahara 6 14 23
7. Kempapura 1 9 28
8. Mediagrahara 21 83 21
9. Avalahalli 0 0 0
10. Vaderahalli 1 7 17
11 Ramagondanahalli 0 0 0
12. Kempanahalli 4 4 32
13. Veerasagara 1 6 26
14. Doddabettahalli 1 2 4
15. Harohalli 0 0 0
16. Shyamarajapura 1 6 26
17. Jarakabande Kaval 0 0 0
Total Land Area 174 25
Therefore, a total of 174 acres and 25 guntas or 174.62
acres have been eliminated in the Stage-5 filtration process.
Details of individual survey numbers spread across each of
these villages is covered in Annexure-5 of this report.”
15
In Kempanahalli, 4 survey numbers were depicted to be running
nurseries. Survey number of the petitioner did find a place.
12. A writ appeal in W.A.No.5098 of 2016 comes to be
preferred by the BDA assailing the order passed by the learned
single Judge supra. The writ appeal comes to be dismissed by the
following order:
“…. …. ….
3. The writ petitioner assailed a notification dated
December 30, 2008, proposing to acquire the land for
formation of a layout. The preliminary notification was
issue on December 30, 2008. Thereafter, neither the final
notification was issued nor possession was taken.
Consequently, the Hon’ble single Judge held that as
within the reasonable time, no further action was taken,
the proposal for acquisition got lapsed.
4. We do not find any merit in the appeal.
5. The application for condonation of delay in filing the
appeal is dismissed. Consequently, the appeal is, also
dismissed.”
(Emphasis supplied)
BDA challenges both the orders in several cases before the Apex
Court. The Apex Court in BANGALORE DEVELOPMENT
16
AUTHORITY V. STATE OF KARNATAKA1(Civil Appeal Nos.7661-
63 of 2018 and connected cases decided on 03-08-2018) sets aside
both the orders of this Court and issues several directions holding:
“15. First, we take up the question as to whether the
High Court was legally justified on merits in quashing the
preliminary notification issued under Section 17. The
Constitution Bench of this Court in Offshore Holdings (P)
Ltd. [Offshore Holdings (P) Ltd. v. BDA, (2011) 3 SCC 139:
(2011) 1 SCC (Civ) 662] has decided the question affirmatively.
The BDA has issued preliminary notification for acquisition of the
lands. Non-finalisation of the acquisition proceedings resulted in
the filing of the writ petitions before the High Court of Karnataka
by the owners in the year 1987. Certain lands were denotified
and the permission which was granted earlier was withdrawn.
The denotification of the land was also withdrawn. It was urged
that the time-frame which was prescribed under Sections 6 and
11-A of the LA Act would form an integral part of the BDA Act.
This Court considered the scheme under the BDA Act and has
observed thus: (SCC pp. 158-59, 162, 164-66 & 192, paras 33,
35, 50, 55, 123, 124 & 125)
“33. The provisions of the Land Acquisition Act,
which provide for time-frame for compliance and the
consequences of default thereof, are not applicable to
acquisition under the BDA Act. They are Sections 6 and 11-
A of the Land Acquisition Act. As per Section 11-A, if the
award is not made within a period of two years from the
date of declaration under Section 6, the acquisition
proceedings will lapse. Similarly, where declaration under
Section 6 of this Act is not issued within three years from
the date of publication of notification under Section 4 of the
Land Acquisition Act [such notification being issued after the
commencement of the Land Acquisition (Amendment and
Validation) Ordinance, 1967 but before the commencement
of Central Act 68 of 1984] or within one year where Section
4 notification was published subsequent to the passing of
Central Act 68 of 1984, no such declaration under Section 6
1
(2018)9 SCC 122
17
of the Land Acquisition Act can be issued in any of these
cases.
***
35. Be that as it may, it is clear that the BDA Act is a
self-contained code which provides for all the situations that
may arise in planned development of an area including
acquisition of land for that purpose. The scheme of the Act
does not admit any necessity for reading the provisions of
Sections 6 and 11-A of the Land Acquisition Act, as part and
parcel of the BDA Act for attainment of its object. The
primary object of the State Act is to carry out planned
development and acquisition is a mere incident of such
planned development. The provisions of the Land
Acquisition Act, where the land is to be acquired for a
specific public purpose and acquisition is the sum and
substance of that Act, all matters in relation to the
acquisition of land will be regulated by the provisions of that
Act. The State Act has provided its own scheme and
provisions for acquisition of land.
***
50. Applying the above principle to the facts of the
case in hand, it will be clear that the provisions relating to
acquisition like passing of an award, payment of
compensation and the legal remedies available under the
Central Act would have to be applied to the acquisitions
under the State Act but the bar contained in Sections 6 and
11-A of the Central Act cannot be made an integral part of
the State Act as the State Act itself has provided specific
time-frames under its various provisions as well as
consequences of default thereto. The scheme, thus, does
not admit such incorporation.
***
55. The principle stated in Munithimmaiah
case [Munithimmaiah v. State of Karnataka, (2002) 4 SCC
326] that the BDA Act is a self-contained code, was referred
with approval by a three-Judge Bench of this Court in Bondu
Ramaswamy [Bondu Ramaswamy v. BDA, (2010) 7 SCC
129 : (2010) 3 SCC (Civ) 1] . The Court, inter alia,
specifically discussed and answered the questions whether
the provisions of Section 6 of the Land Acquisition Act will
apply to the acquisition under the BDA Act and if the final
declaration under Section 19(1) is not issued within one
year of the publication of the notification under Section
17(1) of the BDA Act, whether such final declaration will be
invalid and held as under: (Bondu Ramaswamy case [Bondu
18
Ramaswamy v. BDA, (2010) 7 SCC 129 : (2010) 3 SCC
(Civ) 1] , SCC p. 170, paras 79-81)
’79. This question arises from the contention raised
by one of the appellants that the provisions of Section 6 of
the Land Acquisition Act, 1894 (“the LA Act”, for short) will
apply to the acquisitions under the BDA Act and
consequently if the final declaration under Section 19(1) is
not issued within one year from the date of publication of
the notification under Sections 17(1) and (3) of the BDA
Act, such final declaration will be invalid. The appellants’
submissions are as under: the notification under Sections
17(1) and (3) of the Act was issued and gazetted on 3-2-
2003 and the declaration under Section 19(1) was issued
and published on 23-2-2004. Section 36 of the Act provides
that the acquisition of land under the BDA Act within or
outside the Bangalore Metropolitan Area, shall be regulated
by the provisions of the LA Act, so far as they are
applicable. Section 6 of the LA Act requires that no
declaration shall be made, in respect of any land covered by
a notification under Section 4 of the LA Act, after the expiry
of one year from the date of the publication of such
notification under Section 4 of the LA Act. As the provisions
of the LA Act have been made applicable to acquisitions
under the BDA Act, it is necessary that the declaration
under Section 19(1) of the BDA Act (which is equivalent to
the final declaration under Section 6 of the LA Act) should
also be made before the expiry of one year from the date of
publication of notification under Sections 17(1) and (3) of
the BDA Act [which is equivalent to Section 4(1) of the LA
Act].
80. The BDA Act contains provisions relating to
acquisition of properties, up to the stage of publication of
final declaration. The BDA Act does not contain the
subsequent provisions relating to completion of the
acquisition, that is, issue of notices, enquiry and award,
vesting of land, payment of compensation, principles
relating to determination of compensation, etc. Section 36
of the BDA Act does not make the LA Act applicable in its
entirety, but states that the acquisition under the BDA Act,
shall be regulated by the provisions, so far as they are
applicable, of the LA Act. Therefore, it follows that where
there are already provisions in the BDA Act regulating
certain aspects or stages of acquisition or the proceedings
relating thereto, the corresponding provisions of the LA Act
will not apply to the acquisitions under the BDA Act. Only
19
those provisions of the LA Act, relating to the stages of
acquisition, for which there is no provision in the BDA Act,
are applied to the acquisitions under the BDA Act.
81. The BDA Act contains specific provisions relating
to preliminary notification and final declaration. In fact the
procedure up to final declaration under the BDA Act is
different from the procedure under the LA Act relating to
acquisition proceedings up to the stage of final notification.
Therefore, having regard to the scheme for acquisition
under Sections 15 to 19 of the BDA Act and the limited
application of the LA Act in terms of Section 36 of the BDA
Act, the provisions of Sections 4 to 6 of the LA Act will not
apply to the acquisitions under the BDA Act. If Section 6 of
the LA Act is not made applicable, the question of
amendment to Section 6 of the LA Act providing a time-limit
for issue of final declaration, will also not apply.’
We may notice that, in the above case, the Court declined
to examine whether the provisions of Section 11-A of the
Central Act would apply to the acquisition under the BDA
Act but categorically stated that Sections 4 and 6 of the
Central Act were inapplicable to the acquisition under the
BDA Act.
***
123. Accepting the argument of the appellant would
certainly frustrate the very object of the State law,
particularly when both the enactments can peacefully
operate together. To us, there appears to be no direct
conflict between the provisions of the Land Acquisition Act
and the BDA Act. The BDA Act does not admit reading of
provisions of Section 11-A of the Land Acquisition Act into
its scheme as it is bound to debilitate the very object of the
State law. Parliament has not enacted any law with regard
to development the competence of which, in fact,
exclusively falls in the domain of the State Legislature with
reference to Schedule VII List II Entries 5 and 18.
124. Both these laws cover different fields of
legislation and do not relate to the same List, leave apart
the question of relating to the same entry. Acquisition being
merely an incident of planned development, the Court will
have to ignore it even if there was some encroachment or
overlapping. The BDA Act does not provide any provision in
regard to compensation and manner of acquisition for which
it refers to the provisions of the Land Acquisition Act. There
are no provisions in the BDA Act which lay down detailed
20
mechanism for the acquisition of property, i.e. they are not
covering the same field and, thus, there is no apparent
irreconcilable conflict. The BDA Act provides a specific
period during which the development under a scheme has
to be implemented and if it is not so done, the
consequences thereof would follow in terms of Section 27 of
the BDA Act. None of the provisions of the Land Acquisition
Act deals with implementation of schemes. We have already
answered that the acquisition under the Land Acquisition
Act cannot, in law, lapse if vesting has taken place.
Therefore, the question of applying the provisions of Section
11-A of the Land Acquisition Act to the BDA Act does not
arise. Section 27 of the BDA Act takes care of even the
consequences of default, including the fate of acquisition,
where vesting has not taken place under Section 27(3).
Thus, there are no provisions under the two Acts which
operate in the same field and have a direct irreconcilable
conflict.
125. Having said so, now we proceed to record our
answer to the question referred to the larger Bench as
follows:
For the reasons stated in this judgment, we hold that
the BDA Act is a self-contained code. Further, we hold that
provisions introduced in the Land Acquisition Act, 1894 by
Central Act 68 of 1984, limited to the extent of acquisition
of land, payment of compensation and recourse to legal
remedies provided under the said Act, can be read into an
acquisition controlled by the provisions of the BDA Act but
with a specific exception that the provisions of the Land
Acquisition Act insofar as they provide different time-frames
and consequences of default thereof, including lapsing of
acquisition proceedings, cannot be read into the BDA Act.
Section 11-A of the Land Acquisition Act being one of such
provisions cannot be applied to the acquisitions under the
provisions of the BDA Act.”
(emphasis supplied)
16. This Court has emphasised that the primary
object of the BDA Act is to carry out planned
development. The State Act has provided its own scheme.
The time constraints of the land acquisition are not
applicable to the BDA Act. Making applicable the time-
frame of Section 11-A of the LA Act would debilitate the
very object of the BDA Act. It is apparent that the
21
decision of the Single Judge as well as the Division Bench
is directly juxtaposed to the decision of the five-Judge
Bench of this Court in Offshore Holdings [Offshore
Holdings (P) Ltd. v. BDA, (2011) 3 SCC 139: (2011) 1 SCC
(Civ) 662] in which precisely the question involved in the
instant cases had been dealt with. By indirect method by
making applicable the time period of two years of Section
11-A of the LA Act mandate of BDA Act has been violated.
However, it is shocking that various decisions have been
taken into consideration particularly by the Single Judge,
however, whereas the decision that has set the
controversy at rest, has not even been noticed even by
the Single Judge or by the Division Bench. If this is the
fate of the law of the land laid down by this Court that too
the decision by the Constitution Bench, so much can be
said but to exercise restraint is the best use of the power.
Least said is better, the way in which the justice has been
dealt with and the planned development of Bangalore
City has been left at the mercy of unscrupulous persons
of the Government and the BDA.
17. It is apparent from the fact that the Single Judge has
relied upon the decision in H.N. Shivanna [H.N.
Shivanna v. State of Karnataka, 2012 SCC OnLine Kar 8956:
(2013) 4 KCCR 2793] in which it was observed by the Division
Bench that scheme was to be completed in 2 years otherwise it
would lapse. It was precisely the question of time period which
was dwelt upon and what was ultimately decided by this Court
in Offshore Holdings [Offshore Holdings (P) Ltd. v. BDA, (2011)
3 SCC 139: (2011) 1 SCC (Civ) 662] has been blatantly violated
by the Single Judge and that too in flagrant violation of the
provisions and intendment of the Act.
18. It is also apparent from the facts and
circumstances of the case that there were a large number
of irregularities in the course of an inquiry under Section
18(1) of the BDA Act. The Government had nothing to do
with respect to the release of the land at this stage, as
the stage of final notification had not reached but still the
landowners in connivance with the influential persons,
political or otherwise, managed the directions in respect
of 251 acres of the land and the Special Land Acquisition
Collector also considered exclusion of 498 acres of the
22
land against which the question was raised in the
Assembly and eyebrows were raised in public domain.
Two inquiries were ordered on 24-11-2012 and 19-1-
2013 by the State Government and based upon that
inquiry, it was ordered and a public notice was issued on
3-5-2014 that the BDA will consider the entire matter
afresh.
19. In the aforesaid backdrop of the facts, the writ
petitions came to be filed, it would not be termed to be
the bona fide litigation, but was initiated having failed in
attempt to get the land illegally excluded at the hands of
the Special Land Acquisition Collector and the State
Government and after the inquiries held in the matter and
the notice was issued to start the proceedings afresh. At
this stage, the writ petitions were filed. In the aforesaid
circumstances, it was not at all open to the High Court to
quash the preliminary notification issued under Section
17, as the landowners, the State Government and BDA
were responsible to create a mess in the way of planned
development of Bangalore City.
20. The scheme which was framed was so much
benevolent scheme that 40% of the 55% of the land reserved
for the residential purpose was to be given to the landowners at
their choice and they were also given the choice to obtain the
compensation, if they so desired, under the provisions of the LA
Act. Thus, it was such a scheme that there was no scope for any
exclusion of the land in the ultimate final notification.
21. It is apparent from the circumstances that the
matter cannot be left at the mercy of unscrupulous
authority of the BDA, the State Government or in the
political hands. Considering the proper development and
planned development of Bangalore City, let the
Government issue a final notification with respect to the
land which has been notified in the initial notification and
there is no question of leaving out of the land in the
instant case as option has been given to landowners to
claim the land or to claim the compensation under the
relevant LA Act which may be applicable in the case.
23
22. It was contended on behalf of the landowners
that certain developments have taken place after the
orders were passed regarding exclusion of the land and
when Section 27 provides a limitation of five years after
final notification, in case development was not
undertaken within five years, even the final scheme
would lapse. Thus, the principle enunciated in Section 27
should be followed by this Court with respect to the lapse
of preliminary notification as well. We find that there is a
vast difference in the provisions and action to be taken
pursuant to the preliminary notification and the final
notification under Section 19. In the instant case, the
facts indicated that it was in the interest of the public,
landowners, BDA and the State Government. The scheme
had prior approval of the State Government however at
the cost of public interest yet another scheme was sought
to be frustrated by powerful unforeseen hands and the
issuance of final notification had been delayed. Three
inquiries were ordered, two by the State Government and
one by the BDA as the release of the land was being
proposed in an illegal manner. Hue and cry has been
raised about their illegalities in the Assembly as well as
in the public. Thus, for the delay, owners cannot escape
the liability, they cannot take the advantage of their own
wrong having acted in collusion with the authorities.
Thus, we are of the considered opinion that in the facts of
the case the time consumed would not adversely affect
the ultimate development of Bangalore City.
23. The authorities are supposed to carry out the
statutory mandate and cannot be permitted to act against the
public interest and planned development of Bangalore City
which was envisaged as a statutory mandate under the BDA
Act. The State Government, as well as the authorities under the
BDA Act, are supposed to cater to the need of the planned
development which is a mandate enjoined upon them and also
binding on them. They have to necessarily carry it forward and
no dereliction of duty can be an escape route so as to avoid
fulfilment of the obligation enjoined upon them. The courts are
not powerless to frown upon such an action and proper
development cannot be deterred by continuing inaction. As the
proper development of such metropolitan is of immense
importance, the public purpose for which the primary
24
notification was issued was in order to provide civic amenities
like laying down roads, etc. which cannot be left at the whim or
mercy of the authorities concerned. They were bound to act in
furtherance thereof. There was a clear embargo placed while
issuing the notification not to create any charge, mortgage,
assign, issue or revise any improvement and after inquiry, it
was clear that the notice had been issued in May 2014, thus, no
development could have been made legally. Notification dated
3-5-2014 was issued that re-inquiry was necessary in the
matter. The development made, if any, would be at the peril of
the owners and it has to give way to larger welfare schemes and
the individual interest and cannot come in the way of the larger
public interest. The acquisition was for the proper and planned
development that was an absolute necessity for the city of
Bangalore.
24. In the circumstances, we have no hesitation in
condoning the delay. Though, it is apparent that the authorities
had come with certain delay, in certain matters and the writ
appeals were also filed belatedly with the delay in the High
Court, however, considering the provisions of the scheme and
the method and manner, wrong has been committed, it has
compelled us not only to condone the delay but also to act in
the matter so as to preserve the sanctity of the legal process
and decision of this Court in Offshore Holdings [Offshore
Holdings (P) Ltd. v. BDA, (2011) 3 SCC 139: (2011) 1 SCC (Civ)
662].
25. We, therefore, direct the State Government as
well as the BDA to proceed further to issue final
notification without any further delay in the light of the
observations made in the order. The impugned orders
passed by the Single Judge and the Division Bench are
hereby quashed and set aside. The scheme and
notification under Section 17 of the BDA Act are hereby
upheld with the aforesaid directions.
26. As noticed above, the Land Acquisition Officer
proposed exclusion of 251 acres of land from acquisition
on being asked by the Government after the preliminary
notification was issued. The Land Acquisition Officer, has
considered another 498 acres of land to be excluded from
being acquired. In connection to this, several questions
25
were raised in the Karnataka Legislative Assembly, as a
result of which two inquiries were ordered by the State
Government i.e. on 24-11-2012 and 19-1-2013. However,
result of the inquiry is not forthcoming. Further, it
appears that the exclusion of the lands from acquisition
was proposed in connivance with influential persons;
political or otherwise. We are of the view that the BDA
and the State Government have to proceed with the
acquisition of these lands. We are also of the view that it
is just and proper to hold an inquiry for fixing the
responsibility on the officials of the BDA and the State
Government for trying to exclude these lands from
acquisition.
27. Therefore, we appoint Hon’ble Mr Justice K.N.
Keshavanarayana, former Judge of the Karnataka High
Court as the inquiry officer for fixing the responsibility on
the officials of the BDA and the State Government who
were responsible for the aforesaid. The Commissioner,
BDA is hereby directed to consult the inquiry officer and
pay his remuneration. Further, we direct BDA to provide
appropriate secretarial assistance and logistical support
to the inquiry officer for holding the inquiry. In addition,
we authorise the inquiry officer to appoint requisite staff
on temporary basis to assist him in the inquiry and to fix
their salaries. Further, the BDA is directed to pay their
salaries. The State Government and the BDA are directed
to produce the files/documents in relation to the
aforesaid lands before the inquiry officer within a period
of four weeks from today. We request the inquiry officer
to submit his report to this Court as expeditiously as
possible.
28. The State Government and the BDA are further
directed to proceed with the acquisition of the
aforementioned lands without excluding land from
acquisition and submit a report to this Court the steps
taken by them in this regard within a period of three
months from today.”
(Emphasis supplied)
26
The Apex Court, on the reasons so rendered, directs the State
Government and the BDA to proceed with the acquisition for the
formation of layout without excluding any land from acquisition and
submit a report to the Apex Court the steps taken towards the said
acquisition. It directed completion within 3 months. Several land
owners having several grievances approached the Apex Court by
filing miscellaneous applications. Those miscellaneous applications
come to be disposed by the Apex Court directing constitution of a
committee to go into the grievance of all the land owners. The
order directing constitution of the Committee reads as follows:
“1. Heard learned counsel for the parties and perused
affidavit dated 26-11-2020, filed by the Commissioner,
Bangalore Development Authority.
2. During the course of hearing, it is pointed out that
after quashing of the preliminary notification by the High Court
and before setting aside of the said order by this court, several
constructions have been put up either by the land-owners or
purchasers of the sites from the land-owners. It is submitted
that these constructions are mainly dwelling houses. In this
factual background, we are of the considered opinion that some
protection against demolition of dwelling houses may be
justified. Further the layout is meant for residential sites and
this object of formation of layout would not be frustrated by
saving lawfully constructed dwelling houses belonging to poor
and middle-income groups.
27
3. Judgment dated 03-08-2018, inter alia, observes that
45% of the land covered under the scheme was to be utilized
for the civic amenities like play grounds, roads etc. and
residential sites would be formed by utilizing remaining 55% of
the land covered under the scheme. It is also clear that out of
the said 55% of developed residential area, 40% of 55% will be
offered as compensation to the land-owners as specified in the
scheme and remaining 60% of 55% will be the share of the
Bangalore Development Authority (BDA). The land-owners
would be given option to accept the developed eligible
residential land or opt for compensation as per the Land
Acquisition Act, 1894 (for short ‘the LA Act’).
4. Needless to state that the acquisition of the land
under the BDA Act is regulated by the provisions of the
LA Act so far as they are applicable. (See: Section 36 of
the BDA Act). The borrowed provisions of LA Act, become
an integral part of the BDA Act and are totally unaffected
by the repeal of the LA Act. In other words, the
provisions of the LA Act are incorporated into the BDA Act
so far as they are applicable. Of course, the bar contained
in Sections 6 and 11-A of the LA Act, are not applicable to
the BDA Act. We have discussed this aspect of the matter
in our main judgment dated 03-08-2018. It is also clear
that the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation &
Resettlement Act, 2013 are not applicable for the
acquisition made under the BDA Act. Final notification
has also been issued after the pronouncement of
judgment by this Court in Civil Appeal No(s). 7661-7663
of 2018 dated 3-08-2018. We direct the BDA to proceed
with the acquisition of the land as proposed in the
notification.
5. if the land-owner who has put up the
construction opts for land by way of a developed plot in
lieu of compensation, the constructed portion would be
adjusted in the land that would be allotted in his favour.
It is also clarified that the persons who have put up
construction/ dwelling house are not entitled for
compensation in respect of the constructed portion of the
land. If the incentive scheme as per Bangalore
Development Authority (Incentive Scheme for Voluntary
28Surrender of Land) Rules, 1989, is applied, the
constructed portion can also be adjusted towards
incentive site for voluntary surrender of land. However,
where a person has constructed a dwelling house or any
other building and where the constructed portion is not
adjusted for any reason, betterment charges could be
levied on him under Section 20 of the BDA Act. BDA is
directed to integrate the said constructions into the
layout.
6. As stated above, the buildings constructed in the
layout with valid sanction/permission from the
competent authority/authority(ies) needs to be saved
from demolition. Therefore, it is important to identify the
lawful constructions made in the notified lands. For this
purpose, we appoint a Committee comprising Hon’ble Mr.
Justice A.V. Chandrashekhar, former Judge of the
Karnataka High Court, as its Chairman, Mr. Jayakar
Jerome, former Commissioner of the BDA and Mr. S.T.
Ramesh, former Director General of Police, as its
Members. The Committee is required to look into each of
the requests of the owners of the dwelling
houses/buildings for its regularization. The Committee
should also find out whether the said dwelling
houses/buildings have been constructed in accordance
with the sanction/permission of the competent
authorities. The constructions which have come up after
the date of pronouncement of the judgment by this Court
i.e.,3.08.2018, shall not be eligible for regularization. The
Committee is permitted to devise its own mechanism/
procedure for holding the enquiry including issuing
notices in the local newspapers in this regard. Final
orders regarding dwelling houses/buildings which will be
protected, would be passed after we receive the report of
the Committee.
7. To ensure that in the interregnum and from now
onwards no further constructions come up, the
Commissioner, BDA, would undertake exercise for
satellite imaging of the area in question for identifying
and noting the constructions as they exist. The said
exercise would be undertaken within a period of three
days from the date of receipt of a copy of this order. This
29exercise would be repeated periodically every month and
in case any new constructions are noticed, they would be
brought to the notice of the Committee and action,
including demolition etc. would be undertaken.
8. The Commissioner of the BDA is hereby directed
to consult the Chairman and its Members of the
Committee and accordingly fix and pay their
remunerations. We direct the BDA to provide appropriate
secretarial assistance, transport and other logistical
support to the Chairman and the members of the
Committee for holding an enquiry within two weeks from
today. We authorize the Chairman of the Committee to
appoint requisite staff, if needed, on a temporary basis to
assist the Committee in conducting enquiry and fix their
salaries which would be paid by the BDA. The BDA is also
directed to provide enough office space in its
headquarters for the smooth functioning of the
Committee within two weeks. The Committee is also
permitted to take assistance of any of the employees
including surveyors from the BDA or of the State
Government for the purpose of spot inspection,
measurement and for its overall functioning.
9. We make it clear that there is no bar for the Chairman
or the Members of the Committee to accept any other
engagement/arbitration matters during the subsistence of the
Committee.
10. The Committee is requested to submit its report
before this Court preferably within a period of six months
from today.
11. It appears that certain writ petitions are pending
before the Karnataka High Court challenging the final
notification for acquisition of lands for the formation of
Dr.Shivarama Karanth Layout. BDA is directed to furnish the list
of pending cases in respect of the said layout to the Registrar
General of the High Court within a week from today. We
request the Registrar General to list them before the Court
within two weeks. We request the High Court to dispose of the
said cases on their merits expeditiously.
30
12. The State Government is directed to grant approval to
the 60:40 scheme in respect of the layout in question, if
necessary within two weeks from today. The State Government
is also directed to depute additionally six Land Acquisition
Officers to the BDA within two weeks from today.
13. BDA to file status report on or before 11.02.2021.
14. List these cases on 19-01-2021.”
(Emphasis supplied)
13. After constitution of the Committee, the petitioner again
represents to the Committee his objections to the acquisition on the
ground that it is a nursery and it should be exempted. The
representation reads as follows:
“Date: 28-12-2020
From:
B.Sathyanarayanachar,
S/o Late Raghavendrachar,
No.58, T.P.Venugopal Lay-out,
Anandanagara, Hebbal Post,
Bengaluru-560024
Mob: 9480683031.
To
The Special Land Acquisition Officer,
Bangalore Development Authority,
Bengaluru.
Respected Sir,
Sub: Objections to the public notice of BDA dated 11.12.2020
published leading newspapers w.r.t. land acquisition of
Sy.No.11/2, Kempanahalli Village, Yelahanka Hobli,
31Vaderahalli Gram Panchayat, Vidyaranapura Post,
Bengaluru for Dr. K. Shivaramkaranth Layout.
*****
With reference to the above, I, B. Sathyanarayanachar
aged 88 years herewith submitting the objections for the land
acquisition process of the my land bearing Sy.No.11/2,
Kempanahalli Village, Yelahanka Hobli, Vaderahalli Gram
Panchayat, Vidyaranapura Post, Bengaluru due to following
facts:
1. My Kempanahalli Village is connected to BBMP
limits having Attur layout as the BBMP boundary. I
am the owner of Sy.No.11/2 (Copy of Purchase
copy is herewith enclosed as Annexure-1). Previous
to the purchase of the said property I was running
a small verity of plants in a form of Nursery there I
was doing the agriculture produce also. I used to
produce Banana saplings and papaya saplings and
running Nursery. Even to-day I am running Nursery
in the said place and earning.( Photographs of the
Nursery are herewith enclosed as Annexure-2).
2. Further, in 2005 the land owners Shivanna N,
Sharadamma, Somashekara and Umadevi of
Sy.No.11/2 offered to sell the property to me only
since I was running the Nursery from a long time.
3. I, B.Sathyanarayanachar Aged 88 years, S/o Late
B.Raghavendrachar, 111, hereby filing this
statement of objections to your proposal to acquire
my aforesaid land.
4. I have got a bore well drilled, a pump set installed,
a big water tank built and laid galvanized steel
pipes for irrigating the nursery.
5. I have also fenced the land all round and provided
partly compound wall and gate for protection.
6. For purposes of shade and also green manure, I
have planted various trees.
32
7. In order to develop coconut and lime seedlings, I
have also planted good number of coconut and
lemon trees, which are now yielding.
8. I spent and invested a lot of money on this Nursery,
in order that it would give me good returns over the
years and be the main source of income for me and
my family’s livelihood.
9. I never had any intention of selling this land or converting
it to housing or other purposes.
10. If the BDA or any other Government authority were to go
ahead with the proposal to acquire the land, I would be
put to a lot of hardship and loss.
11. I am enclosing the pahani of my land wherein it is clearly
mentioned as in 2009-10 as “Tissue culture ¨Á¼É, Teak
wood trees for shade and other Nursery plants especially
Dutch variety Rose” and pahani also reflected the same.
12. I am enclosing the pahani of my land wherein it is clearly
mentioned as in 2011-12 that I was growing Rose flowers
in a large scale and pahani also reflected the same.
“PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA SUBJECT
– Exempting the nursery lands from Acquisition by Bangalore
Development Authority.
PREAMBLE:
The question of exempting nursery and garden land from
acquisition by Bangalore Development Authority for the purpose
of its scheme has been examined on the petition by Nurserymen
Co-operative Society Limited, Lalbagh, Bangalore-4 made to the
Hon’ble Chief Minister. They have urged that these professional
people have been following this profession for over decades in
this state and making all round efforts for the development of
Horticulture.
Fruit, Orchards, Plantations, Speicos, Lawns and Gardens. They
have also invited the attention to Government Order No.HUD 91
33CGL 78 dated 15-11-1978, wherein indiscriminate acquisition of
lands of Nurserymen denying their livelihood would work hard
on them. They also drawn the attention of to the resolution
N9o.834 of Bangalore Development Authority, dated 5-9-1985.
Wherein the notified areas the coconut trees, grapes and other
fruit trees was not grown. It is decided that these lands have to
be reconveyed to the land owners under the following
conditions:
a. The land owners shall not change the uses of the land and
shall not change the nature of land.
b. The land owners shall not put up any construction without
the permission of B.D.A.
c. The land shall not be alienated to any person without
prior permission of B.D.A.
d. Priority shall be given to B.D.A if the land owner wants to
sell the lands. If B.D.A granted permission to sell the
lands subject to the above conditions.
e. BDA has got power to take back the lands if any one of
the conditions violated by the owners of the lands.
Therefore, they have requested the Government to kindly
denotify the Nursery land from acquisition by BDA or
KHB, and to exempt them under Urban Land (Ceiling and
Regulation) Act, 1976 for continuing this profession.
The matter has been examined further by Chief Minister at a
meeting taken by him on 22-10-1986. It has been decided at
the meeting that Nurseries should be permitted to continue on
their activities and necessary orders may be issued stating that
if the owners discontinue to use these lands for nursery, they
will be acquired by Bangalore Development Authority.
Exemption to garden land other than Nursery they will be
acquired by Bangalore Development Authority. Exemption to
garden land other than Nursery from acquisition by Bangalore
Development Authority over was not been agreed to Nursery
has been defined as:
“The place where Horticulture plants and seeds are in the
regular course of business propagated for the purpose of sale
but does not include a Horticultural Nursery belonging to or
managed by the State or Central Government.”
34
ORDER NO.HUD 478 MNX 86, BANGALORE DATED 1st January
1987 Government have further examined the request and
hereby order that the lands used for nurseries be exempt from
Land Acquisition for its developmental schemes by the
Bangalore Development Authority. If the owners of these
nurseries discontinue to use those lands for nurseries, the lands
will be acquired by the Bangalore Development Authority.
This order shall come into force with immediate effect and until
further orders.
By order and in the name of the
Governor of Karnataka.
Sd/- (C.VENKATAIAH),
UNDER SECRETARY TO GOVERNMENT,
Housing and Urban Dev.Department”
All the documents pertaining to the said property is
submitted with photographs. I would be submitting
further documents/clarifications upon your directions.
Therefore, I humbly request and pray that my
representation may be considered with all the evidence
validated by attached Annexures and dropping final
acquisition orders been passed against my land bearing
Sy.No.11/2, Kempanahalli Village, Yelahanka Hobli,
Bengaluru.
Note: Due to Public Holidays on 25-12-2020 to 27-12-2020, I
am submitting the objection today which is within 15 days.
Thanking you,
Yours faithfully,
Sd/- B.Sathyanaranachar”
(Emphasis added)
The petitioner has been representing throughout that his land
should be exempted from acquisition, as it is a nursery. Therefore,
Nursery Nursery is echoed by the petitioner throughout the
35
representation and in the memorandum of subject petition.
Therefore, it is necessary to notice, what a nursery would mean.
NURSERY:
14. Nursery has not been judicially interpreted. Therefore, it
becomes necessary to notice what the English dictionaries, would
define nursery to be. Merriam Webster dictionary defines
‘nursery’ as follows:
“Nursery – An area where plants are grown for
transplanting, for use as stocks for budding and grafting,
or for sale”
(Emphasis added)
Oxford Learners Dictionary defines ‘nursery’ as follows;
“Nursery – A place where young plants and trees are
grown for sale or for planting somewhere else.”
(Emphasis added)
Encyclopedia Britannica defines ‘nursery’ as follows:-
“Nursery, place where plants are grown for transplanting,
for use as stock for budding and grafting, or for sale.
Commercial nurseries produce and distribute woody and
herbaceous plants, including ornamental trees, shrubs,
and bulb crops. While most nursery-grown plants are
ornamental, the nursery business also includes fruit
36plants and certain perennial vegetables used in home
gardens (e.g. asparagus, rhubarb). Some nurseries are
kept for the propagation of native plants for ecological
restoration. Greenhouses may be used for tender plants or to
keep production going year round, but nurseries most
commonly consist of shaded or exposed areas outside. Plants
are commonly cultivated from seed or from cuttings and are
often grown in pots or other temporary containers.”
(Emphasis added)
One common stream of interpretation of the word ‘nursery’ is that
the plants are grown for transplanting, and for use as stock, for
budding and grafting, or for sale. There is no statute governing the
regulation or recognition of nursery in the State of Karnataka like
several States. It is not a case where nurseries are not regulated
by any State in the country. There are a few States which regulate
‘nursery’ by statutes. We deem it appropriate to notice these
statutes.
15. The State of Telangana, has a statute – The
Telangana Registration of Horticulture Nurseries
(Regulation) Act, 2010. Section 2 of the said Act deals with
definitions and the definitions germane are as follows:
“2. In this Act, unless the context otherwise requires,
… … …
37
(f) ‘Horticulture nursery’ means any place where
horticulture plants, fruits, vegetables and flowers are in
the regular course of business, propagated and sold for
transplantation.
(g) ‘Horticulture Plant’ means a plant belonging to any of
the categories of aromatic plant, flower plant, fruit plant,
plantation crops, vegetable plant or such other plant as
the Government may by notification declare to be a
horticulture plant;
… … …
(l) ‘Nurseryman’ means any person engaged in the
production, display or sale of Horticulture plants.
… … …
(m) ‘Owner’ means any person who has the ultimate control
over the affairs of a Horticulture Nursery and includes a
manager, managing director, managing partner or
managing agent of a society, association or company to
whom the said affairs are entrusted.
The State of Uttarakhand, has the Uttarakhand Fruit
Nurseries (Regulation) Act, 2019. The definitions framed in the
said Act are as follows:
“Definitions – 2. In this Act, unless the context otherwise
requires:-
… … …
(d) “Fruit Nursery’ means a place where propagation,
management and sale of fruit plant are done in the
regular course of business and it also includes
Commercial Tissue Culture unit/lab. And nurseries
managed by the Government
… … …
(j) “Nursery Owner” in relation to a fruit nursery, means
the person who, or the authority which has the ultimate
control over the affairs of such fruit nursery and it also
includes a manager, managing director, managing agent,
38any other person incharge of such fruit nursery or the
controlling authority (A.D.O/Superintendent/Nursery
Development Officer/District/Chief Horticulture officer/or
Nursery in-charge) of a Government nursery.”
The State of Punjab has the Punjab Fruit Nurseries Act, 1961.
The definitions germane are as follows:
“In this Act, unless the context otherwise requires,-
(b) “Fruit nursery” means any place where fruit plants are
in the regular course of business propagated and sold for
transplantation.
(c) “Fruit plant” means any plant which can produce edible
fruits or nuts, and includes budwood, seedings, grafts,
seeds and cuttings of such plant;
(d) “Owners” in relation to a fruit nursery, means the person
who, or the authority which, has the ultimate control over
the affairs of such fruit nursery, and where the said
affairs are entrusted to a manager, managing director or
managing agent, such manager, managing director or
managing agent shall be deemed to be the owner.”
The State of West Bengal, has the West Bengal Horticultural
Nurseries (Regulation) Act,2001. The definitions germane are
as follows:
“Definitions – 2. In this Act, unless the context otherwise
requires, –
(c) “horticultural nursery” means a place where
horticultural plant is, in the regular course of business,
propagated or sold for transplantation or sowing;
39
(e) “nurseryman” means a person engaged in the
production and sale of horticultural plant or horticultural
seed or horticultural plant material;
(f) “plant material” means the material used for
propagation and raising of horticultural plant, and
includes bud wood, scion, root-stock, sucker, root, seed,
cutting, seedlings, tubers, bulbs, rhizomes, grafts,
gooties, other vegetatively propagated materials of food
crops including vegetables, fruits and flowers.”
The State of Goa, has the Goa Fruit and Ornamental Plant
Nurseries (Regulation) Act, 1995. The definitions germane are
as follows:
“2. Definitions. – In this Act, unless the context
otherwise requires.-
(g) “Nursery” means any fruit and/or ornamental plant
nursery or tissue culture unit in Goa where fruit and/or
ornamental plants, are in regular course of business,
propagated and sold for transplantation or cultivation but
does not include such a nursery belonging to or managed
by the Government.
(h) “Nursery-man” means any person engaged in the
production and sale of fruit and ornamental plants;
... ... ...
(k) "fruit and ornamental plant" means any plant, which
gives flowers, foliage ornamental or edible fruits or nuts
and includes budwood, seedings, grafts, layers, bulbs,
seeds, suckers, rhizomes and cuttings of any such plant;
(l) “Owner” in relation to a fruit and ornamental plant
nursery, means the person who, or the authority which,
has the ultimate control over the affairs of such fruit and
ornamental plant nursery, and where the said affairs are
entrusted to a manager, managing director or managing
40agent, such manager, managing director or managing
agent shall be deemed to be the owner of the fruit and
ornamental plant nursery.”
The State of Maharashtra, has the Maharashtra Fruits
Nurseries and Sale of Fruit Plants (Regulation) Act, 1969.
The definitions germane are as follows:
“Definitions – 2 (1) In this Act, unless the context
otherwise requires.-
… … ….
(b) “fruit nursery” means any place, where fruit plants are
in the regular course of business propagated and sold for
transplantation, but does not include a fruit nursery
belonging to, or managed by, the Government;
(c) “fruit plant” means any plant, which can produce edible
fruits or nuts, and includes budwood, seedlings, grafts,
layers, seeds, bulbs, suckers, rhizomes and cuttings of
any such plant;
(d) “Owner”, in relation to a fruit nursery, means the person
who, or the authority which has the ultimate control over
the affairs of such fruit nursery; and where the said
affairs are entrusted to a manager, managing director or
managing agent, such manager, managing director or
managing agent shall be deemed to be the owner of the
fruit nursery.”
The State of Himachal Pradesh, has the Himachal Pradesh
Fruit and Nurseries Registration and Regulation Act, 2015.
The definitions germane are as follows:
41
“2. Definitions. – In this Act, unless there is anything
repugnant in the subject or context.-
(b) “Bud wood bank” means earmarked progeny trees and
fruit trees maintained for taking scion wood or any other
propagule for further multiplication in the nursery;
... ... ..
(h) "Fruit nursery" means bud wood bank or propagation
unit or tissue culture unit where plants are regularly
propagated and sold for transplantation;
.. .. ...
(k) "nurseryman" means any individual or agency engaged
in the production and sale of plant material from the fruit
nursery.’The State of Uttar Pradesh, has the Uttar Pradesh Fruit
Nurseries (Regulation) Act, 1976. The definitions germane are
as follows:
“Definitions – 2. In this Act –
(b) “fruit nursery” means any place where fruit plants are in
the regular course of business, propagated and sold for
transplantation, but does not include –
(i) a fruit nursery having an area less than 0.2
hectare;
(ii) fruit nursery belonging to or managed by the
Government.;
... ... ...
(g) "Owner", in relation to a fruit nursery, means the
person who, or the authority which, has the
ultimate control over the affairs of such fruit
nursery, and includes a manager, managing
director, managing agent, or any other person in-
charge of such fruit nursery.”
42
The State of Jammu and Kashmir, has the Jammu and
Kashmir Fruit Nurseries (Licensing) Act, 1987. The definitions
germane are as follows:
“2. Definitions. – In this Act, unless the context
otherwise requires.-
(b) “Fruit Nursery” means any place where fruit plants are
in the regular course of business propagated and sold for
transplantation, but does not include a fruit nursery
belonging to or managed by the Government;
(c) “Fruit Plant” means any plant which can produce edible
fruits or nuts and incudes budwood, seedlings, grafts,
layers, seed bulbs, suckers, rhizomes and cuttings of any
such plant.
(d) “Owner’ in relation to a fruit nursery, means the person
who has the ultimate control over the affairs of such fruit
nursery and where the said affairs are entrusted to a
manager, managing director, or managing agent, such
manager, managing director or managing agent shall be
deemed to be the owner of the fruit nursery.”
The State of Tripura, has the Tripura Horticultural Nurseries
(Regulation) Act, 2013. The definitions germane are as follows:
“2. Definitions: –
viii. “Horticulture” includes Fruits, Plantation crops,
Vegetables, Spices & Condiments, Ornamental foliage or
plants, Flowers, Medicinal and Aromatic crops and
plantations.
.. .. ...
43
ix. "Horticulture nursery" includes any place where fruit
plantation crops and or other notified plants are
propagated and sold.
… .. …
xiv. “Nursery” means any place, where horticultural plants
are in the regular course of business, propagated or sold
for transplantation;
xv. “Owner” in relation to a nursery means the person,
association or group of persons, organization, firm,
agency, company, local body, Government etc., who or
the authority which, has the ultimate control over the
affairs of such horticultural nursery and includes a
manager, managing director or managing agent, by
whatever name or designation they called, where the said
affairs are entrusted to such manager, managing director
or managing agent, as the case may be.”
Though the definitions in the afore-quoted statues of different
States are worded differently, one common stream is that ‘nursery’
would be a place where horticulture plants, fruits, vegetables or
flowers are grown in regular course of business, propagated and
sold for transplantation. Owners of those nurseries are described to
nurserymen. The statute of every State is the same and the
purpose of regulation is the same.
16. As observed, in the State of Karnataka like few other
States, the existence of nursery is not regulated. Therefore, what is
a nursery is to be interpreted drawing interpretation from the
44
dictionary or from the statues of other States. Therefore, for any
person to claim that he is running a nursery, the de rigueur would
be that the plants be grown there, on a regular business, for
transplantation, sale, propagation or other scientific necessities.
Certain advanced aspects also can be brought within the ambit of
nursery. Though mere keeping of plants and selling them would not
mean that it is a nursery or nursery farming, as the case would be.
Those lands which are to be used as horticulture nursery should
necessarily come within the ambit of any regulatory regime. Since
no regulatory regime is in place in the State of Karnataka, they
should be registered with the National Horticulture Board as it has a
method of accreditation of nurseries, till the State would bring any
regulatory regime in place. There are plethora of nurseries
registered with the Indian Horticulture Board. It is those nurseries
only which can be brought within the term ‘nursery’ and cannot be
vaguely determined by case specific Government Orders.
17. The issue now would be, several representations were
made to the Committee on identical lines as that of the petitioner.
Only two of the nurseries found acceptance by the Committee. On
45
inspection of those properties, what did the Committee find to
exempt those nurseries, are found in the reasons so rendered by
the Committee itself qua a particular nursery. The reason
rendered, reads as follows:
“II.Mary’s Barn situated in Survey Number 40/3 and 40/4
in Byalakere Village and Survey Number 52/3, 52/4 and
52/5 of Mediagrahara Village.
4. Three applications were filed before the JCC in respect of
the survey numbers referred to above. The applicants
stated that these lands were purchased by them in the
year 2005 and they are residing there since then. They
have developed the lands into a unique farm.
5. A report has been obtained from the Spl.LAO
concerned. The report of the Spl.LAO confirms the
existence of about 250 trees of various species,
about 120 medicinal plants, fish farming, livestock,
nursery, ornamental plants. The activities
undertaken are farming, nursery, livestock, fish
farming aqua-phonics, by-products of agricultural
produce, vermi composting, waste management
and biogas. Various schools bring their pupils to
this farm for workshops to get a personal
experience of nature. One of the applicants is a
qualified psychologist and conducts counseling
sessions. There are two small RCC structures put up
prior to 2008 in which the applicant reside and
conduct their programmes. The garden coverage is
85%.”
(Emphasis added)
The said report of inspection depicts that 250 trees of various
species were in existence and 120 medicinal plants for
46
transplantation were in existence, fish farming, livestock, nursery,
ornamental plants were all found in the said land. It is also noticed
that various schools brought their students into the farms for the
workshop to get personal experience of dealing with nature.
Counselling sessions were held. The garden coverage is 85%.
18. In juxtaposition to what was found by the Committee on
inspection to exempt the aforesaid nursery, inter alia, the report of
the Committee insofar as the petitioner is concerned, requires to be
noticed. The Committee opined as follows:
“JUSTICE A.V. CHANDRASHEKAR COMMITTEE, BDA HEAD
OFFICE, KUMARAPARK WEST, BANGALORE-560020PROCEEDINGS OF THE COMMITTEE
JCC No.112/2023-24 Dated: 08-08-2023
Sub: Order dated 27th June 2023 of Hon’ble High Court of
Karnataka in W.P.No.9386 of 2023 (LA-BDA).
—
The petitioner one Sri B.Sathyanarauyanachar has filed
an application dated 10-07-2023. His request in the application
is for deletion of Sy.No.11/2 measuring 1 acre situated at
Kempanahalli, Yelahanka Hobli, Bangalore North Taluk.
2. The petitioner had approached the Hon’ble High Court
of Karnataka in the reverence cited above, in which the High
Court was pleased to direct the petitioner to approach the
Justice A.V. Chandrashekar Committee with his representation.
47
3. On receipt of this application along with a copy of
the order of Hon’ble High Court an inspection was
conducted by Advisor, Town Planning for the Justice
A.V.Chandrshekar Committee.
4. The land is a vacant land and there are no
buildings/structures therein. The mandate of the JCC by
the Supreme Court is only in respect of buildings and not
vacant land. This extent of land is said to be a nursery. It
is true that on the basis of JCC’s recommendation two to
three nurseries have been exempted from acquisition.
These nurseries had provided sufficient documentary
proof like registration with the Indian Horticulture Board,
loan from banks etc. to establish that they are genuinely
in the horticulture business.
5. In the instant case, such documentary evidence
is lacking. Moreover, the Hon’ble Supreme Court of India
have very categorically stated in order dated 6-12-2022
that all pending applications stand closed.
6. In view of the above, the JCC would not be in a
position to make any recommendation to the Hon’ble
Supreme Court to exclude this land from acquisition. The
best option open to the petitioner is to opt for 40:60
schemes of the Government.”
(Emphasis added)
On inspection, the Committee found that the land of the petitioner
was vacant. Therefore, the Committee refused to drop the land
from acquisition and opined that the best option for the petitioner
would be to opt for 40:60 scheme of the Government.
48
19. The entire sheet anchor of the submission of the learned
senior counsel, is on the basis of Government order dated 01-01-
1987, which exempted nurseries to be a part of acquisition process.
We deem it appropriate to notice said Government order. The
Government order reads as follows:
“PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA
Subject:- Exempting the nursery lands from acquisition
by Bangalore Development Authority.
PREAMBLE:
The question of exempting nursery and garden land
from acquisition by Bangalore Development Authority for
the purpose of its scheme has been examined on the
petition by Nurserymen Co-operative Society Limited,
Lalbagh, Bangalore-4 made to the Hon’ble Chief Minister.
They have urged that those professional people have
been following this profession for over decades in this
State and making all round efforts for the development of
Horticulture, Fruit, Orchards, Plantations, Speicos, Lawns
and Gardens. They have also invited the attention to
Government order No. HUD 91 CGL 78 dated 15-11-1978,
wherein indiscriminate acquisition of lands of Nurserymen
denying their livelihood would work hard on them. They
also drawn the attention to the resolution No.834 of
Bangalore Development Authority, dated 5-9-1985.
Wherein the notified areas the coconut trees,
grapes and other fruit trees was not grown. It is decided
that these lands have to be reconveyed to the land
owners under the following conditions:
a. The land owners shall not change the uses of the
land and shall not change the nature of land.
49
b. The land owners shall not put up any construction
without the permission of BDA.
c. The land shall not be alienated to any person
without prior permission of BDA.
d. Priority shall be given to BDA if the land owner
wants to sell the lands. If BDA granted permission
to sell the lands subject to the above conditions.
e. BDA has got power to take back the lands if any one
of the conditions violated by the owners of the
lands.
Therefore, they have requested the Government to kindly
denotify the Nursery land from acquisition by BDA or KHB, and
to exempt them under Urban Land (Ceiling and Regulation) Act,
1976 for continuing this profession.
The matter has been examined further by Chief Minister
at a meeting taken by him on 22-10-1986. It has been decided
at the meeting that Nurseries should be permitted to continue
on their activities and necessary orders may be issued stating
that if the owners discontinue to use these lands for nursery,
they will be acquired by Bangalore Development Authority.
Exemption to garden land other than Nursery they will be
acquired by Bangalore Development Authority. Exemption to
garden land, other than Nursery from acquisition by Bangalore
Development Authority over was not been agreed to Nursery
has been defined as:
“The place where Horticulture plants and seeds are in the
regular course of business propagated for the purpose of sale
but does not include a Horticultural Nursery belonging to or
managed by the State or Central Government.
ORDER NO:HUD 478 MNX 86, BANGALORE
DATED 1ST JANUARY 1987Government have further examined the request and
hereby order that the lands used for nurseries be exempt
from Land Acquisition for its development schemes by the
Bangalore Development Authority. If the owners of these
nurseries discontinue to use those lands for nurseries,
the lands will be acquired by the Bangalore Development
Authority.
50
This order shall come into force with immediate
effect and until further orders.
By order and in the name of the
Governor of Karnataka.
Sd/- C.VENKATAIAH
Under Secretary to Government,
Housing and Urban Dev. Department.”
(Emphasis added)
The Government order notices that the issue before it, for grant of
exemption from acquisition by the BDA for the purpose of its
scheme then was examined on a petition submitted by the
Nurserymen Co-operative Society Limited at Lalbagh to the then
Chief Minister. Based upon the said representation only, on the
ground that the nurserymen would lose their livelihood and there
would be development in horticulture, fruits, orchards plantations,
lawns and gardens the exemption is granted. We deem it apropos,
to add that it was case specific, for the purpose of survival of the
Nurserymen Co-operative Society. It was, therefore, directed that
the land be exempted from acquisition, so as to continue those
members of the Nurserymen Co-operative Society for the purpose
for which the Society was established with a condition that the
nature of the land should not be changed. This Government order
51
is said to have been used by several land owners seeking
exemption from acquisition on the ground that the Government
order is applicable to them.
20. The aforesaid Government order bears consideration, in
two of the orders passed by this Court. A Division of this Court in
MRS.LATHA U.KAMATH v. COMMISSIONER, BANGALORE
DEVELOPMENT AUTHORITY2 has held as follows:
“…. …. ….
42. The background of the cases which was dealt with by
the Supreme Court on the second point was almost the same as
it is before us and we shall take the same route as that taken by
the Supreme Court.
43. The Supreme Court dealt with a situation where there
was a State policy of not acquiring lands which had abadi on it.
Abadi is a term of art which refers to village site lands utilised
for residential purposes and there was a State policy adopted by
the State of Uttar Pradesh not to acquire lands on which there is
abadi namely village site lands having residential construction
thereon. (The word ‘Abadi’ appears to be an Urdu word which
translated in English means Township (Basti) fully developed, a
place where people go and reside with all the amenities.)
44. The Supreme Court while relegating the parties to
approach the State Government under Section 48(1) of the Act
directed the State to satisfy itself whether following conditions
were fulfilled:
2
(2003) SCC OnLine Kar.84
52
(i) Whether there was any abadi on the acquired lands
at the time of Section 4(1) notification;
(ii) Whether such abadi was a legally permissible
abadi;
(iii) Whether such abadi has continued to exist till the
date of representation;
(iv) Whether such abadi was covered by any
government policy in force at the time of issuance
of Section 4(1) notification and/or Section 6
notification for not acquiring lands having such
abadi;
(v) Whether such government policy has continued to
be in force till the date of representation.
45. In fact the Supreme Court left the entire matter
at large for the consideration of the State on a
representation being made by the land owners. The
Supreme Court also directed the parties to maintain
status-quo, pending representation being given to the
State Government.
46. Ultimately the Supreme Court did not choose to
quash the acquisition proceedings, but on the question of
State policy left the matter to be determined by the State
Government in accordance with law.
47. In the case presently before us the situation is more
or less the same. Annexure-G the Circular issued by the State
Government which appears to prohibit the acquisition of lands
which is being used exclusively as a nursery. Enough materials
have been placed to prima facie satisfy the Court that in the
same notification other lands which had nurseries were deleted
from the acquisition proceedings. However our opinion is only
prima facie, since the Annexures produced before the Court
whereby the lands were deleted on the grounds that the lands
were being maintained as nurseries will have to be verified by
the State Government and the State Government is also
required to verify whether under the same notification other
lands were exempted on the basis of the circular.
53
48. The learned Single Judge while disposing of the Writ
Petitions has also given liberty to the appellants to approach
either the Government or the Bangalore Development Authority
for such other remedies as available in law in respect of the said
lands in question. This portion of the Order has not been
appealed against by the Bangalore Development Authority or
the State Government. It is only in this context, we have chosen
to deal with this matter by assigning reasons and on the basis of
the judgment rendered by the Supreme Court in Om Prakash’s
Case (1998) 6 SCC.
49. We are also prima facie of the view that in view of
the interim orders granted by earlier Benches-of this Court in
the writ appeals in the presence of the BDA the possession
appears to be still with the appellants. The Court
Commissioner’s report also appears to be of the same view.
However, whether possession has been taken or not is a
disputed question of fact and it is for the State Government to
determine whether the possession has been taken by the BDA.
50. On the factual aspect of possession we are not
inclined to give any finding and leave it to the State to deal with
it in accordance with law. Right at the outset we had extracted
Section 48 of the Act. Section 48 gives liberty to the State
Government to withdraw from acquisition any land on which
possession has not been taken.
51. In these circumstances, we direct the
appellants to make a representation to the State
Government within three weeks from the date of receipt
of this Order and the State Government shall consider the
following matters:–
(i) Whether there were any nurseries on the acquired
lands at the time of Section 17 notification;
(ii) Whether such nurseries were a legally permissible
nurseries;
(iii) Whether such nurseries have continued to exist till
the date of representation;
54
(iv) Whether such nurseries were covered by any
government policy (Annexure-G) in force at the
time of issuance of Section 17 notification and/or
Section 19 notification of the B.D.A. Act 1976 for
not acquiring lands having such nurseries;
(v) Whether such Government policy (Annexure-G) has
continued to be in force till the date of
representation.
52. The State Government which is a final authority
shall determine these issues and pass orders in
accordance with law as expeditiously as possible on the
basis of the representation if possession has not been
taken. Pending disposal of the representation, interim
orders granted by this Court shall enure to the benefit of
the appellants. If no representation is made within the
stipulated time the interim orders granted by the earlier
Division Benches of this Court shall stand vacated.
Accordingly these Writ Appeals are disposed of. No order
as to costs.”
(Emphasis supplied)
The Division Bench does not give its imprimatur to the
Government order dated 01-01-1987. It clearly poses certain
questions to the Government to be considered. They are, whether
there were any nurseries on the acquired lands at the time of
Section 17 notification; whether such nurseries were legally
permissible nurseries; whether such nurseries continue to exist till
the date of representation; whether such nurseries were covered by
any government policy in force at the time of issuance of Section 17
55
or 19 notification under the BDA Act for not acquiring lands having
such nurseries; whether the Government policy has continued to be
in force till the date of representation, as the learned single Judge
had dismissed the writ petitions.
21. In a subsequent judgment in MEENAKSHI THIMMAIAH
v. STATE OF KARNATAKA3 a learned single has held as follows:
“…. …. ….
29. That apart, the petitioners have filed I.A.II/2004
producing photographs as Annexure-K series to show that they
are in possession of the lands. The photographs produced by the
petitioners would clearly show the existence of residential
houses, farm houses and agricultural and Horticultural
operations upon the required lands of the petitioners. In view of
these, it cannot be said that possession of the lands were taken
over by MUDA. In the circumstances, I.A.II/2004 is allowed.
30. Since possession of the lands remained with the
petitioners, mere publication of Section 16(2) of L.A.Act
Notification to evidence the fact of taking possession cannot be
accepted by this Court. That apart, the Notification is issued by
the Special Land Acquisition Officer of MUDA and it is not
notified either by the Deputy Commissioner of the District or
Assistant Commissioner of the Revenue sub-division. Therefore,
Section 16(2) of the LA Act Notification has no legal sanction at
all and it cannot be considered as proof for having taken over
possession of the lands of the petitioners from them.
Consequently, Point (iii) is answered in the negative.
Points (iv & v) : Application of decision in W.R.No.
16054/2004 and W.A.No. 1447/2000
3
2009 SCC OnLine Kar 417
56
31. In the aforementioned two cases filed by some other
land owners, this Court declined to quash the impugned
Notifications on account of delay and laches. MUDA wants to
apply the same to the present cases and to dismiss these
petitions. That cannot be done by this Court in view of the
answers given to Points (i to iii) holding that the approval given
to the scheme is bad in law; that possession of the lands are not
taken in accordance with law and the lands are not vested with
MUDA. The acquisition proceedings are void ab initio in law. A
void action is always void and it can be challenged at any point
of time. Even if there is delay, the same cannot be a ground to
deny the relief in view of the decision of the Apex Court
reported in (2000) 9 SCC 94 : AIR 2000 SC 2306. Further the
order passed in the above writ petition need not be applied to
the fact situation for the reason that in the above writ petition
the legal ground that the prior sanction of the scheme of the
MUDA was sanctioned by the State Government as required
under Section 18(3) of the Act without considering the
statement of objections to the preliminary Notification and
before expiry of 30 days period from the date of service of
notice upon the petitioners along with the preliminary
Notification inviting objection statements to the proposed
acquisition of the petitioners lands. Further the legal grounds
urged in these petitions are entirely different, from the grounds
urged in the above said writ petition. The petitioners have
placed reliance upon the judgment of this Court in G. Jayarama
Reddy v. State of Karnataka and others [ILR 2005 Kar 1963.]
32. The petitioners have produced Annexure-D the copy
of the order dated 24-8-1998 passed by this Court in W.R.No.
29211/1994 and connected cases by which the impugned
Notifications have been quashed in so far as the petitioners in
those petitions are concerned. That order has become final. The
said order was either produced or placed reliance by the
petitioner in W.P.No. 16054/2004 & WA 1447/2000.
33. The petitioners also produced Annexures-E and
E1 which are the Circulars issued by the Government not
to acquire fertile agricultural lands, garden lands and
lands where nurseries are established. The lands in
question are also garden lands with residential and farm
houses. Therefore, they should have not been proposed
for acquisition for formation of residential layout even
57
though the said circulars have no statutory force, but the
same are binding upon the Urban Development
Authorities and State Government.”
(Emphasis supplied)
The learned single Judge holds that the lands in question were
garden lands and the Mysore Urban Development Authority should
not have proceeded to propose the said lands for acquisition for
formation of a residential layout. The learned single Judge holds
that circulars or Government orders do not have a statutory force
but the same is binding on the Urban Development Department and
the State Government. These are two orders, which considered the
Government order dated 01-01-1987 quoted supra.
22. The same swan song is projected by the petitioner in the
case on hand, as well. In order to buttress the submission, several
photographs are placed naming the nursery as “Shree Govardhana
Nursery Farm”. These photographs do not inspire our confidence,
in contrast to what the learned counsel for the BDA has placed, as
they are overwhelming piece of evidence, depicting the status of
the land of the petitioner. The learned counsel for the BDA places
58
the status of the land in 2008, at the time of acquisition. It is
vacant. Subsequently, at the time of inspection, it is vacant.
Google earth images taken on 28-04-2018 and 26-10-2018 depict
the land to be vacant. Same goes of the images taken on
20-01-2020 and 06-02-2021, which depict the land of the petitioner
to be vacant. Satellite imaging was permitted by the Apex Court in
its order supra. After all the aforesaid dates where the land of the
petitioner lies vacant, the photographs are taken by developing the
land to be a nursery. To our pointed question to the learned senior
counsel for the petitioner, the learned senior counsel would submit
that the land that is being used as a nursery, has not been subject
matter of any registration with the Indian Horticulture Board. No
farming activity is undertaken, there is no live stock; no vermi
compost or waste management is processed nor bio-gas is
generated. There are no counselling sessions with regard to
development of plants at the nursery at any time undertaken by
this petitioner. A nursery in our considered view, must be, the one
registered with the Indian Horticulture Board; the registration being
made subject to renewal from time to time on due inspection by the
Competent Authority, that it still runs as a nursery; the traits of
59
using the land as a nursery, as obtaining under any regulatory
regime or the activities that are found by the Committee in the
nursery that is exempted from the subject acquisition. We thus, fail
to understand, how can such a land which does not bear any of the
characteristics of a nursery, be exempted from acquisition. In our
considered view, the Government order dated 01-01-1987 was
case specific, that is being used or misused to get exemption from
acquisition till this day, as the learned senior counsel for the
petitioner places reliance on the said Government order dated
01-01-1987 and nothing beyond that.
23. It is trite law that a Government order, Circular or
administrative instructions, cannot override the statute. The
acquisition of land of private citizens is done by the State in
exercise of its sovereign power of eminent domain, albeit on
statutory considerations. If statute is what governs the acquisition
of land of citizen by exercise of sovereign power of eminent
domain, the Government order supra cannot override the
sovereign power of eminent domain or the rigour of the statute.
60
We deem it appropriate to notice certain judgments of the Apex
Court on the issue. The Apex Court in the case of P.SADAGOPAN
v. FOOD CORPORATION OF INDIA4 has held as follows:
“3. The Regulation provides that such of the candidates
who have put in three years’ experience as Assistant, Category I
are eligible to be considered for promotion as Assistant
Managers in Category II post. It is now settled legal position
that executive instructions cannot be issued in
derogation of the statutory Regulations. In view of the fact
that the statutory Regulations require that experience of three
years is a precondition to consideration for promotion to
Category II post from Category I post, it would be obvious that
any relaxation was in defeasance of the above Regulations. The
Division Bench, therefore, was not right in upholding the power
of the Board in directing relaxation of the statutory regulations
and consideration of the cases without considering the claims of
all the eligible persons. Moreover, later the Board itself cancelled
the 1970 Panel. The Regulation issued for promotion of the
Scheduled Castes and Scheduled Tribes should also be
considered. Admittedly, they were not considered. Since the
claims of all the persons are not before us, we do not propose to
close the matter at this end. Accordingly, we set aside the order
of the Division Bench and direct the authorities concerned to
determine the promotions of all the eligible persons in
accordance with the statutory regulations and pass appropriate
orders within a period of six months from the date of the receipt
of the order.”
(Emphasis supplied)
4
(1997) 4 SCC 301
61
Later, the Apex Court in the case of K.KUPPUSAMY v. STATE
OF TAMIL NADU5 has held as follows:
“3. The short point on which these appeals must succeed
is that the Tribunal fell into an error in taking the view that since
the Government had indicated its intention to amend the
relevant rules, its action in proceeding on the assumption of
such amendment could not be said to be irrational or arbitrary
and, therefore, the consequential orders passed have to be
upheld. We are afraid this line of approach cannot be
countenanced. The relevant rules, it is admitted, were
framed under the proviso to Article 309 of the
Constitution. They are statutory rules. Statutory rules
cannot be overridden by executive orders or executive
practice. Merely because the Government had taken a
decision to amend the rules does not mean that the rule
stood obliterated. Till the rule is amended, the rule applies.
Even today the amendment has not been effected. As and when
it is effected ordinarily it would be prospective in nature unless
expressly or by necessary implication found to be retrospective.
The Tribunal was, therefore, wrong in ignoring the rule.”
(Emphasis supplied)
The Apex Court in the case of DR. RAJINDER SINGH v. STATE
OF PUNJAB6 has held as follows:
“7. The settled position of law is that no
government order, notification or circular can be a
substitute of the statutory rules framed with the
authority of law. Following any other course would be
disastrous inasmuch as it would deprive the security of tenure
5
(1998) 8 SCC 469
6
(2001) 5 SCC 482
62and right of equality conferred upon the civil servants under the
constitutional scheme. It would be negating the so far accepted
service jurisprudence. We are of the firm view that the High
Court was not justified in observing that even without the
amendment of the Rules, Class II of the service can be treated
as Class I only by way of notification. Following such a course in
effect amounts to amending the rules by a government order
and ignoring the mandate of Article 309 of the Constitution.”
(Emphasis supplied)
The Apex Court in all the afore-quoted judgments would clearly
hold that it is settled principle of law or position of law that no
Government order, notification or circular can be a substitute to the
statutory rules framed with the authority of law. Following any
other course would be disastrous, inasmuch as it would deprive the
rights under the constitutional scheme. These are the general
jurisprudential principles, with regard to whether the statutory rules
can be overridden by Government order, instructions or circulars.
24. Specifically in the cases of misuse of power on eminent
domain, whether any Government order could control the said
power is elucidated by the Apex Court in the case of CHAIRMAN,
63
INDORE VIKAS PRADHIKARAN v. PURE INDUSTRIAL COKE &
CHEMICALS LIMITED7 wherein it is held as follows:
“59. In Hindustan Petroleum Corpn. Ltd. v. Darius
Shapur Chenai [(2005) 7 SCC 627] construing Section 5-A of
the Land Acquisition Act, this Court observed: (SCC pp. 634-35,
para 6-7)“6. It is not in dispute that Section 5-A of the Act
confers a valuable right in favour of a person whose lands
are sought to be acquired. Having regard to the
provisions contained in Article 300-A of the Constitution,
the State in exercise of its power of ’eminent domain’
may interfere with the right of property of a person by
acquiring the same but the same must be for a public
purpose and reasonable compensation therefor must be
paid.
7. Indisputably, the definition of public purpose is
of wide amplitude and takes within its sweep the
acquisition of land for a corporation owned or controlled
by the State, as envisaged under sub-clause (iv) of
Clause (f) of Section 3 of the Act. But the same would not
mean that the State is the sole judge therefor and no
judicial review shall lie. (See JilubhaiNanbhai
Khachar v. State of Gujarat [1995 Supp (1) SCC 596] .)”
It was further stated: (SCC p. 640, para 29)
“29. The Act is an expropriatory legislation. This
Court in State of M.P. v. Vishnu Prasad Sharma [AIR 1966
SC 1593] observed that in such a case the provisions of
the statute should be strictly construed as it deprives a
person of his land without consent. [See also Khub
Chand v. State of Rajasthan [AIR 1967 SC 1074]
and CCE v. Orient Fabrics (P) Ltd. [(2004) 1 SCC 597] ]
7
(2007) 8 SCC 705
64
There cannot, therefore, be any doubt that in a case of this
nature due application of mind on the part of the statutory
authority was imperative.”
In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77 : JT
(2005) 8 SC 171] it was opined: (SCC p. 102, para 59)
“In absence of any substantive provisions
contained in a parliamentary or legislative act, he cannot
be refrained from dealing with his property in any manner
he likes. Such statutory interdict would be opposed to
one’s right of property as envisaged under Article 300-A
of the Constitution.”
In State of U.P. v. Manohar [(2005) 2 SCC 126] a Constitution
Bench of this Court held: (SCC p. 129, paras 7-8)
“7. Ours is a constitutional democracy and the
rights available to the citizens are declared by the
Constitution. Although Article 19(1)(f) was deleted by the
Forty-fourth Amendment to the Constitution, Article 300-
A has been placed in the Constitution, which reads as
follows:
‘300-A. Persons not to be deprived of property save
by authority of law.–No person shall be deprived of his
property save by authority of law.’
8. This is a case where we find utter lack of legal
authority for deprivation of the respondent’s property by
the appellants who are State authorities.”
In JilubhaiNanbhai Khachar v. State of Gujarat [1995 Supp (1)
SCC 596] the law is stated in the following terms: (SCC p. 622,
para 34)
“34. The right of eminent domain is the right of the
sovereign State, through its regular agencies, to reassert,
either temporarily or permanently, its dominion over any
portion of the soil of the State including private property
without its owner’s consent on account of public exigency
and for the public good. Eminent domain is the highest
and most exact idea of property remaining in the
Government, or in the aggregate body of the people in
65
their sovereign capacity. It gives the right to resume
possession of the property in the manner directed by the
Constitution and the laws of the State, whenever the
public interest requires it. The term ‘expropriation’ is
practically synonymous with the term ’eminent domain’.”
It was further observed: (SCC p. 627, para 48)
“48. The word ‘property’ used in Article 300-A
must be understood in the context in which the
sovereign power of eminent domain is exercised by
the State and property expropriated. No abstract
principles could be laid. Each case must be
considered in the light of its own facts and setting.
The phrase ‘deprivation of the property of a person’
must equally be considered in the fact situation of a
case. Deprivation connotes different concepts.
Article 300-A gets attracted to an acquisition or
taking possession of private property, by necessary
implication for public purpose, in accordance with
the law made by Parliament or a State Legislature,
a rule or a statutory order having force of law. It is
inherent in every sovereign State by exercising its
power of eminent domain to expropriate private
property without owner’s consent. Prima facie,
State would be the judge to decide whether a
purpose is a public purpose. But it is not the sole
judge. This will be subject to judicial review and it
is the duty of the court to determine whether a
particular purpose is a public purpose or not. Public
interest has always been considered to be an
essential ingredient of public purpose. But every
public purpose does not fall under Article 300-A nor
every exercise of eminent domain an acquisition or
taking possession under Article 300-A. Generally
speaking preservation of public health or
prevention of damage to life and property are
considered to be public purposes. Yet deprivation of
property for any such purpose would not amount to
acquisition or possession taken under Article 300-A.
It would be by exercise of the police power of the
State. In other words, Article 300-A only limits the
powers of the State that no person shall be
66
deprived of his property save by authority of law.
There has to be no deprivation without any sanction
of law. Deprivation by any other mode is not
acquisition or taking possession under Article 300-
A. In other words, if there is no law, there is no
deprivation. Acquisition of mines, minerals and
quarries is deprivation under Article 300-A.”
Rajendra Babu, J. (as the learned Chief Justice then was) in Sri
Krishnapur Mutt v. N. Vijayendra Shetty [(1992) 3 Kar LJ 326]
observed: (Kar LJ p. 329, para 8)
“8. The restrictions imposed in the planning law
though in public interest should be strictly interpreted
because they make an inroad into the rights of a private
person to carry on his business by construction of a
suitable building for the purpose and incidentally may
affect his fundamental right if too widely interpreted.”
(Emphasis supplied)
A little earlier to the said judgment the Apex Court in the case of
JILUBHAI NANBHAI KHACHAR v. STATE OF GUJARAT8 has
held as follows:
“35. This Court in Chiranjit Lal Chowdhuri v. Union of
India [1950 SCC 833 : 1950 SCR 869 : AIR 1951 SC 41] held
that eminent domain is a right inherent in every sovereign to
take and appropriate private property belonging to individual
citizens for public use. The limitation imposed upon acquisition
or taking possession of private property which is implied in
clause (2) of Article 31 is that such taking must be for public
purpose. The other condition is that no property can be taken,
unless the law which authorises such appropriation contains a
provision for payment of compensation in the manner as laid
down in the clause. In State of Bihar v. Kameshwar
8
1995 Supp (1) SCC 596
67Singh [(1952) 1 SCC 528 : 1952 SCR 889 : AIR 1952 SC
252] , the “eminent domain” was held to be a right
inherent in every sovereign to take and appropriate
private property belonging to individual citizens for public
use without owner’s consent. The limitation imposed
upon acquisition or taking possession of private property
which is implied in clause (2) of Article 31 is that such
taking must be for public purpose. The other condition is
that no property can be taken, unless the law which
authorises such appropriation contains a provision for
payment of compensation in the manner laid down in the
clause. Mahajan, J., as he then was, quoting from Thayer’s
Cases on Constitutional Law stated that : (SCR p. 929)“Shorn of all its incidents, the simple definition
of the power to acquire compulsorily or of the term
’eminent domain’ is the power of the sovereign to
take property for public use without the owner’s
consent. The meaning of the power in its irreducible
terms is, (a) power to take, (b) without the owner’s
consent, (c) for the public use. The concept of the
public use has been inextricably related to an
appropriate exercise of the power and is considered
essential in any statement of its meaning. Payment of
compensation, though not an essential ingredient of
the connotation of the term, is an essential element
of the valid exercise of such power.”
(Emphasis supplied)
The Apex Court holds that sovereign power of eminent domain, is
a right inherent, in every sovereign State to take and expropriate
property, for public purposes, without its owner’s consent. It would
be exercised by authority of law and obviously not by an executive
fiat or a Government order.
68
25. If what the Apex Court has observed in the afore-quoted
judgments is paraphrased towards consideration of the subject
Government order, the unmistakable inference, would be that the
said Government order, cannot take away the sovereign power of
eminent domain, by concluding exemption for nurseries, unless
the nurseries are the ones that pass the test of the conditions
noticed by us hereinabove. It is a Government order. The
acquisition takes place under the statute and it is the sovereign
power of the eminent domain, subject of course to statutory
restrictions. The statute nowhere exempts any part of the land
from the process of acquisition, except in certain circumstances.
The judicial elucidation of exemptions from time to time insofar as
nursery is concerned has been on only in two cases, in these 37
years of existence of the Government order. There is no law
declared by this Court, giving the Government order a status of a
statute, over and above the Act – either the Land Acquisition Act or
the Bangalore Development Authority Act in terms of which the
acquisition would commence and conclude, in cases like the one on
hand.
69
26. It is by now, too rudimentary, that any Government
order, cannot override a statute, particularly the subject
Government order, which had and has no statutory legs to stand.
It was, as observed hereinabove, a case specific Government order.
Therefore, henceforth, if the acquiring authorities under the
respective statutes want to exempt a nursery, they can do so only
after bringing in a regulatory regime for recognition of such
nurseries. It is for the State to take appropriate action in that
regard. Reliance on the Government order dated 01-01-1987, in
our considered view, must stop and stop forthwith. Therefore,
there is no case made out by the petitioner that would entail our
interference to step in and quash the report of the Committee dated
08-08-2023, nor drop the lands from acquisition, in terms of the
final Notification dated 30-10-2018.
27. For the praefatus reasons, finding no merit in the claim
of the petitioner that it is a nursery, the petition stands rejected,
leaving open to the petitioner to claim compensation or any other
mode of redemption for acquisition, as is notified by the State/BDA.
70
Interim order of any kind operating shall stand dissolved.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ