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The Land Acquisition Act, 1894
The Bangalore Marriages Validating Act, 1936
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Section 18 in The Land Acquisition Act, 1894
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Karnataka High Court
Smt. C.V. Shantha W/O N.P. ... vs The State Of Karnataka, Urban ... on 6 June, 2006
Equivalent citations: 2006 (5) KarLJ 361
Author: M Shantanagoudar
Bench: M Shantanagoudar

ORDER

Mohan Shantanagoudar, J.

Heard the learned Counsels appearing on both sides and perused the material on record. The matters arising out of 'Further Extension of Bhonashankari 6th Stage' layout are also heard along with these matters by consent of parties, as the questions involved in these matters are almost similar.

1. These writ petitions are filed by the land/site owners and interested persons challenging the notification issued Under Section 17(1) of the Bangalore Development Authority Act 1976 (hereinafter referred to as 'BDA Act' for short) dated 08.04.2003 bearing No. BDA/Commissioner/SLAO/79/2003-2004 (published in the official gazette on 09.04,2003) (henceforth called as preliminary notification) and the notification issued Under Section 19(1) of the 'BDA Act' dated 09.09.2003 bearing No. Na Aa Ee/749/Bem Bhu Swa/2003, published in the official gazette on 10.09.2003 (hereafter called as final notification). By issuing said notifications, the Bangalore Development Authority ('BDA' for short) proposed to acquire the lands specified therein for the formation of layout called "Further Extension of Sir. M. Visweshwaraiah layout". Since identical questions of law and fact arise for consideration in all these writ petitions they are taken up for consideration together and are being disposed of by this common order after hearing.

2. Before adverting to the facts in these petitions, it is just and necessary to note that the petitioners in all these petitions could be broadly classified as under:

(a) The owners of the lands who ore either personally cultivating the land or who have put up constructions on the said lands and using them either for residential purposes, non-residential purposes.

(b) The owners of sites:

(i) who have purchased sites in agricultural lands.

(ii) Who have purchased sites in layouts, which are not approved by the competent authority and formed in agricultural lands.

(iii) Who have purchased sites in layouts, which are formed after conversion and after obtaining the necessary permission/sanction from the local authorities.

(iv) Who have purchased sites in any of the modes aforesaid and who have put up constructions and who are living there.

(c) Petitioners who are having garden lands, nursery lands.

(d) Petitioners whose lands are in the green belt.

(e) Petitioners who are in possession of the sites/ landa by virtue of registered General Power of Attorney executed in their favour or agreements of sale or allotment letters.

3. The facts leading to these writ petitions are, briefly stated as under:

The BDA, took decision on 17.01.2003 to Acquire the lands, required for the purpose of formation of layout called "Further Extension of Sir M. Visweshwaraiah layout", situated at various survey numbers of Herohalli, Gidadakonenahalli and Mallathhalli Villages of Yeshwanthpur Hobli, Bangalore North taluk. In pursuance thereof, a notification dated 08.03.2003 was issued Under Section 17(1) of the BDA- Act', under which, it was proposed to acquire 773 acres 18 guntas of land (including Government land to an extent of 159 acres 11 guntas), The notices as contemplated Under Section 17(5) of the BDA Act have been issued to the notified Khathadara and Anubhavadars during the month of April and May 2003, In addition to issuance of notices, public notice was also published in leading newspapers on 30.04.2003, inviting objections from the affected persons. In the notification issued Under Section 17(1) of the BDA Act' it was made clear that the particulars of the scheme, the map of the area, statement specifying the lands which BDA proposes to acquire could be seen from the office of the Land Acquisition Officer of the BDA during the office hours of all the working days. Objections were filed by some of the landowners and interested persons and thereafter, the landowners and interested persons were heard from 09.06.2003 to 13.06.2003 by conducting camps at respective villages. The objections filed by the landowners and interested persons were placed before the meeting of the BDA that was held on 28.06.2003 in Subject No. 178/2003, in which, it is resolved by the BDA as under:

a) Resolved to execute the scheme 'Further Extension of Sir. M. Visweshwaraish layout' as contemplated Under Section 15(2) of the Act.

b) To send the proposal to the Government for sanction of the scheme Under Section 18(3) of the BDA Act.

c) To delete 263 acres 18 guntas of land in the proposed final notification Under Section 19(1) of the BDA Act by considering the objections and to issue notification under Section 20 of the 'BDA-Act' and to levy the betterment tax for the extent of deleted land while issuing Final Notification.

d) To send the proposal to the Government to issue notification Under Section 19(1) of the BDA Act for the remaining extent of 510 acres of land by overruling the objections filed by landowners and interested persons. This included the Government lands to an extent of 159 acres 11 guntas in the above villages.

The Government has sanctioned the scheme Under Section 18(3) of the 'BDA Act' on 04.09.2003 and the same was published in the Official Gazette on 08.09.2003 and thereafter, Final notification was issued Under Section 19(1) of the 'BDA Act' on 09,09.2003 and the same is published in the Official Gazette on 10.09.2003.

The BDA, after passing Resolution in its Subject No. 178/2003 dated 28.06.2003, issued notification Under Section 20 of the 'BDA Act' on 11.09.2003 which was published in the Official Gazette on 12.09.2003. The betterment tax is levied on the lands to an extent of 263 Acres 18 guntas, which are left in the final notification. Notices were issued to the notified khatedars, anubhavadars and interested persons as per Section 9 & 10 of the Land Acquisition Act ('L.A. Act' for short) during September 2003. In addition, public notice was also issued in leading newspapers on 14.09.2003, inviting objections/claim statements. After hearing, the award came to be passed and approved by the authority and thereafter, possession of the land to an extent of 418 acres 17 guntas has been taken and the same is handed over to the Engineering Section of BDA to form the layout. However, the possession of the remaining extent is not taken due to stay orders issued by the Courts.

The BDA issued the paper publication on 09.01.2004 inviting applications from the Revenue site holders for allotment of an alternative sites to them in lieu of their revenue sites coming under the scheme on priority basis. In pursuance to said paper publication, 718 applications are filed by the revenue site owners seeking allotment of alternative sites and scrutiny of these applications is under progress. In the meanwhile, some of the revenue site-owners filed writ petitions and after disposal of those writ petitions, 285 more applications filed by the revenue site owners for allotment of alternate sites are received by the BDA.

The BDA took up developmental work by leveling the lands, formed drainage etc., and the layout work is carried out by the Engineering Department by spending crores of rupees. Out of the total extent of 510 acres acquired under the final notification, totally 3849 residential sites of various dimension viz., 20'x30't 30'40', 40'x60' & 50'x80' are formed by the Engineering Section Out of them, 3816 residential sites ate allotted by the Administrative Section of BDA to various applicants.

4. Learned Advocates appearing on behalf of the petitioners argued for quashing the acquisition notifications and for de-notification of petitioners' lands from acquisition mainly on the following points/ grounds:

(i) The lands of similarly placed persons have been deleted and whereas the said benefit is denied to these petitioners and therefore, the acquisition in question is tainted with malafides, discrimination, colourable exercise of power and violative of Article 14 of the Constitution of India.

(ii) Hundreds of acres of lands have been deleted from the acquisition from the final notification and some of the lands of highly influenced persons are de-notified even after issuance of final notification and because of such indiscriminate deletion of various patches of lands, the scheme cannot be implemented in its entirety and in accordance with the original scheme.

(iii) Sections 15 & 16 of 'BDA Act' contemplate the manner in which the scheme is to be prepared by the BDA. This pre-proposes that the BDA will have to plan the development of area by getting approval of the scheme as contemplated under the Act prior to issuance of notification Under Section 17(1) of the Act and that the BDA has to prepare its comprehensive scheme considering every aspects of the matter after taking into consideration the ground realities and only thereafter, shall issue notification Under Section 17 of the Act. As the scheme in question is not prepared prior to issuance of preliminary notification Under Section 17(1) of the BDA Act', no notification Under Section 17(1) of the BDA Act' could have been issued.

(iv) The BDA, by any stretch of imagination, cannot alter original scheme which is already prepared by it and in respect of which, notification Under Section 17(i) of the 'BDA Act' is issued. The BDA, in this case has prepared altogether new scheme after issuing preliminary notification as is clear from the fact that the BDA has acquired only 510 acres of land as against the original proposal of 773 acres 18 guntas of land and thereby left out more than 30% of the land proposed for acquisition in Preliminary notification.

(v) The 'BDA Act' contemplates consideration of the objections filed by the landowners or interested persona in two stages i.e., once by the BDA and again by the Government.

(vi) The BDA cannot acquire lands, which are not included in the Bangalore Metropolitan City Planning Area.

(vii) Even though the objections are filed seeking oral hearing by the petitioners, they are not heard. So also the objections filed by the petitioners are not duly considered.

(viii) The petitioners are having large family and that the agricultural lands, which are now proposed for acquisition, are the only source of their livelihood. Having put up residential houses, they are residing therein and if the lands are acquired, the same amounts deprivation of their right to livelihood and the same is against/violative of the Articles 21 and 300-A of the Constitution of India.

(ix) The BDA has not stated as to what is the exact extent of land acquired from individual owners, where title properties owned by several persons jointly.

(x) The names of dead persons and original owners are shown in the notifications instead of allowing the names of subsequent purchasers of the lands who have purchased certain lands much prior to issuance of preliminary notification and in spite of objections, the defects are not rectified in final notification.

(ad) The Government has not at all considered the objections filed by the petitioners and not applied its mind before sanctioning the scheme Under Section 18(3) of the BDA Act'

(xii) The lands situated within the radius of 1 K.m from the village limits cannot be acquired in view of the dictum laid down by this Court in the case of C. Kenchappa and Ors. v. State of Karnataka and Ors. reported in ILR 2000 KAR-1072 (DB).

(xiii) There are several Government lands available to take up developmental activities and in view of Section 37 of the Act, the Government cannot acquire its own lands.

(xiv) The lands of the petitioners are converted lands, garden lands, nursery lands, lands converted with NOC from the BDA; sites are formed and sold; houses are constructed, and the petitioners are residing therein and therefore, the same should not be included in the acquisition proceedings.

(xv) This Court should exercise its power of judicial review against the decision making process, as the same is found to be illegal, irrational and improper.

(xvi) That the sites purchased by the petitioners in the private unapproved/ approved layouts formed over the acquired lands should be allotted to the respective sites owners themselves by accepting developmental charges.

5. The above points/ contentions raised on behalf of the petitioners are opposed by Sri. Basavaraj V. Sabarad learned Counsel appearing on behalf of the BDA, by inter-alia contending that there is no discrimination or arbitrariness in acquiring the lands of the petitioners and in deleting some of the lands belonging to certain other people; that the authority has proceeded to issue final notification after complying with all the statutory requirements, including hearing the petitioners. He further brought to the notice of this Court that sites are already formed and more than 80% of the sites are already allotted to the applicants; crores of rupees are spent for developing the lands, for formation of roads and drainages etc., and that therefore, the acquisition proceedings cannot be quashed at the fag end of the scheme. He further submits that only 25% of the area acquired is under litigation in these writ petitions and consequently, the owners of 75% of the lands/sites have accepted the acquisition notifications.

It is relevant to observe here itself that all the aforesaid contentions raised by the rival parties are earlier considered by this Court in two judgments rendered in the case of Commissioner BDA and Ors. v. State of Karnataka and Ors. reported in ILR 2006 KAR-318 (Arkauaihi layout case) and in the case of Junjama and Ors. v. The Bangalore Development Authority reported in ILR-2003 KAR-608 (Sir. M. Visweshwaraiah main layout case).

6. At the time of hearing of these writ petitions, learned Counsel for BDA has made available the maps of the area showing the lands and the villages which are notified for acquisition and the area deleted/de-notified from acquisition. The said areas are marked in different colours. On perusal of the said maps it is prima facie clear that 773 acres of land Bought to be acquired do not form one contiguous block. In some of the areas, small extent of the lands are notified under final notification which is surrounded by large area which is not acquired and making access to the said acquired land difficult, When this was confronted to the learned advocate for BDA., he filed a memo on behalf of the BDA without prejudice to his submission on merits of the matter. The memo filed by the BDA., reads thus:

Memo filed by Appellant, the Bangalore

Development Authority

1. Without prejudice to the submission that there is no discrimination in the matter of deletion of lands in the final notification and that deletion of certain lands will not invalidate either the Preliminary or the Final Notifications, it is submitted as follows:

2. If this Hon'ble Court were to come to the conclusion that the objections of certain land owners/writ petitioners to the Final Notification are to be considered afresh by the Bangalore Development Authority, directions on the following lines may kindly be issued.

3. The Writ Petitioners who are land owners, seeking dropping of the acquisition proceedings in so far as their respective lands are concerned, on the ground that: (a) their lands are situated within green belt area (b) they are totally built up; (c) properties whereto there are buildings constructed by charitable, educational and/or religious institutions (d) nursery lands; (e) who have set-up factories, may be permitted to make appropriate applications to the BDA seeking reconsideration for exclusion of their landa from acquisition by producing documents to substantiate their contentions within one month from the date of the order.

3.1 The BDA will consider such requests keeping in mind the status of the property as on the date of preliminary notification. Properties developed, improved, constructed upon, subsequent to the preliminary notification will not be considered for deletion.

3.2 The Writ Petitioners whose revenue sites have been acquired they shall be allotted with the site of 30 ft. x 40 ft. dimension in terms of the order/direction of this Hon'ble Court dated 20-7-2001 passed in WP No. 20875 to 20938/2001 (Anjanapura Scheme).

3.3 The Writ Petitioners/ land owners shall make appropriate applications within 30 days from the date of this order and thereafter the authority shall consider the applications and pass appropriate orders within period of three months.

7. Before adverting to each and every contention raised by the learned Advocates for the petitioners, it is just and necessary to note here itself that certain provisions of the Land Acquisition Act have no application to the acquisition made under the BDA Act'. There cannot be any dispute that the BDA Act is a special and self-contained code of its own. The BDA Act is not an Act for mere acquisition of land, but an Act to provide for the establishment of a Development Authority to facilitate and ensure planned growth and development of the city of Bangalore and areas adjacent thereto and acquisition of lands, if any, therefore is merely incidental thereto. In pita and substance, the Act is one which will aquarely fall under, and be traceable to the powers of the State Legislature under Entry-5 of list-II of the Seventh Schedule and not a law for acquisition of land like the Land Acquisition Act, 1894 traceable to Entry-42 of List-III of the Seventh Schedule to the Constitution of India, the field in respect of which is already occupied by the Central Enactment of 1894, as amended from time to time. Generally, the scheme in the BDA Act would not be affected by the provisions of the Land Acquisition Act. Therefore, a scheme formulated, sanctioned and set for implementation under the BDA Act, cannot be stultified or rendered ineffective and unenforceable by the provisions in the Central Act. In this connection, a reference may be made to the Judgment of the Apex Court in the case of Munithimmaiah v. State of Karnataka reported in (2002) 4 Supreme Court Cases 326.

8. So far as the petitioner in W.P.No. 15053/2004 is concerned; there was on acquisition proceeding in favour of the petitioner's society and the land in Sy.No. 106/2 of Malathahalli village to an extent of 3 acres was acquired by the State Government for the benefit of petitioner "a society by issuing Preliminary Notification Under Section 4(1) of the Land Acquisition Act dated 05.08.1988 and Final Notification dated 31.08.1989 as could be seen from Annexure-E to the writ petition. The notification Under Section 16(2) of the Land Acquisition Act was issued on 13.04,1999 and possession was handed over to the petitioner's society on 23.07.1999, as could be seen from the document at Annexure-G. The land was converted into non-agricultural purpose on 22.02.2004 (Annexure-L) and the entire amount of conversion fee is deposited by the petitioner's society. In spite of the same, curiously, the name of the petitioner's society is not shown in the impugned preliminary and final notifications issued by the authority in this case, though the said land is sought to be acquired. The petitioner's society has also paid the entire cost of the land to the Government. As the land in question is earlier acquired for the benefit of petitioner's society by the State Government, the authority could not have again acquired the land in question by issuing impugned notifications.

9. Sri. Basavaraj V. Sabarad, Learned Counsel appearing on behalf of the BDA fairly submits that the authority will look into the matter and it would exclude the said land from acquisition. As such, the prayer of the petitioner in this writ petition is to be allowed. The notifications dated 08.04.2004 & 09.09.2003 in so far as they relate to Survey Number 106/2 of Mallathahalli village, measuring 3 acres vide Annexures-A & B respectively are liable to be quashed.

10. Now it takes me to the various contentions/points raised by the learned Advocate appearing for the respective parties viz., points Nos. (i) to (xvi) and I shall now deal with those points.

11. Re. Point No (i): Deletion of certain lands from the original acquisition does not invalidate the entire acquisition proceedings and. the same will not amount to discrimination or violation of Article 14 of the Constitution of India. In this connection & reference may be made to the Judgment of the Apex Court in the case of Lilla Ram v. Union of India reported in AIR 1975 BC 2114 wherein it is observed thus:

7. Reference has also been made by Mr. Iyengar to the fact that the lands of some others which were also earlier proposed to be acquired under the notification were subsequently ordered not to be acquired. This fact too, in our opinion, would not militate against the validity of the acquisition of the land of the appellant. According to Section 5A of the Act, any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. The objector is then given opportunity of being heard and thereafter a report is submitted to the appropriate Government by the Collector containing his recommendations on the objections. It is for the appropriate Government thereafter to take the decision on the objections. There is, therefore, no inherent infirmity in the decision of the Government in accepting some of the objections and rejecting others. The question as to what factors weighed with the authorities concerned in deciding not to acquire the land of others need not be gone into in these proceedings because that would not in any way affect the validity of the acquisition of the land of the appellant.

In an identical circumstances, the Apex Court in the case of Yadu Nandan Garg v. State of Rajasthan and Ors. reported in AIR 1996 Supreme Court 520 has observed thus:

5. It is true, for reasons best known to the authorities, that Anand Nursery had the benefit of the exemption. The wrong exemption under wrong action taken by the authorities will not clothe others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination, The wrong mention of Survey number in notice Under Section 9 cannot caste cloud on valid notification issued under Section 4(1) of the Act. It is enough that main survey number is mentioned in the notification under Section 4 and the details thereof would be supplemented at the appropriate stage. Mention of the Sub-division of the main survey number does not render the notification Under Section 4(1) does not get vitiated.

The said dictum is again is reiterated by the Apex Court in the case of Kandehutty and Ors. v. State of Kerala and Ors. reported in AIR 1997 Supreme Court-2167 and in the case of Union of India and Anr. v. International Trading Co., and Ors. reported in AIR 2003 Supreme Court 3983. To the same effect is the judgment of this Court in the case of Bongalore Development Authority v. Dr. H.S. Hantitnanthappa reported in I.L.R. 1996 KAR-642 (DB). Thus, it is clear from the aforesaid Judgments of the Apex Court and this Court that merely because some of the lands which formed part of the same notification were de-notified in exercise of the power conferred under statute, the integrality of the notification for acquisition does not cease to exist.

12. The ratio in the ease of BEML Employees HBCB v. State of Karnataka reported in AIR 2004 SC 5054 relied on behalf of the petitioners is not applicable to the facts of the present case. In the said case of 'BEML Employees HBCS', the Land Acquisition Officer, by taking note of fully constructed area in certain lands notified for acquisition, had recommended to the Government for dropping the lands of several persons from acquisition. Such recommendation was accepted by the Government in respect of all, but owner of one land by the Government. Except that land, all other lands were dropped from acquisition. In those circumstances, it is held that not accepting the report and not dropping acquisition of land of a similarly placed single person is bad and violative of Article 14 of the Constitution of India.

However, in the cases on hand, no such recommendation is found or is pointed out by the petitioners, Even otherwise, as many as 510 acres of land is acquired under the final notification and that therefore, it cannot be said that these petitioners are discriminated.

13. However, as could be seen from the maps produced by the BDA at the time of hearing, certain area of the villages which were notified for acquisition in preliminary notification is deleted from the acquisition subsequently, more particularly, on the ground that they are duly converted lands, totally built up areas, recognised nurseries, garden lands and having charitable institutions etc., and such area is marked in different colour. On perusal of the said maps it makes amply clear that the area of 510 acres of land which is sought to be acquired does not form one contiguous block. In some places, only small extent of lands are notified in final notification which, is surrounded by large chunks of area which is not acquired and consequently, the access to such acquired land also would be difficult. This appears to be the real cause for heart burning. In view of the same, the BDA has chosen to file memo, as aforesaid. Looking to the contentions of the petitioners and the maps of the area in question, this Court is convinced and satisfied that the plea of discrimination taken by some of the petitioners prima facie appears to be well founded to certain extent. However, said fact, which is disputed question of fact, cannot be gone into by this Court in writ proceedings without there being enough material on record. It is also relevant to note that neither the BDA nor the Government has specifically traversed those allegations of discrimination. Looking to the facts and circumstances, particularly the maps produced by the BDA showing the subsequent deletions of lands and the memo filed by the BDA dated 02.03.2006, this Court deems it proper to give one more opportunity to all those petitioners who have taken the plea of discrimination to substantiate their contentions by producing the relevant evidence which is available with them by filing an appropriate application before the BDA for deletion of their lands from acquisition. If such applications are filed, the BDA., shall consider the request of the petitioners after holding appropriate enquiry. If the petitioners will be able to establish that their acquired lands/ converted sites/totally built up area, are also similarly situated as that of the other landowners/converted site owners, whose lands/sites are either not notified for acquisition, or having been notified Under Section 17(1) notification and excluded from acquisition after upholding the objection, the said lands/converted sites/totally built up portion etc., also shall be excluded from acquisition an parity. If some of the lands/converted sites/built up portion etc., are excluded from acquisition after enquiry in future, the scheme already sanctioned by the Government shall stand amended accordingly, and the Government shall pass appropriate orders to that effect.

14. Re. Point No. (ii): After considering the objections filed by the landowners and interested persons in response to the notices issued Under Section 17(5) of the Act, the Authority has rejected the objections in respect of the lands to an extent of 510 acres and submitted the Scheme with necessary modifications to the Government Under Section 18(1) of the 'BDA Act' and only such lands are included in the final notification by dropping 263 acres 18 guntas of land. In the matters pertaining to Further Extension of Banashankari 6th Stage, which are heard along with these writ petitions, an extent of 22 acres 25 guntas of lands are de-notified even after publication of final notification solely on the ground that the said lands are converted lands and that it is not economically viable for the BDA to acquire those lands. However, the records disclose that the modified scheme is already implemented in its entirety by the BDA by developing the lands and by forming sites. As aforesaid, 80% of the sites are already allotted to the applicants at large. Under such circumstances, it cannot be said that the scheme itself cannot be implemented.

15. Re. Point No. (iii): As has been held by the Division Bench of this Court in the case of Narayana Raju v. State of Karnataka reported in I.L.R, 1989 KAR-376, the word 'scheme' has many meanings; one such meaning is 'mode' or 'manner'. It may also mean, 'stages' or 'steps' to achieve a particular end.

The contention of the learned Counsels for petitioners' that the scheme should contain all the particulars enumerated in Section 16 of the 'BDA Act' even before the publication of the notification under Section 17(1) of the 'BDA Act' is untenable. If the scheme contains the broad factors in respect of the particulars enumerated in Section 16, it would be sufficient compliance of the preparation of the Scheme. As aforesaid, the BDA took decision on 17,01.2003 for formation of layout called 'Further Extension of Sir. M. Visweshwaraiah layout' by acquiring certain lands situated, in Herohatli, Gidadakoneuahalli and Mallathalli Villages of Yeshwanthpur Hohli, Bangalore North Taluk for implementation of the Scheme. The lands sought to be acquired are clearly mentioned in the notifications by giving the names of survey numbers, villages, extent of land proposed for acquisition and names of the kathedars/anubhavadars etc. Under such circumstances, I do not find any merit in the submission of the learned Counsels for the petitioners that the Scheme is not prepared in accordance with the provisions of Section 15 & 16 prior to issue of preliminary notification Under Section 17 of the 'BDA' Act, The aforesaid observations of mine finds support from the Judgment of this Court in the case of D. Hemachandra Sopor and Anr. v. The State of Harnatatca and Ors. reported in I.L.R. 1998 KAR 4172 where it is observed thus:

The next contention that the scheme should contain all the particulars enumerated in Section 16 of the Act wren before the publication of the notification under Section 17(1) is also untenable; If the scheme contains the broad factors in respect of the particulars enumerated in Section 16 it would be sufficient compliance with the preparation of the scheme. It is not the case of the petitioners that no such scheme is drawn up by the BDA. Their objection is that there was no prior approval of the Government for the scheme.

It is also material to see that the BDA, after preparing the scheme, shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired, for being seen at all reasonable hours, under Section 17(1) of the BDA Act.

It is not the case of the petitioners that the BDA did not draw any notification nor is it contended that the notification did not contain all these particulars nor was it contended that the scheme and the map were not kept for inspection. In the absence of any pleading in this behalf, it is not open to the petitioners to contend that the scheme was not prepared in accordance with Sections 15 and 16 of the BDA Act.

16. Re, Point No (iv); It is true that by issuing final notification, the BDA., has acquired only 510 acres of land though the original scheme was to acquire about 773 acres 18 guntas of land i.e., about 30% of the land has been left out from the original scheme. In view of the same, the scheme has to be modified to certain extent. That does not mean that BDA has altered the entire scheme to the major extent. However, as aforesaid, the State Government has proceeded to modify the scheme Under Section 18(3) of the Act on 04.09.2003 after deleting 263 acres 18 guntas of land. The said area of about 263 acres 18 guntas of land have been deleted from acquisition, after taking into consideration the representations of the land owners and other factual difficulties in implementing the original scheme. Such modifications were due to various reasons viz., existence of nurseries, garden lands, completely built up area, converted lands and the land acquired for Ashraya scheme etc. Under the circumstances* no useful purpose would have been served in acquiring those lands by demolishing the structure put up therein. In view of such practical problems, half of the extent acquired is deleted from acquisition. But by itself, it cannot be said that there is alteration of scheme or preparation of altogether a new scheme. It may be the case of only modification of the existing scheme. The acquisition of smaller portion of the land by deleting certain area does not amount to alteration of the scheme. I may not hasten to add here itself that the Authority is empowered to re-submit the scheme after such modification as it may think fit to the Government for sanction Under Section 18 of the 'BDA Act'. The said procedure is adopted in this case also.

17. Re. Paint No: (v): Section 18 of the 'BDA Act' contemplates consideration of objections by the Authority only. It does not contemplate consideration of objections at two stages, Thus, the contention of the petitioners that objections should have been considered by the Government cannot be accepted and on that ground acquisition cannot be held to he vitiated in any manner.

18. Re Point Not (vi): The BDA has got jurisdiction Under Section 15(1)(a) of the 'BDA Act' to prepare, frame or draw up a development scheme/improvement scheme, also in respect of the adjoining area of the Bangalore Metropolitan area. As could be seen from Section 14 of the 'BDA Act', the abject of the Authority shall be to promote and secure the development of the Bangalore Metropolitan Area and for that purpose the Authority shall have the power to acquire, hold, manage, and dispose off movable and immovable property, whether within or outside the area under its juris diction, to carry out building, engineering and other operations and generally to do all things necessary of expedient for the purpose of such development and for purposes incidental thereto. Thus, the BDA Act' empowers the Authority to acquire the lands situated outside Bangalore Mtropolitan Area also for the purpose of development/improvement of Bangalore Metropolitan Area.

As has been held by this Court in the case of Vishwabharathi House Building Co-Op, Society Ltd. v. Bangalore Development Authority reported in 1989 (3) K.L.J. 17, Chikka Muniyappa Reddy Memorial Trust v. State and Ors. ILR 1997 KAR-2460 and Junjamma and Ors. v. BDA and Ors. ILR 2005 KAR page 608 and in the case of The Commissioner of BDA and Ors. v. State of Karnataka and Ors. ILR -2006 KAR-318 (DB), the power is vested in the Authority as per Clause (a) of Sub-section (1) of Section 15 of the 'BDA Act' to draw up development scheme/improvement scheme not only in the area within the Bangalore Metropolitan Area, but also for area adjacent to it. When Section 14 of the 'BDA Act' explicitly provides for acquiring, holding, managing and disposing of properties which are situated outside its jurisdiction, purchase of lands which are situated outside the Bangalore Metropolitan Planning Area and when no prohibition is imposed while drawing up a developmental scheme of Bangalore Metropolitan Area, it cannot be said that the BDA has no jurisdiction to acquire land which is situated outside the Bangalore Metropolitan Planning Area. Therefore, the BDA can acquire lands, which are not included in Bangalore City Planning Area.

19. Re. Point No. (vii): the 'BDA Act' contemplates an opportunity for filing objections and. consideration of the same by the Authority. No personal or oral hearing is contemplated under the Act. The aforesaid observations of mine are supported by the judgment of this Court rendered in the case of Khoday Distilleries Ltd., and Ors. v. State of Karnataka and Ors. AIR 1998 KAR-2 (DB) & Junjama and Ors. v. BDA and Ors. ILR 2005 KAR 608.

20. The records disclose that the objections are filed by the landowners and interested persons and they were received from 10.02.2003 to 24.03.2003 by the BDA by conducting camps at respective villages and ultimately, the objections were placed before the Authority meeting held on 28.06.2003 in its subject No. 178/2003 and after deliberation, the objections are considered and overruled is respect of 510 acres of lands. However, the objections pertaining to remaining extent of 263 acres 18 guntas of lands were accepted and consequently, the said extent of land is deleted from the acquisition. According to the BDA, the lands in green belt area, built up portion, officially recognised nurseries, converted lands, parallel acquisitions made for the benefit of Bangalore Mysore Infracture Coridor (BMIC), House Building Co-Operative Societies, the lands utilised by the Government for Ashraya scheme, lands fallen in the approved layouts and where temples and other religious places are constructed, are deleted from acquisition. Therefore, there is no substance in the contention of the petitioners that no reasons are assigned for deletion of lands. Thus it cannot he said that the objections are not considered properly.

21. Re. Point No. (viii): In so far as the question raised by the petitioners that the acquisition is offending the fundamental rights guaranteed under Article 21 and 300-A of the Constitution, is concerned, has no substance. The acquisition of lands belonging to a citizen does not amount to deprivation of his right to livelihood guaranteed under Article 21 nor does it violate Article 300-A of the Constitution of India. At this juncture, it is relevant to note the judgment of the Apex Court in the case of State of Maharashtra v. Basantibai Mohanilal Khetan reported in AIR 1986 SC 1466 wherein it is observed thus:

15. We next proceed to consider a contention locking in merit which has unfortunately been accepted by the High. Court namely that the Act infringes Article 300A of the Constitution. Article 300A was not in force when the Act was enacted. Article. 31(1) of the Constitution which was couched in the same language was however in force. Article 31C gave protection to the Act even if it infringed Article 31. Let us assume that the action of acquiring private properties should satisfy now Article. 300A also because the proceedings to acquire the land started in tile instant case after Article 300A came into force. Let us assume that a law should be fair and reasonable and not arbitrary and that a law should also satisfy the principle of fairness in order to be effective and let us also assume that the said principle of fairness lies outside Article 14. We are assuming all these without deciding these questions, since the action can be upheld even if all these assumptions are well founded. What is it that is being done now in the instant case ? Certain vacant lands lying inside a municipal area are being acquired for providing housing accommodation after paying an amount which is computed in accordance with a method considered to be a fair one by Courts. The purpose for which the lands are acquired is a public purpose. The owners are given opportunity to make their representations before the notification is issued. All the requirements of A valid exercise of the power of eminent domain even in the sense in which it is understood in the United States of America where property rights are given greater protection than what is required to be done in our country are fulfilled by the Act. Yet the High Court, with respect, grievously erred in holding that even assuming that the provisions of Chapter-V of the Act are protected from challenge under Articles. 14, 19 and 31 of the Constitution due to the applicability of Articled 31C of the Constitution still the impugned provisions of the Act are required to be struck down as the said provisions are neither just nor fair or reasonable.

16. Then in the end we have to consider the argument baaed on Article 21 of the Constitution which is urged on behalf of the respondents. Article 21 essentially deals with personal liberty. It has little to do with the right to own property as such. Here we are not concerned with a case where the deprivation of property would lead to deprivation of life or liberty or livelihood, On the other hand land is being acquired to improve the living conditions of a large number of people. To rely upon Article 21 of the Constitution for striking down the provisions of the Act amounts to a clear misapplication of the great doctrine enshrined in Article 21. We have no hesitation in rejecting the argument, Land ceiling laws, laws providing for acquisition of land for providing housing accommodation, laws imposing ceiling on urban property etc., cannot be struck down by invoking Article 21 of the Constitution.

The very dictum is reiterated in the case of New Revisra Coop . Homing society v. Special Land Acquisition Officer (1996) 1 SCC-731, Chemeli Singh v. State of Uttar Pradesh AIR 1996 SC-1051, Shantisar Builders v. Narayan K. Totame AIR 1990 SC-630 and the Bangalore Development Authority v. State of Karnataka and Ors. ILR-2006 KAR-318.

By the aforesaid judgments it is well settled that though the right to livelihood is a fundamental right guaranteed under Articles 19 & 21 of the Constitution conferred on every citizen, a person may he rendered shelterless in the event if it serves the larger public interests. Broadly speaking, the word Public purpose/interest' would however, include a purpose in which the general interest of the community as opposed to the particular interest of individuals is directly concerned. Although acquisition under the 'BDA Act' is also generally for public purpose, the character of the requisition tinder this Act is different and the difference has a definite and intimate nexus with the principal object of the Act, namely, improvement of the city which is the dominant purpose. So long as the exercise of the power is for public purpose, the individual's right of an owner must yield place to the larger public purpose. It would not, therefore, amount to deprivation of right to livelihood. Therefore, the plea of deprivation of right to livelihood under Article 21 of the Constitution of India is unsustainable.

22. Re. Point No. (ix): The impugned notification discloses the total extent of lands proposed for acquisition with survey numbers. However, in the cases where the individual owner's holding is not bifurcated or phoded, it is not possible to show the exact extent of land against such an individual. In several matters, the names of certain persons are entered in the revenue records as they are joint owners of the property and individual extent is not mentioned in the revenue records. Since the notifications are generally issued on the basis of the revenue records, the entries found in the revenue records are mentioned in the notifications.

23. Re. Faint No: (x): It is true that the defects found in the notification issued Under Section 17 of BDA Act is not rectified in the final notification in apite of objections. Over all, the names of the landowners/interested persons whose names are found in the revenue records are notified in final notification, The BDA is not expected to conduct a roving enquiry to find out as to who is the actual owner, whose name does not find place in the records. It is relevant to note here itself that the notices are published in local newspapers so as to enable the landowners or the interested persons to file their objections. Thus, even if the preliminary notification is issued against dead persons, no injustice is caused inasmuch as, the preliminary notification is widely published in news papers, Moreover, all the petitioners have filed their objection statements. In this regard, reference may be made to the Judgment of the Apex Court in the case of Ahuja Industries Ltd., v. State of Karnataka and Ors. reported in AIR 2003 Supreme Court-3519 wherein it is observed thus:

12. This Court in Winky Dilawari (Smt.) and Anr. v. Amritsar Improvement Trust, Amritsar 1996 (11) SCC 644, has token the view that failure to serve personal notices on the persons whose names have not been mutated in the official record of rights in pursuance to any sale in their favour does not vitiate the proceedings for acquisition. Similar view was taken in W.B. Housing Board and Ors. v. Brijendra Prasad Gupta and Ors. 1997 (6) SCC 207, wherein this Court observed: ........It is no part of the duty of the Collector to make a roving inquiry into ownership of the persona, We are of the opinion that the requirements of the law were met when notices were served upon the recorded owners as per the Record-of-Rights, Again we do not think in a case like the present one, it is for the Collector to make enquiries from the registration office to find out if the land had since been sold by the recorded owners. In Winky Bilawari v. Amritsar Improvement Trust (1996) 11 SCC 644, this Court observed that the public authorities were not expected to go on making enquiries in the Sub-Registrar's office as to who would be the owner of the 'property. The Collector in the present case was thus justified in relying on the official record being the Record of Rights as to who were the owners of the land sought to be requisitioned and prudence did not require any further enquiry to be made. We are, therefore, of the view that notices were properly served under Section 3(2) of the Act on the owners of the land.

13. It could be seen from the above order that service of notice on a person shown as owner or occupier in the record of rights is sufficient even though the said person had already sold the land prior to the said notification unless it is substantiated otherwise that the authorities concerned had the knowledge of the rights or interest of any person other than those found recorded as owner/occupier in the Revenue Records. It is further held that the Collector is not obliged to make a roving enquiry about the ownership of the land. If the name of the purchaser is not yet entered in the record of rights then non-service on such a person does not vitiate the acquisition proceedings. Admittedly the appellant had not got his name entered in the revenue records as owner or occupant of the said land and therefore, he could not complain, about non-service of notice on him nor about the failure to grant a hearing to him. Contention that as per provision of the Land Revenue Act, there was no obligation on his part to either inform the Revenue Authorities about the sale in his favour or to request them to transfer the katha in his name cannot stand as it has not been brought on record with documents that in fact the appellant had made payment for making the necessary entries in the record of rights and the register in his name at the time of registration of the sale deed in his favour. This apart failure to make entries on the part of the Revenue Authorities by itself would not cast any obligation on the authorities under the Act to make a roving enquiry and try to locate an owner who may have subsequently purchased the land from the previous owner. Failure on the part of the Revenue Authority to make entry in the register of mutation in favour of the subsequent owner would not render the acquisition proceedings bad in law on account of non-issuance of notice inviting objections to the acquisition proceedings of service thereof.

Therefore, the aforesaid discrepancy pointed out would not vitiate the acquisition proceedings in this case.

It is also just and necessary to note here itself that some of the petitioners in these writ petitions have purchased sites/lands through registered sale deeds much prior to preliminary notification and in spite of the same, their names are not mentioned in the revenue records and consequently, their names are not found in the impugned acquisition notifications and the same has resulted in passing of awards in the name of erstwhile landowners and dead persons and consequently, the genuine purchasers have been deprived of their legitimate right to receive the compensation, hi view of the same, the award needs to be modified suitably by showing the name of such subsequent purchasers who have purchased the lands prior to issuance of preliminary notification so as to enable such petitioners to get the benefit of the direction issued by this Court hereunder or to get necessary compensation.

24. Re. Point: No: (xi): In the case on hand, the sanction Under Section 18(3) of the 'BDA Act' is issued by the State Government on 04.09.2003 and the order of sanction is gazetted on 08.09.2003. On perusal of the said order of sanction, it discloses that the Government has considered in depth all the relevant material on record and has applied its mind in proper perspective before sacntioning the scheme Under Section 18(3) of the Act. The scheme does not involve any financial assistance from the Government and the BDA has to execute the scheme with its own resources and subject to other conditions laid down in the order of sanction. Hence, I do not find any substance in the contention that the Government has not applied its mind before sanctioning the scheme Under Section 18(3) of the 'BDA Act'.

25. Re. Point No: petty: In so far as the contention that the lands situated within a radious of 1 k.m from the village limits should not be acquired, is concerned, the decision relied on by the petitioners in the case of Kenchappa and Ors. v. State of Karnataka and Ors. reported in ILR 2000 KAR 1072 has no application to the case on hand. In the said case, the land was acquired for the purpose of formation of industrial area under the provisions of Karnataka Industrial Areas Development Act 1966. In the said matter, the Division Bench of this Court took the view that industry should not be established in the lands abutting the village, inasmuch as, the same will cause hardship to the villagers. But in the case on hand, the acquisition of land is entirely for different purpose. The lands in. question are sought to toe acquired for the purpose of formation of residential layout and not for en industrial purposes. However, it is brought to the notice of this Court by the Bar that the Judgment in Kenchappa's case is stayed by the Hon'ble Supreme Court. As such, the above contention of the petitioners is rejected as the same is devoid of merits.

26. Re. Point No: (xiii) There cannot be any dispute that Under Section 37 of the BDA Act', the Government, by notification, may transfer the land belonging to it for the purpose of said Act subject to such limitations and conditions as it may impose. In this connection, a submission was made on behalf of the BDA that the available government land is already utilised by the BDA for formation of layout, Some of the Government lands also finds place in the acquisition notifications. This is because, according to BDA, many a times, there may be unauthorised occupants over the Government lands and their names are not entered in the revenue records. With the object of giving an opportunity to such persons and to ascertain their names and claims if any, such government lands are also notified. Under such circumstances, in my considered opinion, the aforesaid submission made on behalf of the BDA is well founded and the same is acceptable inasmuch as, the unauthorised occupants or the grantees who are in possession of the Government lands may have to be given an opportunity to have their say in the matter of acquisition. In view of the same, I do not find any illegality in notifying the Government lands also in the acquisition notifications.

27. Re. Paint No: (xiv): As could be seen from the copy of the Resolution passed by the BDA in subject No. 178/2003 dated 28.06.2003, the BDA has decided to delete the following lands from acquisition:

(i) converted lands/ sites,

(ii) the unauthorised layout formed, sites are sold, houses are already constructed and people are living in said houses prior to preliminary notification.

(iii) Garden lands etc.

Though it is the case of some of the petitioners that 'NOC' is granted by the BDA for converting the lands, they flailed to substantiate their contention by producing relevant records. On perausal of the records, it is prima facie seen that in any of these writ petitions, no such 'NOC' are issued by the BDA. There cannot be any doubt that the BDA is the planning authority and no layout can be formed without prior approval or permission from the BDA. According to BDA, none of the so-called layouts are approved by the BDA and that therefore, such layouts are unapproved and illegal layouts. Moreover, in law, there is no prohibition for acquiring the converted lands also for the purpose of formation of layout. The conversion of land from one user to another user would not curtail the power conferred either on the Government or on the BDA to acquire such land. If converted lands are notified for acquisition, the Government will have to pay higher compensation than what is payable for agricultural lands. Therefore, there is no substance in the contention of the petitioners that the BDA cannot form layout on the land converted with NOC from BDA and consequently, the same is rejected. In this connection, a reference may be had to the decision of this Court in the case of Junjamma and Ors. v. BDA and Ors. case reported in ILR-2005 KAR-608 wherein it is observed thus:

33. Re. Point No.(9): In law them is no prohibition for acquiring a land converted from agricultural use to either residential use, industrial use or commercial use from being acquired for the purpose of formation of a layout. The conversion of land from one user to another user would not in any way affect the power of the Government to acquire such land. If the Government proposes to acquire a converted land probably they have to pay a higher amount of compensation than what they nave to pay to agricultural lands taking into consideration the potential user of the land and the improvements which the owner of the land has made consequent to such conversion. But, such conversion does not take away the power of the authorities or the Government to acquire the said land for the formation of a layout.

34. Similarly, there is no substance in the contention that having regard to the user of the land acquired, namely non-residential purpose, industrial purpose, commercial purpose, lands used for nursery and garden, cannot be used for residential purpose without there being appropriate permission obtained from the planning authority. In fact, in this regard the teamed counsels for the petitioners relied on a judgment of this Court m the case of B.R. Baliga and Ors. v. Town Municipal Council, Udupi, D.K., and Anr., where it has been held that when land which is acquired is an agricultural land acquired for the purpose of forming a residential layout, the permission of the planning authority is required for the change of land use. Without such permission the land cannot be used for residential purposes. That again does not affect the power of the Authority or the Government to acquire the land. It is only after acquisition of the land that the authority can seek permission for change of land use. The very fact that there is a provision for change of land use implies that the owner of the land is entitled to approach the planning authorities for change of land use. But, such a request is to be made by the owner of the land. The ownership of the land could be acquired by the Authority by the mods of acquisition. Therefore, not obtaining prior permission from the planning Authority for change of land use does not in anyway vitiate the acquisition of land, in fact while according sanction under Section 18(3) of the Act, the Government has categorically stated that the sanction sought for is granted subject to the condition that the Authority shall obtain permission for change of land use. Therefore, not obtaining prior permission for change of land use would in no way vitiate the acquisition proceedings.

However, taking into consideration the discrimination and hardship pleaded, this Court, in the identical circumstances, in the cases relating to Arkavathi layout, Vishweswaraiah main layout has directed the authorities to consider the objections raised by the petitioners for exclusion of their lands from acquisition in the light of the submissions made on behalf of the petitioners and BDA therein, The BDA, being a statutory authority cannot take discriminatory decision amongst the general public. If the lands of any of the petitioners in these writ petitions are similarly placed as that of the others whose lands are deleted from acquisition, certainly it is the duly of the Authority to extend same benefit to those petitioners on parity. In this regard, it is argued on behalf of the petitioners in some of the matters that even the converted lands are included in the acquisition notifications, though some of the similarly situated converted lands are deleted from acquisition. Said fact is disputed by Sri. Basavaraj Sabarad, learned Counsel appearing an behalf of the BDA by inter alia contending that the conversion orders in these matters are issued by the concerned Deputy Commissioner and the EDA being the planning Authority has not consented for such conversion. He further points out from Section 14(2) of the Karnataka Town and Country Planning Act 1961, that no change in land use or development shall be made except with the written permission of the Planning Authority {BDA in the present case) and consequently, no credence should be attached to the conversion orders issued by the Deputy Commissioner. On verification of the records, as aforesaid, this Court also prima facie finds that in none of these matters, the BDA., which is the Planning Authority, has accorded permission for change of land use. Therefore, prima facie it cannot be said that there is valid conversion of the lands for non-agricultural purposes, However, if the petitioners will be able to show that they are coming within the purview of the aforesaid Resolution dated 28.06.2003 (No. 178/2003), the BDA shall have to consider the case of the petitioners in these petitions on par with the similarly placed persons whose sites/lands are deleted from acquisition. It is needless to point out once again that as the BDA has already deleted converted sites/lands as aforesaid and as the BDA has de-notified 22 acres 25 guntas of converted lands in the matters arising out of 'Further extension of Banashankari 6th Stage' layout even after final notification, the duly converted lands involved in these petitions may need the same treatment.

If a layout has already been formed with the approval of some of the local authority or if a pucca layout is formed even without such approval and if it is according to the specifications prescribed under the BDA Act itself and if the said layout could be harmonized or mingled with the layout to he formed by the BDA, as far as possible, every attempt should be made to synchronize the said layouts with the BDA layout and if it is possible, to allot the very same sites to the petitioners and in particular, to those who have already put up construction and living there and thereby solve the human and housing problem of poor, downtrodden, and innocent people who have purchased the sites and constructed houses for their residential use by spending their hard earned money. However, if those sites or constructions come in the way of layout formation, it is open for the BDA to disturb the possession of the occupants of such sites and buildings and allot an alternate site in the present layout or in any other layout to be formed by it the aforesaid observations/ suggestions are made by this Court with the fond hope of minimising the hardship to those site owners, to reduce the cost of forming layout end the heart burn that is likely to cause to such site owners and the same cannot be termed as a matter of right by any of the petitioners in these petitions. In this context it is relevant to note the observations made by this Court in the judgment reported in I.L.R. 2005 KAR-608 cited supra which reads thus:

49. In the statement of abjections filed before this Court the respondents deny the fact that the petitioners are similarly placed. Therefore, if this Court has to grant any relief to the petitioners the court has to investigate into these disputed questions of fact and then only the petitioners would be entitled to the relief. For that purpose it has to be seen what is the nature of the plea of each petitioner, what was the position of them land on the date of preliminar notification, whether the entire land claimed by the petitioner would fall within the exempted category, if not what is the extent of land which, could be excluded etc. It is also necessary to find out whether any of the petitioners have altered or improved the properties after obtaining the interim order from this Court. By mere looking into the photographs produced it is not possible to arrive at any conclusion. It requires an investigation, after affording reasonable opportunities to all the parties concerned to produce evidence and then to arrive at a conclusion. This Court cannot undertake this exercise in its jurisdiction under Article 226 of the Constitution of India. Therefore, I am of the view the appropriate course would be as was done in SUBESINGH's case where Supreme Court directed the authority to consider the objections raised by the petitioners for exclusion of their properties from acquisition in the light of what is stated above and then pass appropriate orders on its merits. If said land are similarity situated as that of the others certainly the authorities are bound to give the same benefits to those persons. If it is not similarly placed it is always open to the authorities to reject their objections and proceed further in the matter. This complaint could not have been made by the petitioners in the original objectins filed by them for acquisition. Therefore all that they have contended in their objection statement is that their land is not liable to be acquired for the reasons mentioned therein. The present objection has arisen after their objections are over-ruled whereas the objections of persons who are similarly placed ore accepted. Therefore the authorities have to necessarily take into consideration the material which was before tehm white upholding the objections of others and compare the same with the petitioners herein who have raised similar objections and then come to their own conclusion on merits and pass apropriate orders. It is in the nature of a subsequent event. Therefore, there is no necessity to quash the acquisition which is otherwise valid and legal and thus it would meet the ends of Justice.

The points raised and involved in the aforesaid decision and in the present matters, are almost same. In view of the same. This Court does not find it necessary to quash the acquisition proceedings in these writ petitions which are otherwise legal and valid in the eye of law. As the petitioners in these writ petitions are also aggrieved by the un-equal treatment meted out to them by the BDA, in my considered opinion, the same will have to be rectified by directing the Authority to consider the case of each of the petitioners, in case if the petitioners file appropriate application within the time stipulated by this Court. In this regard, I prefer to follow the directions issued by this Court in Junjamma & Arkavathi cases referred supra. Added to it, the BDA itself has voluntarily come forward to reconsider the cases of the petitioners who feel that they are treated with discrimination (see the memo filed by BDA noted at paragraph No. 6 of the Judgment).

28. Re. Point No; (xv) This Court after going through the records, finds that the acquisition of lands is for the public purpose and to fulfill the object of the BDA Act. Before initiating the acquisition proceedings, all the mandatary procedures prescribed under the statute have been followed. The decision to acquire the lands does not suffer from any illegality, irrationality or procedural impropriety. In this regard, a reference may be made to the dictum laid down by the Apex Court in the case of Ramniklal N. Bhutta and ANR. v. State of Maharashtra and Ors. reported in (1997) 1 Supreme Court Cases 234 wherein it is observed thus: ... Whatever may have been the practices in the past, a time has come where the courts should keep the larger publich interest in mind while exercising their power of granting stay/injunction. The power wider Article 226 is discretionary. It will be exervised only in furtherance of interests of justice and not merely on the making out of legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same, Even in a civil suit, granting of induction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that (sic) acquisition was vitiated on account of non-complainace with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not only mode of redress, To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts white dealing with challenges to acquisition proceedings.

From the aforesaid dictum it is clear that the Court should keep the larger public interest in mind while exercising power under Article 226 of the Constitution of India. Merely because there ore some discrepancies/irregularities, this Court should not quash the entire acquisition proceedings unless the acquisition proceedings are illegal, irrational or improper and are motivated. Hence, I do not find any substance in the above contention raised by the petitioners.

29. Re. Paint No: (xvi): Having regard to the fact that right to shelter is one of the fundamental rights conferred on every citizen under Article 19(1)(e) and Article 21 of the Constitution of India, and having regard to the acute shortage of housing and magnitude of the housing problem, this Court, in the matters arising out of the Anjanapura layout (W.P.No: 20875-938 of 2001 and connected matters, disposed of on 20.07.2001) has struck the balance by way of compromise between the parties and consequently, an order came to be passed directing the BDA to accommodate the poor and innocent site owners with an alternate sites in the matter suggested therein. The said benefits as were given in Anjanapura layout ate also extended to the similarly placed persons in SIR, M. Visweshwaraish main layout (Junjamma's case cited supra). It is in this background, the BDA., in the present case though overruled the objections filed by these petitioners sent a report to the Government bringing to the notice of the Government the difficulties experienced by such site owners and the ground realities and hardship faced by the BDA in forming layout due to existence of constructions on revenue sites and proposed the very same remedy. Consequently, in the instant case also, there is duty cast upon the BDA to extend the same benefits to the site owners who are petitioners in some of these petitions in the manner it was done in the Anjanapura layout & Vishweshwaraiah main layout cases. Therefore, the BDA has called upon the revenue site owners to apply for BDA sites by treating such cases as special cases for allotment of alternate sites in lieu of their revenue sites coming under the Scheme, Aa some of the petitioners herein who are the revenue site owners are similarly placed, I do not find any good reason as to why such benefits should not be extended to the petitioners in these writ petitions. Hence, I deem it proper to direct the BDA to extend the same benefits to the petitioners in these writ petitions who are similarly placed, subject to the terms and conditions mentioned in the aforesaid orders passed in Anjanapura and Junjamma's case cited supra.

This Court in the cases of (1) G.R. Jayamma and Ors. v. BDA and Ors. (W.P. Nos. 20875 to 20938/2001 and Ors. connected matters disposed of on 20.07.2001 (Anjanapum layout case) (2) Junjomma and Ors. v. BDA and Ors. reported in ILR -2005 KAR-608 (Jiunjamma's case), (3) the Commissioner BDA and Ors. v. State of Karnataka and Ors. reported in ILR-2006 SCAR 318, (Arkavathi layout case) has considered the said point and held that the persons who have purchased sites through registered sale deeds prior to preliminary notifications are entitled to be registered as applicants for allotment of sites to BDA in the prescribed form without paying initial deposit, as their sites have been acquired and they are entitled for allotment of sites on priority basis in any layout in Bangalore city, subject to satisfying/fulfilling conditions prescribed in the BDA (Allotment of Sites) Rules, 1984 and the same benefit shall be extended to the petitioners who are similarly placed in these writ petitions.

In this regard it is relevant to note the suggestions/ guidelines issued by this Court on the vary point involved in these petitions in various cases, namely:

This Court, in the case of G.R. Jayamma and Ors. v. State and Ors. (W.P. Nos. 20875-938/2001 disposed on 30.07.2001) (Anjanapura Scheme) has held as follows:

9. After the matter was heard further, a broad consensus was reached between petitioners and BDA. Having regard to the special facts and circumstances of these cases, petitioners and BDA submitted that these petitions may be disposed of recording the following terms agreed between them:

(a) Petitioners hereby withdraw their objections to the acquisition to the acquisition and assure full support and co-operation to BDA in forming the layout;

(b) Petitioners shall register themselves as applicants for allotment under the Bangalore Development Authority (Allotment of sites) Rules, 1984 within a period of two months from today (extendable by another one month by BDA, if sufficient cause is shown). Petitioners will have to pay only the registration fee. They need not pay initial deposit as their sites have been acquired and they have agreed not to receive compensation in regard to the sites under this arrangement;

(c) The petitioners shall file applications for allotment of sites to BDA within three months from today, in the prescribed form stating that they are applicants who were the petitioners in these writ petitions. Petitioners shall file their documents with BDA within a period of two months to enable BDA to verify the same,

(d) BDA will treat them as applicants entitled to priority in allotment and allot each of them a site measuring 30 x 40 in Anjanapura Layout or in any other nearby layouts in Bangalore at the prevailing allotment prices subject to petitioners satisfying the twin requirements for allotment under the BDA (allotment of sites) Rules 1984; that they must be the residents of Bangalore (ten year domicile) and should not be owning any residential property in Bangalore (Subject to exception as per Rule 10).

(e) If there are no rival claimants for compensation in regard to the plots claimed by petitioners, and if the ownership of the petitioners in regard to their respective sites which have been acquired is not disputed, BDA shall calculate the compensation payable to the petitioners and give credit to the same by adjusting the same towards the allotment price for the site to be allotted and call upon the petitioners to pay the balance. Petitioners shall be given six months time for making payment (to enable petitioners to know the amount of compensation which they will be entitled and to ascertain how much balance they should pay).

(f) If there are rival claimants in regard to the survey numbers or the sites or if any petitioner's title in regard to the compensation in regard to such site/land in question to the Civil Court under Section 30 of the Land Acquisition Act, 1894; and the petitioners will have to sort out the matter before the reference Court, In that event, such petitioners will have pay the full allotment price within the time stipulated, without seeking adjustment of compensation for the acquired site;

(g) If any of the petitioners does not fulfil the requirements for allotment, under the allotment Rules, their cases may be considered for allotment of 20 x 30 sites as per the Rules containing incentive scheme for voluntary surrender of lands. For the purpose of the said scheme, such petitioners will be deemed to have voluntarily surrendered the sites.

(h) The above scheme will be available to only those who are owners, as a consequence of execution of registered sale deeds in their favour prior to the date of preliminary notification (end not to OPA/Agreement holders).

The Division Bench of this Court in the case of John S. James v. BDA and Anr. reported in ILR-2000 KAR 4134 has observed thus:

89. It is contended that some of the petitioners in these cases and connected batches are in settled possession for more than 12 years and in some cases for many decades. In these batch of cases, it is contended that the date of taking possession is 30.4.1987, which is more than 12 years ago and that some petitioners who were in possession before the date of vesting hove continued in possession and have perfected their title by adverse possession. On the other hand, Bangalore Development Authority contends that no one has perfected his/her title by adverse possession; and that unauthorised occupants have continued in possession by virtue of stay orders and interim orders obtained from the Courts, As stated above, this Court in exercise of its writ jurisdiction, will not decide disputed question as to whether any particular petitioner has perfected his/her title by adverse possession. But, if there is any pocket or area, persons have been in open, peaceful and uninterrupted possession without any interference from Bangalore Development Authority for more than 12 years, the Bangalore Development Authority, instead of fighting series of litigations, may consider formulating a scheme whereby it can grant respective sites at such prices as it may determine and settle the dispute this is only a suggestion to reduce unnecessary litigation and not a direction to BDA. Nor is it intended to create or recognise any right in any of the petitioners.

Yet in another case, in the case of BDA and Ors. v. Gowramma and Ors. (Writ Appeal No. 4713/2002 & connected matters, disposed of on 24.03.2005) the Division Bench of this Court, while dealing with the question relating to allotment of residential buildings constructed by the petitioners therein at the price to be fixed by the BDA., has observed thus: Having elaborately heard the learned Counsel appearing for the parties, in our view, the direction given by the learned Single Judge directing the BDA to allot the area occupied by the petitioners in their favour does not call for interference. However, it is clarified that if the BDA finds imposable to form the layout by forming roads and other essential civic amenities without demolishing the existing buildings constructed and occupied by the petitioners, the BDA need not to allot the very sites to the petitioners but it should allot some other equally suitable alternative sites of the same dimension to the petitioners. As rightly pointed out by the learned Counsel appearing for the contesting respondents that since BDA is acquiring the lands belonging to the petitioners for the purpose of formation of layout and allotment of sites to the members of the public, it is fair and reasonable to allot the very sites to the owners who are in occupation of the residential buildings unless it became impossible to form the layout without demolition of the existing buildings. Therefore, we are unable to accept the submission of Sri. Krishna that the direction given by the learned Single Judge that the area where the residential buildings of the petitioners are situated should be allotted in their favour, is unsustainable in law. Therefore, we are of the view that unless the BDA after issuing notice to the petitioners and hearing them comes to the conclusion that residential buildings constructed by the petitioners are required be demolished for forming the layout by providing road and other civic amenities, the BDA should allot the very sites on which the residential buildings of the petitioners are located to the petitioners themselves as directed by the learned Single Judge. Further, after hearing the parties as stated above, if the BDA is satisfied that the development actress like forming of road and provision for civic amenity sites cannot be made without demolishing the existing buildings, the BDA can demolish the existing buildings and allot the alternate sites to the petitioners as stated above.

Again in the case of Junjamma and Ors. v. BDA and Ors. referred supra, this Court has observed, thus:

51. As already stated these site owners could be broadly classified as petitioners who have purchased sites in agricultural lands, who have purchased lands in layouts which are not approved and who have purchased sites in layouts which are approved and who have put up constructions on the said sites and some of them who have paid entire consideration, taken possession of the sites under power of attorney registered or otherwise, and on the basis of affidavit etc. It is in this background and taking note of other social conditions, hard realities of life, legal illiteracy among literates also and the consequences which flow from such indiscrete, injudicious acts on the part of the petitioners, coupled with the fact that the Authority acquires land against the will of the owner of the land, forms layout, distributes lands keeping in mind the social philosophy reserving a certain extent of site to SC, St, Backward Communities, Ex-servicemen, Handicapped people, sportsman, etc., an acceptable solution is to be found. In a city like Bangalore it is not possible to acquire a site by paying the market value prevailing in any particular locality by these classes of people, There are more people to buy but sites are few. In such situation if one has to acquire a site through the Authority, he has to wait in queue, make applications and it is only after several attempts one may get his term to get a site. Factors, such as delay in acquisition proceedings, the hurdles the Authority has to cross the judicial intervention at every stage of the acquisition proceedings, then the remedy of appeals etc., necessarily results in the formation of layouts at a snails pace and the people patience is tested. It is these hard realities that drive some of those poor people purchase sites formed in agricultural lands, unapproved layouts or even in approved private layouts. Hence, it cannot be said all these acquisitions are by way of an investment. May be few indulge in purchase of such site with an intention of investment and multiplying their money. By and large the persons who purchase these sites also belong to lowest strata of the society who are poor, weak and coming from depressed classes and minorities. Acquiring sites of such persons in exercise of the power of domain and allotting the very same sites to persona who are similarly placed does not stand to reason. But at the same time one cannot encourage disobedience to law and illegal actions. It is here that the Courts are faced with the problem of balancing private interest against the public interest, rule of law and the constitutional mandate. It is an universally accepted view that adequate housing is one of the moat basic human needs. With the adoption of the Universal Declaration of Human Rights in 1948, the right to adequate housing comes within the fold of universally applicable and universally accepted human rights law. Ultimately, adequate housing is the right of every child, woman and man. Recognising this, the Supreme Court has held that the tight to shelter is a fundamental right that springs from right to residence (Article. 19[1][e] and right to life [Article 21], (AIR 1996 SC 114]).

52. The acute shortage of housing and magnitude of the problem has often given rise to some sort of a solution being found, as was done in the case of formation of Anjanapura layout. In the said instance; a balance was struck and by way of a compromise an order came to be passed directing the Authority to accommodate such poor unfortunate innocent site owners in the manner suggested therein. It is because of that, the Authority while considering their objections in the instant case, though over-ruled their objections while sending report to the Government brought to the notice of the Government the difficulties experienced by such site owners and what transpired in similar situations earlier and proposed the very same remedy in the instant case also. Therefore, the authority is not averse to extend the same benefit to the site owners who are petitioners in some of these petitions in the manner it was done in the Anjanapura layout. Therefore I do not find any good reasons as to why the said benefit should not be extended to the petitioner who are similarly placed. Even though the Government has not considered the said proposal and passed appropriate orders, now that the matter is before Court no one has and can have any objection for extending the same benefit to the petitioners. Under these circumstances, I deem it proper to extend the same benefit to the petitioners who are similarly placed subject to the terms and conditions mentioned in the aforesaid order. Here I would like to suggest that in the given case if the Authority is satisfied that though some of the petitioners do not possess a registered sale deed or they have acquired title to the land after preliminary notifications of claiming tight under power of attorney or any other mode other than by way of a registered sale deed if such persons belonged to weaker sections, economically backward, poor in their discretion the same benefit may also be extended to them.

53. Similarly, if a layout has already been formed with approval of some authority or if a pucca layout is formed even without such approval if it is of the specifications prescribed under the BDA Act itself and if the said layouts could be harmonized or mingled with the layout to be formed by the BDA as far as possible every attempt should be made by synchronizing the said layouts with the BDA layout and if it is possible to allot the very same sites to the petitioners and in particular to those who have already put up constructions and living there. That would be the best way of solving this human and housing problem. However, if those sites or constructions come in the way of layout formation, it is open to the authorities to disturb the possession of the occupants of the said sites and buildings and allot a site in the layout to be formed by them. All these suggestions are made only with the fond hope of minimizing the hardship to those site owners, to reduce the coat of forming a layout and the heart burn is likely to cause. The same cannot be claimed as a matter of right by any of the petitioners.

In view of the series of consistent observations made by this Court in various cases referred supra, the BDA may be directed suitably to protect the interests of site owners who have owned the sites through registered sale deeds prior to preliminary notifications.

In the light of the aforesaid discussion and the findings recorded on the points raised by the petitioners, this Court proceeds to pass the following order:

ORDER

The challenge to the acquisition in all these writ petitions fails and it is accordingly rejected. The acquisition proceedings are upheld, subject to the following conditions:

(A) The petitioners who are all the owners of sites in question (not duly converted far non-agricultural use in accordance with law) which are acquired am entitled to the following reliefs:

(i) These petitioners shall register themselves as applicants for allotment of sites under the Bangalore Development Authority (Allotment of Sites) Rules, 1984, within a period of two months from today (extendable by another one month by BDA, if sufficient cause is shown). Petitioners wilt have to pay only the registration fee. They need not pay initial deposit as their sites have been acquired and they are not entitled to receive compensation in regard to the sites under this arrangement.

(ii) The petitioners shall file applications for allotment of sites to BDA within three months from today, in the prescribed form stating that they are applicants who were the petitioners in these writ petitions. Petitioners shall file their documents with BDA along with the application to verify the same.

(iii) BDA win treat them as applicants entitled to priority in allotment and allot each of them a, site measuring 30' x 40' in "Further Extension of Banashankari 6th phase" or in any other nearby layouts in Bangalore at the prevailing allotment prices subject to petitioners satisfying the twin requirements for allotment under the BDA (Allotment of Sites) Rules, 1984, that they must be the residents of Bangalore (ten years domicile) and should not be owning any residential property in Bangalore.

(iv) If there are no rival claimants for compensation in regard to the plats claimed by the petitioners, and if the ownership of the petitioners in regard to their respective sites which have been acquired is not disputed, BDA shall calculate the compensation payable to the petitioners and give credit to the same by adjusting the same towards the allotment price for the site to be allotted and call upon the petitioners to pay the balance. Petitioners shall be given six months time for making payment (to enable petitioners to know the amount of compensation, which they will be entitled and to ascertain how much balance they should pay).

(v) If there care rival claimants in regard to the survey numbers or the sites or if any petitioners' title in regard to the sites are challenged, BDA shall make a reference in regard to the compensation in regard to such site/land in question, to the Civil Court under Section 30 of the Land Acquisition Act, 1894, and the petitioners will have to sort out the matter before the Reference Court. In that event, such, petitioners win have to pay the full allotment price within the time stipulated, without seeking adjustment of compensation for the acquired site.

(vi) If any of the petitioners does not fulfil the requirements for allotment, under the allotment Rules, their cases may be considered for allotment of 20' x 30' sites as per the Rides containing incentive scheme for voluntary surrender of land. For the purpose of the said scheme, such petitioners will be deemed to have voluntarily surrendered the sites.

(vii) The above scheme will be available to only those who are owners, as a consequence of execution of vegistered sale deeds in their favour prior to the date of preliminary notification (fond not to GPA/Agreement Holders).

(viii) The Authorities shall also consider whether these petitioners have purchased the sites by way of investment or with the intention of having a roof over their head and baaed on the said consideration, to pass appropriate orders, in the light of the observations made in this order.

B-(i) All the petitioners who are the landowners/converted site owners (duly converted for non-agricultural use of land, in accordance with law), who are seeking dropping of the acquisition proceedings in so far as their respective lands/sites are concerned, on the ground that: (a) their lands are situated within green belt area (b) they are totally bulit up; (c) converted for non-agricultural use; (d) garden and recognised nursery lands; (e) who have built hospitals, educational institutions and factories; (f) who have not been served with the notice of acquisition and (g) who are in doubt about the inclusion of their land in the notification am permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within three months from the date of this order.

(ii) It is made clear that the authority shall consider such request keeping in mind the status of the land as on the date of preliminary notification and to exclude any developments, improvements, constructions put up subsequent to the preliminary notification and then decide whether their cases are similar to that of the landowners whose objections were upheld and in respect of those lands no final notification is issued.

(iii) In the event the Authority comes to the conclusion that those persons are similarty placed and are covered by the Resolution of the BDA dated 28.06.2003 in Subject No. 177/2003, then to de-notify their lands/sites, built up portion and exclude them from acquisition

(iv) Petitioners who are interested in availing this benefit shall make appropriate application within 90 days from the date of this order and thereafter, the authority shall give notice to those persons, hear them and pass appropriate orders expeditiously.

(C) Till, the aforesaid exercise is -undertaken by the Authority on the applications filed by the petitioners either for allotment of site or for de-notifying or exemption sought for are considered, their possession shall not be disturbed and the existing construction shall not be demolished. After consideration of the application in the tight of the aforesaid direction, the Authorities are at liberty to proceed with the acquisition.

(D) The suggestion made by this Court in paragraph-27 during the course of this order may be considered in all earnestness, particularly, in the cases of those who have already put up construction and living therein prior to preliminary notification.

(E) W.P.No. 15053/2004 is allowed. The impugned notifications in so far as it pertains to 3 acres of land situated in Survey No. 106/2 of Mallathalli village belonging to petitioner are quashed.

These writ petitions are disposed of accordingly.