Bondu Ramaswamy & Ors. Vs. Bangalore Development Authority & Ors

CASE BRIEF

Appellants: Bondu Ramaswamy
Vs.
Respondent: Bangalore Development Authority & Ors.

Decided On: 05 May, 2010

Judges/Coram
K.G. Balakrishnan, C.J., R.V. Raveendran and Devinder Kumar Jain, JJ.

Equivalent Citation

JT 2010 (6) SC 57, 2010 (5) Kar LJ 177, (2010) 5 MLJ 541, 2010 (5) SCALE 70, (2010) 7 SCC129

Statues Referred

• Constitution of India, 1950: Article 19, Article 31 and Article 243
• Bangalore Development Authority Act, 1976: Section 1, Section 2 and Sections 15-19

Facts

• The BDA submitted a system report with comprehensive estimates intended for development of a planned new layout in an area spread over twelve villages, (Hennur Devanahalli Layout).
• The Additional Land Acquisition Officer of BDA submitted a statement recommending that 3000 acres of land in the said twelve villages and two adjoining villages be taken and that scheme may be called as ‘Arkavathi Town’.
• The Commissioner agreed with the proposal and placed the matter before the BDA. The BDA deliberated upon the proposal and decided to issue a pilot proposing to acquire about 3000 acres of land in 14 villages. After the said resolution, lands in two more villages were also included to provide better access to the layout.
• Notices were issued to land owners under Section 17(5) of the Act giving an opportunity to show cause why the acquisition should not be made. Public notice was also issued in the newspapers inviting objections. No objections were received in regard to 91 acres 7 Guntas. The objections received in regard to 2658 acres were considered and rejected. The Authority decided to seek the sanction of the government for the acquisition of 2750 acres of land.
• On 3.2.2004, the authority passed a resolution to obtain the approval of the state government for implementation of the Arkavathi layout under Section 15(2) of BDA Act and requesting sanction for acquisition of 2750 acres for formation of 28600 sites of different dimensions.
• After securing certain clarification, by Government Order dated 21.2.2004, the State government accorded sanction for the scheme under Section 18(3) of the Act. In pursuance of it, the final declaration was issued by the State Government, under Section 19(1) of the Act stating that sanction had been granted for the scheme and declaring that the lands specified in the Schedule thereto in all 2750 acres were needed for the formation of the Arkavathi Layout.

Issue

1. Whether the deletion of some items from the proposed acquisition, while proceeding with the acquisition of similar contiguous lands amounted to hostile discrimination and therefore the similar lands also required to be withdrawn from acquisition?
2. Whether BDA Act, in so far as it provides for compulsory acquisition of property, is still-born and ineffective as it did not receive the assent of the President, as required by Article 31(3) of the Constitution of India?
3. Whether the provisions of the BDA Act, in particular Section 15 read with Section 2(c) dealing with the power of the Authority to draw up schemes for development for Bangalore Metropolitan Area became inoperative, void or was impliedly repealed, by virtue of Parts IX and IX(A) of the Constitution inserted by the 73rd and 74th Amendments to the Constitution?

Contentions by Parties

Appellant’s Arguments

• The BDA Act is a legislation applicable to Article 243W; therefore the BDA Act is deemed to be a law concerning Municipalities. Having regard to Article 243ZF, any provision that is inconsistent with the provisions of Part IXA of the Constitution ceased to be in force on the expiry of one year from 1.6.1993 – the date of the promulgation of the Constitution 74th Amendment Act, 1992.

• Post the insertion of Part IXA of the Constitution, there cannot be any ‘metropolitan area’ other than what is declared by the Governor as a metropolitan area, as stated under Article 243P(c). Solely an area having a population of 10 lakhs or more in one or more districts and consisting of two or more municipalities or Panchayats or other adjoining areas and stated by the Governor via a public notification to be a Metropolitan Area can be a ‘Metropolitan Area’. As a result, the ‘Bangalore Metropolitan Area’ as defined under Section 2(c) of the BDA Act had ceased to exist and for that reason BDA could not draw up any development scheme for Bangalore Metropolitan Area.

• The BDA Act was passed by the Karnataka Legislature, received the assent of the Governor on 2.3.1976, was published in the Karnataka Gazette dated 8.3.1976 and brought into force with retrospective effect from 20.12.1975. The BDA Act affords compulsory acquisition of property under provisions contained in Chapters III and IV. When the BDA Act was enacted and brought into effect, Articles 19(1)(f) and 31 of the Constitution were in force. Article 31(3) provided that no law providing for acquisition of property for public purposes, made by a State Legislature shall have effect unless such law has been reserved for the consideration of the President and has received his assent.

• The BDA Act had not been reserved for the consideration of the President, nor received his assent. Consequently, the BDA Act, in so far as it provides for acquisition of property, is deemed to be void. It is submitted that though Article 19(1)(f) and Article 31 were omitted from the Constitution with effect from 20.6.1979, as such omission was not with retrospective effect, any law made prior to 20.6.1979 should be tested on the touchstone of the said articles.

Respondent’s Arguments

• The Article 31(3) merely provides that no law providing for acquisition shall have effect unless such law has received the assent of the President. Article 31(3) does not specify any fundamental right, but relates to the procedure for making a law providing for acquisition, i.e. it does not nullify any laws, but delays the enforcement of a law relating to acquisition, until it receives the assent of the President.

• There is therefore no violation of Part III of the Constitution that can lead to any part of the BDA Act being deemed as void. Therefore, once the requirement of assent has been fulfilled, the provisions concerning the acquisition becomes legally enforceable.

• The BDA Act authorizes the Bangalore Development Authority to articulate schemes for the development of Bangalore Metropolitan Area. The word ‘development’ denotes to building, engineering or other operations in regard to land, i.e. is making layouts and providing plots for allotment to members of the public. It is authorised to obtain lands for implementation of development schemes, formulate layouts and construct buildings. The area in which the BDA Act functions is fundamentally different from the area(s) in which Part IX A of the Constitution operate.

Judgment

In the present matter the Apex Court held the following:

• The Hon’ble Court affirmed the directions of the Division Bench subject to the certain directions and clarifications.

• BDA has to consider whether in view of deletions to a large extent, whether development with respect to the balance of the acquired lands has become illogical and impractical, and if so, whether the balance area also should be deleted from acquisition.

• In the proposed layout there are numerous minuscule pockets of acquired lands surrounded by lands which have not been acquired or which were subsequently deleted from the proposed acquisition – the BDA has to consider whether such pockets should also be deleted in case they are not able to form self-contained layouts.

Rule of Law

The provision of the law which was under scrutiny by the Hon’ble Supreme Court of India was the court’s application, the principle of Pith and Substance.

It was held that if a Law, that is covered by an entry in the State List made by the State Legislature, contains any provision which directly and substantially relays to a matter itemized in the Concurrent List and is repugnant to the same, then the repugnant provision in the State List may be deemed void unless it can co-exist and operate without repugnancy in accordance with the provisions of the prevailing law.

Conclusion

In Conclusion it could be said that in this case the Supreme Court through its judgement has provided a much needed guidance regarding arbitrary and unexplained deletions and exclusions from acquisition of large extents of notified lands it stated that the same shall render the acquisitions meaningless, forcing the courts to quash the entire acquisition.

If large zones are notified and then deleted, it breeds corruption and nepotism among officials.

It also generates hostility, mutual distrust and disharmony among the villagers, isolating them on the lines of ‘those who can influence and get their lands deleted’ and ‘those who cannot’.

Nevertheless, in order to evade further adversities to the acquiring authority and its allottees and with the intention of avoiding prolonged litigations, the court embraced a more equitable approach – preferential allotment of certain plots at the prevailing market price on top of compensation to the land losers.