BANGALORE DEVELOPMENT AUTHORITY & ANR. versus STATE OF KARNATAKA & ORS. on 20 January 2022

(1) A peripheral ring road (for short, ‘PRR’) encircling BangaloreECity for the length of 116 Kms. was proposed vide Letter dated27.11.2006 by the Bangalore Development Authority (‘BDA’ for short)to the State Government. The scheme was sanctioned by the Governmentof Karnataka vide UDD 399 MNX 2006 Bangalore dated 23.04.2007.This PRR is to provide connectivity to various destinations in all thedirections for onward traffic without entering the city of Bangalore andFthus minimising the congestion on the outer ring road as well as on theinternal roads of the city. The affidavit filed by the Additional ChiefSecretary before this Court dated 09.11.2021 highlights the importanceof construction of PRR as under:

“PROJECT NECESSITYG

2. At the outset it is submitted that the Bengaluru City needs thePeripheral Ring Road (PRR) more than ever in view of thephenomenal growth of the city in all directions. The geographicalextent of the city has grown to 2196 sq. kms. The vehicle countas of 2019 was over 80 lakhs. Bengaluru being the capital city, H

thousands of vehicles come in every day from various parts ofthe state as well as outside the state. There is enormous pressureon city roads and public transport system is overstressed. ThePRR will greatly reduce the stress and congestion in the city roads.The Government is very keen to facilitate the early execution ofthe PRR.”

2. Notifications, both preliminary and final, have been issued bythe BDA for acquisition of the lands for the PRR and several writ petitionswere filed before the High Court of Karnataka challenging thesenotifications. One such writ petition was W.P.No.4550 of 2008 (SriSudhakar Hegde and others vs. the State of Karnataka and others).Several other similar matters were clubbed along with the said writpetition. Learned Single Judge of the Karnataka High Court decidedthese matters on 22.07.2014. The questions formulated in the said caseswere as under:

“(a) Whether the repeal of the Land Acquisition Act 1894, hasthe effect of frustrating any proceedings with reference to Section36 of the BDA Act.

(b) Whether the acquisition proceedings can be said to have lapsedby virtue of the Right to Fair Compensation and Transparency inLand Acquisition, Rehabilitation and Resettlement Act, 2013 havingcome into force.”

3. On the first question, learned Single Judge held that the provisionsof the Land Acquisition Act, 1894 (for short, ‘LA Act’) that are madeapplicable to the BDA, are in the nature of legislation by reference. Itwas further held that in view of the repeal of the LA Act by coming intoforce of Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 (for short, ‘2013Act’) during the pendency of the writ petitions, it would be thecorresponding provisions under the 2013 Act in so far as they areapplicable which would regulate the acquisition proceedings. LearnedJudge further held that the repeal of LA Act and coming into force of2013 Act would not frustrate further proceedings under the BangaloreDevelopment Authority Act (for short ‘the BDA Act’).

4. However, on the second question, the Court observed that “itcannot therefore be said that by virtue of Section 24 of 2013 Act, theproceedings stood lapsed.” The Court held that the procedure that would A

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Aregulate the proceedings would be as per the provisions of 2013 Act inso far as they are applicable. This would include the determination ofcompensation in accordance with the 2013 Act as no award had beenpassed in the present proceedings.

5. BDA has filed the above application contending that the directionBin the above cases has totally upset the budget calculation of the project.It is further contended that the High Court has failed to refer and toconsider the Constitution Bench judgment of this Court in OffshoreHoldings Private Limited v. Bangalore Development Authorityand others[1]. It is also contended that Section 36 of the BDA Act clearlymandates legislation by incorporation. BDA has filed this applicationCseeking mainly the following relief:

“Hold that the 2013 Act is not applicable to the BDA Act and theJudgment of the learned Single Judge dated 11/07/2014 in WP4550/2008 and connected matters is per in-curium, otiose andunenforceable.”D

6. We have heard the learned counsel for the parties.

7. The BDA Act was enacted by the Legislature of the State ofKarnataka to provide for the establishment of a Development Authorityfor the development of city of Bangalore and the areas adjacent theretoEand for matters connected therewith. The objects and reasons for enactingthe Bangalore Development Act, 1976 are as under:

“STATEMENT OF OBJECTS AND REASONS

KARNATAKA ACT, NO.12 OF 1976

Karnataka Gazette, Extraordinary, dated 5-2-1976F

At the conference of the Ministers for Housing and UrbanDevelopment held at Delhi in November, 1971, it was agreed thata common Authority for the development of metropolitan citiesshould be set up.

GBangalore City with its population (as per last census) is aMetropolitan City. Different Authorities like the City of BangaloreMunicipal Corporation, the City Improvement Trust Board, theKarnataka Industrial Area Development Board, the Housing Boardand the Bangalore City Planning Authority are exercising jurisdiction over the area. Some of the functions of these bodieslike development, planning, etc., are overlapping creating therebyavoidable confusion, besides hampering co-ordinated development.It is, therefore, considered necessary to set up a single authoritylike the Delhi Development Authority for the city areas adjacentto it which in course of time will become part of the city.

For the speedy implementation of the above said objects asalso the 20-point programme and for establishing a co-ordinatingCentral Authority, urgent action was called for. Moreover, thehaphazard and irregular growth would continue unless checkedby the Development Authority and it may not be possible to rectifyor correct mistakes in the future.

It was therefore necessary to issue the measure in the formof an Ordinance.

The Bill seeks to replace the said Ordinance.”

8. Section 14 of the BDA Act underlines the object of the Authorityin the below terms:

“14. Objects of the Authority:- The objects of the authorityshall be to promote and secure the development of the BangaloreMetropolitan Area and for that purpose the authority shall havethe power to acquire, hold, manage and dispose of movable andimmovable property, whether within or outside the area under itsjurisdiction, to carry out building, engineering and other operationsand generally to do all things necessary of expedient for the purposeof such development and for purposes incidental thereto.”

9. Chapter III of the BDA Act provides for the power of theAuthority to take up execution of development schemes for thedevelopment of the Bangalore Metropolitan area. Section 15 empowersthe BDA to frame development schemes with the previous permissionof the government to execute the same. Section 16 enumerates theparticulars to be provided in such schemes. After preparation of thescheme under Section 17, the Authority shall draw up a notificationfurnishing the particulars of the scheme and the place where the landsproposed for acquisition. Within 30 days, notice shall be issued to theconcerned persons inviting objections, if any, for the proposed acquisition.After considering the representations received in that regard, the schemeshall be submitted to the government for sanction with modifications, if A

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Aany, together with the plan, estimates and other particulars. Afterconsidering the proposals, the Government has to sanction the same.Upon sanction of the scheme under Section 19, the Government shallpublish declaration that the lands are required for the public purpose.These are the formalities required to be complied with before proceedingfurther in the matter of execution of the scheme.B

10. Chapter IV of the BDA Act deals with “Acquisition of Land”.This chapter contains Sections 35 and 36. The relevant provision for thepurpose of the present case is sub-section (1) of Section 36 which is asunder:

C“36. Provisions applicable to the acquisition of landotherwise than by agreement – (1) The acquisition of landunder this Act otherwise than by agreement within or without theBangalore Metropolitan Area shall be regulated by the provisions,so far as they are applicable, of the Land Acquisition Act. 1894.”

D11. Sub-section (3) of Section 36 of the BDA Act states that afterthe land vests in the Government under Section 16 of the LA Act, thenthe Government upon payment of cost of acquisition and upon theAuthority agreeing to pay any further cost which may be incurred on theacquisition, shall transfer the land to the Authority whereupon it shallvest in the Authority.E

12. The primary object of the BDA Act is to carry out a planneddevelopment and acquisition, is merely incident of such planneddevelopment. It is also clear that the provisions of the LA Act would beattracted only insofar as they are applicable to the BDA Act. Wherethere are specific provisions under the BDA Act, the provisions of theFLA Act will not be attracted. The BDA Act has provided a completeprocess for determination of rights. For the purpose of the claims inregard to the matters which are not specifically dealt with in the BDAAct, reference to the LA Act in terms of Section 36 has been made. Theintention of the Legislature is to take recourse for the provisions of theGLA Act to a limited extent and subject to the supremacy of the provisionsof the BDA Act. This is evident from the expression “so far as they areapplicable” employed in sub-section (1) of Section 36. In OffshoreHoldings Private Limited (supra), a Constitution Bench of this Court,after considering the scheme of the BDA Act and having regard to thelanguage employed in Section 36, held that it is a legislation byHincorporation.

13. Incorporation of an earlier Act into the later Act is a legislativedevice for the sake of convenience in order to avoid verbatim reproductionof the provisions of the earlier Act into the later Act. Once theincorporation is made, the provisions of incorporated statute become anintegral part of the statute in which it is transferred and thereafter thereis no need to refer to the statute from which incorporation is made andany subsequent amendment made in it has no effect on the incorporatingstatute. (See: C.N. Paramasivam and Another vs. Sunrise PlazaThrough Partner and Others[2])

14. In Offshore Holdings Private Limited (supra), it was heldas under:

“43. All these provisions show that the BDA Act hasprovided for a complete adjudicatory process for determinationof rights and claims. Only in regard to the matters which are notspecifically dealt with in the BDA Act, reference to the LandAcquisition Act, in terms of Section 36, has been made, for example,acquisition of land and payment of compensation. This also is apointer to the BDA Act being a self-contained Act.

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50. Applying the above principle to the facts of the case inhand, it will be clear that the provisions relating to acquisition likepassing of an award, payment of compensation and the legalremedies available under the Central Act would have to be appliedto the acquisitions under the State Act but the bar contained inSections 6 and 11-A of the Central Act cannot be made an integralpart of the State Act as the State Act itself has provided specifictime-frames under its various provisions as well as consequencesof default thereto. The scheme, thus, does not admit suchincorporation.

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57. The sequitur to the above principle is that the BDAAct has already been held to be a valid law by this Court notrepugnant to the Land Acquisition Act as they operate in theirrespective fields without any conflict. For the reasonsaforereferred as well as the detailed reasons given by us in GirnarTraders (3)[5], which reasoning would form part of this judgment,we have no hesitation in concluding that the BDA Act is a self- AB

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Acontained code. The language of Section 36 of the BDA Act clearlymandates legislation by incorporationand as per the scheme ofthe two Acts, effective and complete implementation of the Statelaw without any conflict is possible. The object of the State lawbeing planned development, acquisition is merely incidental theretoand, therefore, such an approach does not offend any of the knownBprinciples of statutory interpretation.”

(emphasis supplied)

15. In Special Land Acquisition Officer, KIADB, Mysoreand Another vs. Anasuya Bai (dead) by Legal Representativesand others[3] this Court was considering an identical question. There itCwas held that Section 11-A of the LA Act and Section 24(2) of 2013 Actare not applicable for acquisition made under KIADB Act. It was heldthus:

“30. Having regard to the aforesaid raison d’être for non-application of the old LA Act, on the parity of reasoning, provisionDof Section 24(2) of the new LA Act making Section 11-A of theold LA Act would, obviously, be not applicable. We would like torefer to the judgment in State of M.P. v. M.V. Narasimhan[4] inthis behalf where following proposition is laid down: (SCC p. 385,para 15)

E“15. … ‘Where a subsequent Act incorporates provisionsof a previous Act, then the borrowed provisions become an integraland independent part of the subsequent Act and are totallyunaffected by any repeal or amendment in the previous Act. Thisprinciple, however, will not apply in the following cases:

F(a) where the subsequent Act and the previous Act aresupplemental to each other; (b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if notimported into the subsequent Act also, would render the subsequentAct wholly unworkable and ineffectual; andG

(d) where the amendment of the previous Act, eitherexpressly or by necessary intendment, applies the said provisionsto the subsequent Act.’”

3 2017 (3) SCC 313H4 2011 (3) SCC 1

16. On 3.12.2020 this Court in this very case has held as under:

“Needless to state that the acquisition of the land under the BDAAct is regulated by the provisions of the LA Act so far as they areapplicable. (See: Section 36 of the BDA Act). The borrowedprovisions of LA Act, became an integral part of the BDA Actand are totally unaffected by the repeal of the LA Act. In otherwords, the provisions of the LA Act are incorporated into theBDA Act so far as they are applicable. Of course, the barcontained in Section 6 and 11-A of the LA Act, are not applicableto the BDA Act. We have discussed this aspect of the matter inour main judgment dated 03/08/2018. It is also clear that theprovisions of the Right of Compensation and Transparency in LandAcquisition, Rehabilitation & Resettlement Act, 2013 are notapplicable for the acquisition made under the BDA Act. Finalnotification has also been issued after the pronouncement ofjudgment by this Court in Civil Appeal No(s). 7661-7663 of 2018dated 03/08/2018. We direct the BDA to proceed with theacquisition of the land as proposed in the notification.”

17. Therefore, the provisions of the LA Act continue to apply foracquisitions made in the BDA Act so far as they are applicable as it is alegislation by incorporation having regard to Section 36 of the BDA Act.

18. The question may also be examined from a different angle.Section 24 of the 2013 Act expressly refers to the land acquisitionproceedings initiated under the LA Act. Sub-section (1) of Section 24 ofthe 2013 Act is as under:

“24. Land acquisition process under Act No. 1 of 1984 shallbe deemed to have lapsed in certain cases - (1)Notwithstanding anything contained in this Act, in any case ofland acquisition proceedings initiated under the Land AcquisitionAct, 1894,—

(a) where no award under section 11 of the said LandAcquisition Act has been made, then, all provisionsof this Act relating to the determination ofcompensation shall apply; or (b)where an award under said section 11 has been made,then such proceedings shall continue under theprovisions of the said Land Acquisition Act, as if thesaid Act has not been repealed.

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A(2) Notwithstanding anything contained in sub-section (1), in caseof land acquisition proceedings initiated under the Land AcquisitionAct, 1894 (1 of 1894), where an award under the said section 11has been five years or more prior to the commencement of thisAct but the physical possession of the land has not been taken orthe compensation has not been paid the said proceedings shall beBdeemed to have lapsed and the appropriate Government, if it sochooses, shall initiate the proceedings of such land acquisitionafresh in accordance with the provisions of this Act:

Provided that where an award has been made andcompensation in respect of a majority of and holdings has notCbeen deposited in the account of the beneficiaries, then, allbeneficiaries specified in the notification for acquisition undersection 4 of the said Land Acquisition Act, shall be entitled tocompensation in accordance with the provisions of this Act.”

19. The 2013 Act repeals only the LA Act and not any otherDCentral or State enactment dealing with acquisition. Therefore, what issought to be saved under Section 24 of the 2013 Act is only acquisitionswhich had been initiated under the LA Act and not those acquisitionswhich had been initiated under any other Central or State enactment.The expression contained in Section 24 of the LA Act cannot be givenEextensive interpretation by adding words into the provision, in the absenceof the provision itself giving rise to any such implication. We are of theview that 2013 Act would not regulate the acquisition proceedings madeunder the BDA Act.

20. Section 105 of the 2013 Act states that the provisions of theF2013 Act shall not apply to the enactments in the Fourth Schedule or areto apply with modifications in terms of notification issued by the CentralGovernment under Section 105(3) of the 2013 Act. Section 105 does notapply to the present case.

21. Recently, a Division Bench of the Karnataka High Court inGSri. L. Ramareddy vs. the State of Karnataka and Ors.[5 ]hasconsidered identical questions in great detail and has concluded as under:

“44. In the circumstances, it is concluded and held that Section24 does not take within its scope nor does it apply to acquisitions H5 W.A. No.1415/2018 (LA-BDA) disposed of on 1st December, 2020

which have been initiated under the provisions of any otherenactment particularly, State enactment, such as, BDA Act. Thesaid Section is restricted to only those acquisitions which havebeen initiated under the provisions of the LA Act, 1894 only. Subjectto compliance of the conditions mentioned under sub-section (2)of Section 24, the land owner would be entitled to the deemingprovision regarding lapse of acquisition and not otherwise.”

We are in complete agreement with this judgment of the HighCourt.

22. We may also notice here that the learned Single Judge of theHigh Court has not followed the judgment in Offshore Holdings PrivateLimited (supra) wherein it was clearly held that the provisions of theLA Act are applicable to the BDA Act by incorporation.

23. In view of the above, the Learned Judge of the High Court inSri Sudhakar Hegde (supra) was not justified in holding that theprovisions of LA Act that are made applicable to the BDA Act are in thenature of legislation by reference. The learned Judge has also erred inholding that in view of the repeal of LA Act by coming into force of 2013Act, the corresponding provisions of 2013 Act would regulate acquisitionproceedings under the BDA Act and that this would include determinationof compensation in accordance with 2013 Act. It is hereby clarified thatsince LA Act has been incorporated into the BDA Act so far as they areapplicable, the provisions of 2013 Act are not applicable for theacquisitions made under the BDA Act. Therefore, the judgment of thelearned Single Judge of the High Court in Sri Sudhakar Hegde (supra)and other connected matters is hereby overruled.

24. Application is accordingly disposed of.

Devika Gujral

Application dispossed of.

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