Sudhakar Hegde and Others Vs State of Karnataka and Others - Citation 1173601 - Court Judgment

Judgment:

(Prayer: This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the notifications dated 15.11.2006 issued by third respondent vide Annexure-N and notification dated 29.6.2007 vide Annexure-0 respectively, in respect of the petitioners land situated in 11/1 of Billishivale village, site bearing No.948, house list khatha No. 183, Asha Township 6th 'A' Cross, Bidarahalli Hobli, Bangalore East Taluk, Bangalore, measuring East to West 112 feet, North to South 80 feet in all measuring 8960 sq. ft. and bounded on the east by: 6th Cross Road, west by : Private Property, North by. site No.947, south by: site no.949.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification issued by the second respondent, dated 15.11.2006, and published in the Gazette dated 16.11.2006, so far it relates to formation of Peripheral Ring Road with providing truck terminals, BMTC Depot, which is produced and marked as Annexure-F and etc;

These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to call for the records form the second respondent leading to the resolution No.91/05 dated 29.6.2005 and Resolution No.146/2006 dated 7.11.2006 and to quash the Annexure-A the provisionally approved master plan dated 10 6.2005 and Annexure-J the master plan approved by the State Government- Rl, dated 26.6.2007.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the preliminary notification under Section 17(1) and (3) of the BDA Act 1976 dated 23.9.2005 Gazetted on 27.9.2005 vide Annexure-E and declaration dated 29.6.2007 Gazetted on 3.7.2007 at Annexure- F in view of non-execution of the scheme under the said notifications within five years from the date of the declaration under Section 19(1) of the BDA Act in respect of the land bearing Sy.No.32/2 of Avalahalli Village, Bidarahalli Hobli., Bangalore East Taluk, Bangalore is to the extent of 1 acre 27,50 guntas.

This Writ Petition filed under Articles 226 and 227 of Constitution of India praying to quash the notification dated 23.9.2005 Gazetted on 27.9.2005 vide Annexure-B and the notification dated 29.6.2007 Gazetted on 3.7.2007 vide Annexure-E1 so for as concern to the land of the petitioners and etc;

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 15.11.2006, and final notification dated 29.6.2007, issued by the second respondent and first respondent vide Annexures-E and J to the writ petition, insofar the petitioner's schedule site is concerned.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification under Section 17(1) and (3) of the BDA Act of 1976 dated 23.9.2005 and published in the Gazette dated 27.9.2005 vide Annexure-R and to quash the final notification dated 23.4.2007 and published in Gazette dated 29.6.2007 vide Annexure-T.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 15.10.2005 published in news paper and final notification dated 29.6.2007 issued by second respondent and first respondent vide Annexure-D and F in so far as the petitioners property bearing Sy.no.30 measuring to an extent of 3 acres 20 guntas and Sy.No.32 measuring 2 acres 20 guntas situated at Chokanahalli Village, Yeiahanka Hobli, Bangalore North Taluk and etc;

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 15.11.2006 vide Annexure-K Gazetted on 16.11.2006, and the final notification dated 29.6.2007 Gazetted on 3.7.2007 vide Annexure-M so far as concerned to the lands of the petitioners and etc;

This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the final notification dated 29.7.2007 vide Annexure-P in respect of serial Nos. 458, 461 and 463 in respect of lands bearing Nos. 67/1, 68/3 and 69 of Kogiiu Village, Yeiahanka Hobli, Bangalore North Taluk, belonging to the petitioners and drop the said lands from acquisition.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash Annexure-A dated 15.11.2006 in Notification dated 16.11.2006 and Annexure-F final notification dated 29.6.2007 which was published in Kar. Gazette dated 03.07.2007.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to declare the issue of the Additional Preliminary Notification dated 15.11.2006 vide Annexure-D under Section 17(1) and (3) of the B.D.A. Act 1976 in so far as it relates to the proposal to acquire the second petitioners land and buildings shown as per the schedule in Sy.No.85 of Seegehalli vide item Nos. 925 is illegal arbitrary, unconstitutional and void and quash the same and etc;

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash notification dated 23.9.2005 Gazetted on 27.9.2005 vide Annexure-J and the notification dated 29.6.2007 Gazetted on 3.7.2007 vide Annexure-N so far as concern to the lands of the petitioners and etc;

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification, Bangalore dated 15.11.206 and the final notification, Bangalore dated 29.6.2007 issued by the first and second respondent respectively vide Annexures-D and G to the W.P. in so far it relates to the land belonging to the petitioner and etc;

This Writ Petition filed under Article 226 of the Constitution of India praying to declare that first preliminary notification dated 23.9.2005 for acquiring the schedule land at serial no.499 for the formation of Peripheral Ring Road (PRR) between Tumkur Road - Old Madras Road - Hosur Road in the outskirts of Bangalore City which has been published in the Karnataka Gazette dated 27.9.2005 at Annexure-E and final notification dated 29.6.2007 which was published in Karnataka Gazette dated 3.7.2007 at Annexure-N is non-est and etc;

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to declare that first preliminary notification dated 23.9.2005 which was published in the Karnataka Gazette on 27.9.2005 at Annexure-G is non-est and the said preliminary notification dated 23.9.2005 at Annexure- G and the second preliminary dated 15.11.2006 which was published in Karnataka Gazette dated 16.11.2006 at Annexure- Q and final notification dated 29.6.2007 which was published in Karnataka Gazette dated 3.7.2007 vide Annexure-X and etc;

This Writ Petition filed under Articles226 and 227 of the Constitution of India praying to quash the notification dated 23.9.2005 issued by the third respondent (Annexure-G) and notification dated 29.6.2007 issued by the third respondent (Annexure-U) in so far as the same relates to the petitioner's land and to direct the respondents to pay the costs of this petition.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the Notification Dated 15.11.2006, vide Annexure-Q, gazatted on 16^lh November 2006, and the final Notification dated 29.6.2007, gazatted on 3.7.2007, vide Annexure-R so far as concern to the petitioners lands in sy No.l 10/2 of Goolimangala Village, Schedule to the petition.

This Writ Petition filed under Articles 226 and 227 of the Constitution of India, praying to call for records pertaining to the original demarcation of the land and subsequent change of the alignment with regard to formation of Peripheral Ring Road and to quash the notification dated 23.09.2005 issued by the respondent No.3 (Annexure-A) and etc;

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 15.11.2006 vide Annexure-H gazetted on 16.11.2006 and the final notification dated 29.06,2007 gazetted on 3.7.2007 vide Annexure-J insofar as concern io the land of the petitioner measuring 9.04 guntas carved in Sy.No. 110/2 of Goolimangala village, schedule to the petition and etc.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the notifications (1) No. B D A/Commr/DC (L A)/S AL AO/79/2005-06 dated 23.09.2005 vide Annexure-E; (2) BDA/COMR/DC (LA)/SALAO/79.2006-07 dated 15.11.2006, vide Annexure-J (3) and final notification / declaration No.UDD/399/MNX/2006 dated 29.6.2007 vide Annexure-L respectively.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the notifications dated 23.09.2005 dated 15.11.2006 and final notification / declaration dated 29.06.2007 vide Annexures C, F, and J respectively, and etc.

These Writ Petitions are filed under Articles 226 and 227 of the Constixution of India praying to quash the notification dated 15.11.2006 vide Annexure-H gazetted on 16.11.2006 and the final notification dated 29.6.2007 gazetted on 3.7.2007 vide Annexure-M so far as concern to the petitioner's land, schedule to the Detition and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the final notification dated 29.6.2007 and preliminary notification dated 15.11.2006, copies of which are produced at Annexures E and C respectively and award notices dated 13.11.2007 produced at Annexure-J as without jurisdiction and unenforceable against the petitioners, and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 15.11.2006 vide Annexure-C, gazetted on 16.11.2006 and final notification dated 29.06.2007 gazetted on 03.07.2007, vide Annexure E, so far as concern to the lands of the petitioners.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 15.11.2006 and final notification dated 29.06.2007 issued by Respondents 2 and 1 vide Annexure G and D insofar as the petitioner property bearing Sy.No.25 measuring two acres 35 guntas, including four guntas kharab situated at Chikkanagamangala village, Sarjapur Hobli, Anekal taluk, Bangalore Urban District and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 15.11.2006 and final notification dated 29.06.2007 issued by the second and first respondents vide Annexure G and L to the writ petition, in so far the petitioner's schedule site is concerned and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 15.11.2006 and final notification dated 29.06.2007 issued by the second and first respondents vide Annexure G and L to the writ petition, insofar the petitioner's schedule site is concerned and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 23.09.2005 gazetted on 27.09.2005 vide Annexure-E and the final notification dated 29.06.2007 gazetted on 3.7.2007 vide Annexure-J insofar as the lands of the petitioners, and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the issue of the Additional Preliminary notification dated 15.1 i.2006 vide Annexure-D under Section 17(1) and (3) of the BDA Act, 1976, insofar as it relates to the proposal to acquire the petitioner's land shown in the schedule in Sy.No.81/1, 81/2, 85 and 36 of Seegehaili, vide item Nos.511, 512, 515 and 516 is illegal, arbitrary, unconstitutional and void and quash the same, and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the preliminary notification dated 15.11.2006 and final notification dated 29.06.2007 issued by the second and first respondents vide Annexures G and L to the writ petition in so far as the petitioner's schedule site is concerned.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the issue of a final notification as per Annexure-N dated 29.06.2.007 insofar as it relates to the lands of the petitioners detailed in para 1 of the writ petition as arbitrary, illegal, opposed to the statutory power, malafide and unconstitutional and etc.

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the issue of the preliminary notification dated 15.11.2006 vide Annexure-D under Section 17(1) and (3) of the BDA Act, 1976 insofar as it relates to the proposal to acquire 30 guntas of land in Sy.No.64/2 of Seegehaili vide Item No.501 as illegal, arbitrary, unconstitional and void and quash the same and etc.

These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to call for the entire records in Preliminary notification dated 12.12.2005 vide Annexure-C and final notification dated 27.7.2011 vide Annexare-K from the office of respondent No.3 with respect of acquisition proceedings for peripheral ring road-11, and etc.)

1. These petitions are heard and disposed of by this common order having regard to the fact that the petitioners are said to be similarly aggrieved by the common acquisition proceedings initiated in respect of their respective lands. Common questions of fact and law arise for consideration and it is hence convenient to consider all the petitions together.

2. The brief particulars of the several lands involved in these petitions are shown briefly in tabular form hereunder.

(âTABLEâ)

The respondents, namely, the Housing and Urban Development Department of the Government of Karnataka (Hereinafter referred to as the 'HUD', for brevity) and the Bangalore Development Authority (Hereinafter referred to as the 'BDA', for brevity) are the Town Planning Authorities for the local planning area comprising the City of Bangalore under Section 2(7)(a)(i) and Section 81-B of the Karnataka Town and Country Planning Act, 1961 (Hereinafter referred to as the 'KTCP Act', for brevity). Under the provisions of the KTCP Act, there is an obligation cast on the said respondents to prepare a Master Plan, which was called the Outline Development Plan and Comprehensive Development Plan, before it was christened as the Master Plan by a later amendment to the KTCP Act. It was in furtherance of the said obligation and in the backdrop of the intention of the respondents to form a 'Peripheral Ring Road' (PRR), the respondents are said to have prepared a draft publication, which is said to have been provisionally approved by the State government, on 10.6.2005, under Section 12 of the KTCP Act. The same is said to have been kept on public display, inviting suggestions and objections, if any.â

According to the petitioners, the BDA is said to have appointed consultants for providing inputs in relation to the formation of the PRR. They were, M/s Indian Resource Information and Management Technologies Ltd. (1RIMT) and M/s Alcon Consulting Engineers and Architects (Alcon). It is stated that IRIMT had, in their report, in relation to the formation of the ring road, projected the need of a total extent of 2968.36 acres of land and a further extent of 651 acres for other purposes, totally measuring 3619.36 acres, spread over 104 villages in five taluks. The said report of IRIMT was said to have been accepted by the BDA as on 29.6.2005.

However, it is stated that the Commissioner, BDA had issued instructions requiring realignment in an extent of 48.30 KM in the original route. It is stated that Alcon had prepared alternative proposals in respect of realignment in respect of the said 48.30 KM. It is further stated that the realignment was accepted by the BDA as on 7.11.2006.â

It is said that the development of the PRR, for purposes of identification, was considered in two parts. The section comprising Tumkur Road to Hosur Road, was considered as Phase-I, measuring about 63.40 KM and Hosur Road through Bannerghatta Road, Kanakapura Road, Mysore Road, Magadi Road to Tumkur Road - was considered as Phase - II, measuring about 50.04 KM. The total alignment of the PRR was thus 113/44 KM.

A preliminary notification under Section 17(1) and (3) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the 'BDA Act', for brevity), dated 27.9.2005 was said to have been issued proposing to acquire an extent of 1962.26 acres in respect of Phase-I and an extent of 1862.10 acres in respect of Phase-II. The said preliminary notification dated 27-9-2005 is said to have been challenged in a batch of writ petitions before this court in WP 213/2006 and connected petitions, on the ground that the preliminary notification was not in accordance with the scheme for development as approved nor was it in consonance with the proposed development of the peripheral road logistic area, as per the provisionally approved Master Plan. The said petitions were said to have been disposed of by this court by an order dated 16.1.2006, with a direction to the BDA to consider objections which were filed to the preliminary notification, but which had not been taken into account by the BDA .

Further, in view of the realignment, an additional preliminary notification was issued on 16.11.2006 in respect of the PRR, Phase-I - between Tumkur Road and Hosur Road, in respect of additional lands measuring 989.32.25 acres. It is stated that the State Government granted sanction of the Scheme, under Section 18(3) of the BDA Act on 24.3.2007 and issued a final notification under Section 19(1) of the BDA Act, dated 29.6.2007, for acquisition of a total extent of 1810 acres and 18.5 guntas of land spread over 67 villages in the Bangalore Urban District. It further transpires that yet another preliminary notification dated 16.8.2010 was issued under Section 17(1) and (3) of the BDA Act in respect of 372 acres and 26 guntas of land. This is said to have been warranted after the issuance of the final notification on account of a petroleum pipe line running across the PRR, which was a project of the Government of India. The strict design parameters of the laying of the pipe line did not permit the shifting of the same. The PRR had thus to yield. The total length that required alignment on account of this hurdle was 4.24 Km. A further alignment was found necessary on account of a BDA approved layout and multi-storeyed buildings, which would have required to be cleared - apart from a government school and the Chikkabannahalli tank, which were in the way. Incidentally, it was also proposed to provide Toll Plazas, Truck Terminals and other facilities. The total length was 6.77 KM. And an extent of 193 acres and 34.25 guntas of land was dropped as not required for the project, in view of the change in alignment. The net effect of those notifications and the realignment is a total extent of 1989 acres and 10.25 guntas of land was notified for acquisition for the purposes of theÂ Â Â Â PRR - Phase - I. The said extent included the following :

a. Government land 216.18 acres

b. Forest land 25

c. Earmarked for junctions 29.04

d. Earmarked for Toll plazas 55.31

e. Earmarked for Transport zoneÂ Â Â Â Â Â Â Â Â 259.06

It is pertinent to state that the additional preliminary notification dated 16.8.2010 was the subject matter of challenge in a Writ petition before this court in WP 21920-922/2011. While allowing the said petition by an order dated 8.9.2011, the learned single judge having found that the project had never taken off even after several years, had thought it fit to quash all the notifications pertaining to the PRR.

This was challenged by the BDA, in a Writ appeal, WA 17005-07/2011, the Division bench by its judgment dated 15.7.2013 confirmed the Order of the learned single judge, in so far as it pertained to the notification dated 16.8.2010 and set aside the order in so far as the other notifications, referred to hereinabove are concerned. The same is said to have been challenged by the BDA before the apex court and is said to be pending consideration.

It further transpires that the State Government by its Order dated 19.1.2013 has further permitted modification of the Scheme of construction of the PRR, reducing the width of the road from 100 metres to 70 metres, with reservation of 5 metres as a buffer area to provide for services and utilities.

The other change that has taken place is a decision to integrate the PRR - Phase-I with the BMICP Expressway, which connects National highway No.4 with National Highway no.7, this would render the need to implement PRR Phase-II, unnecessary, as the BMICP Expressway serves the purpose for which Phase-II was intended.

3. In the above background, before proceeding to consider the several contentions urged by the several petitioners, the effect of the earlier proceedings before this court and the views expressed therein are very pertinent.

The learned single judge in dealing with the petition in WP 21920-21922/2011 by his order dated 8.9.2011 has sought to justify addressing the implementation of the PRR Project in its entirety and not merely the propriety of the additional preliminary notification dated 16.8.2010, issued after a final notification was issued in respect of the acquisition proceedings pertaining to Phase -1 of the PRR project, in these words:

" 19. This court has time and again indicated that while the court examines the matter in exercise of writ jurisdiction i.e., judicial review of administration action, this court does not function either as a court of appeal or for the purpose of finding out what can be given to the petitioners or what can be saved to the petitioners.

20. An undisputed legal aspect is the existence of is locus. A person who approaches the court invoking writ jurisdiction if complains that some administrative authority or statutory authority or the State in exercise of its power has been functioning in a manner which is not law conforming, not acting in a bona fide manner and on occasions in a malafide manner are all situations which warrant examination and the examination is not for protecting or safeguarding anything in favour of the petitioners, but always to look in to the manner in which the State and the lesser versions of the State have been exercising the power and authority, as to whether ii is statute conforming and in a bona fide manner for a proper purpose.

21.Â The scrutiny in these writ petitions is not any different. Unfortunately, when the action of the BDA is tested on such touchstone, It does not stand scrutiny for the reason that this is a clear case of the BDA going about hi a most haphazard, ill prepared manner: that it has embarked upon issuing three preliminary notifications so far in the name of one scheme i.e., 'peripheral ring toad' to a length of about 100 kilometers around Bangalore city and with the width of 100 meters etc. The BDA is also quite ambitious in its scheme, proposing not only to develop toll plazas, but also to provide truck terminals, bus depots for transport authorities and what not.

22.Â However, Sri Shanmukhappa, learned Counsel for the petitioners sounds a note of caution that all these things are done not for the purpose of development or in public interest, but to transfer all projects to private agencies on the pretext of a latest phrase employed by public authority, namely, "Build, Operate and Transfer" and it is the experience of the citizens that these private agencies exploit the citizens and act in a high handed manner over which illegal and high handed actions of these private agencies the BDA also will not have any control who pleads helplessness thereafter.

23.Â The manner in which the BDA has been looking for guidance and advice from outside agencies by outsourcing all phases of a scheme like this only shows that they are professionally incompetent to execute a scheme of this nature. The manner in which they go about altering, re -altering, notifying additional extents of land in the name of realignment of the road only shows their haphazard manner of Handling things and not handling its schemes in a professional manner for implementation.

24.Â The BDA being a statutory authority should know how to go about its functioning and should also know in what areas it has capacity and competence; what areas are within its statutorily defined duties and functions and adhere to that and would be better advised to hone its skills in those areas, than to embark on many ambitious projects, but leaving them half done, undone and in the bargain squandering large sums of public funds.

25.Â Unfortunately, in our country, public functioning has no sanctity anymore and public authorities revel in squandering public money as though it is for charity! It is the duty of the Government and even the BDA which is State within the meaning of Article 12 of the Constitution of India, to account every pie of its expenditure. Instead, the BDA acts in a rather secretive manner, does not reveal its activities, does not open its doors to the public, does not even notify or place in public domain as to what projects it has undertaken, which are the projects which are outsourced to private contractors and even during implementation of a scheme do not publicise, do not reveal what is going on and on the contrary acts in a rather secretive, fishy manner to cover up its operations. It is a most undesirable development in public domain

26. Be that as it may, the manner in which the BDA has issued a preliminary notification for the third time in respect of a scheme perceived in the year 2004 only shows its total lack of professionalism. There is no guarantee or assurance that it will not go about issuing further preliminary notifications etc., but the insurmountable statutory hurdle that the present notification faces is that it is not a notification in compliance with the requirements of section 17(1) of the Act, but one in the name of section 17(1) of the Act.

77. The BDA - a statutory authority under the Act when once propounds a scheme has to go about with different stages of section 17 of the Act, forward it to the State Government under section 18 of the Act, elicit its approval under section 18(3) of the Act and thereafter the State Government issuing a declaration under section 19(1) of the Act, is statutorily bound to adhere to the scheme as approved and published by the State Government. A declaration by the state Government brings about a finality and is also taken to be a presumption that the subject lands are required for implementation of a project in public interest and for a public purpose. When such is the legal position, it is not open to the BDA to go about issuing additional preliminary notifications at variance with the scheme as had been proposed and finalised by its and then forwarded to the State Government for eliciting its approval, and later the state government approving the scheme and following it up by the present act in publishing the declaration, putting a seal of finality that the lands proposed for acquisition are required for a public purpose! Issuing notification at Annexure-L is clearly an overreaching act on the part of the BDA and not in consonance with the declaration of the State Government, but at variance. Whether it is for proper implementation or in the name of proper implementation or practical difficulties and as submitted by Sri V.Y.Kumar, learned counsel for the respondent - BDA that the BDA has realized ground realities now in the year 2010, is only a true reflection of the manner in which the BDA is functioning and is a typical situation where the BDA wants to take rearguard action having realised its lack of preparedness in going about implementing the scheme even during the preparatory stage and during the next stage of hearing objections from the public at large etc.â

28.Â Even as per the version of the State and the BDA, if the stage of hearing public grievance are over and the matter had received government's approval in terms of the final notification of the year 2007, it is definitely not open to the BDA to go about hearing again and again and going through some pretext of action, an action which is not permitted in law, but is used as a ruse for its wavered and statutorily non-supporting activities.

29.Â The present writ petitions reveal a definite situation, a clear case of calling in aid a statutory provision when it is no more available and going about issuing notification in the name of non available statutory powers at the particular stage and is also therefore an obvious instance of colorable exercise of power.

30.Â Even in the limited examination of the manner in which the BDA has implemented developmental schemes for formation of layouts in the Bangalore city, it was found that the BDA does not go about in a professional, clinical manner, but the schemes are not implemented for 25 to 30 years; that the implementation is only partial; that the State Government, on the other hand, in the meanwhile indulges in activities at cross purposes with the propounded scheme by issuing notification for withdrawal of the land from acquisition. !

31.Â In the instant case also while the proposal even as indicated in the aerial map which is an extract of Google satellite map at Annexure-M indicates that the peripheral ring road having been subjected to realingments time and again and having totally deviated from its original scheme and plan, the BDA is blissfully tightlipped about the details of the lands encountering difficulties from out of the lands which had been notified and the course of the path as it envisaged or visualized as per its scheme and as per its realigned scheme, inclusive of which perhaps declaration is issued, but has gone about issuing yet another preliminary notification for acquisition of additional extents of lands in the name of further realignment of the road, having regard to the ground realities.

32, A ground reality is to yield particularly, when a statutory authority is exercising its power and cannot keep popping up at every stage even at the final stage of implementation of the scheme. If the BDA had not shown awareness to the ground realities, it again shows its lack of preparedness and making a farce of going through the statutory provisions of sections 17 and 18 of the Act. That again shows lack of due application of mind on the part of the BDA about the purpose for which the statutory notifications are issued. While in this state of affairs, the BDA may be better advised to confine its role to formulation of some additional layouts if it is possible and inevitable, in a proper manner, projects such as formation of roads, highways, peripheral ring roads may be left to the professional bodies like the Highway authorities and other authorities and it is also to be noticed that the technical wing of the BDA are totally incapable or incompetent of supporting the schemes formulated by the BDA and if the BDA is to go about shopping for guidance, expertise and light within the country and outside the country time and again, it is better that the BDA relieves the technical and other staff who are supposed to support the BDA for such functions and who have come on deputation from other agencis of the State Government and raise a force of its own comprising of persons with some professional competence who can, not only guide but also serve the BDA with a little sense of dedication and expertise.

33.Â While it is for the BDA. to make efforts to professionalise itself for the benefit of the public at large, the present action in issuing a third preliminary notification for aquiring additional lands is per se not permitted nor tenable in law, which is nothing short of an illegal act.

34.Â While the respondent - BDA has put forth a strong and formidable preliminary objection to the maintainability or for examination of the writ petitions on the premise that what is challenged is only a preliminary notification, what is not revealed and what is suppressed is the fact that this is not preliminary notification in the real sense of the word, but a second/third preliminary notification in respect of the same scheme and preliminary notification issued after the State Government has approved and finalised the scheme pursuant to the earlier two preliminary notifications that had been issued by the BDA and had sanctioned the scheme as per that proposal and had further issued a declaration under section 19(1) of the Act finalizing the acquisition of the notified lands, being satisfied that the lands proposed for acquisition are required for a public purpose, namely, the scheme as had been proposed and approved by the State Government. The present preliminary notification is one which is issued after this stage and is therefore not really a preliminary notification in the true sense and in the true meaning of the concept of preliminary notification in terms of section 17(1) of the Act,.

35.Â The preliminary objection raised on behalf of the State and the BDA are of no consequence when it is demonstrated before this court that the BDA is embarking on exercising statutory powers which it is otherwise not permitted in law to exercise.

36.Â Therefore, these writ petitions are allowed. All the notifications in its entirety pertaining to the scheme of peripheral ring road are hereby quashed by issue of a writ of certiorari. Rule made absolute."

The said Order when challenged in appeal, the Division bench in its judgment in WA 17005-07/2011 dated 15.7.2013 had framed the following points for consideration and were answered thus :

"Having heard the learned counsel appearing for the parties, what is required to be considered in this appeal is:

(a)Â Whether the learned Single Judge is justified in quashing the entire scheme which was not the subject mater of the writ petition?

(b) Whether the learned, Single Judge is justified in quashing the preliminary notification without permitting the authority to exercise the power vested in it to consider the objections of the landlords?

(c) Whether the direction issued by the learned Single Judge to held a detailed enquiry into the feasibility of the scheme through Lokayuktha agency is required to be interfered?

14. So far as the first point is concerned, we do agree with the arguments advanced by the learned counsel Mr.Shankar Narayana Rao that, the learned Single Judge has committed an error in quashing the acquisition proceedings, which are not the subject matter of the writ petition. The subject matter of the writ petition is in regard to the challenge to the additional land notified for the construction of Toll Plaza and other utilities, whereas the earlier notification is concerning the land required for the formation of Perepheral Ring Road. It is a fact that the BDA has not implemented the scheme of formation of Peripheral Ring Road for more than eight years. The original scheme of formation of Peripheral Ring Road has seen a sea change by the issuance of several notifications, and change of alignment of the road, which has not lost the character of original Peripheral Ring road. Even though such serious lapses have been committed by the BDA in matter of the construction of Peripheral Ring road in not commencing, the work and not implementing the scheme for more than eight years, this Court sitting in a writ petition, filed challenging the notification for acquisition of additional lards cannot quash the acquisition proceedings, which have attained finality. Therefore, we are of the view that point No.1 has to be answered in favour of the appellant.

15. Insofar as the second point is concerned, we also see some force in the arguments of Sri Shankar Narayana Rao, so far as the maintainability of the writ petition, questioning the preliminary notification alone. If we consider the entire background of this case it amply proves that initiation of acquisition proceedings is nothing but a colourable exercise of power by the BDA since it has not used the land acquired for constructions of the ring road and in words the BDA is incapable of implementing the scheme of formation of Peripheral Ring road for more than eight years. Still they are intending to acquire additional land for construction of Toll Plaza. According to us, the construction of toll plaza would arise only after the project is completed. The BDA after completion of the project if need be, can initiate action for acquisition of the land. Before issuance of the notification for acquisition of the lands, the BDA should have thought over about the area required for construction of Toll Plaza or parking of truck or a truck bay. If the BDA has conceived the idea of construction of Peripheral Ring road even without making any provision for construction of Toll Plaza and other utilities, it only shows that the learned Single Judge is justified in holding, that there is lack of professionalism in BDA in implementing its project. Therefore, we are of the view that it would be unfair to interfere with the order of the learned Single Judge on the ground that the preliminary notification should not have been quashed by the learned Single Judge.

16. Our view is also supported by the submission made by B.V.Shankaranarayana Rao, learned counsel since the Government has decided to reduce the width of the Peripheral Ring road from 100 Mts to 70 mts, the remaining 30 meters wide through out the area of 120 Kms. Of peripheral ring road will be in the command of BDA. When they have 30 meters at their command, there is no reason for the BDA to acquire additional lands under the guise of construction of Toll Plaza. Therefore, we are of the view that even though Court cannot interfere with the preliminary notification of acquisition proceedings, still in the background of the present case, we are of the view that the Court can interfere with the acquisition proceedings. In addition to that as stated supra, there is no guarantee that the BDA would implement the scheme of formation of Peripheral ring road. For eight years it has not shown any progress. Indeed the area has now reduced from 100 meters to 70 meters. As stated earlier, as 30% of the acquired area is in command of the BDA, they can very well construct any other utilities or toll plaza. Therefore we are of the view that die learned Single Judge has not committed any error in quashing the notification pertaining to the writ petitioners.

17.Â So far as the direction issued by the learned Single Judge directing the Registry to forward a copy of this order to Karnataka Lokayukta for holding an enquiry at its level in the case of expenditure insofar as the scheme is concerned, and that it should be satisfied about the bona fide meaning of incurring expenditure is concerned, we decline to interfere with the same considering the background of this project. Accordingly, writ appeal is allowed in part.

18.Â The quashing of acquisition of the petitioner's land under the preliminary notification dated 16.08.2010 as per Annexure-L is hereby confirmed.

We set aside the quashing of other notification in entirety pertaining to the scheme of Peripheral ring road.

Parties to bear their own costs. "

4. At the time of hearing of these petitions - it was noticed that the Division bench has particularly opined as above (underlined portion) and since the challenge in these petitions is to those very acquisition proceedings, a clarification was sought for from the very division bench- whether the opinion expressed would be a bar to hearing these petitions. The division bench is said to have refrained from expressing any view or affording any clarification. Therefore, this bench is left to draw its own conclusion.

Irrespective of the reasons, on which the Division bench set aside the order of the learned single judge, the categorical view expressed that the impugned notifications which were 8 years old (9 now) had attained finality and could not be quashed, would hold good - no matter what ever other reasoning could be offered to quash the acquisition proceedings. In other words, the result is foreclosed. The opinion expressed by the Division bench is binding on this bench.â

It is however, noticed that the additional land which was proposed to be acquired in an extent 372.26 acres under the preliminary notification dated 16.8.2010 is vital for the project, as one of the reasons for the realignment was to avoid crossing the petroleum pipeline being laid by the Government of India. A length of 4.24 KM of the road requires to be re-aligned in this regard. As the said notification has been quashed, even if the other part of the acquisition proceedings are upheld, it is an exercise in futility. The very implementation of the project is now dependant on the outcome of the pending proceeding before the apex court vis-a-vis the notification dated 16.8.2010.

5. Be that as it may, there are two legal issues raised which require to be answered, as the legal position that would emerge is material to the petitioners, if the acquisition proceedings are sustained.

a. Whether the repeal of the Land Acquisition Act 1894, has the effect of frustrating any proceedings with reference to Section 36 of the BDA Act.â

b. Whether the acquisition proceedings can be said to have lapsed by virtue of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 having come into force.

In so far as the first point for consideration is concerned, the question that if the provisions of the LA Act are to be construed as legislation by incorporation vis-a-vis the regulation of acquisition proceedings under the BDA, then without an amendment to Section 36 of the BDA Act, the same would become inoperable. We may first notice the language of Section 36 of the BDA Act. The same is reproduced hereunder for ready reference.

"36. Provisions applicable to the acquisition of land otherwise, than by agreement.-â

(2) For the purpose of sub-section (2) of section 50 of the Land Acquisition Act, 1894, the Authority shall be deemed to be the local authority concerned.

(3) After the land vests in the Government under section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of. the acquisition, and upon the Authority agreeing to pay any further costs which ma} be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority."'

We may usefully refer to decided cases wherein the apex court and this court have dealt with the interplay of the provisions of the LA Act vis-a- vis the provisions of the BDA Act.

In the case of Khoday Distilleries Ltd v. The State of Karnataka, ILR 1997 Karnataka 1419, a division bench of this court meticulously analyzed the provisions of the BDA Act and the LA Act with reference to the primary contention raised therein, namely, that the LA Act as amended by Mysore Act 17/1961, was no longer in force in view of Act No. 68 of 1984, amending the provisions of the LA Act and that, that LA Act alone was applicable. Hence a preliminary notification published in the Gazette on 12.1.1989, under Section 17 of the BDA Act and the Notification under Section J 9 having been published on 27.7.1991 in the Gazette, was beyond the period of one year provided under proviso (2) to Section 6(1) of the LA Act.

In addressing the above it was expressed thus:

'S. We shall now examine the provisions of BDA Act and L.A. Act with reference to contentions raised on either side. Chapter III of the BDA Act provides for developmental schemes. Section 15 empowers the Authority to undertake a development scheme. Section 16 requires the particulars, to be provided in such a scheme. Sub-section (l)(a) thereof refers to stating the land which is required for acquisition for the purpose of the scheme or which may be affected by the scheme. After preparation of a scheme, under Section 17, the authority will have to draw up a notification stating the fact of a scheme having been made which shall also contain specifications of the land proposed to be acquired and on such a notification being published and a notice thereto is served upon the owners of the land, they may file objections to the same. Those objections are processed and reference is made to the Government which is thereafter sanctioned under Section 18 by the Government with such modification as it may deem fit. Under Section 4 of the L.A. Act, a preliminary notification is issued setting out the lands required for acquisition for a public purpose and objections thereto can be filed and there is a provision for hearing the objections and the same may be referred to the Government and ultimately, the Government makes a final notification under Section 6 of the L.A. Act The two sets of provisions under Sections 4, 5A and 6 of the L.A. Act are comparable with the provisions of Sections IV and 18 of the B.D.A. Act. Under the provisions of the L.A. Act, if the final notification is not issued within the period mentioned therein and if any award is not made within the time prescribed under Section 11-A of the Act, the acquisition proceedings would lapse. In the case of schemes covered by the B.D.A. Act, the authority has to execute the schemes with in a period of 5 years and if the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative. Thus in substance there are provisions under the B.D.A. Act to indicate the proposals for acquisition, considering the objections thereto, sanctioning the proposal for acquisition on consideration of such objections and if such acts do not take place within a period of 5 years the proceedings would lapse. The Supreme Court in several decisions where questions of delay in the implementation of the proposals made under the L.A. Act for purpose of completion of the acquisition proceedings occurs, has taken the view that if the same is unreasonable, the acquisition proceedings could be quashed, prior to the introduction of Section 6 and 11-A of the L.A. Act prescribing limitation on the powers and the time within which such action should be taken. It would be a matter of policy for the Legislature to indicate the time within which such acts should be taken. In the case of B.D.A. Act, considering the nature and complexity of the implementation of the scheme, a period of 5 years has been fixed for purpose of completion of the scheme from the date of issue of the notification under Section 19 of the B.D.A. Act on sanction of the scheme. Therefore, when the Legislature itself has taken note of within what period the schemes have to be implemented and prescribes an authority thereto and also provides for as to what consequence would follow on non-implementation of the scheme within that period, we do not think this Court can take a view that such implementation of the scheme is in any way discriminatory when compared to the provisions of the L.A. Act. In substance, both the provisions provided for identical situation - may be in case of L.A. Act more details are set forth such as the period within which final notification has to be issued and the period within which award has to be passed. But in case of the B.D.A. Act implementation of the scheme has been limited to a period of 5 years as provided in Section 27 of the B.D.A. Act.â

9. Section 27 of the B.D.A. Act provides that where within a period of 5 years from the date of the publication in the official gazette of the declaration under Section 19(1), the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative. In the L.A. Act certain period has been fixed which is considered to be reasonable within which the fined notification will have to be issued and award has to be passed and if such acts are done beyond the tune prescribed therein, the acquisition of land will lapse. To the some effect is Section 27 of the B.D.A. Act. If the B.D.A Act provides for 5 years to be reasonable period for substantial compliance with the scheme, we cannot state that the said provision is unreasonable or not proper. Thus the scheme of the L.A. Act as modified by the B.D.A. Act would he applicable by reason of the provisions of Sections 17, 18, 27 and 36 of the B.D.A. Act.

10.Â The City of Bangalore Improvement Act, 1945 (herein-after referred to as the Improvement Act) was applicable to the Bangalore area prior to coming into force of the B.D.A. Act. The Supreme Court in THE LAND ACQUISITION OFFICER, CITB, BANGALORE vs. H. NARAYANAIAH AND OTHERS (AIR 1976 SC 2403) examined the various provisions of the Improvement Act and observed thus:-â

"4. The Bangalore Act, as its preamble states, is really concerned with the "improvement and future expansion of the City of Bangalore, and for the appointment of a Board of Trustees with special powers to carry out the aforesaid purposes". As an incident of this improvement and expansion it provides for acquisition of land also. It does not, however, contain a separate code of its own for such acquisitions. But, Section 27 of the Bangalore Act lay down:

27. Provisions applicable by the acquisition of land otherwise than by agreement. The acquisition other than by agreement of land within or without the City under this Act shall be regulated by the provisions, so far as they are applicable, of the Mysore Land Acquisition Act, 1894, and by the following further provisionsÂ "

In that decision, the words "so far as they are applicable" appearing in Section 27 of the Improvement Act were examined. It was stated that the intention was to exclude only those provisions of the acquisition Act which became inapplicable because of any special procedure prescribed by the Improvement Act corresponding with that found in the Acquisition Act under Section 4(1). These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by necessary implication, excluded must be applied.â

11.Â It is only for purpose of determining the compensation, the provisions of the L.A. Act can be looked into and not for other purposes. The application of the L.A. Act is only in so far as it is applicable that is, wherever there are provisions made in the Act itself, in other cases the provisions of the L.A. Act would not be applicable. Therefore, when the Act provides that if the scheme is not implemented substantially within a period of 5 years, the same would lapse, the other provisions in the L.A. Act would not be attracted to the present case at all because L.A. Act is made applicable to schemes under the Act as modified by the Act. The L.A. Act is not independently applicable to the schemes framed under the B.D.A. Act. Otherwise, it would become impossible for the authority to implement the schemes in terms of the L.A. Act. Thus, we find no substance in the first contention advanced on behalf cf the petitioners nor do we find any substance in the contention that the procedures prescribed under the two enactments are so different as to result in discrimination.

12.Â We shall now consider the contention as to whether there are no provisions akin to L.A. Act regarding acquisition. In THE SPECIAL LAO, CITB, MYSORE v. P. GOVINDAN (AIR 1976 SC 2517) it was noticed that although the procedure laid down in Section 16 of the Mysore Act (i.e., Improvement Act) is more elaborate than the procedure prescribed under Section 4(1) of the Acquisition Act, yet, the purpose of Section 16 of the Mysore Act is same as that of Section 4(1) of the L.AL Act. We have also now drawn similar comparison between the provisions of the B.D.A. Act and the L.A. Act. Therefore, we must hold that the provisions of Section 36(1) of the BDA. Act provides an identical situation in so far as they are applicable. In view of the decisions in Narayanaiah's case and Govindan's case by the Supreme Court in identical context, it must be held that the provisions of LA Act to the extent as are made applicable in BDA Act are attracted. Separate provisions are made regarding the issue of preliminary notification and the final notification as well as the period within which the proceedings under the B.D.A.Act would lapse when notified for acquisition as is clear from Chapter III of the B.D.A. Act r/w Section 36 thereof. What is therefore either expressly provided or necessarily excluded must be taken out of consideration. We hold therefore that the provisions of the Section 6 and Section 11-A of the Land Acquisition Act which provide for the period of limitation within which fined notification can be made and award could be passed are excluded from application to acquisition made under B.D.A. Act by necessary implication. The rest of the provisions other than those relating to the issue of preliminary notification, final notification or period within which the award should be passed and lapsing of proceedings under the B.D.A. Act, or the L.A. Act would certainly be applicable.

13. The argument that the L.A. Act would be applicable as amended, is advanced only with reference to the applicability of the provisions of Section 6 of the L.A. Act where the period of limitation is prescribed for issue of the final notification and Section 11A of the L.A. Act the period within which the award is to be passed. We have just now held that these two provisions are not applicable on the basis of interpretation adopted by us. In that view of the matter the general question whether reference to the L.A.

Act in the BDA Act amounts to legislation by reference or incorporation or the effect thereof is not necessary to be examined or decided in this case. "

The above decision has been approved by the Apex court in the case of Munithimrnaiah v. State of Karnataka and others, (2002) 4 SCC 326. In the said case, the Apex court was dealing with an appeal against a judgment of a division bench of this court, which was rendered following the decision in Khoday Distilleries Ltd. case.

The point canvassed was that having regard to the provisions contained in Section 11 A of the LA Act, the award passed beyond the stipulated period of limitation is illegal and that after the expiry of the stipulated period of limitation is illegal and that after expiry of the stipulated period under Section 11A the acquisition proceedings stood lapsed.

It was observed thus with reference to paragraph 12 of Khoday Distilleries Ltd. case -

"Thus, a decision as to the inapplicability of the provisions of Section 6 and 11-A where the period of limitation is prescribed respectively for the issue of final notification and for passing the Award, in relation to proceedings for acquisition under the B.D.A. Act came to be rendered on a mere construction of the relevant provisions in the light of the very principles laid down by this Court in the earlier decisions, noticed supra, even without reference to the general question as to whether the reference in the B D.A. Act to the provisions of the L.A. Act amounts to legislation by reference or incorporation. We are in entire agreement with the reasoning and also affirm the ultimate conclusions arrived at by the High Court in Khoday Distilleries L.td case (supra) which, in our view also, is squarely in conformity with the ratio of the earlier decisions of this Court specifically noticed and relied upon, in support thereof."

And it was held as follows :

"15. So far as the B.D.A. Act is concerned, it is not an Act for mere acquisition of land but tin Act to provide for the establishment of a Development Authority to facilitate and ensure a planned growth and development of the city of Bangalore and areas adjacent thereto and acquisition of lands, if any, therefor is merely incidental thereto. In pith and substance the Act is one which will squarely fall under, and be traceable to the powers of the State Legislature under Entry 5 of List II of the VIIth Schedule and not a law for acquisition of land like the Land Acquisition Act, 1894 traceable to Entry 42 of List III of the VIIIth 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. If at all, the B.D.A. Act, so far as acquisition of land for its developmental activities are concerned, in substance and effect will constitute a special law providing for acquisition for the special purposes of the B.D.A. and the same was not also considered to be part of the Land Acquisition Act, 1894. It could not also be legitimately stated, on a reading of Section 36 of the B.D.A. Act that the Karnataka legislature intended thereby to bind themselves to any future additions or amendments, which might be made by altogether a different legislature, be it the Parliament, to the Land Acquisition Act, 1894.â

The procedure for acquisition under the B.D.A. Act vis-a- vis the Central Act has been analysed elaborately by the Division Bench, as noticed supra, and, in our view, very rightly too, considered to constitute a special and self-contained code of its own and the B.D.A. Act and Central Act cannot be said to be either supplemental to each other, or pari materia legislations. That apart, the B.D.A. Act could not be said to be either wholly unworkable and ineffectual if the subsequent amendments to the Central Act are not also imported into consideration. On on overall consideration of the entire situation also it could not either possibly or reasonably stated that the subsequent amendments to the Central Act get attracted or applied either due to any express provision or by necessary intendment or implication to acquisitions under the B.D.A. Act. When the B.D.A. Act, expressly provides by specifically enacting the circumstances under which and the period of time on the expiry of which alone the proceedings initiated thereunder shall lapse due to any default, the different circumstances and period of limitation envisaged under the Central Act, 1894, as amended by the amending Act of 1984 for completing the proceedings on pain of letting them lapse forever, cannot be imported into consideration for purposes of B.D.A. Act without doing violence to the language or destroying and defeating the very intendment of the State Legislature expressed by the enactment of it.- own special provisions in a special law falling under a topic of legislation exclusively earmarked for the State Legislature. A scheme formulated, sanctioned and set for implementation under the B.D.A. Act, cannot be stultified or rendered ineffective and unenforceable by a provision in the Central Act, particularly of the nature of Sections. 6 and 11-A, which cannot also on its own force have any application to actions taken under the B.D.A. Act. Consequently, we see no infirmity whatsoever in the reasoning of the Division Bench of the Karnataka High Court in Khoday Distilleries Ltd. case (Supra) to exclude the applicability of Sections 6 and 11-A as amended and inserted by the Central Amendment Act of 1984 to proceedings under the B.D.A. Act. The submissions to the contra on behalf of the appellant has no merit whatsoever and do not commend themselves for our acceptance."

It is evident from a reading of the above opinions that the general question whether the reference to the LA Act in the BDA Act amounts to legislation by reference or incorporation or the effect thereof, was found not necessary to be examined nor was decided.â

Keeping the above decisions in view, if we are to address the question whether on the repeal of the LA Act with effect from 1.1.2014, the provisions of that Act, in so far as they may be applicable to the BDA Act, would be deemed to remain in force, by virtue of Section 36 of the BDA Act, in order to complete the process of acquisition - is to be examined.

As to which are the provisions of the LA Act that would regulate the acquisition proceedings under the BDA Act and would be applicable, has been incidentally considered in Khoday Distilleries Ltd. at paragraphs 10, 11 and 12 of the report extracted above. The further question which would require to be answered however, is whether the relevant provisions of the LA Act which would be applicable to the acquisition proceedings under the BDA Act, should be considered as legislation by reference or by incorporation.â

In the case of Mariayappa and others v. State of Karnataka (1998) 3 SCC 276, the Apex court was dealing with the issue whether Section 11-A of the LA Act was applicable and was attracted to proceedings under the Karnataka Acquisition of Land for Grant of House Sites Act, 1972. (Karnataka Act, 1972, for brevity). After observing that the Karnataka Act, 1972 contains only seven sections and that it did not contain any independent machinery or provisions for the purposes of inquiry, reference, award and apportionment and payment of compensation, and that Section 5 of the said Act specified that the provisions of the LA Act shall:

"..mutatis mutandis apply in respect of enquiry and award by the Deputy Commissioner, the reference to court, the apportionment of amount and the payment of amount in respect of lands acquired under this Act" proceeded to examine whether the amendments brought to the LA Act in the year 1984 could be read into the Karnataka Act 1972.â

It was held thus:

"18. The words "mutatis mutandis" have been explained by this Court in Ashok Service Centre Vs. State of Orissa- (1983) 2 SCC 82, It was stated by Venkataramiah, J, (as he then was): (SCC p.93, para 17)

"Earl Jowitt's The Dictionary of English Law (1959) defines 'mutatis mutandis' as 'with the necessary changes in points of detail'. Black's Law Dictionary (Revised 4th Edn., 1968) defines 'mutatis mutandis' as 'with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like...' ...Extension of an earlier Act mutatis mutandis to a later Act, brings in the idea of adaption, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the things changed, subject of course to express provisions made in the later Act.",

If, therefore, the words "mutatis mutandis" merely permit the application of the Central Act, 1894 (as modified by Karnataka Act, 1961) with necessary changes and without altering the essential nature of the thing changed then the said principle is applicable to the Central Act, 1894 as it stood in 1972 with the amendments brought about the Karnataka Act, 1961. Therefore the contention for the appellant that subsequent changes made in the Central Act after 1972 also get into the Karnataka Act, 1972, cannot be accepted. That question again depends upon whether the Central Act, 1894 has been "incorporated" into the Karnataka Act, 1972 or falls within the exceptions to the said principle or whether Section 5 is to be treated as a piece of "referential legislation Incorporation of referential legislation and exceptions to Incorporation - "supplemented legislation "

19. As the case before us, as we shall presently show, falls within the "exceptions" to the rule of "incorporation", we shall refer 10 the relevant rulings in this behalf.

20. The leading case in which the broad principles were laid down is the one in Stale of M.P. Vs. M.V. Narasimhan - 197.5 (2) SCC 377. On a consideration of the case-law, it wos stated by Fazal Ali J. as follows:

"Where a subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:

(a) Where the subsequent Act and the previous Act are supplemental to each other.

(b) Where the two Acts are in pari materia.

(c) Where the amendment in the previous Act, is not imparted into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; andâ

(d) Where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act." (emphasis supplied)

21.Â In that case, the position was that the Prevention of Corruption Act, 1947 adopted the definition of public servant from Section 21 of the Indian Penal Code. The question was whether the subsequent amendments made in 1958 and 1964 to section 21 of the Penal Code enlarging the definition of "public servant", could be read into the Prevention of Corruption Act, 1947. Though it was held that the 1947 Act dealt with a specific offence of "criminal misconduct", while the Penal Code dealt with 'bribery' and were not in pari materia still, it was held that having regard to the preamble and object of the Prevention of Corruption Act, 1947 and the Penal code, there could be no doubt that the former Act was undoubtedly a statute supplemental to the latter. Hence it was held that the amendments of 1958 and 1964 in the I.P.C. should be read into the Prevention of Corruption Act, 1947, as the case fell within one of the exceptions to the principle of "incorporation".

22.Â Similarly, in Western Coalfields Ltd. Vs. Special Area Development Authority [1982 (1) SCC 125], Section 69(d) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam (Act 23 of 1973) stated that the Special Area Development Authority under that Act would, for the purpose of taxation, have the powers which a Municipal Corporation or a Municipal Council has under the M.P. Municipal Corporation Act, 1956 or the M.P. Municipalities Act, 1961, as the case may be. Chandrachud, C.J. gave two reasons as to why the subsequent amendments made in the 1956 and 1961 Acts could be read into the 1973 Act. One reason was that the Act of 1973 did not, in Section 69(d), incorporate any particular provision of the 1956 and 1961 Acts but said that for the "purposes of taxation " the Authority shall have the powers which a Municipal Corporation or a Municipal Council would have under the 1956 and 1961 Acts respectively. It was not therefore a case where merely some provisions of one Act were bodily lifted into another. The other reason was that the 1973 Act did not provide for any independent power of taxation or any machinery of its own for the exercise of the power of taxation. Further, the three Acts were supplemental to each other.

23. Ujagar Prints (II) Vs. Union of India [1989 (3) SCC 488] is again a similar case. Under Section 3(3) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 it was said that the provisions of the Central Excise and Salt Act, 1944 and rules made thereunder - including those relating to refunds and exemptions from duty - shall, so far as may be, apply in relation to the levy and collection of the additional duties as they apply in relation to the levy and collecting of the duties of excise on the goods specified in sub-section (1). Now section 5(1) provided for levy and collection of additional duties in respect of goods described in the First Schedule to the 1957 Act which were produced or "manufactured" in India. It was held that the definition of the term "manufacture" enacted in the Central Excise and Salt Act, 1944 - as enlarged by Amendment Act 6 of 1980 - had to be read into the 1957 Act. It was observed that the Additional Duties Act, 1957 was merely supplemental to the 1944 Act. While the 1944 Act imposed a general levy of excise duty on all goods manufactured and produced, the aim of the 1957 Act was to supplement the levy by an additional duty of the same nature on certain goods. Unlike the Finance Act, the 1957 Act was incomplete as to the basis of the charge and its provisions would become totally unworkable unless the concepts of "manufacture" and "assessable value" as determined under the 1944 Act were carried into it.

24. Yet another case where the legislation was held by itself to be "unworkable " and supplemental to another Act is the one in State of Kerala Vs. M/s. Attesee (Agro Industrial Trading Corpn.) [1989 suppl. (1) SCC 733]. It was there held that the scope of exemption under the head "cotton fabrics" in schedule III item 7 of the Kerala General Sales Tax Act, 1963 would depend upon the definition in item 19 of Schedule I to Central Excise and Salt Act, 1944 with reference to its amendments upto the relevant date. Hence it was held that the amendments to the Central Act were to be read into the Kerala Act.

25. Two other rulings of this Court relating to land acquisition and which arose from Karnataka are relevant in this context. In the State of Karnataka, there are two statutes,- the Mysore Improvement Act, 1903 and the City of Bangalore Improvement Act, 1945. In each of these Acts there is a provision (Section 23 in the former and Section 27 in the latter) stating that the acquisition under the Act "shall be regulated by the provisions, so far as they are applicable, of the Mysore Land Acquisition Act, 1894" and also by certain other provisions of these Acts. (The Mysore Act of 1894 and the Central Act 1894 are almost identical). Now both these Acts of 1903 and 1945 contained provisions which require compensation to be paid with reference to the second notification which publishes the "declaration" (i.e. corresponding to Section 6 of the Central Act, 1894) and not the one which corresponds to Section 4 of the Central Act. However in 1927, the Mysore Land Acquisition Act, 1894 was amended by directing compensation to be paid with reference to the first notification (corresponding to Section 4 (1) of the Central Act). The question arose in two cases, one under each of these Acts, as to whether the said amendment of 1927 would have to be read into the said Acts.â

26.Â Now so far as the Bangalore Act of 1945 is concerned, the case was decided in Land Acquisition Officer Vs. H. Narayaniah [1976 (4) SCC 9J. This case presents no difficulty because the said Act was passed in 1945 and by that, the Mysore Land Acquisition Act, 1894 already stood amended in 1927. The reference in Section 27 of the 1945 Act to the Mysore Act of 1894 therefore obviously included all the amendments made to the Mysore Land Acquisition 1894 by 1945 including the one made in 1927 and, therefore, compensation was to paid only as per the first notification (i.e. the one corresponding to Section 4(1) of the Central Act.

27,Â The case more in point is the one in Special Land Acquisition Officer Vs. P. Govindan [1976 (4) SCC 697] which dealt with the Mysore Act of 1903 because the question there was whether the subsequent amendment of 1927 to the Mysore Land Acquisition Act, 1894 shifting the relevant date for fixing compensation from the corresponding Section 6 notification to Section 4(1) notification, would have to be read into the Mysore Act, 1903. It was held that it should - notwithstanding certain obiter observation to the contrary in Naravanaih's case. The provision in section 23 of the Mysore Act, 1903 read as follows:

"23. The acquisition, otherwise than by agreement of land within or without the city under this Act, shall be regulated by the provisions, so far as they are applicable, of the Mysore Land Acquisition Act 1894 and by the following further provisions, namely,â¦.."

(emphasis supplied)

It was held by this Court that the amendments in 1927 to the Mysore Land Acquisition Act, 1894 have to be read into the Mysore Act, 1903. The decision of the Full Bench of the Mysore High Court to the contrary in Venkatamma Vs. Special Land Acquisition Officer, [AIR 1972 Mysore 193] was overruled. In that context Beg J. (as he then was) observed: (SCC p. 700, paras 6 and and)

"If Section 23(1) of the (Mysore) Acquisition Act (1903) lays down, as we think it does, the only procedure to1' award of compensation it has to be followed as it exists at the time of acquisition proceedings. No one has a vented right in a particular procedure. It is a fair interpretation of Section 23 of the Mysore Act of 1903 to hold that it means that whichever may be the procedure there, with regard to matters regulating compensation under the (Mysore) Acquisition Act (1894) at the time of acquisition proceedings, will apply to acquisition under the Mysore Act, (1903)"....

It was enough to lay down, as Section 23 of the Mysore Act (1903) does, that the general procedure found in the Acquisition Act (1894) will apply except to the extent it was inapplicable. This means that amendments of the procedure in the Acquisition Act, (1894) will apply if it is capable of application "

(emphasis supplied)â

From the above passage emphasis supplied, it is clear that when the Mysore Act, 1903 adopted the procedure under the Mysore Act, 1894, the provisions of the latter Art as they stood "at the time of acquisition" had to be applied for "regulating" the acquisition of land under the Mysore Act, 1903. This was because the Mysore Act, 1903 said that the "general procedure" under the Mysore Act, 1894 applied except to the extent it was inapplicable.

28.Â In our view, the above rulings of this Court are more in point and are directly applicable to the Karnataka Act, 1972. But, before we draw our final conclusions, it is necessary to refer to three more ridings, one decided by the Privy Council ana two decided by this Court recently and state why, in our opinion, those decisions are distinguishable.

29.Â The decision of the Privy Council is the one in Secretary of State Vs. Hindustan Coop. Society Ltd. [AIR 1931 PC 148]. There the provisions of the Calcutta Improvement Act, 1911 (Act 13/1911) fell for consideration. That Act coupled with its schedule contained provisions not only for issuing relevant notification in regard to acquisition but also for reference to a Tribunal for passing an award relating to compensation. By Act 18 of 1911 a right of appeal was given to the High Court against the Award of the Tribunal. Under the Act, there was no further right of appeal to the Privy Council. In 1921, the Central Act, 1894 was amended in two respects, one by introducing Section 26(2) which deemed the award of the reference Court a "decree" and the reasons a "Judgment" and the other an amendment in Section 54 of the Central Act, 1894 giving a right of appeal to the Privy Council from any decree passed by the High Court from an award of the reference Court. Now the Calcutta Act, 1911 contained a provision in Section 69 that the "Board may acquire land under the Land Acquisition Act, 1894 for carrying out the purposes of the Act". Section 70 related to the constitution of a Tribunal - as detailed in Section 72 - for the purpose of performing the functions of the Court in reference to the acquisition of land for the Board under the land Acquisition Act, J894. However, Section 71 modified the Central Act, 1894 as follows:

"Section 71: Modification of Land Act, 1894: For the purpose of acquiring land under the said Act for the Board -

(a)Â the Tribunal shall (except for the purpose of Section 54 of that Act) be deemed to be the Court, and the President of the Tribunal shall be deemed to be the Judge, under the said Act;

(b)Â the said Act shall be subject to the further modifications indicated in the Schedule;

(c) â¦â¦Â Â Â Â (d) the award of the Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894."

The modification made by section 71 (a) was crucial to the case."

30. Section 77 referred to the passing of the award' by the Tribunal under the provisions of the Land Acquisition Act 1894, for determining the compensation, apportionment, etc.

31. The appellant, the Secretary of State, contended that the appeal to the Privy Council lay because the amendment to the Central Act in 1921 by substituting Section 26(2) which deemed the "award" a "decree'' had to be read into the Calcutta Act, 1911 and if that was done, then an appeal would lie, under Section 54 of the Central Act, 1894 to the Privy Council. The respondents contended that such a telescoping of Section 26(2) of the Central Act, 1894 into the Calcutta Act, 1911 would be repugnant to the express words in Section 71(a): "except for the purposes of Section 54 of the Act". The said contention of the respondents was accepted by the privy Council. Their Lordships also Lord Wrenbury in Ex parte St. Sepulchre (1864) [33 L.J. Ch. 372] to the effect that it will not be possible to read the provisions of an earlier Act into a latter Act, if the earlier Act "gives in itself a complete rule on the subject matter"

It was also observed that the provision in Section 70(a) of the Calcutta Act, 1911 deliberately excluding Section 54 of the Central Act, 1894 was "an indication of the local legislature's intention that there should be, under the special Code applicable to the Improvement Trust, no appeals beyond the High Court".

In other words, two reasons were given by their lordships as to why section 26(2) of the Central Act, 1894 could not be read into the Calcutta Act, 1911. One was that reading Section 26(2) of the Central Act, 1894 into the Calcutta Act, 1911 would be repugnant to Section 70(a) of the Calcutta Act, 1911 which expressly excluded Section 54 of the Central Act, 1894 from the purview of the Calcutta Act. The other was that such telescoping would not be permissible if the latter statute which, in certain respects, referred to an earlier statute, was otherwise a complete Code by itself This is clear from the fact that the Calcutta Act, 1911 Contains 177 sections 2nd a schedule, Chapter III relates to schemes and publication of notifications in that behalf and Chapter IV deals with acquisition and disposal of land containing sections 68 to 81; among these, section 70 deals with reference to the Tribunal: Section 77 deals with passing of award by the Tribunal; Section 71(b) and the Schedule to the Act (which contains 14 clauses) deals with various matters relating to notifications as well as fixation of market value. On the other hand, we have no such elaborate machinery provided in the Karnataka Act, 1972 and the Act has only seven sections. The Karnataka Act does not contain any separate procedure for inquiry, award nor does it constitute a Tribunal in the place of the reference Court as done by the Calcutta Act of 1911. That is why we are of the view that the Privy Council decision is clearly distinguishable.

32. The other two recent decisions of this Court in Gauri Shankar Vs. State of up [1994 (1) 92] and UP Avas Vikas Parishad Vs. Jainul Islam [1998 (1) Scale 185], both relate to acquisition under the UP Avas Vikas Parishad Adhinyam 1965. We shall refer to the scheme of the UP Act, 1965 Chapter III of that Act deals with formulation of schemes and issue of notifications (sections 15 to 49): Chapter V deals with land acquisition etc. Sections 55 to 63, Chapter VI with constitution of Tribunal and its purposes, section 55 of the Act reads as follows:

"55(1): Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Art, 1894 (Act No. 1 of 1894) as amended in its application to Uttar Pradesh, which for the purpose shall be subject to the modifications specified in the schedule to this Act". (emphasis supplied)

53. Section 64 (1) says chat the Tribunal shall perform the, functions of the reference Court under the Central Act, 1894 as modified by the Schedule, in the matter of determining the compensation. Section 66 says that the Award of the Tribunal shall, in case of land acquisition under Central Act, 1894 as modified by the Schedule, be deemed to be an award of the Court under the Central Act and shall, subject to section 54 of that Act, be final. Section 67 says award of the Tribunal shall be deemed to be a decree and the grounds, a "judgment". In other words, the UP Act, 1965 contains an elaborate machinery like the Calcutta Act, 1911.

34. In Gauri Shankar's case ((1994) 1 SCC 92)), decided by K.Ramaswamy and Sahai, JJ. the notifications for acquisition under Section 28 (1) were of the year 1973 while the notifications under Section 32 (1) were of 7977. Before 1948, the Allahabad High Court had taker, the view that the notification under Section 32 (1) corresponding to declaration under Section 6 (1) of the Central Act need not be issued within 3 years of the notification under Section 28(1) corresponding to section 4(1) of the Central Act. In cases arising after 1948, it was also held by the Allahabad High Court that Section 11-A was not applicable to the UP Act. Gauri Shankar's case related to the 3 year rule in the proviso to Section 6 of the Central Act. K.Ramaswamy, J. held (para 8) that the principle of incorporation' applied and that the provisions of Section 28, 32 of the UP Act, 1965 were a separate and complete code, that Section 55 read with clause (2) of the Schedule, which contained the need for issuing the preliminary and final notification under sections 28 and 32 of the UP Act, formed an integral scheme (para 25). The Schedule amended Sections 4, 6, 17 and 23 of the Central Act, 1894. It was pointed out that Section 28(2) and Section 32 (1) related to the publication of notifications without prescribing any limitation and that the UP Act 1965 was "a complete code in itself". It was also held that the Act was not otherwise unworkable or ineffectual, though it may be incompatible with the provisos to Section 6(1) of L.A. Act (para 33). On the other hand, sahai, J. held that the principle of "incorporation " did not apply but that of facts, it was not a fit case for interference inasmuch as the Parishad had already taken possession. In that view of the matter, both the learned Judges directed compensation as on the date when the notification corresponding to Section 6 declaration was issued. We shall next to refer to the recent judgment in Jainul Islam's case where the opinion of K.Ramaswamy, J. was accepted.

35. The question which arose in Jainul Islam's case [1998 (1) SCALE 185] under the same VP Act. 1965 was whether Section 23(1-A), Section 23(2) and Section. 28 of the Central Act, 1894 as amended in 1984, were attracted to the UP Act. Approving the view of K.Ramaswamy, J. in Gauri Shankar's case [1994 {1) SCC 92], Agrawal, J. held that the principle of incorporation ' applied and therefore the above amendments of 1948 to the Central Act, 1894 did not apply. Reference was also made to the Privy Council Judgment in Secretary of State Vs. Hindustan Cooperative Insurance Society Ltd. [AIR 1931 PC 149]. After considering the various provisions of the UP Act, 1965, it was held (para 2.1), that provisions of Section 55 and Schedule to the Act were "on the same lines" as the provisions of the Calcutta Improvement Act, 1911 and that the principles laid down by the Privy Council were equally applicable. Adverting to the exceptions referred to in State of M.P. Vs. M.V. Narasimhan [1975 (2) SCC 377], it was observed that the UP Act, 1965 and the Central Act, 1894 did not come within the exceptions and that the provisions of the UP Act, 1965 were not supplemental' to each other, nor was the UP Act in pari materia with the Central Act because it dealt with other matters which did not fall within

the ambit of the Central Act. The UP Act was self contained and complete . Agrawal, J. observed (para 23) as follows:

"The Adhiniyam and the L.A. Act cannot be regarded supplemental , -:o each other. The Adhiniyam contains provisions regarding acquisition of land which are complete and self- contained. Nor can the provisions in the Adhinyam be said to be in pari materia with the LA Act because the Adhinyam also deals with matters which do not fall within the ambit of the L.A. Act'-.

36. In our view, these three rulings, namely Secretary of State Vs. Hindustan Cooperative Society Ltd. [AIR 1931 PC 149J, Gauri Shankar's case [1994 (1) SCC 92] and Jainul Islam's case [1998 (1) Scale 185], are clearly distinguishable. As pointed out earlier the Karnataka Art, 1972 has only 7 Sections which deal with the issuance of notification corresponding to Sections 4 and 6, and 9 of Central Act and certain other minor modification relating to acquisition and payment of compensation. The Act has no provision for a separate inquiry or award or reference to a Tribunal, or a machinery for payment of compensation of apportionment. The Central Act, 1894 alone is to apply in so far as it related to "inquiry and award, the reference to Court, the apportionment of amount and the payment of amount in respect of lands acquired under the Act". There are no detailed provisions as in the Calcutta Act, 1911 or as in the UP Act, 1965.â

37.Â We are of the view that the Karnataka Act, 1972 clearly comes within the exceptions stated in M. V. Narasimhan's case for the following reasons:

Firstly there being no detailed machinery whatsoever in the Karnataka Act, 1972, that Act cannot be treated as a self- contained or complete Code. Secondly, the Karnataka Act, 1972 and the Central Act, 1S94 (as amended by the Karnataka Act, 1961) are supplemental to each other for unless the Central Act supplements the Karnataka Act, the latter cannot function. Thirdly, these acts are in pari materia because the Karnataka Act, 1972 - unlike the Calcutta Act, 1911 and the UP Act, 1965 - does not deal with any other subject but deals with the same subject of land acquisition which otherwise would have fallen within the ambit of the Central Act, 1894. For the aforesaid reasons, we are of the view that the amendments made in 1948 to the Central Act, 1894 including Section 11-A have to be read into the Karnataka Act, 1972, so far as enquiry, award, reference to Court, apportionment of amount and the payment of amount in respect of land acquired under the ACT,

38.Â Admittedly, the prescribed period under section 11-A has elapsed and it is stated that even now, the award is not passed. Therefore, it is clear that the conditions of section 11-A are violated, and accordingly, the entire land acquisition proceedings including the notifications under section 3(1) and 3(4) of the Karnataka Act, 1972 lapse. We declare accordingly.â

39.Â Before parting with the case, we may say that in this appeal we are concerned only with the question whether section 11-A as introduced by the Amendment in 1984 to the Central Act 1894 could be read into the Karnataka Act, 1972 and we have held that it should be read into the Karnataka Act, 1972 because there is not such provision in the Karnataka Act, 1972 as amended by the Karnataka Act, 1961. The question as to the telescoping of other amendments brought to the Central Act, 1894 by the 1984 amendment and the consequential impact thereof is not before us and we should not be understood as deciding any such matter. If the question of applicability of any other amendment brought by the Central Act in 1984 to the Karnataka Act, 1972 arises in Karnataka, such a question may have to be decided separately.

40.Â Further, in the impugned Judgment, certain rulings under the Bangalore Development Act, 1976 have been followed. We have gone by the provisions of the Karnataka Act, 1972. We are not to be understood as having said anything with regard to the Bangalore Development Act, 1976. We are in fact told that some appeals are pending in this Court in regard to the said Act of 1976.

41.Â In the result, the appeals are allowed and it is declared that the notifications issued under the Act under Section 3(1) and Section 3(4) have lapsed."

However, in Munithimmaiah's case, supra, the following observation is made :

"The decision in Mariyappa and Others case (supra) has no relevance or application to the case on hand for more than one reason. In SCC p.291 para 40 of the report it is found stated: "We are not to be understood as having said anything with regard to the Bangalore Development Act, 19'/6". That apart, this Court, on an analysis of the provisions of the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 in contrast to the provisions of the Land Acquisition Act, 1894, observed that not only the Karnataka Act, 1972 had a skeleton of only seven sections without any full machinery for being treated as a complete code without depending on the Central Act, 1894, for being functional so far as the inquiry, passing of Award, seeking reference and apportionment and payment of compensation, etc. is concerned, but the Karnataka Act, 1972 and the Central Act, 1894 are supplemental to each other and both the Acts are in pari materia since the subject-matter of the 1972 Act could have otherwise also come within the ambit of the Central Act and, therefore, the Karnataka Act, 1972 cannot be considered to deal with any subject other than acquisition of land."

This observation was apparently made as the opinions expressed as regards the applicability of Section 11-A of the LA Act was directly in question in both the sets of cases - and the contrary view expressed, in context, in Mariayappa's case was stated to be not relevant. This need not be implied as being a view expressed that any interpretation given therein should be overlooked or ignored - when the discussion and the case law cited therein would be very relevant to addressing the points for consideration in the present case on hand. The reference to and reliance on the decision in the case of Special LAO vs. P. Govindan (1976) 4 SCC 697, is especially pertinent.

In Bondu Ramaswamy vs. BDA (2010) 7 SCC 129, the position of law and the extent of applicability of the provisions of the LA Act to the BDA Act has been succinctly spelt out thus:

"80. The BDA Act contains provisions relating to acquisition of properties, up to the stage of publication of final declaration. The BDA Act does not contain the subsequent provisions relating to completion of the acquisition, that is, issue of notices, enquiry and award, vesting of land, payment of compensation, principles relating to determination of compensation etc. Section 36 of the BDA Act does not make the LA Act applicable in its entirety, but states that the acquisition under the BDA Act, shall be regulated by the provisions, so far as they are applicable, of the LA Act. Therefore it follows that where there are already provisions in the BDA Act regulating certain aspects or stages of acquisition or the proceedings relating thereto, the corresponding provisions of the LA Act will not apply to the acquisitions under the BDA Act. Only those provisions of the LA Act, relating to the stages of acquisition, for which there is no provision in the BDA Act, are applied to the acquisitions under the BDA Act.

81. The BDA Act contains specific provisions relating to preliminary notification and final declaration. In, fact the procedure up to final declaration under the BDA Act is different from the procedure under the LA Act relating to acquisition proceedings up to the stage of final notification. Therefore, having regard to the Scheme for acquisition under sections 15 to 19 of the BDA Act and the limited application of LA Act in terms of Section 36 of the BDA Act, the provisions of Sections 4 to 6 of the LA Act will not apply to the acquisitions under the BDA Act. If section 6 of the LA Act is not made applicable, the question of amendment to section 6 of the LA Act providing a time limit for issue of final declaration, will also not apply. "

And further, in so far as the scope of Section 36 of the BDA Act is concerned, it is stated thus:

"89. Section 36 of the BDA Act provides that the "acquisition of land under this Act", shall be regulated by the provisions, so far as they arc applicable of the LA Act. In view of the categorical reference in section 36 of the BDA Act, to acquisitions wider that Act, there cannot be any doubt that the acquisitions for BDA are not under the LA Act, but under the BDA Act itself. It is also clear from Section 36 that the LA Act, in its entirety, is not applicable to the acquisition under the BDA Act, but only such of the provisions of the LA Act for which a corresponding provision is not found in the BDA Act, will apply to acquisitions under the BDA. Act. In view of sections 17 to 19 of the BDA Act, the corresponding provisions - Sections 4 to 6 of the LA Act--will not apply to acquisitions under the BDA Act. We therefore reject the contention that the BDA Act does not contemplate acquisition and that the acquisition which is required to be made as a part of the development scheme, should be made under the LA Act, applying sections 4, 5A and 6 of LA Act."

Therefore, the general question whether the reference to the LA Act in the BDA Act and the provisions of the LA Act that would be applicable in regulating the acquisition proceedings under the provisions of the BDA Act, can be construed as legislation by reference or by incorporation is to be answered.

A constitution bench of the Apex Court. in the case of Girnar Traders (3) v. State of Maharastra, ( 2011) 3 SCC 1 has expounded on the doctrines of "legislation by reference" and "legislation by incorporation", while prefacing the reason for examination thus :

""4. Amongst others, doctrines of "legislation by reference" and "legislation by incorporation" are the creation of judicial pronouncements. One of the earliest instances, where the Privy Council, then responsible for Indian Judicial system, accepted the plea of "legislation by incorporation" and interpreted the statute accordingly in the case of Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. [AIR 1931 PC 149]. This judicial pronouncement was followed in different subsequent judgments and these doctrines were analyzed in greater depth for bringing out the distinction between them. The judgment of the Privy Council was referred with approval by this Court in different judgments including Municipal Commissioner of Howrah v. Shalimar Wood Products [(1963) 1 SCR 471; Bolani Ores Ltd. v. State of Orissa [(1974) 2 SCC 777]; Mahindra and Mahindra v. Union of India [(1979) 2 SCC 529]; Ujagar Prints v. Union of India [(1989) 3 SCC 488]; U.P. Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC 467]; Nagpur Improvement Trust v. Vasant Rao [(2002) 7 SCC 657] and Maharashtra State Road Transport Corporation v. State of Maharashtra [(2003) 4 SCC 200].

5. The principle that was enunciated by the Privy Council in the case of Hindusthan Co-operative Insurance Society Ltd. (supra) stated,

". . , where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent Act to function effectually without the addition

Though this principle has been reiterated from time to time, with the development of law, still certain doubts were reflected in the judicial pronouncements of the courts as TO the application of this principle as an absolute proposition of law. On the contrary, this principle received criticism from various quarters. The critics said that it was causing impediments in smooth operation of the later law as well as abdication of legislative power by the legislative constituent concerned.â

6. Another criticism and argument which, in fact, was even advanced before us is that while approving the principle stated by the Privy Council, the subsequent Benches have not taken into consideration the impact of the judgment of the Constitution Bench of this Court in B. Shama Rao v. Union Territory of Pondicherry [(1967) 2 SCR 650], A pertinent constitutional aspect that ought to have been brought to the notice of different Benches was that the federal structure of the Constitution had come into force which controlled governance of the country and therefore the principles, inter alia, stated by the Privy Council could riot be adopted as law of universal application without appropriately modifying the stated position of law to bring it in complete harmony with the constitutional mandate.

7. In Gauri Shankar Gaur v. State of U.P. [(1994) 1 SCC 92], one member of the Bench of this Court, relied upon the principle stated in Hindusthan Co-operative Insurance Society Ltd. (supra) and held that in a case of legislation by incorporation, subsequent amendment or repeal of the provisions of an earlier Act adopted cannot be deemed to have been incorporated in the adopting Act which may be true in the case of legislation by reference. This judgment was relied upon by another Bench of this Court in State of Maharashtra v. Sant Joginder Singh Kishan Singh [1995 Supp.(2) SCC 475].â

8. The amendments in various relevant lavs and introduction and application of newly enunciated principles of law resulted in varied opinions. A Bench of this Court in Girnar Traders (1) v. State of Maharashtra [(2004) 8 SCC 505] (hereinafter referred to as 'Girnar Traders-(l)") expressed certain doubts on the correctness of the law stated in Sant Joginder Singh (supra) and referred the matter to a larger Bench. The Bench in Girnar Traders-I (supra) felt that there were go(.d reasons for reading the provisions introduced by the Land Acquisition (Amendment) Act, J984 (hereinafter referred to as the "Central Act 68 of 1984") into Chapter VII of the Maharashtra Regional and Town Planning Act, 1966 (for short, "The MRTP Act" or "the State Act") and Section 11A of the Land Acquisition Act, 1894 (for short, "the Land Acquisition Act" or "the Central Act") is one of such provisions Thus, the Constitution Bench is called upon to examine whether the MRTP Act is a self-contained Code or not, if so, to what effect? Further, whether, in any event, all the provisions of the Land Acquisition Act, as amended by Central Act 68 of 1984 with emphasis on Section 11A can be read into the provisions of the MRTP Act?"

The Apex Court has held thus:

"87. . . . These principles have been applied by the courts for a considerable period now. When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions.

(emphasis supplied) 88. In this regard, the judgment of this Court in M.V. Narasimhan (supra) can be usefully noticed where the Court after analyzing various judgments, summed up the exceptions to this rule as follows :

"(a) where the subsequent Act and the previous Act are supplemental to each other;

(b)Â where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act "

Applying the above test, it may safely be said that the provisions of the LA Act that are made applicable to the BDA Act are in the nature of legislation by reference. It would then follow that the only procedure to be followed in respect of proceedings - post Section 19 of the BDA Act - would be that which exists at the time of acquisition proceedings. It would be a fair interpretation of Section 36 of the BDA Act to hold that it means that whichever may be the procedure therein, with regard to matters regulating acquisition under the LA Act, in so far as they are applicable, at the time of acquisition proceedings will apply to acquisition made under the BDA Act.â

In view of the repeal of the LA Act and the coming into force of the 2013 Act, during the pendency of these proceedings, it would be the corresponding provisions under the 2013 Act, in so far as they are applicable, that would regulate the acquisition proceedings.

It may hence be concluded that the repeal of the LA Act and the coming into force of the 2013 Act would not frustrate further acquisition proceedings under the BDA Act. For even without an amendment to Section 36 of the BDA Act, the provisions of the 2013 Act, in so far as they are applicable, would operate to regulate the acquisition proceedings under the BDA Act - according to settled principles as enunciated in the authoritative decisions referred to above. The first point framed for consideration is accordingly answered.

In considering the second question whether the acquisition proceedings are deemed to have lapsed in terms of Section 24 of the 2013 Act, is concerned, it is to be observed that the further proceedings were stayed by this court by an interim order of stay of all further proceedings. The effect of that order would have to be kept in view. It is settled law that any restraint imposed by the courts on any ongoing acquisition proceedings would extend to all aspects of the process and the entire period during which the order of stay was in operation would have to be excluded.

a) Government of Tamil Nadu vs. Vasantlm Bai, AIR 1995 SC 1778;

b) Municipal Corporation of Delia vs. Lichhodevi, AIR 1997 SC 3474;

c) M Ramaiinga Tfievar vs. State of Tamil Nadu, (2000)4 SCC 3221

d) Balak Ram Gupta vs. Union of India, AIR 1987 Delhi 239.

If therefore the acquisition proceedings were kept in abeyance altogether by virtue of the interim order, the application of the provisions of the 2013 Act which have seamlessly replaced the provisions of the LA Act, in so far as they are applicable, to the BDA Act would also be kept in abeyance. It cannot therefore be said that by virtue of Section 24 of the 2013 Act, the proceedings stood lapsed.

Yet another aspect that would be material is the question whether the acquisition proceedings could be resumed, by a deeming fiction, from the date the proceedings were stayed and if the procedure as applicable on that date, to wit, the procedure prescribed under the LA Act would be applicable. This would be impermissible for two reasons, firstly, that the change in the law is an independent development and in terms of the changed legal position, with reference to Section 24 of the 2013 Act, as no award was passed at the time the interim order was passed by this court, it is the provisions of the 2013 Act that shall apply in the determination of compensation and other reliefs that would have to be granted. Secondly, on principle it would be impermissible. In respect of acquisition of land as on date the determination of compensation cannot be contemplated under two different sets of procedure. It is immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated, the owner who is discriminated against, can claim the protection 01 Article 14 of the Constitution of India. (See: Nagpur Improvement Trust and another v. Vithal Rao and others, (1973) 1 SCC 500).

Therefore, the further proceedings not having been taken would not attract the rigour of Section 24 of the 2013 Act. However, the procedure that would now regulate the acquisition proceedings are the provisions of the 2013 Act, in so far as they are applicable. This would include the determination of compensation in accordance with that Act, as no Award is passed in the present proceedings.

With the above findings on the legal issues involved, the petitions are dismissed.

The interim orders granted stand vacated. No order as to costs.

Court	Karnataka High Court
Decided On	Jul-22-2014
Case Number	Writ Petition Nos. 4550 of 2008 (LA-BDA) connected with Writ Petition No. 16120, 18037, 20340, 19293, 19651, 10098, 19984, 17416, 20187, 20159, 19603, 20161, & 14579, 16257, 10071 of 2007 (LA-BDA), 49622-49721, 45444, 17763, 21993-21997 of 2012 (LA-BDA), 12340, 6199, 566, 726, 11651, 9975, 13321, 10548 of 2008 (LA-BDA), 890, 12339, ,11653, 11921 of 2009 (LA-BDA), 10126 of 2010 (LA-BDA), 400, 19148-19152 & 25423-25425, 22461 of 2009 (LA-BDA), 3645-48 of 2010 (LA-BDA)
Judge	ANAND BYRAREDDY
Appellant	Sudhakar Hegde and Others
Respondent	State of Karnataka and Others

Sudhakar Hegde and Others Vs. State of Karnataka and Others - Court Judgment