1. These appeals arise out of a common order passed by a learned Single Judge of this Court whereby writ petitions filed by the respondents challenging the acquisition of land under the Karnataka Urban Development Authorities Act, 1987 were allowed and the acquisition proceedings initiated by the appellant quashed.
2. A large extent of land measuring about 69 acres 181/2 guntas situated in different survey numbers of Kasba Hobli, Bhadravathi, were notified for acquisition under Section 17(1) of the Karnataka Urban Development Authorities Act, 1987 in terms of a notification dated 10th of December, 1991. A final declaration under Section 19 of the said Act followed on 15th of October, 1992, in respect of the entire extent mentioned in the preliminary notification. Before however, an award could be made, the landowners challenged the acquisition proceedings in Writ Petition Nos. 24566 and 26458 of 1993 in this Court. These petitions were disposed off on 24th of August, 1994 and 9th of March, 1994, respectively. It was at this stage that the authorities amended the scheme and restricted the same to a lesser area measuring nearly 36 acres only. The amendment was signified by a fresh notification issued on 24th of June, 1996. An award thereafter was made by the Deputy Commissioner on 18th of January, 1998 which was approved on 29th of January, 1998. Before possession of the land could be taken over, a batch of writ petitions was filed in this Court by the owners inter alia contending that the acquisition proceedings had lapsed on account of the failure of the authorities to make an award within a period of 2 years from the date of the final notification as envisaged under Section 11A of the Land Acquisition Act, 1894. That submission of the owners found favour with V.P. Mohan Kumar, J., before whom the petitions were argued. The result was that by an order dated 2nd March, 1999, the writ petitions were allowed and the entire acquisition proceedings held to have lapsed on account of the failure of the authorities to make an award within the time permitted under Section 11A, of the Land Acquisition Act. The present appeals arise out of and assail the correctness of the said order.
3. Appearing for the appellant Mr. Tajuddin argued that the learned Single Judge was in error in holding that Section 11A of the Land Acquisition Act was applicable to acquisition proceedings under the Karnataka Urban Development Authorities Act, 1987. He urged that the question whether Section 11A had any application to proceedings under the aforementioned Act was no longer res Integra having been answered in the negative by a Full Bench of this Court in Abdul Rehman and Ors v. State of Karnataka and Ors., : AIR2003Kant311 (FB). A perusal of a copy of the said order furnished to us by Mr. Tajuddin does show that the Full Bench has while examining the question whether Section 11A of the Land Acquisition Act had any application to acquisition proceedings under the City Improvement Boards Act or under the Bangalore Development Authority Act or for that matter under the Karnataka Urban Development Authorities Act, has relied upon the decision of the Supreme Court in Munithimmaiah v. State of Karnataka and Ors., : [2002]2SCR825 and held that Section 11A did not have any application to the acquisition proceedings under any one of the said enactments. In the light of the said decision which is binding upon us, the judgment of the learned Single Judge taking a contrary view must be held to be unsustainable. Mr. Patil, learned Counsel appearing for the respondents-landowners also fairly conceded that proposition.
4. Mr. Patil however made an attempt to sustain the judgment on an alternative ground urged before us. It was submitted by him that even when Section 11A of the Land Acquisition Act may have no application to proceedings under the Karnataka Urban Development Authorities Act, the provisions of Section 27 of the said Act made it obligatory for the authority to execute the scheme framed under Sections 17, 18 and 19 of the Act within a period of 5 years from the date of publication in the Official Gazette of the declaration under (1) of Section 19. In the event of the failure of the Authority to implement the scheme substantially within the stipulated period of 5 years, the same would on the terms set out under Section 27 lapse. The scheme in the instant case not having been implemented according to Mr. Patil within the stipulated period of 5 years, had lapsed and therefore, could no longer be resurrected by the appellant-authority nor any further action taken on the basis thereof.
5. Section 27 of the Karnataka Urban Development Authorities Act, runs thus:
'Authority to execute the scheme within five years.-- Where within a period of five years from the date of publication in the Official Gazette of the declaration under Sub-section (1) of Section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative'.
A plain reading of the above leaves no manner of doubt that if the Authority fails to execute the scheme substantially within a period of 5 years from the date of publication in the Official Gazette of the declaration under Section 19(1) of the Act, the same shall lapse. The short question therefore, is -- Whether the authority has substantially implemented the scheme, within the time stipulated?
6. It is not in dispute that the final declaration under Section 19(1) of the Act had been published on 15th of October, 1992. There was as seen earlier, an amendment to the scheme whereby the area required for the same was reduced substantially and a fresh notification issued in June 1996. Does any such fresh notification signifying the amendment or improvement of the scheme, provide to the scheme framed by the Authority a fresh lease of life? Can the authority at its will amend the scheme at any time? The Act does not in our view permit exercise of the power to amend the scheme in a manner so as to render the provisions of Section 27 ineffective or meaningless. If the power available to the authority under Sub-sections (4), (5) and (6) of Section 19 of the Act is understood, to confer upon it the competence to make any amendment at any stage within a period of 5 years, so as to renew the validity of the scheme for another period of 5 years from the date of such amendment, such power may and is most likely to be abused by the Authority by resorting to repeated amendments whether or not the same are necessary only with a view to overcome the difficulty arising from the period stipulated for implementation of the scheme under Section 27. In the circumstances therefore, the period stipulated by Section 27 for substantial implementation of the scheme must necessarily be counted from the date the final declaration under Section 19(1) was published in the gazette. The mere fact that the amendment of the scheme has also been published under Section 19(1) of the Act would not grant to the scheme validity for a further period of five years from the date of such publication. If that be so, the scheme in the present case would lapse if not substantially implemented by the 15th of October, 1997. The making of an award based on the declarations issued under Sections 17 and 19 of the Act would in our opinion constitute a step in the direction of implementing the scheme. Other steps like taking of possession, laying of roads and allotment of sites would also contribute to the implementation of the scheme in some measure or the other. Suffice it to say that the least which the authority was required to do was to ensure that an award is made in accordance with the provisions under the Land Acquisition Act within a period of 5 years to save the scheme fromlapsing under Section 27 of the Karnataka Urban Development Authorities Act.
7. The award in the instant case was made on 18th of January, 1998 which was approved on 29th of January, 1998. There is therefore, a time lag of nearly 3 months between the last date for the implementation of the scheme and the date of making of the award representing a major step in the direction of its implementation. This period unless satisfactorily explained, would result in the scheme becoming inoperative in the light of the mandatory provisions of Section 27.
8. Counsel for the appellant pointed out that the scheme could not be implemented during the pendency of the writ petitions filed by the landowners in the year 1993 in which this Court had issued interim orders of stay. He drew our attention in particular to the averments made in paras 4 and 5 of the additional affidavit filed on behalf of the authority to say that writ petitioners in W.P. Nos. 24566 and 26458 of 1993 disposed off on 24th August, 1998 and 9th March, 1994, had from the date of the institution of the said petitions till the date of disposal, the protection of an interim order granted by this Court in their favour. In order to confirm the correctness of the facts stated in the affidavit we have sent for and examined the original records in the above writ petitions which reveal that there were interim orders of stay for a period of more than four months during the pendency of the petitions. We are of the opinion that although there is no enabling provision in the Karnataka Urban Development Authorities Act, 1987, for exclusion of the period during which there was an interim order operating against the authority, yet keeping in view the scheme of the Act and the purpose underlying the provisions of Section 27 which prescribes the time-limit for the implementation of the scheme, the period during which any interim or final orders passed by a Competent Court prevented the implementation of the scheme shall have to be excluded while reckoning the total period within which the scheme had to be implemented. Viewed thus, the making of the award in the instant case which in our view represents a substantial step towards the implementation of the scheme was within a period of 5 years as required under Section 27. It is also noteworthy that immediately after the making of the award, the present respondents had come up with a fresh batch of writ petitions in which also there were interim orders passed against dispossession from the land sought to be acquired. The failure of the authorities to take possession of the acquired land was obviously referable to the interim orders which prevented them from doing so.
9. Suffice it to say that with the making of the award and the pending litigation, challenging the validity of the proceedings, the scheme did not and could not possibly lapse on the ground that the same had not been implemented within a period of 5 years from the date the final declaration was published.
10. Mr. Patil lastly argued that since the landowners would be entitled to claim compensation only by reference to the date of publication of the preliminary notification which had taken place some 13 years back, the owners would be deprived of their valuable right to make an application for reference to the Civil Court for determination ofjust and fair compensation payable to them. He urged that this Court could, in order to protect the interest of the owners and to ensure that they are not deprived of their legitimate dues on account of delay in the disposal of the matters by this Court, issue appropriate directions and fix a timeframe within which the owners could make applications seeking such reference, in which event the said reference could be directed to be made by the authority, without raising the plea of limitation.
11. Mr. Tajuddin, the learned Counsel appearing for the appellant, did not have any serious objection to such a right being reserved, provided the applications are made within a period of three months from today.
12. In the circumstances, therefore, the apprehension of the owners that they may be deprived of their right to seek enhancement of compensation under Section 18 of the Land Acquisition Act can be suitably allayed by issuing appropriate directions in that regard.
In the result, these appeals succeed and are hereby allowed. The impugned order passed by the learned Single Judge is set aside and Writ Petition No. 19901 of 1998 connected with Writ Petition Nos. 18331, 18256 to 18258, 16297 of 1998 and 1989 to 1993 of 1999 dismissed. The dismissal of the petitions shall not however prevent the respondents-landowners from making appropriate applications under Section 18 of the Land Acquisition Act for a suitable reference to the Civil Court for determination of the just and fair compensation payable to them. In case such applications are made within three months from today, the Land Acquisition Officer shall entertain the same and make a suitable reference to the Civil Court treating the said applications to have been filed within the period prescribed for the purpose. Needless to say that the appellant-authority shall not, in response to any such applications either before the Land Acquisition Officer or before the Civil Court to which the references are made, raise the plea of limitation. The parties are left t0 bear their own costs.