Bangalore Development Authority Case: Judicial Overreach by the Supreme Court?

Bar & Bench September 13 2018

BV Acharya

The recent decision of the Supreme Court rendered by a Bench of Hon’ble Justices Arun Mishra and Abdul Nazeer in the case of Dr. K Shivaram Karanth layout (Bangalore Development Authority v. State of Karnataka & others) decided on August 3, is a classic example of judicial overreach.

The decision also demonstrates the undesirable consequences that will ensue if the Judiciary takes over the functions of the Executive, disregarding the Constitutional mandate.

A Single Judge of the High Court (Hon’ble Justice AS Bopanna), relying on the Division Bench ruling of the High Court in the case of Shivanna v. BDA (2013 (4) SCCR 2793), held that the acquisition proceedings regarding Shivaram Karanth Layout have lapsed, as even though six years have passed, final notification was not issued.

Thereafter, the Bangalore Development Authority (BDA) kept quiet for two years, and many landowners developed their lands with the permission of the Authority. Unmindful of this development, BDA filed appeals before the Division Bench of the High Court against the decision of the Single Judge which dismissed the appeals.

One year thereafter, BDA filed SLPs before the Supreme Court in the year 2018, which were allowed by setting aside the judgments of the High Court. The Apex Court also directed the government to issue a final notification including all the lands covered by the preliminary notification, ignoring orders of the land acquisition officers who have excluded 450 acres on objections of the landowners and 250 acres ordered to be deleted by the government.

The Supreme Court reversed the order of the High Court on the sole ground that the learned Single Judge “blatantly violated” the judgment of the Supreme Court in the Offshore Holdings case [(2011) 3 SCC 139] and erred in following the Division Bench ruling in Shivanna’s case, which had in fact been affirmed by the Supreme Court.

[Archieves (2013)] In Conversation with Senior Advocate and Advocate General BV Acharya

“…When I was AG, if my opinion is not accepted, I would not consider continuing [in the post] even for a day. But there may be some who wish to continue to be in office whether the government accepts their opinion or not..”

The Supreme Court was in error on both counts, as the Offshore Holdings case was never on the point and the present case was fully covered by the judgment in Shivanna’s case.

The learned Single Judge is a victim of unfair criticism by the Apex Court. He can’t be faulted if he does not refer to a decision which is not cited at the Bar and which according to the parties, never applied to the facts of the case. Neither the BDA nor the state government relied on it in the High Court.

Even assuming the decision of the Supreme Court that the acquisition proceedings have not lapsed is correct, the other directions issued viz., to include in the final notification 450 acres of land which have been ordered to be deleted by land acquisition officers and also 250 acres of land directed to be deleted by the government, appear to be not only unwarranted and without authority of law, but also clearly amounting to usurpation of the power of the Executive and the Legislature.

These directions are also opposed to the fundamental principles of natural justice. The direction to the state government to issue the notification including all lands referred to in the Section 17 notification is clearly in excess of the power of the Supreme Court. It is clearly a power conferred on the Executive by the Statute.

The decision to include all lands deleted by orders of the Land Acquisition Officer is again a direction without authority of law. Section 18 empowers land acquisition officers to hold an inquiry and delete lands for lawful reasons. In the present case, the landowners of 451 acres were neither notified nor were they heard by the Supreme Court. The orders of the land acquisition officers were not before it, and hence, the Supreme Court could not have pronounced on their validity.

Same is the position with regard to 250 acres which have been deleted on the orders of the government, which is the ultimate authority to sanction the scheme under Section 18 and 19, with or without modification. This power of the government cannot be taken away even by the Supreme Court.

The finding of the Supreme Court that as in the notification the landowners are given the option to either accept monetary compensation or portion of developed land in lieu of it, the landowners have no right to object to acquisition, is contrary to the scheme of the BDA Act. The Supreme Court has unilaterally amended the statutory provision which has the effect of deleting Section 18, a provision embodying principles of natural justice.

Parliament, on realizing that unduly prolonging land acquisition proceedings has been resulting in hardship and misery to the landowners, has of late amended provisions such as Section 6 & 11-A of the Land Acquisition Act, 1894 (prescribing time limit of 1 year and 2 years for issuance of final notification and passing of award respectively). It has also passed the latest Land Acquisition Act (Central Act No.30 of 2013) for the benefit of the landowners.

On the other hand, the Supreme Court, in the present judgment, has virtually conferred unrestricted and arbitrary powers on the authorities to delay the acquisition proceedings for any length of time, to the detriment of the interest of the landowners.

Therefore, the decision in question is a retrograde step and the earlier it is overruled or annulled, the better it will be for society.

The author is a Senior Advocate and former Advocate General for the State of Karnataka.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.

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