- (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. JUDGEMENT_1329_TLKAR0_2014_1.html
(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 - I 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 it is statute conforming and in a bona fide manner for a proper purpose.

21. 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 in 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 road' 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. 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. 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 realingment of the road only shows their haphazard manner of handling things and not handling its schemes in a professional manner for implementation.

24. 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. Unfortunately, in our country, public functioning has no sanctity any more 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 doman 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.

27. 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 sitution 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.

28. Even as per the verison of the State and the BDA, if the stage of hearing public girevance 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. 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. 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. 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 stafff 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. 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. 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 notifiation, 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. 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. Therefore, these writ petitions are allowed. All the notifications in its entirety pertaining to the scheme of peripheral ring road are hereby quahsed 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) 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 learend Single Judge to hold 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 construciton 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 acquistiion of additional lands 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 exericse 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 acquistiion of the land. Before issuance of the notification for acquistiion 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 the learned Single Judge has not committed any error in quashing the notification pertaining to the writ petitioners.

17. 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. 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 asdie the quashing of other notification in entirety pertaining to the scheme of Peripheral ring road. Parties to bear their own costs. "