Judgment :- 1. If at all failures, inability, incompetence, illegalities, steps for inaction, non-implementation of the scheme or a project are all to be found in any given case, the present writ petition combines all such qualities or events exhibited in abundance not only by the delegate of the state government-special land acquisition officer-nominated exclusively to take care of the land acquisition proceedings on behalf of the state government for the benefit of Bangalore Development Authority [BDA], but with all that and even after a sworn affidavit is placed before this court conceding not a simple failure but a gross failure on the party of BDA in implementing the original proposed scheme to implement a development activity in respect of an extent of 514 acres of land in terms of the preliminary notification dated 19-11-1977 caused by the state government and this preliminary notification also being followed up by issue of a declaration under Section 19(1) of the Bangalore Development Authority Act, 1976 [for short, BDA Act] as per notification dated 21-6-1979, for a little larger extent of 517 acres 1 gunta, as per the orders of the state government indicating its satisfaction that the subject lands are required for a public purpose viz., for the formation of what was known as Kamakshi layout in terms of a scheme propounded by the BDA and even after its claim that in spite of taking possession of this extent of land, the special land acquisition officer in fact passed awards only to an extent of 94 acres 34 guntas and further claim of the BDA also being that possession in respect of this extent of land was handed over by the special land acquisition officer in favour of engineering section of BDA, though date of handing over is not indicated as per the additional statement of objections dated 9-11-2010 filed on behalf of BDA, and reading as under: 1. The 1st Respondent seeks leave of this Hon’ble Court to read the content the statement of objection filed on 2.11.2010 as part and parcel of this Additional Statement. 2. The Respondent No.2 has passed an award in respect of 94 Acres and 34 Guntas of land, situated in Saneguruvanahalli, Bangalore Kasab Hobli, Bangalore Taluk, Bangalore District. 3. The possession in respect of the said 94 acres and 34 Guntas of land was handed over to the Engineering Section of the B.D.A. 4. 2. The Respondent No.2 has passed an award in respect of 94 Acres and 34 Guntas of land, situated in Saneguruvanahalli, Bangalore Kasab Hobli, Bangalore Taluk, Bangalore District. 3. The possession in respect of the said 94 acres and 34 Guntas of land was handed over to the Engineering Section of the B.D.A. 4. It is further submitted that nearly 53 sites have been formed in Sy.No.35/1, Saneguruvanahalli, Bangalore Kasab Hobli. Scheme in respect of “Kamakshi Layout” has been partially implemented. The copy of the office notes prepared by the Special Land Acquisition Officer is produced herewith and marked as Annexure R2. 5. The Sketch in respect of formation of layout furnished by the Engineering section produced herewith and marked as Annexure R3. 6. All other averments which are not specifically traversed herein above are hereby denied as false and the Petitioner is called upon to prove the same to the satisfaction of this Hon’ble Court. 5. The Sketch in respect of formation of layout furnished by the Engineering section produced herewith and marked as Annexure R3. 6. All other averments which are not specifically traversed herein above are hereby denied as false and the Petitioner is called upon to prove the same to the satisfaction of this Hon’ble Court. and even without placing any record before the court to show as to what is the factual position that prevails in respect of this extent of land had been taken possession by special land acquisition officer in terms of any spot mahazar etc., but Sri V Y Kumar, learned counsel for the respondent-BDA and Sri R Omkumar, learned AGA appearing for the state government, merely relying upon Annexure-C to the writ petition, said to be a copy of the gazette notification dated 26-9-1991, publishing the notification dated 6-7-1991, caused under Section 16(2) of Land Acquisition Act, 1894 [for short, LA Act], as amended by the state government, and merely relying upon the presumption as can be claimed to have available under this sub-section for the purpose of asserting that factual position of the land in terms of Section 16(1) had in fact been taken by the special land acquisition officer, but not placing commensurate records before the court to otherwise make good this position evening in the wake of the assertion on the part of the petitioner that he had never lost possession and is still in position even at the time of presenting the writ petition and at this point of time, learned counsel for the respondent-BDA and the learned AGA are playing more loyal than the king to submit before the court that BDA and the state are very keen to implement the scheme in respect of a meager extent of 4 acres of land in respect of which petitioner claims interest and has presented this writ petition and therefore this petition should be dismissed on the technical ground of petitioner having no locus in presenting this petition and also on the ground that the present writ petition is hit by the principle of res judicata and therefore this writ petition should be dismissed in limine! 2. 2. Perhaps, such an argument could have been made good at the stage before the writ petition was admitted for examination by issue of rule, but this writ petition having been admitted by issue of rule as on 6-10-2010 and the matter being heard at some length, as is indicated by the earlier orders passed by this court on 6-10-2010, 3-11-2010, 9-11-2010 and further on 18-1-2011, but thereafter, the matter having gone into hibernation due to various reasons and in the interregnum, the respondents, particularly BDA having come up with an additional statement of objections, as noticed by this court as per order dated 29-6-2011, reading as under: An additional statement of objections has been filed on behalf of first and second respondents-BDA, purporting to be in response to the order passed by this court on 3-11-2010, and reads as under: 1. The 1st Respondent seeks leave of this Hon’ble Court to read the content the statement of objection filed on 2.11.2010 as part and parcel of this Additional Statement. 2. The Respondent No.2 has passed an award in respect of 94 Acres and 34 Guntas of land, situated in Saneguruvanahalli, Bangalore Kasba Hobli, Bangalore Taluk, Bangalore District. 3. The possession in respect of the said 94 acres and 34 Guntas of land was handed over to the Engineering Section of the B.D.A. 4. It is further submitted that nearly 53 sites have been formed in Sy.No.35/1, Saneguruvanahalli, Bangalore Kasab Hobli Scheme in respect of “Kamakshi Layout” has been partially implemented. The copy of the office notes prepared by the Special Land Acquisition Officer is produced herewith and marked as Annexure R2. 5. The Sketch in respect of formation of layout furnished by the Engineering section produced herewith and marked as Annexure R3. 6. All other averments which are not specifically traversed herein above are hereby denied as false and the Petitioner is called upon to prove the same to the satisfaction of this Hon’ble Court. This statement is affirmed on oath by the affidavit sworn to by Sri H Basavarajendra, Special LAO, BDA, Bangalore. 6. All other averments which are not specifically traversed herein above are hereby denied as false and the Petitioner is called upon to prove the same to the satisfaction of this Hon’ble Court. This statement is affirmed on oath by the affidavit sworn to by Sri H Basavarajendra, Special LAO, BDA, Bangalore. Sri Anilkumar, learned counsel appearing for the respondent-BDA submits that in the wake of the developmental activities that had taken place in an extent of 94 acres 35 guntas of land, which has been handed over to the engineering section, and the statement being conspicuously silent about the date of handing over the land to the engineering section and further statement that as many as 53 sites have been formed in Sy No 35/1 of Saneguruvanahalli, for the purpose of the scheme known as Kamakshi layout and it has been partially implemented, the writ petition should be dismissed with exemplary costs etc. Sri N Bayya Reddy, learned counsel for the petitioner points out that the statement has virtually conceded that the respondents have failed to implement the scheme substantially within a period of five years from the date of taking possession and therefore provisions of Section 27 of the Bangalore Development Authority Act, 1976 [for short, the Act], which inevitably attracted and the writ petition should be allowed, quashing the entire acquisition proceedings. Based on the factual position mentioned in the additional statement, this legal position inevitably follows. However, the statement being affirmed on oath by a special land acquisition officer of the authority and not supported by an affidavit of any higher officer, and if the authority has virtually conceded before the court for passing orders on such premise to allow the writ petition, it is necessary this development is in the knowledge of the higher responsible officer of the BDA and it is therefore respondent-BDA is directed to place a supporting affidavit of a higher functionary in the authority like the commissioner, to support the statement and whereafter necessary orders can be passed by this court. Sri Anilkumar, learned counsel for the respondent-BDA seeks three days’ time for such purpose. List the matter for such purpose on 4-7-2011 at 2.30 pm. An affidavit of the Commissioner, BDA should be filed or the commissioner be present in the court on 4-7-2011. Sri Anilkumar, learned counsel for the respondent-BDA seeks three days’ time for such purpose. List the matter for such purpose on 4-7-2011 at 2.30 pm. An affidavit of the Commissioner, BDA should be filed or the commissioner be present in the court on 4-7-2011. and thereafter the commissioner for BDA having affirmed the contents of the additional statement of objections on oath, the matter having been listed for further hearing and is taken up for disposal. 3. Facts as noticed above indicating the scheme envisaged by BDA covered an extent of 500 and odd acres of land and now BDA evinced great interest to implement the scheme in respect of a meager extent of 4 acres of land, in which petitioner claims he has some right or interest, and having admitted the failure of BDA to implement the scheme in respect of the entire remaining extent of land and the BDA having allowed not merely development of all around of this extent of 4 acres, but even haphazard development all around and having very miserably failed in its duty and function to act not only as a development authority but also as a planning authority to instruct its counsel to oppose the writ petition on technical grounds and to seek for dismissal of the writ petition on the premise that the BDA can implement the scheme at least in respect of 4 acres of land, is nothing but a fraud on the exercise of power, a farce on the implementation of the scheme and a blatant brazen attempt to pull wool over the eyes of this court and calling in aid the legal submission bolstered by the learned AGA in the case of OFFSHORE HOLDINGS PVT LTD vs BANGALORE DEVELOPMENT AUTHORITY [ (2011) 3 SCC 139 ], is only to compound the weird action hitherto exhibited and conceded by BDA before this court. 4. 4. Acquisition of land for the purpose of implementation of a scheme propounded by BDA by a combined operation of the statutory provisions of BDA Act as well as LA Act is in the name of a scheme as propounded by a development authority to be implemented not only for a planned growth of the city but also for providing residential sites to citizens of the city, who bona fide are residents of the city, but who cannot afford either to purchase a site or land by themselves, but look up to the state for providing them an avenue to possess a site for putting up dwelling units for their living within the city. 5. BDA Act has a twin object of a planned land growth and development of the city and also providing house sites and other needed places such as civic amenities etc., within the precincts of the area covered to which the activity of BDA extends at a reasonable and affordable price. It is in the name of such public purpose, the power of compulsory acquisition of private lands is embarked upon by utilizing statutory powers under the two enactments. A scheme of this nature unless implemented in the manner as envisaged originally and at any rate unless it is implemented substantially as is a phrase used and to be found in Section 27 of the BDA Act, reading as under: 27. Authority to execute the scheme within five years:- Where within a period of five years from the date of the 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. but achieving anything short of this is while failure of the implementation of the scheme and therefore in terms of this statutory provisions the scheme lapsed and in the present case such an eventuality is conceded by BDA and is not an issue. 6. but achieving anything short of this is while failure of the implementation of the scheme and therefore in terms of this statutory provisions the scheme lapsed and in the present case such an eventuality is conceded by BDA and is not an issue. 6. However, at this point of time, the effort on the part of the state government and BDA appears to be one for salvaging this extent of 4 acres of land from the legal consequences, not for any worthy purpose or bona fide purpose, but all technical arguments are called in aid to achieve this eventuality to retain or keep out the petitioner from this extent of 4 acres of land. 7. Apart from lack of bona fides on the part of the state and BDA, an effort, zeal or enthusiasm exhibited through their counsel in the present writ petition also lands the state and the BDA in the cauldron of sinners violating Article 14 of the Constitution of India, as it is obvious that the state and the BDA are calling in aid all its mighty statutory power only to victimize or even to put it mildly to take an action which is, per se, discriminatory only vis-à-vis the writ petitioner. 8. Effort to save an action or even to sustain legality of the acquisition proceedings in respect of a meager extent of 4 acres of land even when conceding failure to implement the scheme and the project in respect of the remaining extent of land, is also, in law, amounts to conceding the state indulging in a highly arbitrary action, which action is one facet of discriminatory action attracting vice of Article 14 of the Constitution of India. 9. 9. In a situation of this nature, no judgment even the judgment of the Supreme Court in the case of OFFSHORE HOLDINGS PVT LTD [supra], a declaration of law, if any, as found in this judgment, which undoubtedly has to be applied by this court and if it is of any precedentiary value and ratio therein has to be applied in a case containing a similar fact situation, does not rescue the respondents for the result they want to achieve, for the simple reason that irrespective of the law as is declared or ratio as can be found, in the present case, with the respondents not having made available the records to show the factual physical taking of possession of the subject land of petitioner and merely relying upon Section 16(2) notification, which, though can raise a presumption of such taking over of possession, that itself being in doubt in the wake of the vague and incomplete pleadings and the kind of supporting materials placed before this court in the form of Annexure-R1 to 3, nowhere indicating that such factual taking over of possession of subject land i.e. an extent of 4 acres in Sy No 35/1, has, in fact, happened and in fact the extent as notified under the notifications in respect of this survey number being not merely 4 acres but a larger extent of 11 acres 16 guntas and the BDA and the state government having conceding before this court that their present adventure rather misadventure is only to implement the scheme of this truncated meager extent of 4 acres of land and that too being a smaller part of 11 acres 16 guntas of land in this survey number, it is to be necessarily inferred in law that a fact which is not made good by placing all relevant records and even if it is so placed, the legal consequence being only against the state and the BDA can be relied upon by BDA or the state government to achieve the legal inference of land having vested in the state government, which is a premise based on which support is drawn from the judgment of the Supreme Court in the case of OFFSHORE HOLDINGS PVT LTD [supra]. 10. 10. Though factual position itself being not made good either on record or even legal inference is not available in favour of BDA and the state, notwithstanding the notification issued under Section 16(2) of LA Act [as amended by the state government], the judgment of Supreme Court in the case of OFFSHORE HOLDINGS PVT LTD [supra] is of no avail. 11. In so far as the argument of want of locus to writ petitioner is concerned, if the very writ petitioner had come up before this court in the year 1987 and if locus was not an issue at that time, as it is now pleaded that the present writ petition is also hit by principles of res judicata, the question of locus is not an issue that is required to be examined at this stage in this petition. 12. In so far as the question of principles of res judicata to dismiss the writ petition, as submitted by Sri R Om Kumar, learned AGA, is concerned, in the first instance, the principle of res judicata as is evolved in the conventional adversary English legal system and as is statutorily provided under Section 11 of Civil Procedure Code, 1908, per se, is not attracted. However, while there are precedents and rulings to indicate such principle can be utilized and availed of even in a situation such as presentation of writ petitions is concerned, even here, the principle is not attracted for the simple reason that what is an issue in the present writ petition is not and was not an issue in the earlier writ petition, as in the earlier petition what was questioned was only the legality of acquisition proceedings, but in the present writ petition, the basic question is one of lapse of the scheme in terms of Section 27 of the BDA Act, with which the respondents have no dispute, but in fact have conceded, but nevertheless want to sustain acquisition proceedings on the basis of the principle of res judica. The principle is neither attracted in the present set of fact situation nor applicable per se and both technical objections fail. 13. Except for the technical objections, there is nothing else in this writ petition to be examined and therefore the writ petition inevitably is to be allowed. 14. The principle is neither attracted in the present set of fact situation nor applicable per se and both technical objections fail. 13. Except for the technical objections, there is nothing else in this writ petition to be examined and therefore the writ petition inevitably is to be allowed. 14. However, one more submission of Sri V Y Kumar, learned counsel for the respondent-BDA is in the wake of the ratio in the case of OFFSHRE HOLDINGS PVT LTD [supra], the court may consider the possibility of issue of directions to the state government for reconveying the land by collecting betterment charges etc., as, according to learned counsel, the land has already vested in the state government. 15. Collection or otherwise of betterment charge is not an issue in this petition, as if the area is within the locality statutorily notified and to be within the jurisdiction of the BDA, it can be independently demand and collect such charges and in this regard even when there is no effort made on the part of the BDA, it is an issue which is premature. 16. Be that as it may, when in the present case, the state and the BDA have not made good vesting which can happen only on the land is taken possession and as noticed above, there is no question of issue of any direction on such premise. 17. For the sake of record, it is made clear that not merely the scheme has lapsed even the acquisition proceedings has lapsed, as BDA and the state have conceded that they are keen to implement the scheme or project only in respect of 4 acres, but have not indicated anything or any conduct or action on the part of State in respect of remaining extent of land even in terms of the notification issued under Section 16(2) of LA Act. 18. This is also a circumstance to infer that the state government and the BDA have more to suppress than to reveal before this court, as if as claimed by the learned counsel for the respondents, an extent of 94 acres 16 guntas of land had in fact vested in the state government, nothing prevented them to show as to in what manner the remaining extent of land other than the four acres, has not been either reconvened or in any other way restored to the original landowners. If the state government had acted so in the case of other landowners, it was the bounden duty of the state to act on its own in respect of present writ petitioner also, but to act otherwise, as is sought to be contended before this court and for this reason also, it should be concluded that even the acquisition proceedings, in fact has also lapsed or given up as the preliminary notification and the declaration of the years 1977 and 1979 have not been taken to their logical conclusion. 19. Therefore, this writ petition is inevitably allowed, acquisition proceedings, if any, under the impugned notifications in respect of not only the subject land of 4 acres but in respect of other extents of land, which the state claims to have taken possession under the notification under Section 16(2) of LA Act, all quashed, as having lapsed or having become redundant in the wake of the very scheme itself having lapsed and the BDA having conceded before this court that it has miserably failed in the implementation of the scheme. 20. The conduct of the respondents-state and BDA-leaves much to be desired, as is noticed from the above facts. Public authorities and the state government are expected to act in the larger public interest and not against the larger public interest! 21. BDA being a professional development authority exclusively meant for such purpose, should start functioning on sound professional lines and not being lethargic or slack and definitely not allowing a scheme to prolong over 30 or more years more so when there is a statutory urgency incorporated in the scheme of the BDA Act as in Section 27, that unless the scheme is completed within a period of five years from the date of issue of declaration under Section 19(1) of BDA Act, the scheme itself will lapse. 22. Therefore this writ petition is inevitably allowed, as indicated above. Rule made absolute.