Judgment : 1. The petitioners in W.P.Nos.34102-34103/2011 and W.P.Nos.23283-23304/2012 are assailing the order dated 20.07.2011 (Annexure-W) whereby the State Government has cancelled the earlier notification dated 07.04.2010 under which the property bearing Sy. No.14/3 measuring 03 acres 09 guntas had been de-notified under Section 48 (1) of the Land Acquisition Act (the ‘L.A. Act’ for short). The petitioners have alternatively sought for issue of mandamus and direct first and second respondents to allot sites to the petitioners in terms of the directions issued in the case of Junjamma & Others -vs- The Bangalore Development Authority & Others (ILR 2005 Kar 608) at the earliest. The petitioners herein are the purchasers of sites in the private layout formed in the said land by its erstwhile owners. 2. The petitioners in W.P.Nos.11046-11047/2013 who claim to have acquired right to the property bearing Sy.No.14/3 measuring 03 acres 09 guntas under a WILL from their grandfather also claim to be aggrieved by the same order dated 20.07.2011 (Annexure-H to their petitions) are assailing the same. They are also praying that the respondents be restrained from interfering with the right of the petitioners. 3. Since in both these sets of petitions the same order dated 20.07.2011 is called in question and the consequential relief would depend on the consideration of the contention of that aspect, the petitions are taken up together, heard and disposed of by this common order. 4. The brief facts are that the land bearing Sy.No.14/3 measuring 03 acres 09 guntas of Gidadakonenahalli was acquired along with several other lands by the Bangalore Development Authority (‘BDA’ for short) for formation of the Sir M. Vishweshwaraiah Layout. The preliminary notification dated 08.04.2003 was issued. Thereafter, the final notification dated 09.09.2003 was also issued. The award was passed on 06.12.2003. Though, the BDA claims to have taken possession on 22.01.2004, the same is being disputed by the petitioners in an attempt to contend that the de-notification dated 07.04.2010 was in accordance with law and the subsequent order dated 20.07.2011 is not justified. 5. The petitioners in W.P.Nos.34102-34103/2011 and W.P.Nos.23283-23304/2012 claim that they had purchased the different sites formed in the said Sy.No.14/3. The date of the sale deed is indicated in Annexure-A to the petitions. The petitioners contend that though they were in possession, the constructions put up were demolished. 5. The petitioners in W.P.Nos.34102-34103/2011 and W.P.Nos.23283-23304/2012 claim that they had purchased the different sites formed in the said Sy.No.14/3. The date of the sale deed is indicated in Annexure-A to the petitions. The petitioners contend that though they were in possession, the constructions put up were demolished. The petitioners were before this Court in W.P.Nos.16174-16188/2004, W.P.Nos.16190-16204/2004 and W.P.Nos.16205-16214/2004, which were disposed of permitting representation and consideration of the same in terms of the order in the Junjamma’s case and such representation was pending. At that stage, the original land owner filed application seeking de-notification. The petitioners are also stated to have made representation seeking for de-notification. On verification, it was ascertained that the notification under Section 16(2) of L.A. Act was not issued. According to the petitioners, since possession was not taken, the notification dated 07.04.2010 was issued and the land was de-notified. 6. One of the allottee who had been allotted a site in the layout formed by BDA in the land in question, challenged the de-notification by filing the petition in W.P.No.2176/2011 and the de-notification was stayed. During the pendency of the same, the order dated 20.07.2011 impugned herein was issued and the de- notification was withdrawn and acquisition was restored. The petitioners were therefore denied the benefit of the de-notification as also the consideration of their case in terms of Junjamma’s case. They are therefore before this Court in these petitions. The petitioners in W.P.Nos.11046-11047/2013 are also claiming right to the property in view of the de-notification and are aggrieved by the order withdrawing the de-notification. They also seek to sustain the de-notification since even according to them the possession of the land was not taken. 7. In addition to the State Government and the BDA seeking to justify the action in withdrawing the notification, the respondents No.3 to 9 who were allotted sites in the layout formed by the BDA are also contending that the de-notification was not justified and therefore, the order dated 20.07.2011 is sustainable. The first respondent has contended that even though the de-notification dated 07.04.2010 was issued, the second respondent-BDA submitted a proposal dated 06.10.2010 stating that after acquisition the BDA has formed 10 sites measuring 12 x 8 mtrs, 40 sites measuring 9 x 12 mtrs and 52 sites measuring 6 x 9 mtrs and allotted the sites and sought for cancellation of the de-notification. The first respondent made thorough examination and passed the order dated 20.07.2011 cancelling the de-notification. It is contended that such power is exercised in view of the same being available under Section 21 of the Karnataka General Clauses Act, 1899 (‘G.C.Act’ for short). The private respondents have also filed a detailed objection statement referring to the entire sequence of events from the time of acquisition until the allotments made in their favour and also the prejudice that has been caused to them by the illegal de-notification. Since, it has been remedied by the impugned order dated 20.07.2011, the validity of the same is sought to be contended. 8. In the light of the contentions, the validity of the impugned order dated 20.07.2011 vis-à-vis the correctness of the de-notification dated 07.04.2010 in the background of the power available under Section 48(1) of the L.A. Act will arise in the context as to whether the possession of the acquired property was taken or not. This is to be considered in the background of undisputed and well settled proposition of law that exercise of the power for de-notification under Section 48 of L.A. Act is possible only if the possession of land has not been taken as per law. In fact, the decision in the case of Karnataka Power Corporation Employees’ Co-operative Housing Society Ltd. -vs- State of Karnataka [ 1991 (2) Kar.L.J 608 (DB)] and in the case of Muniyamma -vs- State of Karnataka & Others (2007 (3) AIR Kar R 553) relied on by the learned counsel for the petitioners reiterates the said position. Hence, there can be no quarrel on the proposition of law. 9. There being no doubt whatsoever about the said undisputed position of law in that regard, irrespective of the position whether the State Government had the power to pass the impugned order dated 20.07.2011, what would also have to be noticed is as to whether the notification dated 07.04.2010 issued in exercise of the power under Section 48(1) of L.A. Act by itself is sustainable in law. I am of the said opinion on noticing the following decisions relied upon by the learned counsel for the parties. I am of the said opinion on noticing the following decisions relied upon by the learned counsel for the parties. The learned counsel for the petitioners relied on the decision of the learned Single Judge of this Court in the case of M/s. Vijaya Leasing Ltd. -vs- State of Karnataka (W.P.No.2565/2001 Dated 26.08.2002) to contend that it has been held therein that there is no provision in the L.A. Act to withdraw the notification issued under Section 48(1) of the L.A. Act. It is contended that since the Hon’ble Supreme Court has now upheld the said conclusion in the same case through its decision in the case of Bangalore Development Authority -vs- M/s. Vijaya Leasing Ltd. & Others ( AIR 2013 SC 2417 ) relied on by the learned Government Advocate, the impugned order dated 20.07.2011 would not be sustainable. However, what is to be noticed is that in the said case the learned Single Judge had further referred to the decision reported in ( AIR 1970 SC 1576 ) holding that, when possession is taken and vests in the authority, there is no provision to revert to the owner. Therefore, the examination of the validity of the notification under Section 48(1) of L.A. Act even in the absence of challenge to the same but being considered based on the aspect of possession being taken and the same being set-aside has also been upheld by the Hon’ble Supreme Court. 10. Further, in view of the contention put forth on behalf of the respondents that even in the absence of a specific provision in the enactments concerned, Section 21 of the G.C. Act would protect such action, the learned counsel for the petitioners has relied on the decision in the case of H. Krishna Reddy -vs- The State of Karnataka & Another (W.P.No.37797/2011 Dated 03.01.2013) wherein the earlier decision of this Court was distinguished and it was held that it would not apply to that case. The distinction was that in the case cited above, the acquisition was for road, but not utilized and the land owner after de-notification had secured change of mutation and also conversion of the land for residential purpose and altered his position. The distinction was that in the case cited above, the acquisition was for road, but not utilized and the land owner after de-notification had secured change of mutation and also conversion of the land for residential purpose and altered his position. In that regard, a perusal of the decision of a Hon’ble Division Bench of this Court in the case of M/s. L & T Komatsu Ltd. -vs- All India Trade Union Congress, Karnataka State Committee and Others (ILR 2012 KAR 2411) cited by the learned counsel for the respondents No.3 to 9, though rendered in the context of considering the provisions of Contract Labour (Regulation and Abolition) Act has considered the scope of Section 21 of the G.C. Act. In that context, it is held that Section 21 of G.C. Act applies when in an enactment there is no specific provision providing for what is provided in Section 21 of G.C. Act. Hence, it is held that the scheme of the Act is to be perused and if there is no power under the relevant Act, Section 21 of G.C. Act is to be read into it. It is also held that if an order is passed under a particular statute and if it is given effect to, acted upon, consequential further steps are taken in accordance with law and third party interests are created, then rescinding or revoking such an order at that stage would have serious consequences. Only in such situation, it will not be said that power to issue the notification will include the power to rescind or revoke. It is held that Section 21 of G.C. Act will apply as a rule and non application is an exception. 11. If the above proposition is kept in view, in the instant facts it is seen that revocation is on the ground that possession of the land had already been taken, layout formed, sites demarcated and some allotments were also made. A couple of allotees from BDA who are also the respondents herein had immediately approached this Court in W.P.No.2176/2011 and W.P.No.8692/2011 challenging the notification dated 07.04.2010 under Section 48(1) of L.A. Act. It is during the pendency of the petitions, the order impugned herein was passed as otherwise the correctness of the de-notification in any event would have been examined by this Court. It is during the pendency of the petitions, the order impugned herein was passed as otherwise the correctness of the de-notification in any event would have been examined by this Court. This Court while disposing of the petitions on 27.07.2011 (Annexures-R26 and R27) has even otherwise taken note of the possession being taken by the BDA and also allottees being put in possession of the sites. Therefore, in the instant facts it cannot be said that any right has accrued to the petitioners and they have altered their position taking advantage of the order dated 20.07.2011 impugned herein. Even if they had done so, it would be subject to decision in the pending petitions but in any event, the cancellation of the de-notification was done during its pendency. Hence, the decision in the case of Nooli Channayya Smaraka -vs- State of Karnataka (ILR 2004 KAR 4133) relied on by the learned counsel for the petitioners complaining of denial of principles of natural justice before passing the impugned order also would not be of assistance in the instant facts. Therefore, the petitioners can succeed only if it is established that possession had not been taken by BDA and that aspect was the consideration which led to the issue of notification dated 07.04.2010 under Section 48(1) of the L.A. Act. 12. Admittedly, in the instant case a notification under Section 16(2) of the L.A. Act has not been issued. The learned counsel for the petitioners therefore vehemently contended that in view of the same, possession had not been taken. I am not persuaded to accept such contention since that is not a legal requirement to establish taking of possession, but is only a declaration of the factual position of possession having been taken under Section 16(1) of the L.A. Act. The said position is no more res-integra as seen from the decision of a Hon’ble Division Bench of this Court relied on by the learned Government Advocate, rendered in the case of Modinbi and Others -vs- The Kalal Khatik Samaj SevaSangha and Others [ILR 2001 KAR 2909 (DB)] wherein it is held that publication of Section 16(2) notification is not mandatory. Though, the notification under Section 16(2) will be evidence of taking possession of land, even without that, Section 16(1) holds the field. It is held that non publication of Section 16(2) notification will not vitiate the acquisition proceedings. Though, the notification under Section 16(2) will be evidence of taking possession of land, even without that, Section 16(1) holds the field. It is held that non publication of Section 16(2) notification will not vitiate the acquisition proceedings. In that view, what is necessary to be considered is as to whether possession in terms of Section 16(1) of the L.A. Act was taken in the instant case. 13. The respondents apart from referring to the award being passed and the compensation amount being deposited in the Civil Court, have also relied on the Mahazar at Annexure-R23 and it is contended that possession was taken on 22.01.2004 and transferred to the Engineering Division of BDA. The petitioners have however disputed the Mahazar and it is contended that it does not establish taking over possession as the details of the owners signature and that of alleged witnesses is not forthcoming. The learned counsel for the petitioners has referred to the decision in the case of Muniyamma (supra) wherein it is held that taking possession means the actual possession on the spot and not possession on paper or symbolic possession. The decision of the full bench of this Court in the case of S.M. Kannaiah –vs- State of Karnataka and Others reported in [ 2011(4) Kar.L.J 294 (FB)] is also relied to contend that the procedure explained therein is not followed and as such the possession taken is not valid. 14. Learned Government Advocate on the other hand has relied on the decision of the Hon’ble Supreme Court in the case of Banda Development Authority, Banda -vs- Motilal Agarwal & Others. [ (2011) 5 SCC 394 ] with reference to para-37 which reads as hereunder; “37. The principles which can be culled out from the above noted judgments are: i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document. v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.” 15. The learned counsel for the respondents No. 3 to 9 has relied on the decision in the case of State of T.N. and Another -vs- Mahalakshmi Ammal and Others. [ (1996) 7 SCC 269 ] wherein it is held that the possession of acquired land taken by way of memorandum, panchanama is a legally accepted form and it is not possible to take physical possession. It is held therein that the subsequent continuation in possession by owner is only illegal or unlawful possession which does not bind the Government. 16. Though rival contentions with regard to the validity of the mahazar and the legal position thereto has been urged and decisions have been relied upon, in my opinion, the same would require further deliberation if need be only after referring to the manner in which the decision had been taken by the Government to de-notify and as to whether the aspect relating to possession had been considered by them to come to a conclusion that possession was not taken and therefore, the power under Section 48 (1) of L.A. Act could be exercised. In that regard, it would be necessary to refer to the original file submitted by the learned Government Advocate for perusal of this Court. 17. The file UDD 442 (LANGUAGE) 2009 refers to the subject relating to withdrawal of land measuring 03 acres 09 guntas in Sy.No.14/3, Gidadakonenahalli from acquisition. It starts with No.28484/2009. Though, the petitioners refer to the representation made to his Excellency the Governor and that the process was initiated on the basis of construction being put up, the Note-1 refers to the request made by the Member of Parliament to the Hon’ble Chief Minister. Hence, a report was sought. Note-5 refers to the position that final notification was issued on 09.09.2003, award was made and possession was taken on 22.01.2004. Note-6 also refers to this fact and also states that the possession is taken and transferred to Engineering Division and the procedure followed except publication of Section 16(2) notification. The said report of the BDA was to be placed before the Hon’ble Chief Minister. Vide Note-8, the Additional Secretary to the Government, Urban Development Department after referring to the report and also noticing that compensation of Rs.27,10,024/- is already deposited before the Civil Court has opined that it would not be appropriate to withdraw from acquisition. The Deputy Secretary-1 and the Principal Secretary of Urban Development Department have perused the file and without making any change to the said opinion has routed the file to the Hon’ble Chief Minister. In Note-11, the Secretary to the Hon’ble Chief Minister has referred to another representation made by one Sri Kadur C. Nanjappa of Sri Vivekananda SC/ST Welfare Society® seeking withdrawal from acquisition. The file has thereafter been re-routed. The note put up earlier has once again been repeated with more details and the possession having been taken, the compensation deposited and layout being formed has been stated. Therefore, vide Note-29, the Additional Secretary, Urban Development (BDA & B-1) has reiterated that for the reasons stated, there is legal impediment to withdraw from acquisition. Subsequently, vide Note-32, the Deputy Secretary-1 to the Government, Urban Development Department has also opined that since possession is taken and the land is transferred to the Engineering Department, it is not legally permissible to withdraw from acquisition and that it is to be brought to the notice of the Hon’ble Chief Minister. Subsequently, vide Note-32, the Deputy Secretary-1 to the Government, Urban Development Department has also opined that since possession is taken and the land is transferred to the Engineering Department, it is not legally permissible to withdraw from acquisition and that it is to be brought to the notice of the Hon’ble Chief Minister. Thereafter, without reference to any other material or there being any other contrary opinion relating to possession, in Note-34 the Hon’ble Chief Minister has ordered thus: “The above mentioned extent of 03 acre 09 guntas may be de-notified” and signed. 18. The above noticed procedure would clearly indicate that the possession of the land in question not having been taken or that having remained with the owner of the land which is the essential requirement to issue notification under Section 48(1) of the L.A. Act has never been the consideration before issuing the notification dated 07.04.2010. The materials on record before the file was placed before the Hon’ble Chief Minister has referred to the entire process of acquisition including taking possession and formation of layout being completed, yet without any contrary material or any other opinion to the contrary, the withdrawal from acquisition is ordered. In that view, when the possession of the land not being taken was never the consideration by the Government at the first instance, the contention on behalf of the petitioners to attack the Mahazar or the reliance placed on the decision relating to the nature of possession and the manner in which it is to be taken would be of no avail at this distant point in time. That too, when the petitioners did not make a grievance with regard to the same earlier by any independent proceedings, but are now seeking to put forth such contention in justification of the de-notification, for which the aspect of possession should have been the primary consideration by the Government. Only then, the petitioners could have supported the same. 19. Therefore, in the present facts it is crystal clear that the notification dated 07.04.2010 was contrary to the power available under Section 48(1) of L.A. Act since possession of the land had already been taken. The order dated 20.07.2011 in that circumstance was only rectifying the grave illegality that had been committed. 19. Therefore, in the present facts it is crystal clear that the notification dated 07.04.2010 was contrary to the power available under Section 48(1) of L.A. Act since possession of the land had already been taken. The order dated 20.07.2011 in that circumstance was only rectifying the grave illegality that had been committed. The file will disclose that BDA had thereafter taken objection to de-notification and in that regard, the entire details relating to the formation of the layout, the number of sites demarked have all been referred and the order is passed. In such event, when the de-notification was bad in law, the contention of the learned counsel for the petitioners that the private respondents No.3 to 9 have been granted alternate sites and as such the impugned order being quashed will not prejudice them is also not acceptable. In fact the documents relied upon by the petitioners at Annexure-W series is for that purpose, but those documents on the other hand would also establish that the BDA had taken possession, layout was formed and sites were also allotted to several persons. 20. Having arrived at the above conclusion on the first aspect of the matter, the contention of the petitioners in W.P.Nos.11046-47/2013 would fail in entirety. The petitioners in W.P.Nos.34102-103/2013 and W.P.Nos.23283-304/2012 have however sought for the alternative relief for consideration of their case in terms of the directions issued by this Court in the case of Junjamma and Others. In that regard, it is seen that some of the petitioners were before this Court in W.P.No.16205/2004 and connected petitions and while disposing of the said petitions on 08.12.2005, liberty was given to the petitioners by this Court to make representation and consideration of the same in terms of Junjamma’s case was directed. In the instant case, the petitioners were thus far riding on the notification dated 07.04.2010 whereby the acquisition was withdrawn. Presently, in view of the position being clarified and since the petitioners contend that they are all purchasers of sites prior to the date of preliminary notification and since similar aspects have been considered in the case of Junjamma and Others and if the petitioners are similarly placed, certainly they would be entitled to the benefit. This is an aspect which requires examination and consideration by the BDA. 21. This is an aspect which requires examination and consideration by the BDA. 21. The document obtained by the respondents No. 3 to 9 under the Right to Information Act and produced at Annexure-R47 along with the statement of objections filed in W.P.Nos.11046-47/2013 would prima facie indicate that the BDA has considered several applications as per the details therein relating to the eligible persons for allotment of alternate site as against the revenue sites owned by them. Insofar as the petitioners, it is pointed out that their names are found at Sl.Nos.16, 24, 25, 27, 29, 31, 33, 37, 38, 39, 40, 41 and 45. Presently, since the petitioners would not have the benefit of enjoying the same sites purchased by them due to the de-notification not subsisting, the consideration of the case of the petitioners for grant of alternate sites in terms of Junjamma’s case and the assessment already made would have to be taken note of and proceeded further by the BDA and the final decision with regard to allotment of alternate sites will have to be taken at the earliest. 22. For all the abovestated reasons, I pass the following: ORDER i) W.P.Nos.11046-47/2013 stand dismissed. ii) W.P.Nos.34102-103/2011 and 23283-304/2012 are allowed in part to the extent of the alternate relief prayed. iii) Consequent thereto, the respondent No.2-BDA is directed to consider the case of petitioners herein in terms of the direction issued in the case of Junjamma and Others –vs- BDA and Others (ILR 2005 KAR 608). iv) The result of such consideration shall be made known to the petitioners within four weeks from the date on which the petitioners submit a copy of this order and the relevant papers to respondent No.2 v) Parties to bear their own costs.