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2020 DIGILAW 1982 (KAR)

Savithramma v. State Of Karnataka

2020-10-05

M.I.ARUN

body2020
JUDGMENT M.I.Arun, J. - Heard learned counsel for the parties. 2. This writ petition is filed challenging the acquisition of lands belonging to the petitioners by respondent No.2. 3. It is contended by the petitioners that they are the owners of 5 acres 16 guntas of land in Sy.No.136 and 1 acre 22 guntas of land in Sy.No.138/4 of Kadugondanahalli Village, Kasaba Hobli, Bengaluru North Taluk. 4. A preliminary notification under Section 17(1) & (3) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'the Act', for short) was issued on 29.05.1978 to acquire the said properties for the purpose of forming a layout called "Hennur Bellary Road II Stage" by respondent No.2. A final notification was issued on 28.02.1985 under Section 19 (1) of the Act. Thereafter, on 14.07.1988 an award was passed in respect of the properties situated in Sy.No.136 and on 28.06.1988 the award was passed in respect of the properties situated in Sy.No.138/4. 5. However, the properties in question were not included in the formation of the proposed layout and the respondent Nos.1 and 2 considered the proposal to denotify the lands in question. They also considered, to permit the petitioners to utilize the property for group housing pursuant to a Government Order dated 17.04.1995, which was later quashed by this Court. The properties in question were not used for any developmental activities for the purpose for which it was acquired. 6. However, respondent No.2 deposited the compensation in respect of the lands in question as late as on 26.03.2009 and a publication under Section 16 (2) of the Land Acquisition Act was issued on 24.04.2009. Possession Mahazar was drawn on 07.08.2008. 7. Aggrieved by the actions of the respondents in not denotifiying the lands, the petitioners on the ground that respondent No.2 as per Section 27 of BDA Act is required to execute the scheme within a period of 5 years and in the instant case, it has not done so because of which the scheme lapses and the provisions of Section 36 of BDA Act becomes inoperative, filed the above writ petition praying for setting aside the preliminary and final notification by which the properties in question were acquired. 8. The writ petition filed by the petitioners was dismissed on the ground of delay and laches. Against which, the petitioners preferred writ appeal Nos.43- 44/2011, 4840/2010 and 5578/2011. 8. The writ petition filed by the petitioners was dismissed on the ground of delay and laches. Against which, the petitioners preferred writ appeal Nos.43- 44/2011, 4840/2010 and 5578/2011. The said writ appeals were allowed by holding that there is no delay and laches in filing the writ petitions and the instant writ petitions were restored to file. 9. During the pendency of the writ petition the lands in question has been sought to be acquired for the purposes of respondent No.4 and in this regard, the respondent No.2 BDA executed a possession transfer certificate dated 13.02.2019 in favour of respondent No.4 BMRCL transferring possession of subject lands. Pursuant to the said transfer BMRCL has paid a sum of Rs.37,64,91,600/- to respondent No.2. Presently, the land in question is in possession of respondent No.4 and it has already started construction on the property. 10. Respondent No.2 has filed its statement of objections. It has contended after the preliminary and final notifications, award has been passed. As there was dispute as to ownership, compensation amount has been deposited in the Civil Court in compliance of the provisions of the Land Acquisition Act. Possession has been taken by drawing up a possession Mahazar and a notification under Section 16 (2) of the Land Acquisition Act has been issued. It is further contended that after taking possession of the land in terms of Section 16 of the Land Acquisition Act, land vests absolutely with the Government free from all encumbrances and the proceedings in respect of acquisition does not lapse. It is also contended that it is incorrect to state that the acquisition proceedings initiated by the Government is not substantially implemented. However, it is noticed that in writ appeal Nos.43-44/2011 and connected matters, the respondent No.2 herein has stated that the final notification dated 28.02.1985 came to be issued by the State Government for a total extent of 1228 acres 39 guntas comprising in Syamapura, Devarajeevanahalli, Kadugondanahalli, Kavalbyrasandra and Nagavara. That out of lands acquired 216 acres 16 guntas have been denotified by the State Government. That the respondent No.2 BDA has taken possession of 298 acres and 1 gunta and has formed the layout in 291 acres 38 guntas. The respondent No.2 has not stated as to how the scheme for which the petitioners property was sought to be acquired has not lapsed. 11. That the respondent No.2 BDA has taken possession of 298 acres and 1 gunta and has formed the layout in 291 acres 38 guntas. The respondent No.2 has not stated as to how the scheme for which the petitioners property was sought to be acquired has not lapsed. 11. It is contended by the respondent No.4 that the property is sought to be acquired for putting up Bangalore Metro Rail Project. Presently, respondent No.4 is in possession of the same. The property in question has been transferred to it by respondent No.2. It has already paid a sum of Rs.37,64,91,600/- to respondent No.2 as compensation. Construction on the property has already started. In the instant writ petition, there is no challenge to the acquisition proceedings initiated by respondent No.4 and it cannot be dispossessed of the properties. Learned counsel for respondent No.4 also justified the acquisition process and sought for dismissal of the writ petition. 12. The question that arises for consideration in the present writ petition is whether the scheme in respect of the petitioners' property has lapsed and if yes, what is the effect of it. 13. Section 27 of the Bangalore Development Authority Act, 1976 reads as follows:- "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." 14. Thus, respondent No.2 is required to implement the scheme within a period of 5 years from the date of final notification issued under Section 19 (1) of the Act, which in this case is 28.02.1985. 15. Thus, in this case if respondent No.2 does not execute the scheme substantially before 29.02.1990 the scheme lapses and the provisions of Section 36 of the Act becomes inoperative. In the instant case, as already mentioned above, final notification was issued in respect of 1228 acres 39 guntas of land, out of which layout is formed only in 291 acres 38 guntas of land. 16. Section 36 of the Bangalore Development Authority Act, 1976 reads as under:- "36. In the instant case, as already mentioned above, final notification was issued in respect of 1228 acres 39 guntas of land, out of which layout is formed only in 291 acres 38 guntas of land. 16. Section 36 of the Bangalore Development Authority Act, 1976 reads as under:- "36. Provisions applicable to the acquisition of land otherwise than by agreement.- (1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894. (2) For the purpose of sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the authority shall be deemed to be the Local Authority concerned. (3) After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the authority, and the land shall thereupon vest in the Authority." 17. Section 16 of the Land Acquisition Act, 1894 as applicable in the State of Karnataka reads as under:- "16. Power to take possession. (1) When the Deputy Commissioner has made an award under Section 11, he may take possession of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances. (2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact." 18. Thus, the land shall vest absolutely in the Government free from all encumbrances only upon the Deputy Commissioner making an award and after taking possession of the land. In the instant case, the award in respect of Sy.No.138/4 has been passed on 28.06.1988 and in respect of Sy.No.136 is passed on 14.07.1988. Thus, the award has been passed within five years from the date of final notification. However, the possession of the land in question has been taken only on 07.08.2008. Thus, the land vests absolutely in the Government only after 07.08.2008 provided Section 36 of the Act had not become inoperative in respect of the lands. Furthermore, the compensation has been deposited in the Civil Court only on 26.03.2009. 19. However, the possession of the land in question has been taken only on 07.08.2008. Thus, the land vests absolutely in the Government only after 07.08.2008 provided Section 36 of the Act had not become inoperative in respect of the lands. Furthermore, the compensation has been deposited in the Civil Court only on 26.03.2009. 19. The petitioners have contended that for acquisition to be completed actual vesting has to take place in the authority. In the instant case, the Mahazar of taking possession of the property has been drawn only on 07.08.2008 which is about 23 years after the final notification is issued. In this regard, the petitioners relies upon the decision of the Supreme Court of India ( Prahlad Singh and others vs. Union of India and others, (2011) 5 SCC 386 ). Paragraph 13 of the judgment reads as under: '13. We have given our serious thought to the entire matter and carefully examine the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this Section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority.' 20. The petitioners have also contended that when the land has not vested with the BDA and when the scheme has not been substantially implemented within the time period under Section 27 of the BDA Act, the acquisition becomes inoperative and the scheme and acquisition in respect of the lands in question will lapse. In this regard, the petitioners have relied upon the following decisions:- a) Decision of Hon'ble Supreme Court of India ( Offshore Holdings vs. BDA and others, (2011) 3 SCC 139 ), paragraphs 38, 39 and 93 reads as under: 38. In this regard, the petitioners have relied upon the following decisions:- a) Decision of Hon'ble Supreme Court of India ( Offshore Holdings vs. BDA and others, (2011) 3 SCC 139 ), paragraphs 38, 39 and 93 reads as under: 38. On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act. An argument to the contrary cannot be accepted for the reason that on vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act. Both these Acts do not contain any provision in terms of which property, once and absolutely, vested in the State can be reverted to the owner on any condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act. 39. What is meant by the language of Section 27 of the BDA Act i.e., "provisions of Section 36 shall become inoperative", is that if the acquisition proceedings are pending and where the scheme has lapsed, further proceedings in terms of Section 36(3) of the BDA Act i.e., with reference to proceedings under the Land Acquisition Act shall become inoperative. Once the land which, upon its acquisition, has vested in the State and thereafter vested in the Authority in terms of Section 36(3); such vesting is incapable of being disturbed except in the case where the Government issues a notification for revesting the land in itself, or a corporation, or a local authority in cases where the land is not required by the Authority under the provisions of Section 37(3) of the BDA Act. 93. 93. The BDA Act is a social welfare legislation intended to achieve social object of planned development under the schemes made by the Authority concerned in accordance with the provisions of the Act. The fact that this subject falls within the legislative competence of the State is unquestionable. The attempt of The State legislation is to provide complete measures and methodology to attain its object by establishment of a single authority to check haphazard and irregular growth and to formulate and implement schemes providing for proper amenities and planned development of the city of Bangalore. Acquisition of land is not its primary purpose but, of course, acquisition of some land may become necessary to achieve its object which is to be specified at the outset of formation of schemes in terms of Section 16 of the BDA Act. Thus, acquisition of land is nothing but incidental to the main object of the State law." b) Decision of Hon'ble High Court of Karnataka ( D.Narayanappa vs. State of Karnataka and others, (2005) ILR(Kar) 295 ) at paragraphs 7(v), (vi) and (vii) reads as under: '7. xxxxxx (v). It is no doubt true that under Section 19 of the 1945 Act and under Section 27 of BDA Act the scheme would lapse if it is not implemented substantially within the specified period. But, what should happen to the lands acquired by the erstwhile CITB for the scheme and not utilized for several years despite the scheme is substantially executed in respect of other lands? If the acquired lands are not utilized for the purpose for which they were acquired within a reasonable period (for example within a period of 10 years from the date of final notification), it shall be held that such lands are not required for the purpose for which they were acquired and the same are abandoned. In such cases, it has to be held that the acquisition proceedings automatically lapsed on account of abandonment of the same for decades and the original owners of such lands can exercise full ownership rights upon such lands. Otherwise, neither the original owners nor the authority for which the land was acquired will use the land and the valuable lands remain un-utilised even for several decades. Otherwise, neither the original owners nor the authority for which the land was acquired will use the land and the valuable lands remain un-utilised even for several decades. That results in defeating the very object and purpose for which the land was acquired under the guise of public purpose on the one hand and on the other hand the owners of the lands are deprived of their valuable rights of enjoying and exercising their ownership rights. Therefore, an end has to be put to such a situation so that lands are utilized properly either by the owners or acquired body or Authority in whose favour lands are acquired. vi) If the acquired land is not utilized for several years by the acquired body or authority for the purpose for which it was acquired, it has to be held that the acquired body or authority failed to exercise its rights over the land. In such a situation, the right of the land owner revives. In the instant case since the petitioner is in settled possession upon the land, he has acquired a valuable statutory right as held in James case. Hence the officers of the BDA should not have demolished the existing structures upon the land in question by using force without taking possession of the land from the petitioner with due process of law as held in several decisions. vii) For the reasons stated in paragraphs (i) to (vi) above, in the instant case the acquisition proceedings in respect of the land in question are not in force as the acquisition proceedings have lapsed and the B.D.A. has abandoned its scheme due to non-utilization of the land in question for nearly four decades. The BDA has no right to exercise its power over it at this stage as the petitioner has acquired a valuable statutory right upon the land in question. Accordingly, point (b) is answered against the B.D.A." c) Decision of Hon'ble High Court of Karnataka ( Gautam Kamat Hotels Pvt. Ltd., and others vs. Bangalore Development Authority and others, (2012) ILR(Kar) 5634 ) at paragraphs 33, 38, 39 and 40 reads as under: "33. A perusal of the afore-extracted statutory provisions reveals that the improvement scheme has to be implemented within five years. A perusal of the afore-extracted statutory provisions reveals that the improvement scheme has to be implemented within five years. If there is no substantial execution of the scheme within the said period, the scheme shall lapse and the provisions of Section 36 shall become operative. 38. Out of 241 acres, 20 guntas of the land acquired in Doddakallasandra, only 12 acres are utilized. Even if the self serving claim of the respondents that the possession was taken on 30.05.1998, they are at a loss to give any explanation as to why they did not do anything for 12 years. It is not their case that they have formed the roads, erected the poles, laid the culverts, formed the sites, etc. 39. I see no justifiable or compelling reason for the respondents for not implementing the project. It is also not the case of the respondents that the delay in executing the scheme was on account of the petitioners' engaging them in the litigation. 40. No explanation is forthcoming as to why the respondents delayed taking the alleged possession till 30.05.1998, though the final notification was issued seven years prior thereto on 22.07.1990. At all stages, there is negligence and lethargy, if not the dereliction of duty. Taking all these factors into consideration, I hold that there is no substantial implementation of the scheme. The scheme has lapsed and consequently the acquisition proceedings have become inoperative." 21. The petitioners have contended that the right of the petitioners to receive compensation as per current market value is a constitutional right which cannot be defeated by unreasonable delay. Where the statute does not mention the time period, the same has to be paid or deposited within a reasonable period by the Statutory Authority. Otherwise, the land looser will be put to irreparable loss and injury. In this regard, the petitioners have relied upon the judgment of the Hon'ble Supreme Court ( Ram Chand and others vs. Union of India and others, (1994) 1 SCC 44 ) paragraphs 14 and 24 reads as under: "14. Otherwise, the land looser will be put to irreparable loss and injury. In this regard, the petitioners have relied upon the judgment of the Hon'ble Supreme Court ( Ram Chand and others vs. Union of India and others, (1994) 1 SCC 44 ) paragraphs 14 and 24 reads as under: "14. The Parliament has recognised and taken note of the inaction and non-exercise of the statutory power on the part of the authorities, enjoined by the provisions of the Act to complete the acquisition proceedings within a reasonable time and because of that now a time-limit has been fixed for making of the award, failing which the entire proceeding for acquisition shall lapse. But, can it be said that before the introduction of the aforesaid amendment in the Act, the authorities were at liberty to proceed with the acquisition proceedings, irrespective of any schedule or time-frame and to complete the same as and when they desired? It is settled that in a statute where for exercise of power no time-limit is fixed, it has to be exercised within a time which can be held to be reasonable. This aspect of the matter can be examined in the light of second proviso to Article 31-A of the Constitution, which in clear and unambiguous terms prohibits making of any law which does not contain a provision for payment of compensation at a rate, which shall not be less than the market value thereof. The Act is consistent with the second proviso to Article 31-A, because it provides for payment of compensation at the market value of the land acquired. But, whether the constitutional and statutory requirement of the payment of the market value to the persons, whose lands have been compulsorily acquired, as not being circumvented and violated by keeping the land acquisition proceedings pending for more than a decade and half, without making the awards and paying the compensation, which has been pegged to the dates of notifications under sub-section (1) of Section 4 of the Act, which in the present cases had been issued 14 to 21 years before the making of the awards. If a person is paid compensation in the year 1980/1981 at the market rate, prevailing twenty years before, will that be compliance of the constitutional and statutory mandate? If a person is paid compensation in the year 1980/1981 at the market rate, prevailing twenty years before, will that be compliance of the constitutional and statutory mandate? Ignoring the escalation of the market value of the lands, especially near the urban agglomeration or metropolitan cities, will amount to ignoring an earthquake and courts can certainly take judicial notice of the said fact. The interest and the solatium, which have to be paid under the provisions of the Act, are linked with the market value of the land with reference to the date of the notification under sub-section (1) of Section 4 of the Act. If a decision had been taken as early as in the year 1966, by issuance of declarations under Section 6, that the lands belonging to the different cultivators, who held those lands within the ceiling limit for cultivation, were needed for public purpose, respondents should have taken steps for completion of the acquisition proceedings and payment of compensation at an early date. In the present cases, unless a justification is furnished on behalf of the respondents, can it be said that the statutory power of making an award under Section 11 has been exercised within a reasonable time from the date of the declaration under Section 6? Due to escalation in prices of land, more so in this area, during the preceding two decades, in reality, the market rate, on the date of the notification under Section 4(1) is a mere fraction, of the rate prevailing at the time of its determination in the Award. 24. The petitioners because of the delay and inaction on the part of the respondents are in a great predicament. Any amount determined as market value of their lands acquired, with reference to the dates of issuance of notifications under sub-section (1) of Section 4 of the Act i.e. at the rate prevalent 15-21 years prior to the dates of the making of the award, cannot be held to be compliance of the mandate regarding payment of market value of the land so acquired under the Constitution and the Act. This Court faced with such a situation, where proceedings have remained pending for years after issuance of declarations under Section 6, in order to protect the petitioners concerned from irreparable injury i.e. getting compensation for their lands acquired with reference to the date of notification under subsection (1) of Section 4, which may be more than a decade before the date of the making of the award, has advanced the date of notification under subsection (1) of Section 4 of the Act, so that market value of the land so acquired is paid at a just and reasonable rate. Reference in this connection may be made to the cases of Ujjain Vikas Pradhikaran v. Raj Kumar Johri 15; Akhara Brahm Buta, Amritsar v. State of Punjab 16 and Bihar State Housing Board v. Ram Bihari Mahato 17. This Court has advanced the date of notification under sub-section (1) of Section 4 of the Act, in the cases referred to above, without assigning any reason, as to how the date fixed by Sections 11 and 23 of the Act, can be altered for ascertainment of the market value of land. The power of this Court under Article 142 is very wide and can be exercised in the ends of justice. The scope of the said Article was recently examined in the case of Union Carbide Corporation v. Union of India." 22. The decision of Hon'ble High Court of Karnataka ( BDA vs. State of Karnataka and others, (2018) ILR(Kar) 2144 ) at paragraphs 5 and 8 reads as under: "5. It is no longer res-integra that power conferred on any authority be exercised reasonably and reasonable exercise of power includes exercise of the same within a reasonable period. An acquisition proceeding once initiated has to be completed by passing an award and paying compensation followed by taking over possession within a reasonable period. This has to be strictly followed even in the absence of any statutory limit prescribed for passing of award and completing the acquisition proceedings. 8. In the present cases, though final notification was issued in the year 1971 so far, neither award has been passed nor possession has been taken over by paying compensation. Therefore, the acquiring body has neither exercised its powers in a reasonable manner nor has it completed the acquisition proceeding within a reasonable period. 8. In the present cases, though final notification was issued in the year 1971 so far, neither award has been passed nor possession has been taken over by paying compensation. Therefore, the acquiring body has neither exercised its powers in a reasonable manner nor has it completed the acquisition proceeding within a reasonable period. Hence, acquisition having been abandoned stands lapsed on account of omission and commission on the part of the CITB/BDA in respect of writ petitioners/ respondents' herein in so far as the land is concerned." 23. To sum up the ratio laid down in the aforementioned decisions states that the purpose of BDA is to ensure organized development of the city of Bengaluru. In order to achieve it, it can acquire lands but land acquisition is not the main purpose of BDA. When it acquires land pursuant to a particular scheme and that scheme is not implemented within a time frame as prescribed in Section 27 of the Bangalore Development Authority Act, the scheme lapses. If a scheme has lapsed and the lands sought to be acquired has not already vested with the BDA, acquisition proceedings in respect of those lands cannot proceed and the right of the land owners in respect of those lands revives. 24. The respondents have contended that lapsing of acquisition is different from lapsing of the scheme. Even if scheme lapses acquisition does not lapse. It is contended that in the instant case, the petitioners have sought only for quashing of acquisition of their lands has not made a prayer for declaring that the scheme has lapsed and under such circumstances, the acquisition cannot be quashed. Once acquisition is completed even if scheme lapses, the land in question can always be utilized for other purposes. They have contended in the present case the acquisition is in accordance with law. Though the land was not utilized for formation of "Hennur Bellary Road II Stage" for which it was sought to be acquired, respondent No.2 is at liberty to utilize the same for any other public purpose. Respondent No.4 required the land for putting up a portion of Bangalore Metro Rail Project, which is a public purpose for which the same has been given. Respondent No.4 required the land for putting up a portion of Bangalore Metro Rail Project, which is a public purpose for which the same has been given. The respondents to support their contentions have relied upon the following judgments:- a) (Indore Development Authority vs. Manoharlal,2020 SCCOnline(SC) 316), paragraphs 150, 151, 228, 237, 279, 281, 287, 290 and 295 reads asunder: "150. Since the Act of 1894 never provide for the lapse in case the compensation amount was not deposited, non-deposit carried higher interest. The provisions under the new Act are identical: there is no lapse of any acquisition proceeding by non-compliance with Section 77. Interpreting "or" under Section 24(2) of the Act of 2013 disjunctively, would result in an anomalous situation - because, once compensation has been paid to the landowner, there is no provision for its refund. It was fairly conceded on behalf of the landowners that they must return the compensation in the case of lapse if possession has not been taken. In case possession is with the landowner and compensation has been paid, according to landowners' submission, there is deemed lapse under Section 24(2) by reading the word "or" disjunctively. It would then be open to the State Government to withdraw the money deposited in the Reference Court. It was also submitted that it is inherent in the notion of lapse that the State may recover the compensation on the ground of restitution. In our opinion, the submissions cannot be accepted as an anomalous result would occur. In case physical possession is with the landowner; and compensation has been paid, there is no provision in the Act for disgorging out the benefit of compensation. In the absence of any provision for refund in the Act of 2013, the State cannot recover compensation paid. The landowner would be unjustly enriched. This could never have been the legislative intent of enacting Section 24(2) of the Act of 2013. The principle of restitution, unless provided in the Act, cannot be resorted to by the authorities on their own. The landowner would be unjustly enriched. This could never have been the legislative intent of enacting Section 24(2) of the Act of 2013. The principle of restitution, unless provided in the Act, cannot be resorted to by the authorities on their own. The absence of provision for refund in the Act of 2013 reinforces our conclusion that the word "or" has to be read as conjunctively and has to be read as "and." The landowners' argument about the State's ability to recover such amounts, in the absence of any provision, by relying on the principle of restitution, is without merit, because firstly such principle is without any legal sanction. The State would have to resort to the remedy of a suit, which can potentially result in litigation of enormous proportions; besides, the landowners can well argue that the property (i.e. the amounts) legally belonged to them and that the limitation for claiming it back would have expired. Several other potential defences would be available, each of which would result in multifarious litigation. Therefore, the contention is ex-facie untenable and insubstantial. 151. It was submitted that in the case State had taken possession without paying compensation as required under the Act of 1894, there cannot be absolute vesting free from all encumbrances under Section 16. It is clear that vesting under Section 16 of the Act of 1894 does not depend upon payment of compensation. Vesting takes place as soon as possession is taken after the passing of the award. Undoubtedly, compensation has also to be paid. For that, provisions have been made in Sections 31 and 34 of the Act of 1894. Section 31(1) requires tender and payment, which is making the money available to the land owner and in case State is prevented: i.e., in case the land owner does not consent to receive it for three other exigencies provided in Section 31(2), the amount has to be deposited in the court. Deposit in the court absolves the Government of liability to make payment of interest. However if payment is not tendered under Section 31(1) nor deposited in court as envisaged under Section 31(2) from the date of taking possession, the interest for the first year is 9% and thereafter 15% per annum follows. Deposit in the court absolves the Government of liability to make payment of interest. However if payment is not tendered under Section 31(1) nor deposited in court as envisaged under Section 31(2) from the date of taking possession, the interest for the first year is 9% and thereafter 15% per annum follows. The effect of vesting, under no circumstance, is taken away due to noncompliance of Section 31(1) or 31(2) as the case may be as the payment is secured along with interest under the provisions of Section 34 read with Section 31. The State cannot be asked to restore possession once taken but in case it fails to make deposit under Section 31(3) or otherwise with respect to majority of the landholdings, in that exigency, all the beneficiaries as on the date of notification under Section 4 shall be entitle to higher compensation under the Act of 2013 and there would be no lapse in that case. 228. Section 31 (2) of the Act of 1894 deals with deposit in case Collector is 'prevented' from making payment by one or more contingencies mentioned in section 31(2). The deposit follows if the Collector is prevented from making payment. In case Collector is prevented from making payment due to contingencies such refusal to receive the amount, or if there be no person competent to alienate the land, or if there is a dispute as to the title to receive the compensation or as to the apportionment of it, he (i.e. the Collector) may withhold it or in case there is dispute as to apportionment, he may ask the parties to get a decision from the Reference Court i.e., civil court and to clear the title. In such exigencies, the amount of compensation is required to be deposited in the court to which reference would be submitted under section 18. Section 31(2) requires deposit in case of reference under section 18 and not the reference, which may be sought under section 30 or section 28A of the Act of 1894. 237. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. 237. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of nonpayment, though the amount has remained due to his own act. It is not open to him to contend that amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the Act of 2013 in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the Act of 1894. 279. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case. 281. The concept of possession is complex one. It comprises the right to possess and to exclude others, essential is animus possidendi. Possession depends upon the character of the thing which is possessed. If the land is not capable of any use, mere non-user of it does not lead to the inference that the owner is not in possession. The established principle is that the possession follows title. Possession comprises of the control over the property. The element of possession is the physical control or the power over the object and intention or will to exercise the power. Corpus and animus are both necessary and have to co-exist. Possession of the acquired land is taken under the Act of 1894 under Section 16 or 17 as the case may be. The government has a right to acquire the property for public purpose. The stage under Section 16 comes for taking possession after issuance of notification under Section 4(1) and stage of Section 9(1). Under section 16, vesting is after passing of the award on taking possession and under section 17 before passing of the award. 287. Under section 16 of the Act of 1894, vesting of title in the Government, in the land took place immediately upon taking possession. Under Sections 16 and 17 of the Act of 1894, the acquired land became the property of the State without any condition or limitation either as to title or possession. Absolute title thus vested in the State 290. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the land-owner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise tresspassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner. 295. In Banda Development Authority (supra) this Court held that preparing a Panchnama is sufficient to take possession. This Court has laid down thus: "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. Ordinarily, in such cases, the 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. 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(3-A) 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." b) The respondents have also relied upon the decision of the Hon'ble Supreme Court reported in (2011)3 SCC 139 , the relevant portions which has been referred in paragraph No.20 (a) supra. c) Decision of Hon'ble High Court of Karnataka ( Narayana Setty and others vs. State of Karnataka and others, (2003) ILR(Kar) 3206 ). Paragraph 21 reads as under: "21. The next ground for challenging the acquisition is, the purpose of acquisition is to set up an S.T.P. which can only be established in a Light Industrial Zone or in Utilities and Services and the land which is sought to be acquired is situated in Residential Zone and, therefore, they contend that the acquisition is vitiated. I do not find any substance in the said contention. The C.D.P. provides regarding the use of the land. All that it prohibits is a particular land which is earmarked in the C.D.P. for a particular use cannot be used for other purposes except by obtaining the necessary change of land use. It does not deal with acquisition. The land to be acquired for a public purpose need not be earmarked in the C.D.P. for being used for such purpose, before the State decides to acquire the same. To uphold the acquisition what is to be demonstrated is the public purpose. After acquisition necessary permission for change of land use can be obtained in accordance with law. The land to be acquired for a public purpose need not be earmarked in the C.D.P. for being used for such purpose, before the State decides to acquire the same. To uphold the acquisition what is to be demonstrated is the public purpose. After acquisition necessary permission for change of land use can be obtained in accordance with law. The user of the land in the C.D.P. do not put any fetters on the power of the State to acquire the land. There is no prohibition contained under the Karnataka Town and Country Planning Act, 1961, or the C.D.P. which is framed under the said Act, prohibiting acquisition of land. In fact, the Supreme Court, dealing with a similar situation in the case of S.S. DARSHAN vs STATE OF KARNATAKA AND OTHERS, has held as under: "11. The last submission of learned Counsel for the appellant is that the user of the acquired land shown in the master plan being different, there cannot be a conversion of the user except in accordance with the provisions for making the change in the land use. It is not a case of change of user by the owner of the land but one of acquisition by the State under the provisions of the Land Acquisition Act, 1894. This argument also had no merit." Again the Supreme Court in the case of JAI NARAIN referred to supra has held as under: "Whatever may be the user of the land under the Master plan and the Zonal Development Plan, the State can always acquire the same for public purpose in accordance with the law of the land." Therefore, acquisition of agricultural land, which is shown in the C.D.P. within the Residential Zone for the purpose of setting up a S.T.P. which had to be in the Light Industrial Zone or Utilities and Services, would not vitiate the acquisition on that ground." d) Decision of Hon'ble Supreme Court ( Indore Development Authority vs. Shailendra (Dead) through legal representatives and others, (2018) 3 SCC 412 ), paragraph 68 reads as under: "68. In Delhi Development Authority v. Sukhbir Singh & Ors, (2016) 16 SCC 258 this court with respect to mode under section 31(1) has held: "18. Para 73 makes it clear that payment may be accepted either without protest or under protest, and Paragraph 74 makes it clear that there are five methods of making payment. In Delhi Development Authority v. Sukhbir Singh & Ors, (2016) 16 SCC 258 this court with respect to mode under section 31(1) has held: "18. Para 73 makes it clear that payment may be accepted either without protest or under protest, and Paragraph 74 makes it clear that there are five methods of making payment. The first four methods are all methods strictly in consonance with Section 31 of the Land Acquisition Act in that they are all direct payments that have to be made to persons ready to accept compensation. This is clear from a reading of sub-paragraphs (I) to (IV) of paragraph 74. Even the second method, which is payment by order on the treasury, is a direct method of payment in cases where no officer is specially deputed for acquisition of land. In such cases instead of making a direct payment, a receipt is countersigned making it immediately payable at the treasury to the payee. Otherwise, in certain circumstances, payment is to be made by money order and/or by cheque. When we come to paragraph (V), it is clear that payment is made into the treasury only when persons who are served notice Under Section 12(2) are not present personally at the time the award is delivered. Even though they may not appear at that stage, the officer shall require them to appear personally or by representatives by a certain date to receive payment of compensation awarded. It is only if they fail to appear after such an intimation, and if the officer, after further endeavours to secure their attendance, cannot so secure their attendance, that amounts due are to be paid to the treasury as revenue deposited payable to persons to whom they are due. It is clear, therefore, that sub-para (V), when read in its proper perspective, is not a separate mode of payment by itself as is contended by learned Counsel for the Appellants. It is a residuary mode of payment after all necessary efforts have been made by the authorities to secure the attendance of the persons entitled to compensation, and it is only after all such methods have failed that, as a last resort, the money is then to be deposited in the treasury. It is a residuary mode of payment after all necessary efforts have been made by the authorities to secure the attendance of the persons entitled to compensation, and it is only after all such methods have failed that, as a last resort, the money is then to be deposited in the treasury. In any case, such deposit in the treasury is referable only to Section 31(1) and cannot ever be a substitute for deposit before the reference court as provided Under Section 31(2) of the Land Acquisition Act, which applies in the circumstances mentioned in the aforesaid Subsection. We agree with aforesaid part of Sukhbir Singh (supra) related to section 31(1), however, not with respect to part relating to section 31(2)." 25. The above cases relied upon by the respondents goes to show that vesting does not depend upon payment of compensation, vesting of land happens upon passing of award and taking possession of the same. Lapsing of scheme is different from lapsing of acquisition. A scheme may lapse, however, if acquisition is complete, the acquisition does not lapse. The acquiring authority can use the land for any other public purpose. 26. However, given the facts and circumstances of the present case, the propositions of law laid down in the judgments relied upon by the respondents do not come to their rescue. The property was sought to be acquired for "Hennur Bellary Road II Stage". Final Notification was issued on 28.04.1985. The total extent of land sought to be acquired were 1,228 acres 39 guntas. Layout has been formed only in 291 acres 38 guntas. Because of which, it cannot be held that the scheme for which the land was sought to be acquired was substantially implemented. However, if the acquisition of the property in question were to be completed within the time framed as contemplated within the BDA Act, the acquisition would not have lapsed. But though the award was passed on 14.07.1988 and 28.06.1988, the possession of the lands in question has been taken only on 07.08.2008. Further, compensation is deposited on 26.03.2009 before the Civil Court, which is not availed by petitioners/land owners. Section 27 of the BDA Act contemplates that if the Authority fails to execute the scheme within 5 years, then the scheme lapses and provisions of Section 36 of the BDA Act becomes inoperative. Further, compensation is deposited on 26.03.2009 before the Civil Court, which is not availed by petitioners/land owners. Section 27 of the BDA Act contemplates that if the Authority fails to execute the scheme within 5 years, then the scheme lapses and provisions of Section 36 of the BDA Act becomes inoperative. Consequently, if the land has not vested with the BDA before the lapse of the scheme, the rights of the owners revive. The main objective of BDA is development of city of Bengaluru and it can acquire lands for the said purposes. It has to acquire land only when it is required. In the instant case, though the final notification was issued in the year 1985 and possession taken in the year 2008, the land remained unutilized and has been transferred to respondent No.4 in the year 2019. Before taking possession in the year 2008, BDA contemplated to denotify the land. It goes to show that the respondent no.2 never required the land in question. Further the award was passed in the year 1988 and the amount was deposited in the Civil Court in the year 2009. The land loosers are entitled to compensation at the rate which was prevailing when they loose land immediately. Otherwise, they will be put to irreparable loss and injury. For the aforementioned reasons, the writ petition succeeds. 27. The challenge in this writ petition pertain only to the acquisition proceedings initiated by respondent No.2 BDA. It does not pertain to the acquisition proceedings initiated or to be initiated in acquiring the land for implementing the Bangalore Metro Rail Project by respondent No.4. 28. In the result, the writ petition is allowed. 1) The acquisition proceedings initiated by respondent Nos.1 and 2 as per preliminary notification bearing No.HC/PR/ALAO/12/78-79 dated 29.05.1978 published in Karnataka Gazette dated 21.09.1978 vide Annexure A and the final notification No.HUD 567 MNX 84 dated 28.02.1985 published in Karnataka gazette on June 6 1985 vide Annexure B to the writ petition, in respect of the lands of the petitioners are concerned is hereby set aside. 2) Respondent No.2 is at liberty to withdraw the amounts deposited by it in the Civil Court towards compensation for acquiring the land. 3) Respondents are at liberty to initiate/complete the acquisition proceedings in respect of properties in question for the purposes of respondent No.4 in accordance with law. No order as to costs. 2) Respondent No.2 is at liberty to withdraw the amounts deposited by it in the Civil Court towards compensation for acquiring the land. 3) Respondents are at liberty to initiate/complete the acquisition proceedings in respect of properties in question for the purposes of respondent No.4 in accordance with law. No order as to costs. In the light of the disposal of the writ petition, I.A.Nos.1/2020, 2/2020 and 5/2020 do not survive for consideration and accordingly, they are disposed of.