W.A No.1993/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
WRIT APPEAL No.1993 OF 2015 (LA-BDA)
BETWEEN :
SRI. CHANDRAPPA
@ CHANDREGOWDA
S/O LATE MUNISWAMAPPA
AGED ABOUT 58 YEARS
RESIDING AT NO.536
3RD CROSS, J.V.V. WEST GATE
HRBR LAYOUT
BENGALURU-560 084 ... APPELLANT
(BY SHRI. G. JANARDHANA, ADVOCATE)
AND :
1. GOVERNMENT OF KARNATAKA
MINISTRY OF HOUSING AND
URBAN DEVELOPMENT DEPARTMENT
REPRESENTED BY ITS
SECRETARY
M.S.BUILDING
BENGALURU-560 001
2. THE BENGALURU DEVELOPMENT
AUTHORITY
REPRESENTED BY ITS
COMMISSIONER
CHOWDAIAH ROAD
W.A No.1993/2015
2
KUMARA PARK WEST
BENGALURU-560 020
3. SRI. SUBRAMANI
S/O LATE MUNISWAMAPPA
AGED ABOUT 68 YEARS
R/AT No.27, 3RD 'A' CROSS
3RD BLOCK, H.R.B.R LAYOUT
BENGALURU-84 ... RESPONDENTS
(BY SHRI. H.R. SHOWRI, AGA FOR R1;
SHRI. B.S. SACHIN, ADVOCATE FOR R2;
SHRI. P.V. CHANDRASHEKAR, ADVOCATE
FOR IMPLEADING APPLICANT ON IA NO.1/2021)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT
PETITION NO.16428/2015 AND W.P.NOS.24596/2015 TO 24597/2015
DATED 23/06/2015.
THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.12.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE
FOLLOWING:-
JUDGMENT
In this intra court appeal, petitioner has challenged the Order dated June 23, 2015 passed by the Hon'ble Single Judge in W.Ps. No.16428/2015 & 24596-597/2015 rejecting the writ petitions.
2. Heard Shri. G. Janardhana, learned Advocate for appellant, Shri. H.R. Showri, learned AGA for first W.A No.1993/2015 3 respondent and Shri. B.S. Sachin, learned Advocate for second respondent.
3. For the sake of convenience, parties are referred as per their status in the writ petitions. Brief facts:
4. Petitioner has presented the instant writ petition with a prayer inter alia to direct respondents to allot land measuring 1,415 sq. meters consisting of three sites in Sy. No.109/2 of Chellakere village, K.R. Puram Hobli, Bengaluru, described in the schedule to the writ petition.
5. Petitioner's case is, 3 acres 27 guntas in Sy. No.109/2 was acquired by the BDA by issuing Preliminary Notification on March 21, 1977, published in the gazette on May 5, 1977 and Final Notification gazetted on June 12, 1980. The Award has been passed on August 28, 1982. Petitioner claims to be in possession of 1,415 sq. meters even after the acquisition. Petitioner's father had submitted an application for transferring 1,415 sq. meters of land in W.A No.1993/2015 4 his favour. State Government vide order No. HUD/409/MNX-85 dated July 3, 1986 have accorded approval to transfer the said area and conveyed the same to the Commissioner, BDA. The BDA has approved the same in its Board Meeting held on October 23, 1986. Petitioner has obtained a letter dated October 29, 2005, written by Addl. LAO, BDA to the Assistant Commissioner, BDA to submit a Report with regard to allotment of three sites. But, the BDA has failed to comply with the order passed by the State Government compelling him to file the instant writ petition.
6. The Hon'ble Single Judge has recorded that State Government have no jurisdiction to issue such direction and rejected the writ petition.
7. Shri. Janardhana, learned Advocate for the writ petitioner mainly contended that:
W.A No.1993/2015 5 • the State Government are bound by the approval for transfer of land and the BDA is bound by its resolution to allot the three sites in question;
• petitioner's father could not participate before the Reference Court as no notice was issued; • petitioner being the owner of the land is entitled for compensation as no person can be deprived of property as per Article 300-A of the Constitution of India.
8. Shri. B.S. Sachin, learned Advocate for the BDA submitted that:
• land has been acquired in accordance with law; • the BDA's duty comes to end with paying the compensation or depositing the compensation amount before the Civil Court and the BDA has deposited Rs.84,525/- with applicable solatium in the Civil Court; • petitioner's father, Muniswamappa had sold the acquired land in the form of sites to various persons.
W.A No.1993/2015 6 Petitioner's uncle Chowdappa1 has participated in LAC 486/1983. The Reference Court has adjudicated the matter and passed its Award on June 23, 1990. After disposal of the case, petitioner's father filed an application under Order I Rule 10 read with Section 151 of CPC to implead himself and for modification of the Award. The said application stood dismissed. A revision petition in C.R.P. No.4144/2000, challenging the dismissal of the I.A., has also been dismissed by this Court on September 13, 2002;
• it is not lawful for the BDA to re-convey the acquired land; and • petitioner has approached this Court with inordinate delay.
9. With the above submissions, he prayed for dismissal of this writ appeal.
10. We have carefully considered rival contentions and perused the records.
1Brother of Late Muniswamappa W.A No.1993/2015 7
11. In substance, petitioner's case is, he is the owner in possession of 1415 sq, meters of land. The State Government have approved transfer of three sites in his name and BDA has passed a resolution to transfer. But, the BDA has not transferred the sites.
12. Undisputed facts of the case are, the issue with regard to compensation towards the land acquired by the BDA and the enhancement, has attained finality in LAC No.486/1983 decided on June 23, 1990. Muniswamappa's brother, Chowdappa was claimant No.8 in the said proceedings. He has been examined as P.W.3. He has stated in his evidence that he and his brother were the only sons and there was no family partition. He has admitted in the cross-examination that under Exhibits P8, P21 and P22 sites were sold in favour of claimants No.1 to 7 and 9. He has further stated that he had no knowledge whether the land in question was Inam land and how his brother got the same.
W.A No.1993/2015 8
13. The learned Judge of the Reference Court has held that the claimants therein who had purchased bits of lands in Sy. No.109/2, Chowdappa and his brother were entitled for compensation.
14. After conclusion of the proceedings in the Reference Court, petitioner's father, Muniswamy had filed an application for impleadment and modification of the Award. The said application stood dismissed as also the Revision Petition filed in this Court. The communication2 by the under Secretary upon which the learned Advocate for the petitioner has placed strong reliance, reads as follows:
"Government of Karnataka Karnataka Government Secretariat Vidhana Soudha, Bangalore Dated 3-7-86 Sl.no.HUD 409 MUX 85 From Secretary Housing and Urban Development Department Karnataka Government Bangalore To 2 Annexure ' C' dated July 3, 1986 W.A No.1993/2015 9 The Commissioner Bangalore Development Authority Bangalore Sir, Sub: De-Notification of land in sy.no.109.2 in favour of Sri. Muniswamappa
--------
"With reference to the above subject, I am directed to convey the approval of the Government to transfer the 3 odd sites totally measuring 1415 sq.mtrs in Sy. No.109/2 of Challakere village in favour of Sri. Muniswamappa, in partial compensation of the land's lost." (sic.) Yours faithfully Sd/-
(H R Puttaraju) Under Secretary to Government Housing & Urban Dev. Department Copy to:
Sri. Narayanappa, S/o Muniswamappa Kacharakanahally Frazer town post, Bangalore for information".
15. It is relevant to note that the subject mentioned in the above letter is de-notification of the land. Any acquired land can be de-notified under Section 48 of the Land Acquisition Act, 1894. The above letter is not a Government order in the name of the Governor under the Rules of business.
W.A No.1993/2015 10
16. Further, a copy of the said letter has been sent to Narayanappa, S/o. Muniswamappa and not to the petitioner.
17. Annexure-D is the Board Resolution of the BDA approving transfer of three sites in favour of Narayanappa S/o. Muniswamappa. It is relevant to note that Narayanappa is not the petitioner in the instant writ petition.
18. It is averred in the writ petition that BDA had sought to demolish the building existing on the petition schedule and petitioner's father had filed O.S. No.3997/1993; that BDA had called upon petitioner's father to withdraw the suit with an assurance that the sites would be allotted and accordingly, the said suit was withdrawn.
19. It is further averred that the BDA had again sought to take possession of the properties from the petitioner and he had filed O.S. No.26267/2013. Shri. Sachin for BDA, pointed out that petitioner had W.A No.1993/2015 11 averred in para 3 of the plaint in O.S. No.26267/2013 that land originally belonged to his grand father Ayyappa and after his death, his only son Muniswamappa had succeeded to the estate of his father. This pleading amounts to suppression of material fact, because, Muniswamappa's brother had appeared before reference Court. He also pointed out that in para 5 of the writ petition, petitioner has averred that he had executed a gift deed in respect of the site which had fallen to his share in favour of his daughter. Therefore, petitioner could not have been in possession of the three sites as claimed by him.
20. The facts borne out on record and noted hereinabove, clearly demonstrate that BDA has deposited the compensation amount in the Court. Petitioner's father Muniswamappa did not choose to participate in the said proceedings. His subsequent attempt for impleadment after conclusion of proceedings has failed.
W.A No.1993/2015 12
21. The BDA's Resolution (Annexure-C) unambiguously shows that transfer of sites was proposed in in favour of Narayanappa and not the petitioner.
22. Shri. Janardhana has placed reliance on R.Hanumaiah Vs. BDA3 and B.M.Vedanand Vs. BDA4 and contended that State Government and the BDA are bound by the BDA's Resolution and under the Rule of Promissory Estoppel, they are duty bound to transfer the sites in petitioner's favour.
23. The authority in R. Hanumaiah has been reversed by the Hon'ble Supreme Court of India in BDA and others Vs. R.Hanumaiah and others5. Shri. Sachin has placed reliance on the said judgment wherein the Apex Court has held as follows:
"34. There is no provision in the Act and the Rules framed thereunder enabling BDA to reconvey the land acquired to implement a scheme for forming of sites and their allotment as per Rules. The Rules do not provide for reconveyance. In 3 2002 AIR Kant HCR 87, 2001 SCC OnLine Kar 817 4 ILR 1990 KAR 2504 5 (2005) 12 SCC 508 W.A No.1993/2015 13 the absence of any provision in the Act or the Rules framed thereunder authorising BDA to reconvey the land direction cannot be issued to BDA to reconvey a part of the land on the ground that it had promised to do so. The rule of promissory estoppel cannot be availed to permit or condone a breach of law. It cannot be invoked to compel the Government to do an act prohibited by law. It would be going against the statute. The principle of promissory estoppel would under the circumstances be not applicable to the case in hand.
54. The Bangalore Development Authority is a creature of statute. Its functions and duties are delineated by the Bangalore Development Authority Act, 1976. Its jurisdiction to reconvey the land vested in it in exercise of its power. The said Act does not confer any power on the said Authority to reconvey the land vested in it. Upon acquisition of the land, the same vests in the State. The State only in terms of Section 13 (sic) of the said Act can reconvey the said acquired land of the said Authority."
(Emphasis Supplied)
24. Therefore, the authority cited on behalf of the petitioner having been overruled by the Apex Court does not lend any support to his case.
25. With regard to petitioner's contention on the 'Doctrine of Promissory Estoppel', it is to be noted that it is W.A No.1993/2015 14 a doctrine evolved by equity in order to prevent injustice, where one party by his words or conduct makes an unequivocal promise to create legal relation. It was argued by learned Advocate for the petitioner that in view of the Government Order (Annexure-C), BDA was duty bound to transfer the sites in petitioner's favour. As recorded hereinabove, the Doctrine of Promissory Estoppel was considered by the Apex Court in similar circumstances in BDA Vs. R.Hanumaiah6. It is well settled that promissory estoppel cannot be invoked to compel the Government to do an act prohibited by law. (See:Motilal Padampat Sugar Company Ltd., Vs. State of UP7) there can be no estoppel against provision of law. (See Municipal Corporation of Greater Mumbai (MCGM) Vs. Abhilash Lal and Others8
26. In the light of facts recorded hereinabove, we are of the considered view that petitioner has been knocking the doors of this Court as also City Civil Court with 6 (2012)5 SCC 508 7 (1979)2 SCC 409 8 (2020) 13 SCC 234 para 48 W.A No.1993/2015 15 incorrect facts. Relief under Article 226 of the Constitution of India is a discretionary relief and available only to such citizen who approach the Courts with clean hands.
27. The BDA has discharged its duty by depositing the compensation amount in the Court. The Reference Court has adjudicated the aspect of enhancement and apportionment. Petitioner's father's attempt to re-open the proceedings before the Reference Court has failed and it has attained finality. The communication by the Under Secretary to the Government (Annexure-C) is not a Government Order in the name of the Governor of Karnataka as per the rules of business. It is the specific case of the petitioner that upon his application, the communication as per Annexure-C was issued. The BDA Resolution is with regard to transfer of sites in favour of Narayanappa and the petitioner. Therefore, petitioner has neither any cause of action nor locus standi to maintain the instant writ petition. He is guilty of suppressing material facts. Further, reckoned from the date of BDA's Resolution W.A No.1993/2015 16 in October 1986, this Writ petition has been filed after a lapse of nearly three decades, in the year 2015.
28. One Subramani has filed IA No.1/2021 seeking impleadment on the ground that his father Muniswamappa had five children and petitioner alone is not entitled for allotment.
29. In view of the startling facts and reasons recorded by us, we see no merit in entertaining this appeal and it is accordingly dismissed. Consequently IA No.1/2021 is disposed of as unnecessary and other pending interlocutary applications also stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE SPS