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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
W.A. NO.3390 OF 2005 (LA)
IN
W.P. NO.28293 OF 1991 (LA)
BETWEEN:
BANGALORE DEVELOPMENT AUTHORITY
SANKEY ROAD, KUMARA PARK WEST
BANGALORE 560 020
REP. BY ITS LAW OFFICER.
... APPELLANT
(BY MR. SACHIN B.S. ADV.)
AND:
1. B N RAMALINGASWAMY
S/O LATE B R NEELAKANTAPPA
AGED 58 YRS.
2. B N SHIVALINGASWAMY
S/O LATE B R NEELAKANTAPPA
AGED 56 YRS.
3. B N SHANKARALINGASWAMY
S/O LATE B R NEELAKANTAPPA
AGED 54 YRS.
2
4. NAGAMBIKA
W/O LATE B R SHANTAPPA
AGED 78 YRS.
ALL ARE R/AT NO.66
NEW NO.201, COTTONPET
SUBBANNACHAR LANE
BANGALORE 560053
REP. BY THEIR P.A. HOLDER
SRI. M. MUNIRAJU S/O MUNISWAMY
66 YRS, R/AT GEF QUARTERS
MYSORE ROAD, BANGALORE 36.
5. THE STATE OF KARNATAKA
REP.BY ITS SECRETARY
DEPT. OF HOUSING AND URBAN DEVELOPMENT
M.S.BLDG, BANGALORE 560 001.
6. SRI. THIRUCHISWAMIGAL
ALIAS PALANISWAMIGAL
MAJOR, FOUNDER PEETADHIPATHI
AND HEAD OF KAILASA ASHRAMA
KENCHENAHALLI, GEF POST
BANGALORE SOUTH TQ, BANGALORE 26.
7. SRI. NARAYANASWAMIJI
MAJOR, PEETADHYAKSHA AND MANAGING TRUSTEE
KAILASA VAIKUNTA MAHAKSHETHRA
NEW NO.2, 10TH "A" MAIN ROAD
4TH "E" BLOCK, RAJAJINAGAR
BANGALORE-10.
8. SHANTHILAL J. SHAH
MAJOR, PROP. M/S CHARU PERFUMARY
HOUSE NO.211, COTTONPET, BANGALORE 53.
9. THE BANGALORE CITY CORPORATION
N.R.ROAD, N.R. SQUARE
BANGALORE 2
BY ITS COMMISSIONER.
... RESPONDENTS
3
(BY MR. JEEVAN J. NEERALGI, AGA FOR R5
MR. K.N. PUTTEGOWDA, ADV., FOR R9 (ABSENT)
V/O DTD 17.03.2020 M.R. RAJAGOPAL, ADV., FOR R1 TO R3
V/O DTD 08.01.2017 NOTICE TO R7 IS HELD SUFFICIENT)
---
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.28293/1991
DATED 06/07/2005.
THIS W.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra court appeal under Section 4 of the Karnataka High Court Act, 1961 (hereinafter referred to as 'the Act', for short) has been filed by the Bangalore Development Authority (hereinafter referred to as 'the Authority' for short) against judgment dated 06.07.2005 passed by the learned Single Judge.
2. In order to appreciate the appellant's challenge to the impugned order, few facts need mention, which are stated hereinafter. The predecessor of the authority viz., City Improvement Trust Board, Bangalore required the land measuring 4 acres and 25 4 guntas of Sy.No.54/4, 16/4 and 16/8 situate in Jedahalli Village, Bangalore North Taluk for formation of layout viz., 'Rajajinagar Industrial Suburb Scheme No.II'. Thereupon the proceedings under City Improvement Trust Board, Act, 1945 (hereinafter referred to as 'the 1945 Act' for short) were set in motion. The authority can acquire the land otherwise than by agreement under the provisions of land acquisition Act as provided under Section 36 of the Bangalore Development Authority for the facility of reference Section 36 of the act is reproduced below:
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, 5 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.
3. Thus, it is evident that a land would vest in the authority once the possession of the same is taken by the authority under Section 16 of the Land Acquisition Act, 1894.
4. The State Government in exercise of powers under Section 16 of the 1945 Act issued a preliminary Notification dated 20.11.1975. Thereafter, a declaration under Section 19(1) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'the 1976 6 Act' for short) was issued. In the meanwhile, the authority passed a resolution on 16.01.1976 de- notifying the land measuring 1 acre 4 guntas and 48 square yards from the land measuring 4 acres and 25 guntas in favour of respondent No.7. It was stated in the resolution that any acquisition proceedings are initiated, the same shall be finalized and the lands in question shall be re-conveyed. The Special Land Acquisition Officer passed an award on 07.06.1983 in respect of land bearing Sy.No.15/4, 16/4, 16/8 measuring 1 acre 22 guntas, 2 acres 26 guntas and 17 guntas i.e., 4 acres and 25 guntas. It is pertinent to note that area measuring 1 acre 4 guntas and 48 square yards of lands bearing Sy.No.15/4, 16/4 and 16/8 of Jedahalli Village was not acquired under the award. The authority has taken possession of the land measuring 4 acres and 25 guntas on 24.06.1983.
5. On the basis of the aforesaid resolution a re- conveyance agreement dated 13.08.1985 was executed 7 by the authority in favour of respondent No.7 in respect of land measuring 1 Acre 4 Guntas and 48 square yards, who in turn sold the same by registered sale deed dated 18.02.1987 to respondent No.8.
6. It is the case of the respondent Nos.1 to 4 that their father viz., Neelakantappa and his brother Shanthappa had filed an application under Section 5 of the Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954 before Special Deputy Commissioner for Imams Abolition, Bangalore along with one H.L.Jagadguru Shanthadeva Saranga Deshikendraswamigalu, Peria Mutt Kumbakonam, Tamilnadu and two others claiming occupancy rights in respect of the land in question. The aforesaid applications were transferred to the land tribunal, Bangalore North Taluk. The tribunal after conducting an enquiry under Section 48A(2) of the Act read with Rule 17 of Karnataka Land Reform Rules, 1974 has allowed 8 the claim of the predecessors of respondent Nos.1 to 4 vide order dated 03.04.1987.
7. The Respondent s1 to 4 and 2 others filed a writ petition namely WP No.28293/1991 before this court against the Authority in which challenge was made to the proceeding initiated for acquisition of land in question as well as the resolution dated 16.01.1976 passed by the Authority. The learned single judge allowed the writ petition by a judgment dated 06.07.2005. Thereupon, the Authority filed an appeal before the division bench namely WA No.3390/2005. The division bench by a judgment dated 05.09.2007 dismissed the appeal preferred by the Authority. Thereafter the Authority filed Special Leave Petition before the Supreme Court. The Supreme Court vide order dated 20.09.2018, inter alia, held that the division bench has disposed of the appeal in a cursory manner without dealing with the issues urged by the Authority. Accordingly, the judgment passed by the division bench 9 dated 05.09.2007 was quashed and the matter was remitted to this court for decision on merits afresh. In the aforesaid factual background, this appeal has come up for hearing before us.
8. Learned counsel for the appellant submitted that the learned single judge ought to have appreciated that in the writ petition filed by the Respondents. 1 to 4, there was no prayer seeking a direction to pass a supplementary award and therefore, in the absence of such a prayer made in the writ petition, no relief could have been granted. It is further submitted that after issuance of declaration dated 06.12.1977, the Respondents 1 too 4 approached the land Tribunal seeking occupancy rights in the year 1979 and occupancy rights were granted tot hem on 03.04.1987, whereas the award was already passed on 07.06.1983 and the possession of the land in question was taken on 24.06.1983 excluding the land measuring 1 acre 4 Guntas. It is also submitted that the deed of re- 10 conveyance was executed buy the Authority on 13.08.1985 and Respondent No.7 had executed a sale deed in favour of Respondent No.8 on 08.02.1987. It is also contented that it ought to have been appreciated by learned single judge that the Authority was not a party to the proceeding before the Land Tribunal.
9. Learned counsel for respondent No.8 submitted that land measuring 1 acre 4 guntas and 48 square yards was never acquired by the authority and therefore, the authority had no right to convey the registered deed of re-conveyance on 13.08.1985. it is further submitted that respondent No.8 has purchased the property from respondent No.7 by registered sale deed dated 18.02.1997 for a valuable consideration and respondent No.7 is not contesting the claim of respondent No.8 and has not even appeared in the proceedings. It is also argued that right to hold the property is a constitutional right guaranteed and the respondent No.8 cannot be deprived of the same. It is 11 also submitted that Bangalore Development Authority had no authority to execute the re-conveyance deed in respect of the land which did not belong to it and the action of the Authority in executing the registered relinquishment deed is per se arbitrary and is illegal. In support of his submissions, learned counsel for the respondent No.8 has placed reliance on the decisions of the Supreme Court in 'BANGALORE DEVELOPMENT AUTHORITY AND OTHERS VS. R.HANUMAIAH AND OTHERS' (2005) 12 SCC 508 AND 'VIDYA DEVI VS. STATE OF HIMACHAL PRADESH AND OTHERS', (2020) 2 SCC 569.
10. We have considered the submissions made by learned counsel for the parties and have perused the record. The only issue, which arises for our consideration in this appeal is whether on the date of execution of the registered re-conveyance deed on 13.08.1985 in favour of respondent No.7, the land measuring 1 acre 4 guntas and 48 square yards bearing 12 Survey No.15/4, 16/4 and 16/8 of Jedahalli Village had vested in the authority. In other words, whether the authority in law could execute a re-conveyance deed in respect of the land in question in favour of respondent No.7. Before proceeding further, it is apposite to take note of few well settled legal principles. The Hon'ble Supreme Court in 'SUKHDEV SINGH Vs. BHAGATRAM SARDAR SINGH RAGHUVANSHI', (1975) 1 SCC 421 approved the principle enunciated by Frankfurt J. in VITERALLI Vs. SEATON 359 US 535, that an executive Authority must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on the pain of invalidation of an act in violation of them. The aforesaid principle was also quoted with approval in A.S.AHLUWALIA Vs. STATE OF PUNJAB (1973) 3 SCC 503 and in the celebrated case of R.D.SHETTY Vs. INTERTIONATIONAL AIRPORT AUTHORITY OF INDIA (1979) 3 SCC 489 and it was held that having 13 regard to the Constitution mandate of Article 14 as also the judicially evolved rule of administrative law, and instrumentality of the State is not entitled to act arbitrarily. The Hon'ble Supreme Court in MICHIGAN RUBBER (INDIA) LIMITED, supra, after taking note of decisions of the Hon'ble Supreme Court in 'TATA CELLULAR Vs. UNION OF INDIA', (1994) 6 SCC 651, 'RAUNAQ INTERNATIONAL LTD. Vs. IVR CONSTRUCTION LTD.', (1999) 1 SCC 492 and ASSOCIATION OF REGISTRATION PLATES Vs. UNION OF INDIA (2005) 1 SCC 679, culled out the legal principles and held that basic requirement of Article 14 is fairness in action by the State and non- arbitrariness in essence and substance is the heart beat of fairplay and these actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose.
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11. The Supreme Court in HINDUSTAN PETROLEUM CORPN. LTD. VS. DARIUS CHENAI, (2005) 7 SCC 627 held that in view of Article 300-A of the Constitution of India, the State in exercise of power of eminent domain may interfere with the right of the property of a person by acquiring the same but the same must be for a public purpose and reasonable corporation therefor must be paid. In 'N.PADMAMMA VS. S.RAMAKRISHNA REDDY', (2008) 15 SCC 517, it was held that right to hold the property is a human right as also a constitutional right and the same cannot be taken away except in accordance with law. Article 300-A of the Constitution of India protects the right to hold the property. Similar view was taken in 'DELHI AIR TECH SERVICES (P.) LTD. VS. STATE OF U.P.', (2011) 9 SCC 354. The aforesaid principles were reiterated with approval in VIDYA DEVI supra. It is equally well settled in law that this court on the analogy of principles contained in Order VII Rule 7 of Code of 15 Civil Procedure can mould the relief. [See: 'BHASKAR LAKSHMAN JHADAV VS. KARAMVEER KAKASAHEB WAGH EDUCATION SOCIETY', (2013) 11 SCC 531].
12. In the backdrop of aforesaid legal principles, we may advert to the facts of the case. Admittedly, a preliminary Notification was issued on 20.11.1975. Thereafter, a declaration under Section 19(1) of the 1976 Act was issued on 06.12.1997. However, before issuance of declaration under Section 19(1) of the Act, the Authority passed a resolution on 16.01.1976 de- notifying the land measuring 1 acre 4 guntas and 48 square yards. Thereafter, an award was passed by the Special Land Acquisition Officer on 07.06.1983. The relevant extract of the award reads as under:
15. Award: 1. it is seen that the BDA has passed a resolution No.105 dated 16.01.1976 as noted below:
Resolution - "Since it is represented that the area would be utilized for the construction 16 of Lord Sri. Venkateswara and Lord Sundareshwara Temples, Bhajan Mandir, Lecture hall and also to convert the area into a religious centre to start veda patasala, an extent of "1A-4-gts-48 sq.yds. of land in S.No.15/4, 16/4 and 16/8 of Jedahalli Village be reularised in favour of Sri Tiruchi Swamigalu, Kailasaram, subject to the usual conditions and in case any acquisition proceedings are instituted, the same be finalized and the area be re-conveyed.
In the circumstances, I order the acquisition of S.No.15/4, 16/4 and 16/8 of Jedahalli Village, measuring 4A-25 gts. Of land which includes kharab lands as per sketches dtd. 16.7.78 prepared by the revenue surveyor based on survey records, as noted below:
Kharab Net
Gross Total
S.No. Village area
A-G Reserved Un-reserved A-G
A-G
A-G A-G
15/4 Jedahalli 1-22 0-10 016 0-26 0-36
16/4 -do- 2-26 0-12 1-06 1-18 1-08
16/8 -do- 0-17 - - - 0-17
Total 4-25 0-22 1-22 2-04 2-21
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Out of the above total amount, awarded, the cost of acquisition of 1A-04 gts - 48 sq.yds. will be calculated at Rs.20,000/- p.a. land value and 15% S.A. which is proposed to be reconveyed and this is only a nominal amount of award and therefore will also b e deducted from the above amount.
13. Thus, from the relevant extract of the award, it is axiomatic that land measuring 1 acre 4 guntas and 48 square yards of Survey No.15/4, 16/4 and 16/8 of Jedahalli Village was not acquired under the award. However, the Authority executed a registered deed of re-conveyance on 13.08.1985 in respect of the aforesaid land which did not belong to it in favour of respondent No.7 who in turn sold the same to respondent No.8 by registered sale deed dated 18.02.1987. Thus, the action of the Authority in executing a deed of re-conveyance in favour of respondent No.7 in respect of the land of which it was not the owner cannot be sustained in the eye of law and the same is per se arbitrary and is irrational. The Authority which is an instrumentality of 18 the State is supposed to act in a fair, rational and reasonable manner and cannot afford to act like a private individual and deprive an individual of its constitutional right to hold the property without any Authority of law.
14. The right to hold the property is a constitutional right which is guaranteed under Article 300-A of the Constitution of India and no citizen can be deprived of his property without following the due process of law. The power of eminent domain can be exercised subject to fulfillment of twin conditions viz., the property must be required for a public purpose and reasonable compensation must be paid for it. In the instant case, the Authority has executed a deed of re- conveyance in respect of the property which does not belong to it. Article 300-A of the Constitution of India limits the power of the State and mandates that no person shall be deprived of his property without any sanction of law. In other words, a person cannot be 19 deprived of his property except in accordance with law. Therefore, the action of the appellant in executing a registered deed of re-conveyance in favour of respondent No.7 cannot be sustained in the eye of law.
15. After the execution of the deed of re- conveyance in favour of respondent No.7, the respondent No.7 has sold the property in favour of respondent No.8. However, the fact remains that the Authority could not have conveyed any title in respect of the property of which it was not the owner. It is pertinent to note that respondent Nos.1 to 4 were the owners of land measuring 1 acre 4 guntas and 48 square yards. The Authority executed a deed of re- conveyance in respect of the aforesaid land of which respondent Nos.1 to 4 were the owners in favour of respondent No.7 and received the sale consideration. Thereafter, the respondent No.7 sold the property to respondent No.8 by registered sale deed. Thus, the respondent Nos.1 to 4 who were the petitioners in writ 20 petition have been deprived of their right to property without any authority of law, at the instance of the Authority, which cannot be countenanced. Since, there has been an infraction of the constitutional right of the respondent Nos.1 to 4 to hold the property and they have been deprived of their right to hold the property without any authority of law at the instance of the Authority. Therefore, the Authority is under an obligation to make payment of compensation to the land owner. In the peculiar fact situation of the case and taking into account the fact that this court in an appropriate case can mould the reliefs enshrined in Order VII Rule 7 of the Code of Civil Procedure in a proceeding under Article 226 of the Constitution of India, we deem it appropriate to direct the Special Land Acquisition Officer of the Authority to initiate the proceeding for acquisition of the land and to determine the compensation. Needless to state that it will be open to respondent Nos.1 to 4 as well as respondent Nos. 7 21 and 8 to stake their respective claims with regard to receipt of compensation. It is made clear that this court has not expressed any opinion with regard to claims of respondent Nos.1 to 4 as well as respondent Nos.7 and 8, which shall be adjudicated in accordance with law. In addition, the respondent Nos.1 to 4 and respondent Nos.7 and 8 are at liberty to take recourse to such remedy as may be available to them in law in respect of their grievance. To the aforesaid extent, the judgment passed by the learned Single Judge is modified.
In the result, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE SS