Sri. Chandrappa @ Chandregowda vs Government Of Karnataka
2021 Latest Caselaw 7149 Kant

                                      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

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

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

• 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

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.

Brother of Late Muniswamappa W.A No.1993/2015

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

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

Annexure ' C' dated July 3, 1986 W.A No.1993/2015

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

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

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

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

2002 AIR Kant HCR 87, 2001 SCC OnLine Kar 817

ILR 1990 KAR 2504

(2005) 12 SCC 508 W.A No.1993/2015

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

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

(2012)5 SCC 508

(1979)2 SCC 409

(2020) 13 SCC 234 para 48 W.A No.1993/2015

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

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