Bangalore Development Authority vs B N Ramalingaswamy
2021 Latest Caselaw 213 Kant

                             1



     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

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,

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

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

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.

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

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

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-

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

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

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

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.

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

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

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

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

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

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

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

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