The Commissioner vs Smt Victoria Stephen
2022 Latest Caselaw 866 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 19TH DAY OF JANUARY, 2022

                           PRESENT

           THE HON'BLE MRS. JUSTICE S. SUJATHA

                             AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                  W.A.No.1105/2021(LA-BDA)

BETWEEN:

1.     THE COMMISSIONER
       BANGALORE DEVELOPMENT AUTHORITY
       BANGALORE-560 001.

2.     THE DEPUTY COMMISSIONER
       (LAND ACQUISITION)
       BANGALORE DEVELOPMENT AUTHORITY
       BANGALORE-560 001.

       BOTH REPRESENTED BY THE
       BDA DEPUTY SECRETARY-I
       DR. N.N.MADHU
                                                ...APPELLANTS

[BY SRI. GURUDAS S.KANNUR, SENIOR COUNSEL A/W
    SRI. ACHAPPA P.B., ADVOCATE (VC)]

AND:

1.     SMT. VICTORIA STEPHEN
       W/O LATE SRI. A.B.STEPHEN
       AGED ABOUT 88 YEARS
       R/O NO.347, 7TH MAIN ROAD
       VIVEKANAGAR LAYOUT
       BANGALORE-560 047.

2.     THE STATE OF KARNATAKA
       BY ITS PRINCIPAL SECRETARY
       URBAN DEVELOPMENT DEPARTMENT
                                    2




      VIKASA SOUDHA
      BANGALORE-560 001.
                                                     ...RESPONDENTS


[BY SRI. SRINIVAS V., ADVOCATE FOR R1 (VC)
    SRI. SHASHIKUMAR G.V., AGA FOR R2 (VC)]

      THIS WA IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO CALL FOR RELEVANT DOCUMENTS AND/OR
THE FILE PERTAINING TO W.P.NO.2812/2016 (LA-BDA) FROM THE
FILES OF THE HIGH COURT OF KARNATAKA, BANGALORE AND ETC.,


      THIS APPEAL COMING ON FOR PRILIMENARY HEARING THIS
DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:


                          JUDGMENT

Challenging judgment dated 30.03.2021 passed by

Learned Single Judge in WP 2812/2016, this appeal is filed.

2. Appellants herein were respondents no.2 and 3;

respondent no .2 herein was respondent no.1, while respondent

no.1 herein was petitioner in the writ petition. For the sake of

convenience, parties shall hereinafter be referred to as per their

ranks in writ petition.

3. Brief facts as per writ petition are that petitioner is wife

of late Sri A.B. Stephen, was an Ex-serviceman, who served in

the Indian Army as Naik for over six years during World War - II.

After retirement, he was working in Deccan Herald. He had

purchased site no.1 measuring 2700 sq. ft (45 X60) in

Sy.No.178/1 situated at Koramangala village, under registered

sale deed dated 04.07.1962 from Sri S. Narayan Rao, it's earlier

owner, by investing his hard-earned savings. It was further

stated that along with him, 34 of his colleagues had also

purchased various sites in the same survey number.

4. During 1965, the then CITB acquired Sy.no.178/1 of

Koramangala village for formation of Koramangala layout.

Possession of land was taken in the year 1974. When owners of

respective sites requested appellant no.2 herein for allotment of

the very sites purchased by them, appellant no.2 had allotted

sites as stray sites to all other 34 persons except petitioner's

husband. During his lifetime, petitioner's husband made several

representations and requests to respondent no.2, for re-

allotment of site. But, they were not considered, even when

respondent no.2 had considered case of 34 other individuals and

thereby discriminated an ex-serviceman.

5. On one such representation, respondent no.2 had

forwarded a proposal dated 04.01.1988 to respondent no.1

awaiting its decision. In the same, there was reference to

request of petitioner's husband for re-allotment of site and

allotment of stray sites to all 34 persons except petitioner's

husband. After death of petitioner's husband on 17.11.2005,

their son Philip Stephen, who was also serving in Indian Navy

approached the authorities with request for re-allotment of site

in question. One such representation was dated 12.12.2006. As

it remained without consideration another detailed

representation dated 09.07.2014 was given to respondents no.1

and 2 marked as Annexures - G and G1 to writ petition. When

they remained without consideration, petitioner filed

W.P.No.37688/2014 before this Court seeking for a direction to

respondents to allot site in question or any other alternative site

of same description in the same locality, by considering

representations dated 09.07.2014.

6. W.P.No.37688/2014 was disposed of on 14.10.2014

directing respondent no. 2 to verify its records, secure details

with regard to nature of consideration made by first respondent

in respect of proposal dated 04.01.1988 and if any decision has

been taken by Government to inform the same to petitioner and

if no decision was taken, respondent no.2 was directed to

consider representations dated 09.07.2014 and to resubmit

proposal to first respondent. On such submission, respondent

no.1 was directed to take a decision thereon and intimate second

respondent of the result within an outer limit of three months. In

order to enable consideration, petitioner was directed to submit

fresh representation along with copies of earlier representations

and order passed in writ petition.

7. In terms of said direction, petitioner filed representation

on 25.10.2014. As there was non-compliance of direction,

contempt proceedings in CCC No.236/2015 were initiated. During

its pendency, respondents issued endorsement dated 24.03.2015

rejecting petitioner's claim for re-allotment. Challenging said

endorsement, petitioner filed W.P.No.2812/2016.

8. On service of notice in said writ petition, respondents

no.2 and 3 entered appearance and filed statement of objections.

Purchase of site no.1 measuring 45ft. X 60ft. situated in

Sy.no.178/1 of Koramangala village by petitioner's husband,

under registered sale deed dated 04.07.1962 was admitted. It

was stated that said land was acquired for formation of

Koramangala Layout. It was also stated that in pursuance of

representations submitted by petitioner's husband, matter was

placed before the authority on 11.12.1987 vide subject no.807,

wherein it was resolved to refer the matter to Government for

decision. A detailed report was also submitted to Government.

Thereafter, report dated 04.06.1988 was also submitted to

Government bringing to its notice that after acquisition of land

Sy.No.178/1 of Koramangala Village, possession was taken on

21.06.1974 and handed over to Engineering department for

formation of layout. It was further stated that said land was not

covered under re-allotment or re-conveyance scheme and

therefore, request of A.B. Stephen for re-allotment was not

considered and decision of Government, was awaited. It was

further stated that after disposal of W.P.No.37688/2014,

Government called upon respondents to submit report vide

letters dated 04.12.2014 and 11.02.2015.

9. In response, respondents no.2 and 3 informed

Government vide letter dated 16.03.2015 about acquisition of

land for formation of Koramangala layout by issuing final

notification on 28.09.1965 in the name of Sri Ankanna Reddy S/o

ChikkaVeerappa, the Khatedar. The award was passed on

31.05.1974, possession was taken on 21.06.1974 and

compensation of Rs.17,753/- was deposited in City Civil Court

under Section 30 and 31(2). It was also stated that acquired

land did not come within purview of re-allotment or re-

conveyance scheme and therefore land loser may approach Civil

Court for compensation. It was further stated that Government

vide letter dated 19.03.2015, directed respondent no.2 and 3 to

issue suitable endorsement to petitioner rejecting his request. In

terms thereof, endorsement dated 24.03.2015 was issued. It

was specifically contended that petitioner had approached this

Court belatedly and had not offered any justification for delay

and as acquisition proceedings had concluded long back,

petitioner did not have any vested legal right and sought for

dismissal of writ petition.

10. However, learned Single Judge was pleased to allow

writ petition without proper consideration of facts and

circumstances of case and contentions urged by respondents.

Aggrieved by the same, this writ appeal is filed.

11. Sri. Gurudas S. Kannur, learned Senior Counsel

appearing for Sri. P.B. Achappa, advocate for respondents no.2

and 3, submitted that impugned order was contrary to law and

facts of the case and it was passed without proper application of

mind, was cryptic and non-speaking. Particulars of consideration

and reasons mentioned in endorsement were not taken into

consideration. It was submitted that land was acquired in the

year 1965, award was passed and possession was taken in the

year 1974 and compensation was deposited before Civil Court on

11.08.1975. As on said date, there was no provision either in

City Improvements Trust Board Act or in the Bangalore

Development Authority Act for re-conveyance of acquired land. It

was further submitted that petitioner had not challenged

acquisition and same had attained finality. As compensation was

deposited before Civil Court and as there was no provision for re-

conveyance, even if there was allotment of sites in respect of

others, same would be in violation and no direction could be

issued to act contrary to law. It was submitted that relief sought

for by petitioner amounted to seeking negative equality which

has been held to be not tenable. It was further submitted that as

land was acquired in accordance with law and compensation had

been deposited, therefore, the only subsisting right of petitioner

was to approach competent court for compensation and there

was no vested right in petitioner to seek for re-conveyance.

Therefore, respondents were under no legal duty to re-convey

acquired site. As learned Single Judge had issued positive

directions directing allotment of site, even petitioner has no legal

right, impugned order was contrary to law and liable to be set

aside.

12. It was further submitted that several decades after

acquisition, had attained finality, petitioner filed writ petition.

Though same was suffering from delay and laches, learned single

Judge without any justified reasoning entertained writ petition.

As the same is illegal, impugned order is liable to be set aside.

13. Learned Senior Counsel further submitted that only

reason assigned for interference viz., impugned endorsement

was cryptic and suffered from non-application of mind, could not

have entailed a positive direction to allot site. At best, learned

Single Judge ought to have quashed endorsement and directed

for fresh consideration. Failure to do so, calls for interference in

the peculiar facts and circumstances of this case.

14. Learned Senior Counsel also drew attention of this

Court to endorsement dated 26.08.2021 issued to petitioner

informing her about rejection of her representation for allotment

of alternative site. It was further submitted that

respondents had mentioned several reasons for rejection of

petitioner's representation. However, without appreciation of the

same, learned Single Judge arrived at a conclusion that

endorsement was unreasoned, non-speaking and cryptic issued

without application of mind and also without considering all the

facts and circumstances of the case including earlier order

passed. Therefore, impugned order passed by learned Single

Judge also suffered from the vice of being cryptic.

15. In support of his submissions, learned Senior Counsel

relied decision of Hon'ble Supreme Court in the case of State of

Haryana Vs. Subhash Chander Marvaha and others reported

in(1974) 3 SCC 220, wherein it is held in paragraph no.11 as

under:

"11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 : (1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.] that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived".

16. He also relied upon decision in the case of State of

Orissa Vs. Pyarimohan Samantaroy and others reported in

(1977) 3 SCC 396, it has held in paragraph no.6 as under:

"6. It would thus appear that there is justification for the argument of the Solicitor-General that even though a cause of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India [(1970) 1 SCC 84 : (1970) 2 SCR 697] the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India".

17. Our attention was also drawn to decision of this Court

in the case of G. Umadevi Vs. Bangalore Development

Authority, Bangalore and others reported in (1998) 5 KLJ

199, it is held in paragraph no.11 as under:

"11. As regards the merits of the case, it is to be remembered that in order to claim the issuance of writ of mandamus or an order in the nature of writ of mandamus, the burden is on the petitioner seeking that relief first to establish his statutory legal right. He has then to establish that the authorities inspite of being called upon by the notice, reminder or representation to exercise their power and to perform a duty upon which the petitioner's rights depends, have failed to perform their statutory legal obligation and their failure has resulted in causing injury in law or in fact. Keeping these basic principles in view regarding issuance of writ of mandamus, it has to be examined whether the petitioner has got any right of reconveyance. It has to be remembered that the right of the petitioner to reconveyance depends if at the time of acquisition of the property i.e., Site No. 3 in Sy. No. 15/2, there has been anything or any provision in any Act providing for reconveyance. If there has been no provision for reconveyance either in Act or rules, whatsoever resolution passed by the authority entitling a person for reconveyance, it will not have the effect of conferring any right of reconveyance in favour of the person seeking reconveyance. Neither will doctrine of estoppel will apply because if a person has got no right to reconvey or authority had got no power to reconvey, the pretension of passing of resolution to reconvey being beyond the jurisdiction and power of the authority, the doctrine of estoppel will not have its play. When I so observe, I find support from the decision of this Court in the case of B.N. Sathyanarayana Rao, supra, vide observations contained in paragraph 5 of page 795, the learned

Single Judge observes that it is not possible to apply to rule of estoppel where there is no provision contained in the Act or rules framed therein enabling the Bangalore Development Authority to allot or reconvey the site in the manner proposed to be done. Similar view has been expressed by another Hon'ble Single Judge in the case of B. Venkataswamy Reddy, supra. As regards the possession, the right of reconveyance it might have been mentioned in the sale deed Annexure-A. But the question whether there is any Act or rules for reconveyance. I called upon the learned Counsel for the petitioner to show any provision of law under the Act or the rules which may be said to be conferring a right of reconveyance. Learned Counsel for the petitioner only brought to my notice Section 38-C which has been introduced in BDA Act, 1976 by the Karnataka Act 17 of 1994. This Karnataka Act 1994 came into force with immediate effect of its being published by the Government. May be from 1994 May vide Section 5 of Act No. 17 of 1994, Sections 38-B and 38-C were introduced in the principal Act. It has to be taken note of that land has been acquired in this case in 1968 or at the most in 1971. Because final notification was published in 1971. Section 5 of Act No. 17 of 1994 very clearly states and provides as under.--

"Section 5 of Act No. 17 of 1994 reads, "After Section 38-A of the principal Act, the following shall be deemed to have been inserted with effect from the 20th day of December, 1975 namely Sections 38-B and 38-C have been mentioned therein in extenso".

18. Reference was also made to decision of this Court in

the case of B. Venkataswamy Reddy Vs. State of Karnataka,

reported in ILR 1989 KAR 75, in paragraph no.12, it has held

as under:

"12. It is further submitted by the Counsel for the petitioner that in similar cases the B.D.A. had passed resolutions on the lines made in their favour and the Government had also issued notifications denotifying the lands from the acquisition proceedings. In my view, this decision taken by the B.D.A. and the Government is opposed to the provisions of the Act and beyond their powers. The Government had done an act without a proper understanding of its powers under the Act. But on that ground the petitioner cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution and ask this Court to compound the errors made by the Government by invoking Article 14 of the Constitution. It is well settled that every departure from a rule or regulation will not enure to the benefit of the parties for invoking the provisions of Article 14 of the Constitution. A similar argument was advanced before the Division Bench of this Court in Writ Appeal No. 581 of 1975 [Rachappa v. State of Karnataka.] and in para 2 of the Judgment of the Division Bench it was ruled thus:

"Assuming for the sake of argument that the other lands which have been acquired by the Trust Board have been reconveyed that by itself is not sufficient to hold that the appellants have a legal right in their favour for getting the lands acquired from them reconveyed to them. When the lands are acquired by the Trust Board they become the property of the Trust Board and the Trust Board has to deal with its own sites in accordance with law. In the absence of a statutory provision entitling the appellants to get reconveyance they would not be entitled to seek any relief from this Court under Article 226 of the Constitution on the ground that the Trust Board has in similar cases reconveyed lands in favour of persons from whom they were acquired. Hence this prayer cannot be granted."

19. On above submissions, learned Senior Counsel sought

for allowing the writ appeal, setting aside of order passed by

learned Single Judge and for dismissal of petitioner's writ

petition.

20. On the other hand, Sri. Srinivas V., learned counsel

for petitioner and learned Additional Government Advocate

supported impugned order and sought dismissal of appeal.

21. Heard learned counsel for the parties and perused the

record. Insofar as contention urged regarding delay and laches

and legal right, it is seen that respondents in their statement of

objections admitted that petitioner had been making

representations. They also admitted having submitted proposal

to Government for consideration of petitioner's request.

Petitioner was not informed about deposit of compensation by

BDA until issuance of endorsement impugned in writ petition.

The earlier writ petition does not appear to have been opposed

on these grounds. Immediately, after issuance of direction,

petitioner submitted representation to respondents. Petitioner

also initiated contempt proceedings when respondents failed to

comply with direction. It was at that stage, i.e. after receipt of

notice in contempt proceedings, respondents issued an

endorsement dated 24.03.2015. Instant writ petition filed after

issuance of endorsement cannot be said to be suffering from

delay. Having received representation and forwarded proposal to

Government for approval, a direction having been issued by this

Court in petitioner's writ petition, which was not challenged by

them, respondents cannot now turn around and question

petitioner's legal right. They are estopped from urging said

contention in this appeal, especially, when delay and laches is

not the reason for rejection of petitioner's representation.

22. Further respondents have not disputed fact that there

was allotment of sites to 34 other persons, who had purchased

sites in Sy. no.178/1 of Koramangala village along with

petitioner. Even in subsequent endorsement dated 26.08.2021, it

is not unequivocally denied. In fact, there is a specific admission

about forwarding of proposal in terms of petitioner's

representation to Government for appropriate direction.

23. In Subhash Chander Marwaha's case (supra), writ

petition was filed by selected candidate for issuance of writ of

mandamus directing appointing authority to issue appointment

orders. Hon'ble Supreme Court held that mere existence of

vacancies did not give legal right to selected candidates for

appointment and it was always available to appointing authority

to decide how many posts it required to fill. It was held that in

the absence of legal right, a writ of mandamus could not be

issued.

24. In Pyarimohan's case (supra), writ petition was filed

11 years after date of rejection of petitioner's representation that

too without satisfactory explanation for inordinate delay. Under

such circumstances, Hon'ble Supreme Court taking note of fact in

the meanwhile, number of other appointments by promotion

were made by State, held that petitioner therein was not entitled

for indulgence as challenge to promotions was made belatedly.

Admittedly, respondents herein have not informed petitioner

about decision taken on her representation for re-allotment of

site. In fact, respondents submitted proposal to Government. No

decision was taken or informed until after disposal of first round

of writ petition filed by petitioner. Therefore, delay and laches

cannot be attributed to petitioner. In any case, it is held that

respondents were estopped from taking such contention.

25. In G. Umadevi's, case (supra), writ petition was filed

for re-allotment of site on ground that BDA had re-conveyed

sites in many other similarly situated persons. However, facts of

said case reveal that site was purchased by petitioner therein on

10.04.1974, whereas acquisition notification was issued on

09.05.1968. Therefore purchase of site by noticing that

petitioner's vendor was not in possession of land on date of

conveyance, it was held that petitioner did not have any legal

right for claiming relief. The Court also noticed that site in

question was allotted in favour of allotees who had paid

allotment price, raised constructions and were living therein,

since 1985, whereas writ petition was filed in the year 1995.

Above facts clearly distinguish present case from the above.

26. In B. Venkataswamy Reddy's (supra) case, this

Court was considering challenge to withdrawal of a resolution de-

notifying acquired land. This Court after considering submission

that similar resolutions were passed in other cases, held that

extraordinary jurisdiction cannot be invoked for compounding by

invoking Article 14 of Constitution of India. In that case,

petitioner had received award notices and not challenged

acquisition. Therefore, it was held that he could not be permitted

to challenge acquisition proceedings after withdrawal of

notification de-notifying acquired lands. In the instant case,

acquisition proceedings were concluded behind the back of

petitioner's husband, even though he had purchased site several

years prior to initiation of acquisition proceedings. Further

respondents did not inform petitioner about deposit of

compensation before Civil Court. Same appears to have been

disclosed only after disposal of earlier writ petition. Therefore,

ratio of decisions relied upon do not come to avail of appellants

herein.

27. Further even contention that after having come to

conclusion that impugned endorsement was cryptic, unreasoned

and passed without application of mind, learned Single Judge

erred in not remanding matter to respondents for consideration

afresh, instead of issuing positive direction, does not merit

consideration for two reasons. Firstly, entire acquisition was

behind back of petitioner. Secondly, petitioner was not informed

about deposit of compensation before civil court and there is

enormous delay in consideration of petitioner's representation for

re-allotment, when admittedly it did not deny having considered

case of other similarly situated persons. The assertion that

acquisition of land for formation of Koramangala layout was not

covered under scheme for re-allotment/re-conveyance rendered

untenable. Therefore, as none of the reasons assigned were

tenable and yet respondents had rejected petitioner's

representation, issuance of positive direction would be justified.

Mere lack of adequate reason would not justify exercise of

jurisdiction in appeal.

28. Even submission of learned Senior Counsel that

petitioner was seeking for allotment of site of larger dimension

than land lost by him towards acquisition, is required to be noted

only to be rejected as direction issued is only to allot alternative

site in any appropriate locality. In fact, learned counsel for

petitioner stated before this Court that petitioner would not press

for allotment of exactly equal site and would accept appropriate

site.

29. At this stage, learned Senior Counsel submitted that

as respondents had sought to challenge order passed by learned

Single Judge, time limit fixed for allotment of alternative site had

lapsed, therefore, they may be granted some reasonable

extension of time for taking action for compliance. Said

submission deserves consideration.

30. Having regard to the peculiar facts and circumstances

of the case, we find no grounds to interfere with the order

impugned. Hence, we pass the following

ORDER

Writ appeal stands dismissed.

The time granted by the learned Single Judge to comply

the order within a period of three months from the date of

receipt of a copy of the order stands extended.

Compliance shall be by two months from the date of the

receipt of certified copy of this order.

Sd/-

JUDGE

Sd/-

JUDGE BVK