Samaja Parvarthana Samudaya vs Prestige Estates Projects ...
2022 Latest Caselaw 11207 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF JULY 2022

                          PRESENT

           THE HON'BLE MR. ALOK ARADHE
               ACTING CHIEF JUSTICE

                           AND

         THE HON'BLE MS.JUSTICE J.M. KHAZI

            W.A. NO.6845 OF 2017 (KLR-RES)
                         C/W
            W.A. NO.6438 OF 2017 (KLR-RES)

IN W.A. NO.6845 OF 2017

BETWEEN:

1.   STATE OF KARNATAKA
     REP. BY ITS CHIEF SECRETARY
     VIDHANA SOUDHA, BENGALURU-01.

2.   THE SPECIAL DEPUTY COMMISSIONER
     BENGALURU URBAN DISTRICT
     BENGALURU-01.

3.   THE DEPUTY COMMISSIONER
     BENGALURU URBAN DISTRICT
     BENGALURU-01.

4.   THE PRINCIPAL SECRETARY
     DEPARTMENT OF REVENUE
     GOVERNMENT OF KARNATAKA
     M.S. BUILDING, BENGALURU-01.

                                       ... APPELLANTS
(BY MRS. VANI H, AGA.,)
                            2



AND:

1.   PRESTIGE ESTATES PROJECTS LIMITED
     (FORMERLY PRESTIGE ESTATES
     PROJECTS PRIVATE LIMITED)
     THE FALCON HOUSE
     NO.1, MAIN GUARD CROSS ROAD
     BENGALURU-560 001
     REP. BY ITS MANAGING DIRECTOR.

2.   MR. IRFAN RAZACK
     S/O LATE S. RAZACK
     AGED ABOUT 62 YEARS
     AT THE FALCON HOUSE
     NO.1, MAIN GUARD CROSS ROAD
     BENGALURU-560 001.

3.   M/S. JOY ICE-CREAMS PVT. LTD.,
     HAVING ITS OFFICE AT
     WHITEFIELD MAIN ROAD
     BENGALURU-560 066
     REPRESENTED BY ITS DIRECTOR.

4.   THE CEO AND EXECUTIVE MEMBER
     KARNATAKA INDUSTRIAL AREA
     DEVELOPMENT BOARD
     BASAVABHAVAN BUILDING
     NRUPATHUNGA ROAD
     BENGALURU-560 001.

5.   THE SAMAJA PARIVARTHANA SAMUDAYA
     'ASHADEEP', JAYANAGAR CROSS
     SAPTAPUR, DHARWAD-580 001
     REPRESENTED BY ITS SECRETARY.

                                   ... RESPONDENTS

(BY MR. UDAYA HOLLA, SR. COUNSEL FOR
    MR. VIVEK HOLLA, ADV., FOR R1 & R2
    MR. K.G. RAGHAVAN, SR. COUNSEL FOR
    MS. VARSHA MANOJ, ADV., FOR R3
                               3



     MR.   GURMATH G.R. SR. COUNSEL FOR
     MR.   I. GOPAL KRISHNA, ADV., FOR R4
     MR.   S. BASAVARAJ, SR. COUNSEL FOR
     MR.   ROHIT RAJKUMAR KUKREJA, ADV., FOR R5)
                              ---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE WRIT APPEAL. SET ASIDE THE ORDER DATED 06/10/2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION NOS.35011-12/2015.

IN W.A. NO.6438 OF 2017

BETWEEN:

SAMAJA PARIVARTHANA SAMUDAYA "ASHADEEP", JAYANAGAR CROSS SAPTAPUR, DHARWAD-580 001 DHARWAD NOW BY ITS REPRESENTATIVE BY ITS FOUNDER PRESIDENT MR. S.R. HIREMATH.

... APPELLANT (BY MR. S. BASAVARAJ, SR. COUNSEL FOR MR. ROHIT RAJKUMAR KUKREJA, ADV.,)

AND:

1. PRESTIGE ESTATES PROJECTS LIMITED (FORMERLY PRESTIGE ESTATES PROJECTS PRIVATE LIMITED) THE FALCON HOUSE NO.1, MAIN GUARD, CROSS ROAD BANGALORE-560 001 REPRESENTED BY ITS MANAGING DIRECTOR MR. IRFAN RAZACK BENGALURU CITY.

2. MR. IRFAN RAZACK S/O LATE S. RAZACK

AGED ABOUT 63 YEARS FALCON HOUSE NO.1 MAIN GUARD CROSS ROAD BANGALORE-560 001 BENGALURU CITY.

3. M/S. JOY ICE CREAMS ICE CREAMS PVT LIMITED BY ITS DIRECTOR HAVING ITS OFFICE AT WHITEFIELD MAIN ROAD BENGALURU-560 066 BENGALURU CITY.

4. STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE-560 001 BENGALURU CITY.

5. SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 001 BENGALURU CITY.

6. DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 001 BENGALURU CITY.

7. PRINCIPAL SECRETARY DEPARTMENT OF REVENUE GOVERNMENT OF KARNATAKA M.S. BUILDING, BANGALORE-560 001 BANGALORE CITY.

8. THE CEO AND EXECUTIVE MEMBER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD RASHROTHANA BUILDING NRUPATHUNGA ROAD

BENGALURU-560 001 BENGALURU CITY.

... RESPONDENTS

(BY MR. UDAYA HOLLA, SR. COUNSEL FOR MR. VIVEK HOLLA, ADV., FOR R1 & R2 MR. K.G. RAGHAVAN, SR. COUNSEL FOR MS. VARSHA MANOJ, ADV., FOR R3 MRS. VANI H, AGA FOR R4-R7 MR. GURUMATH G.R. SR. COUNSEL FOR MR. I. GOPAL KRISHNA, ADV., FOR R8

---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 06/10/2017 PASSED IN WRIT PETITION 35011-12/2015 AND WRIT PETITION 2439/2017 BY DISMISSING THE SAID WRIT PETITIONS WITH COSTS THROUGHOUT.

THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.07.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ACTING CHIEF JUSTICE MADE THE FOLLOWING:

COMMON JUDGMENT

These intra court appeals arise out of an order

dated 06.10.2017 passed by the learned Single Judge

in a writ petition. W.A.No.6845/2017 has been filed

by the State Government (hereinafter referred to as

'the GOK' for short) whereas W.A.No.6438/2017 has

been filed by Samaj Parivardhana Samadaya

(hereinafter referred to as 'the Association' for short).

Both these appeals were therefore heard analogously

and are being decided by this common judgment.

2. Facts leading to filing of these appeals in

nutshell are that M/s Joy Ice creams (Bangalore) Pvt.

Ltd., (hereinafter referred to as 'the Joy Ice Creams'

for short) is the owner of land bearing Sy.No.160 and

Sy.No.157(P) of Pattandooru, Agrahara Village, where

it had established a factory for manufacture of ice

creams. In the middle of the aforesaid land held by

the Joy Ice Creams, land measuring 3 acres and 23

guntas in Sy.No.42 of Pattandooru, Agrahara Village

(hereinafter referred to as 'the schedule land' for short)

is situate. GOK issued a notification dated 16.09.1981

under Section 3 of Karnataka Industrial Areas

Development Act, 1966 (hereinafter referred to as 'the

1966 Act' for short) declaring the schedule land as an

industrial area for the purposes of the 1966 Act.

Thereafter, GOK leased out the schedule land on

20.10.1989 to Joy Ice Creams and executed a lease

deed in its favour.

3. Joy Ice Creams requested the Karnataka

Industrial Areas Development Board (hereinafter

referred to as 'the KIADB' for short) to allot the

aforesaid land. Thereupon the KIADB approached the

Government with a request to transfer the schedule

land in favour of Joy Ice Creams. The GOK by an

order dated 20.10.2005 directed the Deputy

Commissioner to transfer the schedule land in favour

of KIADB. Joy Ice Creams was directed by KIADB, to

pay an amount of Rs.5,30,49,079/- on 22.11.2005.

The aforesaid amount was remitted by Joy Ice Creams

on 14.12.2005. The Special deputy Commissioner by

a memorandum dated 31.03.2006 transferred the

schedule land in favour of KIADB and imposed a

condition of non alienation of the same.

4. The KIADB thereafter executed a registered

sale deed on 21.07.2006 in favour of Joy Ice Creams.

The schedule land was conveyed by Joy Ice Creams

vide sale deed dated 30.08.2006 in favour of Prestige

Estates Projects Private Limited (hereinafter referred

to as 'the Prestige Estates' for short).

5. Between the period from 27.02.2007 to

20.04.2009, the Prestige Estates obtained NOC from

BSNL, Fire Force Department, BESCOM, BWSSB,

Karnataka State Pollution Control Board, State Level

Environment Impact Assessment Authority, Airport

Authority of India and KIADB for construction of

residential buildings on the schedule land. On

20.01.2010, the BDA issued a Work Order for

construction of residential apartments and on

03.03.2010, building licence was issued by Bruhat

Bangalore Mahanagara Palike (BBMP) for construction

of apartments on the schedule property.

6. The Special Deputy Commissioner by a

communication dated 19.05.2011 informed the GOK

that its office had imposed the condition with regard

to non alienation of the schedule land. However, in

view of Rule 28(2) of the Karnataka Land Grant Rules,

1969 (hereinafter referred to as 'the Rules' for short),

the aforesaid condition is not applicable. The GOK in

its reply dated 29.07.2011 sent to the Special Deputy

Commissioner informed him that since condition with

regard to non alienation of schedule land does not

apply, therefore, the same be withdrawn / cancelled.

The Special Deputy Commissioner by communication

dated 02.08.2011 issued a corrigendum to official

memorandum dated 31.03.2006 and withdrew all the

conditions imposed in the official memorandum

including the non alienation clause. Thereafter, on

10.01.2012, the Deputy Commissioner, Bangalore

District informed the Bangalore Development

Authority (hereinafter referred to as 'the BDA' for

short) that non alienation clause contained in office

memorandum dated 30.01.2006 has been withdrawn.

The State Government by an order 29.07.2011

withdrew the condition with regard to the alienation in

view of Rule 28(2) of the Rules.

7. The Deputy Commissioner suo motu

initiated the proceedings under Section 136(3) of the

Karnataka land Revenue Act, 1964. The Deputy

Commissioner however by an order dated 15.06.2012

dropped the proceeding.

8. Thereafter on 25.05.2015, the Deputy

Commissioner (Urban) along with Additional

Commissioner, accompanied by policemen came to

the schedule land. On 25.05.2015 itself the GOK

withdrew the grant made in respect of schedule lands

in favour of Joy Ice Creams, on account of violation of

the conditions of grant. The Joy Ice Creams thereupon

submitted a representation to the Principal Secretary

to GOK, which was rejected by an order dated

06.08.2015.

9. The aforesaid orders were challenged in a

writ petition before the learned Single Judge, who by

an order dated 06.10.2017, inter alia held that grant

in favour of Joy Ice Creams was made under Rule 20

of Rules. It was further held that Deputy

commissioner on his own could not have imposed the

condition with regard to non alienation of land in its

order dated 20.10.2005 without seeking approval of

the GOK. It was further held that transfer made in

favour of Joy Ice Creams by registered sale deed was

an absolute transfer and the condition with regard to

non alienation of the land cannot be imposed in view

of Rule 28(2) of the Rules. It was also held that the

order canceling the grant was passed after an

inordinate delay of 10 years and mere understanding

between Joy Ice Creams and M/s Wild Flower Estates

and Resorts regarding joint development of the land

cannot lead to presumption of fraud and the

allegations of fraud are unfounded. Accordingly, the

Government Orders dated 06.08.2015 and 11.08.2015

were quashed. In the aforesaid factual background,

GOK and Association have filed these appeals.

10. Learned Additional Government Advocate

submits that the schedule land were reserved for the

purposes of grazing and could not have been allotted

as no order has been passed under Section 95(4) of

the Act. It is further submitted that, grant was made

contrary to Rule 20(1)(c) of the Rules. It is also

submitted that, KIADB had no authority to execute

the Sale Deed in favour of Joy Ice Creams, as

schedule land was not allotted absolutely to KIADB.

It is contended that the Deputy Commissioner had the

authority to incorporate the conditions and under

Rule 20(2) of the Rules, the GOK has power to

withdraw the grant. It is urged that proviso to Rule

28(2) of the Rules does not apply as the land was not

allotted to KIADB. It is further submitted that the

order of grant was made in favour of Joy Ice Creams

for an unauthorized purpose, therefore, the same

constitutes malice in law. In support of aforesaid

submissions, reference has been made to decisions in

KALABHARATI ADVERTISING v. HEMANT

VIMALNATH NARICHANIA & ORS. - (2010) 9 SCC

437 and R.RAJASHEKAR & ORS v. TRINITY HOUSE

BUILDING COOPERATIVE SOCIETY & ORS - (2016)

16 SCC 46.

11. Learned Senior Counsel for the appellant in

W.A. No.6438/2017 submits that the condition with

regard to non-alienation of the schedule land merges

with the Sale Deed. It is further submitted that, Wild

Flower Estates and Resorts has hatched a conspiracy

to finance Joy Ice Creams to get the schedule land at

concessional price. It is further submitted that, Joy

Ice Creams as well as Prestige Estates have played

fraud with the State Government and learned single

Judge ought to have appreciated that conduct of Joy

creams and prestige estates disentitles them to any

discretionary relief in exercise of powers under Article

226 of the Constitution of India.

12. Learned counsel for the KIADB has adopted

the submissions made by learned Additional

Government Advocate and has stated that KIADB had

sold the land to Joy Ice Creams. It is further

submitted that, the land is situate in an area reserved

for industrial purpose, and the same has been utilized

for residential purposes. Therefore, the construction

made is unauthorized and is therefore required to be

demolished. In support of aforesaid submissions,

reliance has been placed on decision of Supreme

Court in KERALA STATE COASTAL ZONE

MANAGEMENT AUTHORITY v. STATE OF KERALA

MARADU MUNICIPALITY & ORS - (2019) 7 SCC 248.

13. Learned Senior Counsel for Joy Ice Creams

submits that no condition was imposed by the State

Government by an order dated 20.10.2005. However,

the Deputy Commissioner by a memorandum dated

31.03.2006 imposed the conditions including the one

relating to non alienation of the land which has been

withdrawn by the GOK by an order dated 29.07.2011.

It is contended that the Sale Deed executed in favour

of Joy Ice Creams was an absolute Sale Deed. It is

further submitted that, by an order dated 15.06.2012,

the Deputy Commissioner has dropped the

proceedings under Section 136(3) of 1964 Act. It is

also submitted that, the land was allotted to KIADB

and in view of proviso to Rule 28(2) of the Rules, the

condition with regard to non-alienation does not

apply.

14. Learned Senior Counsel for Prestige Estates

submitted that recital to office memorandum dated

31.03.2006 is by way of reference and the office

memorandum dated 31.03.2006 has been modified by

issuing a corrigendum on 02.08.2011. It is further

submitted that the Sale Deed executed in favour of

Joy Ice Creams is an absolute Sale Deed and the land

has been allotted to the KIADB under Rule 20(1)(c) of

the Rules. It is contended that the order dated

15.06.2012 passed by the Deputy Commissioner is a

quasi judicial order, by which the proceeding under

Section 136(3) of the 1964 Act has been dropped and

the same, has attained finality. It is further submitted

that, the effect of aforesaid order cannot be set at

naught by the State Government by an order dated

06.08.2015. It is also urged that cancellation of the

grant in favour of KIADB is permissible only on the

ground enumerated under Rule 25 of the Rules. In

support of aforesaid submission, reliance has been

placed on the decision of the Supreme Court in M R

ENGINEERS & CONTRACTORS PVT LTD v. SOM

DATT BUILDERS LTD - (2009) 7 SCC 696.

15. We have considered the submissions made

on both sides and have perused the record. Before

proceeding further, it is apposite to take note of the

relevant provisions of Karnataka Land Revenue Act,

1964.

136. Appeal and Revision.--

(1) The provisions of Chapter V shall not apply to any decision or order under this Chapter.

(2) Any person affected by an order made under sub-section (4) or an entry

certified under sub-section (6) of section 129 may, within a period of sixty days from the date of communication of the order or the knowledge of the entry certified, appeal to such officer as may be prescribed by the State Government in this behalf and his decision shall be final.

(3) The Deputy Commissioner may, on his own motion or on application of a party, call for and examine any records made under section 127 and section 129 and pass such orders as he may deem fit: Provided that no order shall be passed except after hearing the party who would be adversely affected by such order.

16. Under Rule 20(c) of the Rules, the land may

be granted to a statutory Body with the prior approval

of the GOK. The said Rule reads as under:

20. Grant of land to Housing Board, Grama Panchayat, Taluk Panchayat, Zilla Panchayat, Co-

operative Societies and other statutory Board - (1) Lands may be

granted by the Deputy Commissioner with the prior approval of the State Government under these rules to -

(a) the Karnataka Housing Board, or any Urban Development Authority free of cost for construction of houses under the subsidized rental housing scheme or subsidized industrial housing scheme and on payment of fifty per cent of the market value in all other cases;

(b) Grama Panchayats, Taluk Panchayats and Zilla Panchayats free of cost for construction of schools, hospitals, dispensaries, and public amenities and such other purposes deemed obligatory under the Karnataka Panchayat Raj Act, 1993.

(c) Co-operative Societies and Statutory bodies like the Karnataka State Road Transport Corporation, the Karnataka Power transmission Corporation etc., on collection of 50 per

cent of market value to be determined by the Deputy Commissioner.

(d) The Karnataka Industrial Area Development Board, free of cost except the

CP 2001, dated 30th June, 2001, i.e., Bangalore District and Bangalore Rural District excluding Kanakapura and Magadi Taluks.

Provided that where the extent of the land does not exceed four hectares, no such prior approval shall be necessary.

(2) if the lands granted under sub- rule (1)(a) to (d) are not utilized for the purpose for which they are granted, the same shall be resumed by the State Government free from all encumbrances. The State Government shall not be liable to pay any compensation or damages for the lands so resumed.

17. GOK by an order dated 20.10.2005 granted

approval to the proposal of KIADB dated 30.05.2005

to allot the schedule land to Joy Ice creams at the rate

of Rs.550/- per square feet for an amount of

Rs.4,28,24,925/- i.e., 50% of the market value of the

land. The order reads as under:

Reference to the above subject and reference the proposal is examined, Bengaluru East Taluk, KR Puram Hobli, Pattandur Village in Survey No.42 measuring 3 acres 23 guntas of land (subject to the condition of measurement) under Rule 20© of the Karnataka Land Grant Rules, 1969, the market rate @ of Rs.550.00 per square feet rate (1089x143x550) total out of Rs.8,56,49,850.00, at 50% rate i.e., for Rs.4,28,24,925.00 (four crores twenty eight lakhs twenty four thousand nine hundred and twenty five only), with an intention to allot to M/s Joy Ice cream Private Limited company Bengaluru,

subject to the condition making payment to the KIADB, to hand over from KIADB, Bengaluru, I am directed to state that the Government has granted its prior approval.

18. Thereafter, a memorandum was issued by

the Deputy Commissioner. It is pertinent to note that

the GOK while according approval for transfer of the

land in favour of Joy Ice creams, in its order dated

20.10.2005 did not impose any conditions. However,

the Deputy Commissioner while handing over the land

to KIADB vide memorandum dated 31.03.2006

imposed certain conditions, the relevant part of the

memo is extracted below for facility of reference:

Hence as per the prior approval under the Government letter Ref (1) in Pattandur Agrahara Village, Survey No.42, measuring 3.23 As. Gs. Of land (subject to the condition of measurement) classified as 'Government Gomala' this land for the purpose of allotment to M/s Joy Ice Cream

Pvt. Ltd. Company Bengaluru, directions are issued to hand over to the KIADB, Bengaluru by imposing the following conditions:

Handing over to the KIADB Government land or Urban Land one part in future for any Government purpose is necessary should be ready to return back the same.

The sanctioned land other than for industrial purpose, if required for any other purpose, should be ready to return back.

     This     sanctioned            land      without
government     permission           either     selling,

giving on lease, transfer or any other kind of alienations should not be done.

Before constructing the buildings intended in this land, the layout plan and licence / permit etc., should be got approved from the concerned competent authority and later as per the approved plan the building should be constructed.

In the concerned Sub Registrar office the prescribed stamp duty should be paid to the Government, and the sanctioned land should be got registered.

If any of the above conditions are violated, the government is having power to cancel the sanction. Tahsildar, Bengaluru East Taluk, should immediately hand over this land to KIADB subject to the measurement and marking of the boundaries, to take action and immediately it is ordered to submit the report to this authority.

19. Proviso to Rule 28(2) of the Rules

provides that where the land is granted to

Karnataka Housing Board, any urban Development

Authority, KIADB, Gram Panchayat, Taluk

Panchayat, Zilla Panchayat, the condition with

regard to non alienation of the land shall not be

applicable. At this stage, it is apposite to refer to

Rule 28(2), which reads as under:

28. Grantees of land to execute an agreement - (1) Every person who is granted lands for agricultural purposes under these rules shall execute an agreement in Form V:

Provided that where an order of grant is made under the proviso to sub- rule (4) of Rule 8, the agreement shall be executed jointly by the applicant and his wife in Form No.V-A.

(2) Every person who has granted land for non-agricultural purposes under these rules shall execute an agreement in Form VI.

Provided that where the land is granted to the Karnataka Housing Board, any Urban Development Authority, the Industrial Areas Development Board, a Grama Panchayat, Taluk Panchayat or a Zilla Panchayat, the condition that the lands shall not be alienated shall not be applicable.

20. Thus it is evident that the condition with

regard to non alienation of the land does not apply in

case the land is allotted to KIADB. In the instant case,

the land was handed over by the GOK to KIADB.

Therefore, in view of proviso to Rule 28(2) of the Rules,

the condition with regard to non alienation of the

land was not rightly imposed by the GOK, which

otherwise could not have been imposed by Deputy

Commissioner in the memo dated 31.03.2006.

Even otherwise, it is pertinent to note that GOK

by an order dated 29.07.2011 withdrew the condition

with regard to non alienation. The relevant extract of

the order dated 29.07.2011 reads as under:

In survey No.42 measuring 3.23 acres of Agrahara village, KR Pura Hobli, Bengaluru East Taluk is sanctioned to M/s Joy Ice Cream Pvt. Ltd. through KIADB, and towards the said sanction Rule 28(2) of the Karnataka Land Grant

Rules 1969 alienation condition do not apply to KIADB, hence to cancel the said condition, I am directed to state that the Government has granted prior permission for the same.

Thus, the GOK realized that the condition

imposed by the Deputy Commissioner is contrary to

Rule 28(2) of the Rules and therefore, the condition

with regard to non alienation was withdrawn. The

special Deputy Commissioner issued a

communication dated 02.08.2011 and withdrew all

conditions imposed in the memo dated 31.03.2006.

21. The distinction between reference to another

document in a contract and incorporation of another

document in a contract, by reference is well settled. In

first case, the parties intend to adopt only specific

portion or part of the referred document for the

purposes of contract. In the second case, the parties

intend to incorporate the referred document in

entirety into the contract. [See: M.R.ENGINEERS AND

CONTRACTORS supra]. In the instant case, the

relevant extract of the sale deed reads as under:

Xxxxxxxxxxxxxxxxxx Whereas upon the representation by the purchaser to the Government to transfer the title with possession of 3 acres 23 guntas of Government land in Sy.No.42 of Pattandur Agrahara Village, K.R.Puram, Hobli, Bangalore East Taluk, and pursuant to proceedins in this behalf, the Special Deputy Commissioner vide its letter No.LND/E/CR 24/05-06 dated 31.03.2006 was pleased to order upon certain conditions that 3 acres 23 guntas of Government land in Sy.No.42 of Pattandur Agrahara Village, K.R.Puram, Hobli, Bangalore East Taluk be transferred to the purchaser subject to the condition that the Purchaser should pay market value of Rs.4,28,24,925/- (Rupees Four Crores Twenty Eight Lacs Twenty Four Thousnad Nine Hundred and Twenty

Five Only) NOW IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS:

22. Thus it is evident that in the sale deed,

reference only has been made to the memorandum

dated 31.03.2006 and the same has not been

incorporated in the sale deed. Therefore, the sale is an

absolute sale. Even otherwise, no sanctity can be

attached to the condition incorporated in the memo

dated 31.03.2006 issued by Deputy Commissioner as

the same is contrary to Rule 28(2) of the Rules.

23. The Deputy Commissioner had initiated the

proceeding under Section 136(3) of the Act suo motu.

The aforesaid proceeding was dropped by the Deputy

Commissioner by an order dated 15.06.2012. The

relevant extract of the order reads as under:

Thus it is clear that the transfer of

guntas situated at Pattandur Agrahara Village, KRishnarajapuram Hobli, Bangalore East Taluk by M/s Joy Ice creams (Bangalore) Pvt. Ltd., in favour of M/s Prestige Estate Projects Ltd., is not in violation of the land grant non alienation and condition under the Sale deed dated 30.08.2006. And that therefore the possession of the land in question held by M/s Prestige Estate Projects Ltd., as well as the entries reflected in revenue records in its name cannot be held as illegal and based on false and bogus records. They are based on the orders of the competent authorities as well as the registered sale deed etc. ..............Accordingly, these proceedings are dropped.

24. Thus it has been held that transfer of

Schedule land in favour of Prestige Estates has not

been made in violation of any condition of grant. The

aforesaid order has been passed by a quasi judicial

authority viz., Deputy Commissioner in exercise of

statutory powers under Section 136 of the Act. The

aforesaid order has attained finality and therefore,

binds the parties. The aforesaid order cannot be set

at naught by a party to the lis viz., GOK by an order

dated 06.08.2015.

25. At this stage, we may advert to Rule 25 of

the Rules, which reads as under:

25. Cancellation of grant - (1) Any grant of land made under these rules shall be liable to be cancelled and the land resumed by the authority which granted it, where the grant has been obtained by making false or fraudulent representations or is contrary to these rules.

Provided that no such cancellation shall be made without giving the grantee an opportunity of being heard.

(2) Where any violation of the condition of grant or lease of land comes

or is brought to the notice of a Revenue Officer, such officer shall forthwith report the violation to the officer competent to cancel the grant or lease as the case may be. The competent officer shall after giving the grantee or lessee an opportunity to be heard cancel the grant and resume the land to the Government free from all encumbrances.

26. Thus a grant of land made under the Rules

is liable to be cancelled, when the same has been

obtained by making false and fraudulent

representations and has been made in contravention

of the Rules. The land in question was allotted to

KIADB and its not the case of either the GOK or the

Association that the grant of land in favour of KIADB

was made by playing fraud or was made in

contravention of the Rules. Therefore, there is no

justifiable reason in law to cancel the grant of land in

question.

27. In view of the findings recorded in order

dated 15.06.2012 passed by the Deputy

Commissioner, in exercise of powers under Section

136(3) of the Act, the contention of Additional

Government Advocate that the schedule land could

not have been granted in favor of Joy Ice creams does

not deserve acceptance.

28. In the instant case, the land has been

allotted to KIADB with the prior approval of the GOK.

The contention of the learned Additional Government

Advocate that the grant has been made in

contravention of Rule 20(1)(c) of the Rules does not

deserve acceptance. Similarly, the contention that

KIADB had not authority to execute the sale deed in

favour of Joy Ice Creams is misconceived as the same

is contrary to Rules. Similarly the contention that the

order of grant was made in favour of Joy Ice creams

for an unauthorized purpose is misconceived. There is

no material on record to hold that the land has been

either allotted or conveyed in contravention of the

Rules and therefore, the contention that Joy Ice

creams and Prestige Estates have played fraud with

the GOK does not deserve acceptance.

29. So far as the submission that the

construction of residential apartments has been made

unauthorizedly, suffice it to say, that the construction

has been raised after approval of the building plan by

the Bangalore Development Authority and after the

work order was issued on 19.01.2010 and 20.10.2010

respectively. The aforesaid building plan and the work

order issued by the Bangalore Development Authority,

which is the planning authority has not been

questioned by anyone. Therefore, the contention that

the residential apartments have been constructed

unauthorizedly does not deserve acceptance. The

same is therefore repelled.

In view of preceding analysis, we do not find any

merit in these appeals, the same fail and are hereby

dismissed.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

SS