Karnataka High Court
Smt Parvathamma vs The State Of Karnataka on 24 January, 2023
Bench: Krishna S.Dixit
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WP No. 32602 of 2017
R
C/W WP No. 30427 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 32602 OF 2017 (LA-KHB)
C/W
WRIT PETITION NO. 30427 OF 2017(LA-KHB)
IN W.P.NO.32602/2017:
BETWEEN:
SMT.R.PADMA @ PADMAVATHI,
W/O SRI LATE RAMAIAH,
AGED ABOUT 41 YEARS,
R/O ADDEVISHWANANTHPURA VILLAGE,
HESARAGHATA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE URBAN DISTRICT,
BANGALORE.
...PETITIONER
(BY SRI. R HEMANTH RAJ.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
HOUSING DEPARTMENT,
REPTD BY ITS SECRETARY,
Digitally
signed by VIKAS SOUDHA, BANGALORE-01.
CHETAN B C
Location:
HIGH 2. KARNATAKA HOUSING BOARD,
COURT OF
KARNATAKA GOVERNMENT OF KARNATAKA UNDERTAKING,
KHB COMPLEX,CAUVERY BHAVAN,
KEMPEGOWDA ROAD,
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BANGALORE-09.
...RESPONDENTS
(BY SRI. SRIDHAR HEGDE, AGA FOR R1.,
SMT. PUSHPAKANTHA, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PARYING TO
QUASH THE IMPUGNED ORDER DTD21.9.2015 VIDE
ANNEXURE-H PASSED BY THE RESPONDENT IN ITS 458TH
MEETING OF THE BOARD UNDER AGENDA NO.36 IN SO FAR
THE SAME RELATES TO DIRECTING THE PETITIONER TO
EFFECT PAYMENT OF GUIDEANCE VALUE FOR RE-CONVEYANCE
OF SCHEDULE PROPERTY IN FAVOUR OF THE PETITIONER AND
DIRECT THE RESPONDENT TO RECEIVE THE SUM OF
RS.5,62,500/- FROM THE PETITIONER TOGETHER WITH
INTEREST AT 21% PER ANNUM FROM THE DATE OF SALE DEED
IN FAVOUR OF THE RESPONDENT TILL THE DATE OF PAYMENT
AND CONSEQUNTLY THREE UPON TO RECONVEY THE SAME IN
FAVOUR OF THE PETITIONER.
IN W.P.NO.30427/2017:
BETWEEN:
SMT. PARVATHAMMA,
W/O LATE SHRI CHIKKARUDRAPPA,
SINCE DECEASED REP BY HER LRS
1A) SMT.SHIVARUDRAMMA,
D/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 56 YEARS,
1B) SRI.BASAVARAJU,
S/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 54 YEARS,
1C) SRI.VEERANNA,
S/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 53 YEARS,
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1D) SMT.MANJULA,
D/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 43 YEARS,
1E) SMT.NAGARATHNAMMA,
D/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 47 YEARS,
1F) SRI.PUTTARUDRAPPA,
S/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 44 YEARS,
1G) SMT.LATHA,
W/O RUDRESH,
AGED ABOUT 38 YEARS,
1H) KUM R SAHANA,
D/O LATE RUDRESH,
AGED ABOUT 20 YEARS,
1I) MASTER R SACHIN,
S/O LATE RUDRESH,
AGED ABOUT 18 YEARS,
SL NO.1(A) TO (I) RESIDENT OF
NO.521, ADDE VISHWANATHAPURA VILLAGE,
RAJANKUNTE, HESARGHATTA HOBLI,
BANGALORE NORTH TALUK, BANGALORE.
SL NO.1(B) TO (I) ARE REPRESENTED
BY THEIR GPA HOLDER,
SMT. SHIVARUDRAMMA,
D/O SRI CHIKKA RUDRAPPA,
AND SMT PARVATHAMMA,
AGED ABOUT 72 YEARS,
AMENDED V.C.O DATED 24.01.2023
...PETITIONERS
(BY SRI.GIRIDHAR S V, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA
HOUSING DEPARTMENT,
REPRESENTED BY ITS SECRETARY,
VIKAS SOUDHA, BANGALORE-01.
2. KARNATAKA HOUSING BOARD,
GOVERNMENT OF KARNATAKA UNDERTAKING,
KHB COMPLEX,CAUVERY BHAVAN,
KEMPEGOWDA ROAD,
BANGALORE-09.
...RESPONDENTS
(BY SRI.SRIDHAR HEGDE, AGA FOR R1.,
SMT.PUSHPAKANTHA, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSITUTION OF INDIA, PRAYING TO CALL
FOR THE RECORDS ON THE FILE OF RESPONDENT
CULMINATING IN THE ORDER IMPUGNED AND QUASH THE
ORDER DATED 21.9.2015 AT ANNEX-G PASSED BY
RESPONDENT IN ITS 458TH MEETING OF THE BOARD UNDER
AGENDA NO. 36 DATED 21.9.2015 IN SO FAR THE SAME
RELATES TO DIRECTING THE PETITIONER TO EFFECT PAYMENT
OF GUIDELINE VALUE FOR RE-CONVEYANCE OF SCHEDULE
PROPERTY IN FAVOUR OF THE PETITIONER AND ETC.,
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
Petitioners are knocking at the doors of Writ Court
seeking quashment of two orders both dated 21.09.2015
passed by the 2nd Respondent - Karnataka Housing Board
whereby they were asked to make payment of 'Guidance
Value', if they wanted reconveyance of scheduled lands in
their favour. Both the learned counsel appearing for the
petitioners submit that in similar matters Respondent -
Housing Board, has reconvyed the lands to other land
owners after getting the sale price back with some interest
and therefore, their clients cannot be discriminated against
as if they are the children of the stepmother. So
contending, they seek indulgence of the Writ Court.
2. Learned AGA appearing on behalf of
Respondent - State and the learned panel counsel
appearing for the Housing Board opposed the Petitions
making submission in justification of the impugned orders.
They contend that admittedly the Petitioners having sold
their properties and having received the agreed price, they
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cannot now seek reconveyance in the absence of a
condition of enablement in the Conveyances or the law
giving such a right. Learned AGA adds that, in matters
like this there is no justiciable right which arguably may
avail where properties are taken by compulsory purchase
under the Land Acquisition laws. So contending, they seek
dismissal of the Writ Petitions.
3. Both the cases are taken up together with the
concurrence of the Bar since they have substantially
common fact matrix and relief columns. Having heard the
learned counsel for the parties and having perused the
petition papers, this Court declines indulgence in the
matter broadly agreeing with the submission made by the
learned AGA and the Panel Counsel.
4. Indubitably, sale is one of the voluntary modes
of transfer of property. Section 54 of the Transfer of
Property Act, 1882, defines sale as "a transfer of
ownership in exchange for a price paid or promised or
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part-paid and part-promised." This definition indicates that
in order to constitute a sale, there must be transfer of
ownership from one person to another, i.e., all rights &
interest in the properties possessed by the seller are
transferred to the buyer and he does not retain any part of
his interest or right in the property sold; or else it would
not be a sale. An outright sale is distinguished from a sale
with an option of reconveyance, which must be evidenced
by the Sale Deed itself. If the sale deed is totally silent
about that, the transfer would be an outright sale and not
a sale with an option of reconveyance vide VITTAL
MAHARM PATIL vs. FAKIRA BHAVSINGH PATIL, AIR 2011
NOC BOMBAY 292. Admittedly, the subject properties
were purchased by the Housing Board from the owners
thereof after paying the agreed prices. No paragraph from
the private conveyances is shown to give the right to
previous owners to buy back the property. Such a
situation, as already mentioned above, constitutes an
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outright sale or transfer of property bereft of an option for
reconveyance.
5. In support of their clients' claim for
reconveyance, learned counsel appearing for the
Petitioners placed heavy reliance on Section 38 of the
Karnataka Housing Board Act, 1962. The said section
reads as under:
"Power to dispose of land.- Subject to any rules
made by the State Government under this Act,
the Board may retain, lease, sell, exchange or
otherwise dispose of, any land, building or
other property vesting in it and situate in the
area comprised in any housing scheme (or land
development scheme) sanctioned under this
Act."
The power of the Board to dispose off its property is not
absolute, since in so many words, it is conditioned by the
rules to be promulgated by the Government under Section
74 of the 1962 Act. Rule 9(3) of the Karnataka Housing
Board Rules, 1964 provides for sale of land is true.
However, such a contention does not come to their aid
inasmuch as the aforementioned provisions merely bestow
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power upon the Board to lease sell or otherwise dispose of
any land and not a statutory mandate for reconveyancing
of land to the owners from whom the property was
bought.
6. Deliberations & decisions as to conveyanceing or
reconveyancing of land by the Board has to be carried out
by a normative, participative & transparent process
spearheaded by the 'public interest' and not by private
negotiation within the four corners of the office room. At
this juncture, it is relevant to recall Justice Louis Brandeis'
phrase 'sunlight is the best disinfectant'. In 1913 Harper's
Weekly article, 'What Publicity Can Do?' he had remarked:
"...if the broad light of day could be let in upon men's
actions, it would purify them as the sun disinfects..." It is
not that such a process is to be carried out by conducting
Government business while sitting at the crossroads in
public, rather it means that the manner in which the
decision is taken, should be knowable to public or at least
to all stakeholders involved vide BALCO EMPLOYEES'
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UNION vs. UNION OF INDIA 2002 (2) SCC 333. Moreover,
such a requirement of transparency is categorically
rendered an imperative where the public at large is a
stakeholder and where the actions that are carried out are
by an instrumentality of State under Article 12 of the
Constitution.
7. It has long been a settled position of law that
when property is to be disposed off by a public authority,
such property can be disposed only by public auction and
not otherwise. What the Apex Court observed in
SACHIDANANDA PANDEY vs STATE OF WEST BENGAL, AIR
1987 SC 1109, at paragraph 6.2 is worth reproducing:
"...On a consideration of the relevant cases
cited at the bar the following propositions may
be taken as well established. State-owned or
public-owned property is not to be dealt with at
the absolute discretion of the executive.
Certain precepts and principles have to be
observed. Public interest is the paramount
consideration. One of the methods of securing
the public interest, when it is considered
necessary to dispose of a property, is to sell
the property by public auction or by inviting
tenders. Though that is the ordinary rule, it is
not an invariable rule. There may be situations
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where there are compelling reasons
necessitating departure from the rule but then
the reasons for the departure must be rational
and should not be suggestive of discrimination.
Appearance of public justice is as important as
doing justice. Nothing should be done which
gives an appearance of bias, jobbery or
nepotism."
Therefore, the Board Resolutions in question not being
consistent with the law declared by the Apex Court cannot
be treated as justiciable and thus, they cannot be
profitably pressed into service.
8. The subject properties because of the
conveyances executed by the owners have become the
assets of the Housing Board, which is a statutory authority
whose powers are regulated by the provisions of 1962 Act
and the Rules promulgated thereunder. The Board, is a
legal person, cannot be disputed. A natural person can do
all that what is not prohibited by law, and a legal person
can do all that which is provided by law vide SATI
BHUSHAN MUKHERJEE vs. CORPORATION OF CALCUTTA,
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AIR 1949 CAL 20 wherein the Division Bench decision of
Calcutta High Court it had observed as under:
"...There is fundamental distinction between the
capacity of a natural person and of an artificial
person which has been created by Statute or
Charter. To a natural person whatever is not
expressly forbidden by law is permitted by the
law. He has the capacity to do everything save
and expect those forbidden by law. In case of
an artificial person - e.g., corporation, which
can be created either by charter or by statute
the rule applicable to a natural person is
revered. Whatever is not permitted expressly
or by necessary implication by the constituting
instrument is prohibited not by any express or
implied prohibition of legislation but by the
doctrine of ultra vires..."
The Board is not only a legal person but an instrumentality
of State too under Article 12 of the Constitution and
therefore, it cannot venture into a private transaction for
disposal of its property except as provided by law i.e.,
Section 39 of the 1962 Act r/w Rule 9(3) of 1964 Rules.
What the Housing Board has said in the subject
Resolutions is that, if the Petitioners want the subject
properties, they can buy them back for Guideline Value as
notified by the Government. Therefore, the Petitioners do
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not have a justiciable right to seek reconveyance of the
land on the basis of the Board Resolutions in question,
much less by returning the sale price with some interest.
An argument to the contrary if countenanced, would not
only put all public property at the enormous risk of
depletion through dubious process but amount to Writ
Court being the protector of the public property placing
premium on illegality.
9. The vehement of submission of learned
advocates appearing for the Petitioners that the Board on
some occasions has sold the property back to the owners
thereof after receiving back the consideration with some
interest and therefore, Board's insistence on the payment
of Guideline Value is discriminatory of their clients, is
difficult to countenance. To put forth the plea of
discrimination, the person discriminated should show that
the comparable act of the authority on which he seeks
parity of treatment, is prima facie lawful. However, that
has not been so demonstrated here. In some cases, the
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Board has reconveyed the properties bought earlier, to
their erstwhile owners, would not much come to the aid of
Petitioners since this Court cannot place its imprimatur
on such acts that offend the statutory provisions, to say
the least. Admittedly, these properties were not acquired
by the State in exercise of its power of eminent domain,
but, where bought in the open market. Had they been the
so called 'victims of compulsory acquisition', different
considerations would have arisen.
In the above circumstances, these Writ Petitions
being devoid of merits are liable to be dismissed and
accordingly they are, with a warning to the Respondent-
State & the Respondent- Housing Board against
reconveying the properties bought by sale except by public
auction and in accordance with law.
The amount if any, deposited by the Petitioners
seeking towards the intended reconveyance, whether by
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interim order of the Court or otherwise, shall be refunded
forthwith.
For information and needful action, the Registry is
directed to send a copy of this judgment immediately by
Speed Post to:
i) the Comptroller & Auditor General of India,
No.10, Bahadur Shah Zafar Marg, New Delhi.
ii) the Chief Secretary, Government of Karnataka,
Vidhana Soudha, Bengaluru.
This Court places on record its deep appreciation for
the able research and assistance rendered by its official
Law Clerk-cum-Research Assistant, Mr. Faiz Afsar Sait.
Sd/-
JUDGE
BSV
