Suchitra Cinema And Cultural ... vs The Commissioner
2023 Latest Caselaw 136 Kant

                           1

                                                           R
    IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 3RD DAY OF JANUARY, 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.58854 OF 2014(BDA)

BETWEEN:

SUCHITRA CINEMA AND CULTURAL ACADEMY.,
A TRUST REGISTERED UNDER THE
INDIAN TRUSTS ACT, 1882
HAVING ITS PRINCIPAL OFFICE AT
C.A. NO.36, BANASHANKARI II STAGE,
BANGALORE-560 070,
REPRESENTED BY ITS CHARIMAN,
MR. K.V. RAVINDARANATH TAGORE,
                                           ...PETITIONER
(BY SMT. BHAVANA G K, ADVOCATE)

AND:

1. THE COMMISSIONER,
   BANGALORE DEVELOPMENT AUTHORITY,
   BANGALORE-560 020.

2. STATE OF KARNATAKA,
   REPRESENTED BY SECRETARY,
   URBAN DEVELOPMENT, VIDHANA SOUDHA,
   BENGALURU - 560 001.
   AMENDED V.C.O DATED 08.08.2019
                                         ... RESPONDENTS
(BY SRI. K KRISHNA, ADVOCATE FOR R1;
    SMT. N ANITHA, HCGP FOR R2)
                                     2



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED LETTER DATED 19.11.2014 ISSUED BY THE
RESPONDENT TO THE PETITIONER VIDE ANN-M.

     THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-

                                 ORDER

This judgment needs to be prefaced with what more

than a century ago, a great Judge of US Supreme Court

Justice Oliver Wendell Holmes in TOWNE vs.

EISNER1 had observed:

"A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used..".

The difficulty which the petitioner is put to arose because

of BDA's employment of a wrong English word namely,

'donation' in a lease transaction and the same having

been literally construed by the statutory auditing party,

the concession given to the lessee was sought to be

revoked.

245 U.S. 418 (1918)

2. The Petitioner, a private Trust registered under

the provisions of Indian Trusts Act, 1882 is grieving

before the Writ Court against the BDA's Letter dated

19.11.2014 (Annexure-M) whereby it is asked to pay

back a sum of Rs.50 Lakh on the ground that such a

'donation' could not have been made by the BDA - an

authority constituted under the Bangalore Development

Authority Act, 1976 whilst renewing lease of the sites in

question.

3. The impugned letter reads as under:

"EªÀjUÉ, CzsÀåPÀëgÀÄ, ¸ÀÄavÁæ ¹¤ªÀiÁ DPÁqÉ«Ä læ¸ïÖ, ¹J ¸ÀA.36, §£À±ÀAPÀj 2£Éà ºÀAvÀ, ¨ÉAUÀ¼ÀÆgÀÄ - 560 070.

ªÀiÁ£ÀågÉ,

«µÀAiÀÄ: ¹J ¸ÀA 36, §£À±ÀAPÀj 2£Éà ºÀAvÀzÀ ¤ªÉñÀ£À ªÀiË®åzÀ ¨Á§ÄÛ gÀÆ.50.00 ®PÀëUÀ¼À£ÀÄß ¥ÁªÀw¸ÀĪÀ §UÉÎ.

G¯ÉèÃR: ªÀĺÁ¯ÉÃR¥Á®gÀ DPÉëÃ¥ÀuÁ ¸ÀA 07 ªÀÄvÀÄÛ 2012 gÀ ªÀgÀ¢ ¸ÀA.17.4.2

----

ªÉÄîÌAqÀ ¹J ¤ªÉñÀ£À ¸ÀA 36, §£À±ÀAPÀj 2£Éà ºÀAvÀPÉÌ ¥ÁªÀw¸À¨ÉÃPÁzÀ MmÁÖgÉ UÀÄwÛUÉ ªÀiË®åzÀ°è gÀÆ.50.00 ®PÀëUÀ¼À£ÀÄß ¥Áæ¢üPÁgÀzÀ ªÀw¬ÄAzÀ zÉÃtÂUÉ JAzÀÄ ¥ÀjUÀt¹gÀĪÀzÀ£ÀÄß ªÀĺÁ¯ÉÃR¥Á®PÀgÀÄ wêÀæªÁV DPÉëÃ¥ÀuÉ ªÀåPÀÛ¥Àr¹gÀĪÀÅzÀjAzÀ ªÀÄvÀÄÛ F «µÀAiÀĪÀÅ ¸ÁªÀðd¤PÀ ¯ÉPÀÌ¥ÀvÀæ ¸À«Äw ªÀÄÄAzÉ ªÀÄAr¹gÀĪÀÅzÀjAzÀ vÁªÀÅUÀ¼ÀÄ ¸ÀzÀj ¹J ¤ªÉñÀ£ÀPÉÌ ¤ÃqÀ¯ÁzÀ gÀÆ.50.00 ®PÀëUÀ¼À zÉÃtÂUÉ ºÀtªÀ£ÀÄß ¥Áæ¢üPÁgÀPÉÌ vÀPÀët ¥ÁªÀw¸À®Ä F ªÀÄÆ®PÀ w½¹zÉ.

vÀªÀÄä «±Áé¹, DAiÀÄÄPÀÛgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ, ¨ÉAUÀ¼ÀÆgÀÄ."

4. Learned counsel for the Petitioner vehemently

argues that 30 year lease initially granted having been

renewed for the same tenure with the concession

consciously given in a sum of Rs.50 Lakh, the BDA an

instrumentality of the State under Article 12 of the

Constitution of India, could not have turned around and

asked the Petitioner to return the concession, whatever

be the nomenclature adopted in the impugned letter. She

vociferously presses into service both the doctrine of

estoppel under section 115 of the Indian Evidence Act,

1872 and the doctrine of promissory estoppel vide Apex

Court decision in UNION OF INDIA vs INDO AFGHAN

AGENCIES, AIR 1968 SC 718, in support of her case.

5. The Respondent - BDA having entered

appearance through its Sr. Panel Counsel has filed its

Statement of Objections dated 26.02.2015 resisting the

Writ Petition. Learned Panel Counsel contends that the

BDA being the statutory authority has to function under

the provisions of 1976 Act and therefore it cannot

undertake any charitable activity like making donation

that are not authorized by the statutory scheme. In

support of this, he relies on the Calcutta High Court

decision in SATIBHUSAN MUKHARJEE Vs. CORPORATION

OF CALCUTTA, AIR 1949 Calcutta 20. He also points out

the audit objections to the concession granted to the

petitioner-lessee in the matter of premium/rentals. So

contending, he seeks dismissal of the writ petition.

6. Having heard the learned counsel for the

parties and having perused the Petition papers, this

Court is inclined to grant indulgence in the matter as

under and for the following reasons:

a) Petitioner is a registered Trust and not a profit

making entity is apparent from the registered Trust Deed

dated 05.03.1979 at Annexure-A. Initially, it had secured a

30 year lease of the subject sites vide registered deed

dated 28.12.1979 from the Respondent - BDA. The BDA on

request has accorded the renewal of this lease on

16.06.2010 for the same tenure, the original tenure having

expired on 28.12.2009, along with the concession of Rs.50

lakh as instructed by the Hon'ble Chief Minister of the State

presumably u/s.65 of the 1976 Act. It hardly needs to be

stated that the Act and the Rules promulgated thereunder

provide for entering into lease transactions as well. It

hardly needs to be stated that the power to enter into

transactions of the kind includes the incidental power to

grant some concessions keeping in view a host of factors,

as may be directed by the Government u/s.65. Further, the

concession of the kind by no stretch of imagination can be

treated as illegal. That being the position, the counsel

for the petitioner is more than justified in submitting that

the BDA now cannot turn around and rescind the

concession. Law abhors approbation & reprobation,

inasmuch as the BDA being a statutory authority answers

the description of State under Article 12 of the Constitution

of India. The instrumentalities of the State have to conduct

themselves with a measure of fairness and justice, in all

their actions. However, impugned action falls short of

reasonable fairness standards.

b) It is not in dispute that the request of the

Petitioner for certain concessions having been favoured

on the basis of the letter of the Chief Minister of the

State, a concession in a sum of Rs.50 Lakh was accorded

vide Endorsement dated 27.11.2011 at Annexure-J. This

concession was founded on the request made in terms of

Petitioner's representations dated 05.07.2011 &

10.06.2011. The grant of said concession was acted upon

by the Petitioner, is also not in dispute. It has been a

settled position of law that where a person acts on that

representation of another to his prejudice, whatever be the

arguable prejudice, ordinarily it is not open to the

representer to contend or conduct to the contrary, vide

estoppel enacted in section 115 of the 1872 Act.

Concessions of the kind are not alien to the law of landlord

and tenant. Had the concession been given contrary to law,

it would have been a different matter.

c) Counsel for the petitioner is more than justified in

pressing into service the doctrine of promissory estoppel

too, for invalidation of the impugned recovery banking

upon the decision of the Apex Court in INDO AFGHAN

AGENCIES supra. Enormity of importance that our system

attaches to this doctrine, can be seen by the stand taken by

the country in Bhopal Gas Tragedy case that was launched

in a District Court in New York i.e., "Un IN RE: UNION

CARBIDE CORPORATION GAS LEAK DISASTER AT BHOPAL,

INDIA IN DECEMBER 1984". The tort-feasor company was

pressing for adjudication of the claims of injured Indians

only in American Court alleging that Indian legal system

was inadequate. A great jurist of yester decades Mr. N.A.

Palkhivala in his personal Affidavit dated 18.12.1985 filed in

the said court extolled the efficacy & greatness of our

Judiciary as under:

"In Motilal Padampat Sagar Mills v. Uttar Pradesh (AIR 1979 SC 621) the Supreme Court took the doctrine of Promissory estoppel (which estops the government from pleading executive necessity and going back on its earlier promise) an important step further, and held that it was not merely available as a defence but could supply a cause of action for institution of legal proceedings."

"I have seen the Memoranda and Affidavits filed in opposition to Union Carbide's Motion regarding Forum Non Conveniens. In those papers it has been stated that the Indian legal system is "deficient: and "inadequate". I am constrained to say that it is gratuitous denigration to call the Indian system deficient or inadequate."

"The Indian judiciary is wholly competent to deal with any dispute in any field of law, in the 35 years of the history of our Republic, ably dealt with far more complex issues than those arising from the gas plant disaster at Bhopal."

("Mass Disasters and Multinational Liability" by Upendra Baxi and Thomas Paul, Indian Law Institute, pages 223-

225)

d) The above apart, it needs to be mentioned that that

the so called 'audit objections' at the hands of the statutory

auditing party appear to have arisen because of wrong

terminology employed by the BDA whilst granting

concession to the Petitioner by calling the same as

'donation', grossly unmindful of the meaning of the word, to

say the least. The term 'donation' has been defined in the

Corpus Juris Secundum (Vol.28 page 53) to mean "an act

by which the owner of a thing voluntarily transfers title and

possession of the same from himself to another without any

consideration; a gift or grant of gratuity...". There was

nothing that the BDA had given to the petitioner by way of

donation. What it did was only the granting of some

concession to the lessee that too on the suggestive

direction of the Chief Minister of the State. By no stretch of

imagination such a concession could have been termed by

the BDA as 'donation', in the fact matrix of the case. Even

the auditing party was swayed away by this English word

without ascertaining the substantial nature of the

transaction in question. A concession of the kind given by

the lessor to the lessee, is not alien to the law of leases.

This is a classic instance of wrong terminology employed by

the officials of the respondent BDA, whilst interacting with

the petitioner-lessee. The letter correspondence between

the BDA and the Chief Minister which led to grant of said

concession did not use this word at all.

(e) The wrong employment of this one single word

of English language has played havoc in the matter to a

great prejudice of the petitioner-Trust. It was Bertrand

Russell who decades ago had said that, if language is not

properly used, what is said is not what is meant; if what is

said is not what is meant, then what needs to be done

would remain undone or misdone. What Justice Holmes

said about the words need not be repeated. The BDA

could have offered a proper explanation to the auditing

party as to what it meant by the word 'donation' in the light

of transaction in question. However, it did not choose to do

that. The auditing party did not solicit explanation from the

petitioner, either. Therefore, the contention of BDA Panel

Counsel that his client being a statutory authority cannot

give any donation to anyone since it has to act as the

trustee of the public funds, does not impress the Court,

even in the least.

In the above circumstances, this writ petition

succeeds; a Writ of Certiorari issues quashing the impugned

letter. As a consequence, Petitioner-Trust is relieved of the

obligation to pay the subject amount claimed by the BDA.

Costs made easy.

Sd/-

JUDGE Bsv