Karnataka High Court
The Karnataka Housing Board vs Sri. Kadasiddeshwar S/O Gurunath ... on 18 April, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No. 100272 of 2015
C/W WA No. 100305 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 100272 OF 2015 (MON)
C/W
WRIT APPEAL NO. 100305 OF 2021 (LA-KHB)
RFA NO. 100272/2015
BETWEEN:
GURUNATH S/O BHIMAPPA BYAKODI
DEAD BY HIS LR
SRI. DR. KADASIDDESHWARA
S/O LATE GURUNATH BYAKODI
AGED ABOUT 51 YEARS
OCC: DOCTOR
R/AT G1 & 2 SILVER SPRINGS APARTMENT
PRABHAT COLONY, NEAR GANESH TEMPLE
VIDYANAGAR, HUBBALLI
Digitally
signed by DIST : DHARWAD.
ANAND N
... APPELLANT
Location:
HIGH (BY SRI. C.S. PATIL AND
COURT OF
KARNATAKA SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATE)
AND:
1. THE KARNATAKA HOUSING BOARD
BY ITS CHAIRMAN, KAUVERY BHAVAN
KEMPEGOWDA ROAD
BENGALURU - 560 009.
2. THE EXECUTIVE ENGINEER
KARNATAKA HOUSING BOARD
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RFA No. 100272 of 2015
C/W WA No. 100305 of 2021
CHANAKYAPURI HUBBALLI
DISTRICT : DHARWAD.
3. THE SPECIAL LAND ACQUISITION
OFFICER, KAUVERY BHAVAN
KEMPEGOWDA ROAD
BENGALURU - 560 009.
4. SRI. SRIKANTH J BHAT
AGED ABOUT 50 YEARS,
OCC: ADVOCATE
R/O SAMARTHA, PUNE
BENGALURU ROAD,
OPP TO NEW BUS STAND
DHARWAD.
... RESPONDENTS
(BY SMT.GIRIJA S. HIREMATH, HCGP FOR R3;
SRI.BASAVARAJ V SABARAD, SENIOR ADVOCATE
FOR
SRI. H.R. GUNDAPPA, ADVOCATE FOR R1 & R2;
SRI. K. RAGHAVENDRA RAO, SMT. V. VIDYA IYER &
SRI. SHASHANK HEGDE, ADVOCATES FOR R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
SET AGAINST THE JUDGMENT AND DECREE DATED
23.09.2015 PASSED IN O.S. NO. 68/2014, ON THE FILE
OF III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI,
DISMISSING THE SUIT FILED FOR RECOVERY OF
MONEY.
IN WA NO. 100305/2021
BETWEEN:
1. THE KARNATAKA HOUSING BOARD
BY ITS COMMISSIONER, CAUVERY BHAVAN
BENGALURU - 560 001.
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RFA No. 100272 of 2015
C/W WA No. 100305 of 2021
2. THE EXECUTIVE ENGINEER
KARNATAKA HOUSING BOARD
CHANAKYAPURI HUBBALLI
DISTRICT : DHARWAD.
3. SPECIAL LAND ACQUISITION
OFFICER,
KARNATAKA HOUSING BOARD
CAUVERY BHAVAN
KEMPEGOWDA ROAD
BENGALURU - 560 001.
... APPELLANTS
(BY SRI. BASAVARJ V. SABARAD., SENIOR ADVOCATE
FOR; SRI. H.R. GUNDAPPA, ADVOCATE)
AND:
1. SRI. KADASIDDESHWAR
S/O GURUNATH BYAKODI
AGED ABOUT 51 YEARS,
OCC: DOCTOR
R/O VIDYANAGAR - 580 031
HUBBALI, DHARWAD DISTRICT.
2. THE PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
AND HOUSING, M.S. BUILDING
BENGALURU - 560 001.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP R2;
R1 SERVED )
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE
ORDER DATED 08.10.2021 IN WP NO. 101046/2021 (LA-
KHB) PASSED BY THE LEARNED SINGLE JUDGE AND
DISMISS THE WRIT PETITIONS WITH COSTS
THROUGHOUT.
THESE APPEALS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.
SHYAM PRASAD J., DELIVERED THE FOLLOWING:
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RFA No. 100272 of 2015
C/W WA No. 100305 of 2021
ORDER
The common question for consideration in this
regular appeal and intra-court appeal is the whether
the sale deed dated 23.08.2006 executed in favour of
the Karnataka Housing Board [hereafter referred to
as the 'KHB'] must be declared void but on different
grounds. If in the civil Suit it is urged that this sale
deed is vitiated by fraud and misrepresentation, in
the writ proceedings it is urged that this sale deed is
invalid because the sale deed is without the prior
approval as contemplated under the provisions of
Section 33(1) of the Karnataka Housing Board Act,
1962 [for short, 'the KHB Act']; and of course, it is
also contended that the lack of this statutory prior
approval is in issue even in the civil suit.
2. The civil Suit is in O.S.No.68/2014 on the
file of the III Additional Senior Civil Judge, Hubballi
[for short, 'the civil Court'] and the writ proceedings is
in W.P.No.101046/2021. The appeal in
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R.F.A.No.100272/2015 is filed calling in question the
civil Court's judgment and decree dated 23.09.2015
refusing to interfere with sale deed. The intra-court
appeal in W.A.No.100305/2021 is filed calling in
question the Writ Court's order dated 08.10.2021.
The Writ Court has declared that the sale deed dated
23.08.2006 is void because of the lack of statutory
prior approval. The writ Court has directed the
appellant to refund a sum of Rs.1,07,64,600/- [the
sale consideration] along with interest at the rate of
6% from the date of the sale till the date of the
payment.
3. The plaintiff in O.S.No.68/2014 is referred
to accordingly in this judgement, and the appellant,
who has continued the appeal as against the
judgment in this suit on the demise of the plaintiff
and who has filed the petition in
W.P.No.101046/2021 and certain other earlier
proceedings detailed hereafter, is referred to
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accordingly. The suit in O.S.No.68/2014 and writ
proceedings in W.P.No.101046/2021 are after a
flurry of proceedings commenced with the execution
and registration of the impugned Sale Deed dated
23.08.2006. As such, the facts are captured first in
precis and the other proceedings are referred to later.
Brief Statement of the facts:
4. The KHB [the first defendant in the suit in
OS No. 68/2014] has proposed a Housing Scheme
called '100 Dwelling Housing Scheme' in about 400
acres in different survey numbers of Gamanagatti
and Suthagatti Villages1 under the provisions of the
KHB Act, and its Commissioner has addressed
communication dated 30.05.2006 to the State
Government for permission as contemplated under
Section 33[1] of the KHB Act for the purchase of 400
1 The Government Order in this regard is in
No.DOH.178.KHB.2000 and dated 25.01.2001, but this
Government Order is not placed on record either in the
original proceedings or in the writ proceedings.
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acres of land in Sy. Nos.150 to 157 and in Sy.
Nos.259 to 282 of Gamanagatti Village and in Sy.
Nos.16 to 27 of Suthagatti Village. The State
Government has accorded such permission by its
Order dated 17.06.2006. The communication from
the KHB and the subsequent State Government
Order dated 17.06.2006 are after the meetings
convened on 17.03.2006 and 28.04.2006 by the
Deputy Commissioner for the KHB officials and the
owners of the different lands to verify the consensus
value of the required lands.
4.1 The State Government by its Order dated
17.06.2006 has accorded permission to the KHB
purchase 400 acres in Sy. Nos.150 to 157 and in Sy.
Nos.259 to 282 of Gamanagatti Village and in Sy.
Nos.16 to 27 of Suthagatti Village free from all
encumbrances at the rate of Rs.6,90,000/- per acre.
The plaintiff, who admittedly participated in the
aforesaid meeting on 17.03.2006, has executed
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Consent Letter dated 26.06.20062 offering to transfer
guntas, Suthagatti Village, Hubballi Taluk [hereafter
referred to as, 'the subject property'] at the rate of
Rs.6,90,000/- per acre stating that the sale price
could be given to him after discharging the loan
outstanding as against the security of the subject
property.
4.2 The plaintiff, after this Consent Letter, has
executed the impugned sale deed dated 23.08.2006
conveying the subject property, and he has
admittedly invested the consideration received from
the sale of the subject property to purchase the
following lands under the respective Sale Deeds3:
• The land bearing Sy. No.86/1+2+3A
[measuring 3 acres 5 guntas] and Sy.
2 This Letter is marked as Exhibit D.23 in the suit in OS No.
68/2014.
3 The certified copies of the sale deeds hereafter referred to
are produced as Exhibits D1 to D6.
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guntas] of Pale Village, Hubballi Taluk
under the sale deed dated 22.01.2007.
• The land bearing Sy. No.86/1+2/K
[measuring 1 acre 12 guntas] of Pale
Village, Hubballi Taluk under the sale
deed dated 23.01.2007.
• The land bearing Sy. No.86/1+2+3/B
[measuring 6 acres 38 guntas] of Pale
Village, Hubballi Taluk under the sale
deed dated 07.02.2007.
• The land bearing Sy. No.110/2
[measuring 36 guntas] of Raynal
Village, Hubballi Taluk under the sale
deed dated 08.08.2008.
• The land bearing Sy. No.708/10
[measuring 31 guntas] of Unkal
Village, Hubballi Taluk under the sale
deed dated 14.08.2008.
4.3 The petitioner has filed the writ petition in
W.P. No.62406/2011 because of his dispute with the
Income Tax Department as regards the revised
Capital Gains filed by him claiming certain
exemptions and refund in a sum of Rs.2,24,060/-.
The KHB contends that the plaintiff thus, even five
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years after the date of the sale deed, has accepted
that he has received sale consideration at the rate of
Rs.6,90,000/- for sale of the subject property and he
has invested this amount in purchase of the lands as
mentioned above.
4.4 It is undisputed that the subject property
is not specifically mentioned in the State
Government's order dated 17.06.2006 issued
granting approval to the KHB to purchase lands at
the rate of Rs.6,90,000/- per acre, but the KHB
contends that though this Order does not refer to the
subject property specifically, the Scheme/
programme and the accord of permission under the
relevant provisions of the KHB Act is for a compact
block of 400 acres in the aforesaid two villages. The
KHB justifies the purchase of the subject property
asserting the following.
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[i] The KHB, because of litigation over
title and the applicability of the
provisions of the Karnataka
Scheduled Caste and Scheduled
Tribe [Prohibition of Transfer of
Certain Lands] Act, 1978 [for short,
'the PTCL Act'], has not purchased
the 400 acres.
[ii] The Subject property are adjacent
lands and form a compact block with
the lands mentioned in the State
Government's Order dated
17.06.2006.
[iii] The KHB, which can modify a
Scheme under the provisions of
Section 23 of the KHB Act, has
sought for necessary approval and
the State Government by its
Notification dated 18.05.2011
[published in the State Government's
Gazette on 10.11.2011] permitted
implementation of 100 Dwelling
Houses Scheme in 210 Acres,
including the Subject property.
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The KHB has also brought on record that the State
Government, acting upon its Resolution dated
10.12.2012, has granted approval for purchase of the
subject property on 10.04.2013, and that this
approval covers not only the subject property but also
a couple of other lands.
4.5 The details of the proceedings commenced
immediately after the execution and registration of
the Sale Deed dated 23.08.2006 are as follows. If one
set of proceedings is by the appellant seeking
partition of the subject property [and the other
properties] contending that his father, the plaintiff,
has executed sale deed dated 23.08.2006 in favour of
the KHB without his consent though the same is a
joint family property, the other set of proceedings are
by the plaintiff contending that he was induced to
execute the sale deed dated 23.08.2006
misrepresenting that the Government had accorded
permission for purchase of the subject property
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under Section 33[1] of the KHB Act. The details of
these proceedings are as follows:
O.S. No.412/2007:
5. The appellant has filed this suit for
partition of the subject property and certain other
properties against the KHB [and its officials] and the
plaintiff. The appellant's maternal aunts, though not
initially parties to the suit, are later impleaded. The
appellant has inter alia asserted in this suit that the
appellant has purchased the subject property under
the sale deeds4 dated 29.05.1998 from a certain Sri.
Siddaiah [and his family members] utilizing the
income from one of the other suit schedule properties
mentioned in the plaint.
5.1 The appellant's maternal aunts have filed
their written statement asserting that the plaintiff
was managing one of the properties left behind by
4 These Sale Deeds are marked as Exhibits in this Suit in
Ex. P 3 and 4.
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their father because they could not and also because
he was retiring from his service with the Forest
Department. As against these submissions, the
plaintiff has filed written statement contending that
he has purchased the subject property from out of
his own income, and insofar as the sale deed dated
23.08.2006 executed in favour of the KHB, the
plaintiff has asserted, which is also the core in the
present suit, that he was induced to execute the sale
deed misrepresenting that there was prior approval
by the State Government.
5.2 The civil Court, which was considering
Issues such as whether the appellant proves that the
subject property [and the other properties] are joint
family properties and whether the plaintiff proves
that the sale deed dated 23.08.2006 is not binding on
him, has dismissed the suit answering both these
issues against the appellant and the plaintiff. The
civil Court, in fact, has adverted to the common
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cause of the plaintiff and the defendant that the KHB
has purchased the subject property under the
aforesaid sale deed without formulation of a Scheme
and prior approval as are contemplated under the
provisions of the KHB Act.
O.S. No.26/2008:
6. The appellant's sister Smt. Vijaya
Dhadooti has filed this suit for partition against the
plaintiff and the appellant including certain
properties but without including the subject property.
The plaintiff and the appellant have joined Smt.
Vijaya Dhadooti in filing a compromise application
under Order XXIII Rule 3 of CPC, and the suit is
disposed of based on this application. The civil Court
in its Judgment in O.S. No.412/2007, has observed
that the parties in the compromise application have
only stated that the compromise is taking into
account even those properties that are not mentioned
by Smt. Vijaya Dhadooti and to give a final
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conclusion to all disputes. The civil Court has also
drawn certain inferences against the plaintiff and the
appellant because of the initiation of this suit in O.S.
No.26/2008 without including the subject property
and filing a compromise.
R.F.A. No.4066/2012:
7. The appellant has filed the appeal in RFA
No.4066/2012 calling in question the civil Court's
Judgment in O.S. No.412/2007 and this appeal is
dismissed by a Co-ordinate Bench of this Court by
the Judgment and decree dated 31.05.2012 while
answering the question such as whether the appellant
has proved that the plaintiff has purchased the subject
property utilizing the joint family nucleus. The
Division Bench has observed that the appellant also
relies upon a Testament and Will executed by his
mother in his favour bequeathing her undivided
interest in the subject property, but such bequeath
cannot be accepted inter alia for the reason that the
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appellant's mother has died in the year 1993 and the
plaintiff has purchased the subject property from Sri
Siddaiah under the sale deeds executed in the year
1998. The Division Bench's Judgment in this appeal
is not taken up in further challenge and it has
attained finality.
W.P. No.65687/2009:
8. The plaintiff, after the initiation of the
above suit in O.S. No.412/2007, has filed this writ
petition for quashing the sale deed dated 23.08.2006
executed in favour of the Karnataka Housing Board.
The writ Court has dismissed the petition on
12.07.2013 observing that the writ petition is filed on
13.10.2009 calling in question the sale deed executed
in the month of August 2006; that there is inordinate
delay in filing the writ petition and the plaintiff has
not offered any explanation; and that the plaintiff
could not even have filed a suit because it is barred
by limitation. The writ Court has dismissed the writ
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petition in the light of the afore on the ground of
delay and laches. The writ Court's order in this
regard reads as under:
"5. The sale deed was executed on
23.08.2006 and this writ petition was
filed on 13.10.2009 i.e. after more than
three years from the date of execution of
the sale deed. There is no explanation for
the inordinate delay in filing the writ
petition. The petitioner could not have
even filed the suit as on the date of filing
of the writ petition as the suit would have
been barred by limitation. In my opinion,
the writ petition is liable to be dismissed
on the ground of delay and laches. Even
otherwise, this Court, in exercise of its
extraordinary jurisdiction under Articles
226 & 227 of the Constitution of India,
cannot examine the validity of the sale
deed in question, as recording of evidence
is necessary since the petitioner's case
that the sale deed is vitiated by undue
influence, coercion and misrepresentation
is denied by the respondents. The writ
petition is accordingly dismissed. In view
of dismissal of the writ petition,
I.A.No.1/2013 filed for a certain direction
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does not survive for consideration; it
stands disposed of accordingly."
W.A. No.30910/2013:
9. The plaintiff has filed this intra-court
appeal calling in question the writ Court's order
dated 12.07.2013 in the aforesaid writ petition. The
plaintiff's specific case in this intra Court appeal is
that the State Government has granted approval for
purchase of certain lands but not for the subject
property, but he was induced by a third party, at the
instance of the KHB, to believe that the State
Government's approval included the approval for
purchase of the subject property. In fact, the plaintiff
has specifically asserted that the KHB could have
purchased the property only if there was prior
approval, and because there is no such prior
approval, the purchase is vitiated.
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9.1 A Division Bench of this Court, referring
to the suit in O.S. No.412/2007, has disposed of this
appeal opining that the writ Court's order is valid and
observing that it would be open to the petitioner to
challenge the sale deed dated 23.08.2006 in a civil
suit and that neither the dismissal of the writ petition
nor the intra-court appeal would come in the way of
the petitioner getting appropriate relief in such suit.
The Division Bench has examined the plaintiff's
grievance in the light of the proposition that
acquisition of immovable property by a statutory
Body, even if such acquisition is by way of a
purchase, cannot be challenged in a suit, and the
Division Bench has observed, after referring to the
different authorities, that the plaintiff, because he
proposes to include the sale deed dated 23.08.2006
on the ground of misrepresentation and fraud, can
call in question the sale deed in a civil suit.
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9.2 The plaintiff has carried these decisions in
challenge before the Apex Court in S.L.P.
No.28739/2013, and this Special Leave Petition is
dismissed in limine. The plaintiff has filed the present
suit in O.S.No.68/2014 purportedly in terms with the
liberty reserved by the Division Bench as aforesaid,
and the present writ petition in W.P. No.
101046/2021 is filed after a memo is filed in the first
appeal as against the judgment and decree dated
23.09.2015 in OS No. 68/2014. The details of these
proceedings are as follows.
O.S.No.68/2014:
10. The plaintiff has filed this suit for setting
aside of the sale deed dated 23.08.2006 contending
that he will repay the sale consideration of
Rs.1,07,64,000/- subject to the direction to the
fourth defendant therein to pay a sum of
Rs.29,64,000/- either to him or to the other
defendants i.e. KHB along with interest. The plaintiff
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alleges that the latter amount was received from him
illegally for facilitating the transaction for the subject
property. The plaintiff has also sought for permanent
injunction restraining the KHB and the other
defendants from interfering with his possession of
this property.
10.1 The plaintiff, amongst others, has
asserted that he is a victim of circumstances and the
sale value at the rate of Rs.6,90,000/- per acre is
fixed whimsically. As regards the alleged payment of
certain sums, the plaintiff has asserted that the
fourth defendant in the suit [a learned member of the
Bar acting in cohorts with the KHB and its officials]
lured him into believing that he would be able to
prevail upon the officials of the KHB to pay
compensation at a rate more than Rs.5,00,000/- per
acre and that some portion of the amount paid in
excess must be paid back to him to be distributed
amongst the officials of the KHB. The plaintiff has
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also asserted that, because of anxiety of losing the
subject property for a far lesser value if there is
compulsory acquisition, he agreed to execute the Sale
Deed dated 23.08.2006 as he had earlier participated
in the meeting on 07.03.2006 convened by the
Deputy Commissioner, KHB to ascertain the
consensus value for the properties.
10.2 The plaintiff, as regards the KHB's
authority to enter into negotiations and purchase
immovable properties, after an elaborate reference to
the provisions of the KHB Act, has specifically
contended that there is no prior approval of the State
Government to purchase the subject property and as
such, the impugned sale deed dated 23.08.2006 is
null and void. The plaintiff has averred that he has
filed the writ petition in W.P.No.65687/2009 because
he was advised that it would not be permissible to
call in question a sale deed executed in favour of a
statutory body in a suit, and that he has bonafide
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prosecuted the writ proceedings and the Special
Leave Petition, and as such, the time spent in
prosecuting these proceedings must be excluded. The
plaintiff as regards the possession of the subject
property has alleged that there are standing mango,
sapota and other fruit bearing trees and he operates
an existing borewell to tend to these trees and that
the farmhouse is occupied by the labor engaged by
him.
10.3 The KHB and its officers [the first to third
defendants] have filed their written statement
adverting to the aforementioned earlier suits and writ
proceedings and denying the allegations of
misrepresentation and the plaintiff being lured to
execute the sale deed5. The KHB and the other
defendants have specifically pleaded that the
Government of Karnataka has in the year 2001
5 The fourth defendant has filed his separate written
statement on 06.06.2014 denying that he had ever entered
into any transaction with the plaintiff for the sale of the
subject property in favour of the KHB.
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launched a Scheme called "100 Dwelling Housing
Scheme" across the State and that this Scheme is
modified from time to time. The State Government
has granted approval for purchase of different lands
in Sy.No.152-157 and 259-282 of Gamanagatti
Village and in Sy.Nos.16-17 of Suthagatti Village,
Hubballi Taluk on 17.06.2006. The subject property
is abutting this parcel of lands, and the plaintiff,
sensing an opportunity of realizing true market value,
on his own volition offered to sell the subject
property. The plaintiff has accordingly executed the
Consent Letter dated 26.06.2006 offering the subject
property for sale and the plaintiff cannot renege from
the consent signed falsely alleging either
misrepresentation or fraud inasmuch he is a retired
Senior Officer from the Forest Service.
10.4 The KHB and the other defendants have
also averred that the Special Land Acquisition Officer,
upon ascertaining that the total extent of land in the
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aforesaid survey numbers would only be 164 acres
though the permission accorded by the State
Government is for 400 acres, has informed the
Commissioner, KHB that only an extent of 47 acres is
purchased because of certain title disputes and
because most of the lands were subject to the
provisions of the PTCL Act. The Commissioner, KHB,
has accorded permission to purchase the subject
property and certain other adjacent lands, and the
Commissioner has also accordingly informed the
State Government vide the Communication dated
13.10.2006. The KHB and the other defendants are
thus categorical in their pleadings that the plaintiff
has executed the sale deed dated 23.08.2006 on his
own accord asserting that the permission for
purchase of the subject property is within the
approval granted by the State Government on
17.06.2006.
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10.5 The KHB and these defendants have
also referred to, as mentioned at the first instance,
that the plaintiff has invested the sale price received
for the execution of the sale deed for purchase of
different lands and the plaintiff acknowledging, in his
dispute in W.P.No.62406/2011 with the Income Tax
Department for allowance under the provisions of
Section 54B and Section 10(37)(iii) and (iv) of the
Income Tax Act,1961 [for short, the 'IT Act'] that he
has purchased lands utilizing the sale price. As
regards the possession of the subject property, their
case is that the plaintiff has delivered possession of
the subject property simultaneously with the
execution of the sale deed and the KHB has incurred
a cost of more than Rs.4 Crores in developing the
subject property for the purposes of "100 Dwelling
Housing Scheme".
10.6 The civil Court in the light of these rival
submissions has framed Issues such as whether the
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plaintiff proves that the KHB and its officials have
obtained the impugned sale deed dated 23.08.2006
suppressing material facts from him and by playing
fraud on him, whether the sale deed dated
23.08.2006 is a void deed, whether the suit is barred
by limitation and whether the plaintiff is in
possession of the subject property. The civil Court
has also framed additional Issues which require the
plaintiff to prove that the fourth defendant [a member
of the Bar who allegedly lured him to execute the sale
deed] had received a sum of Rs.29,64,000/-.
10.7 The plaintiff has examined himself as
PW.1 and he has marked documents Exhibits P1 to
P28. These exhibits are essentially the revenue
records for the subject property, the Sale Deed dated
23.08.2006, KHB's certain resolutions, orders in the
writ proceedings, paper reports and CAG report. The
KHB has examined its Executive Engineer [Sri.
Sridhar Narayan Joshi] as DW.1, and it has marked
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documents as Ex. D1 to D33. These exhibits are
RTCs for the lands purchased by the plaintiff after
the Sale Deed dated 23.08.2006, the certified copies
of the sale deeds under which the plaintiff has
purchased these properties, the pleadings in the
earlier suit in O.S.No.412/2007 and the judgment
and orders in the aforesaid suit and the writ
proceedings. The KHB has marked the petitioner's
Consent Letter dated 26.06.2006 as Ex. D23 and the
approved layout plan as Exhibits D32 and D33.
10.8 The civil Court, answering the issue on
whether the plaintiff proves that impugned sale deed
dated 23.08.2006 is obtained by misrepresentation
and by playing fraud on him and that the sale deed is
void, after referring to the different authorities relied
upon by the rival parties on the proposition to test
the claim of misrepresentation and fraud, has opined
that [a] the plaintiff has participated in the meeting
held on 17.03.2006 under the Chairmanship of the
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Deputy Commissioner to finalize the consent value,
[b] there is no evidence on the officials threatening to
acquire the subject property if there is no consensus,
[c] if the KHB and its officials had wrongly
represented that there was prior approval for
purchase of the subject, it was open to the plaintiff
[a retired officer from forest service] to go through the
documents and verify the same, [d] the plaintiff has
not even alleged that the KHB and its officials refused
to give him any document, [e] the KHB's internal
communications marked as exhibits demonstrate
that the discussion was to purchase even those lands
that are not specifically mentioned in the State
Government's order dated 17.06.2006.
10.9 The civil Court has further opined, after
referring to the evidence, that the plaintiff having
made a profit from the sale of the subject property
cannot impugn the same and if really, there was any
misrepresentation of fraud, he should not have
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waited until the month of August 2009 to issue legal
notice when, even according to him, he came to know
about the alleged non-inclusion of the subject
property in the Government approval upon service of
notice in the suit in O.S.No.402/2007. The civil Court
has also referred to the evidence of DW.1 to opine
that there was no misrepresentation and that the
subject property is developed as approved.
10.10 The civil Court, on the question of
possession of the subject property, has opined that
the evidence demonstrates that the KHB has laid
roads and UGD lines and drawn electricity wires
through the subject property and that though the
plaintiff asserts that he is in possession of the subject
property, he has not produced any document, or
evidence otherwise, to demonstrate that he is in
actual possession of the subject property. The civil
Court, on the question of limitation, after a detailed
reference to the different proceedings initiated by the
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plaintiff [and the appellant] from the year 2007 and
the different authorities on the applicability of
Section 14 of the Limitation Act, 1963, has opined
that the suit cannot be dismissed on the ground of
limitation.
11. The plaintiff has filed his appeal
impugning the civil Court's judgment dated
23.09.2015 in the present first appeal in RFA
No.100272/2015. On 18.12.2020, the learned
counsel for the KHB has placed on record the KHB's
Resolution dated 10.12.2012 and the State
Government's Order dated 10.04.2013. The KHB, by
the Resolution dated 10.12.2012, has sought for
ratification of the purchase of the subject property6
recording that a total extent of 138 acres 13 guntas is
purchased in the different survey numbers of
Gamanagatti and Suthagatti villages, Hubballi Taluk
for the Scheme and that only an extent of 164 acres
6 The adjacent lands in survey No.30 and 31/2 of the same
village.
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would be available within 400 acres initially
identified. The State Government, in the light of this
Resolution, has communicated it approval by its
order dated 10.04.2013.
11.1 The plaintiff has died on 12.09.2013 and
the appellant has filed the application under Order
XXII Rule 3 of CPC asserting that he, because his
sister [Smt.Vijaya] has relinquished all her interest in
the subject property in terms of the compromise filed
in O.S.No.26/2008, is entitled to continue the suit as
the sole legal representative. This Court on
07.12.2020 has allowed the application permitting
the appellant to continue the appeal as the sole legal
heir of the plaintiff.
12. The appellant, with the aforesaid
Resolution dated 10.12.2012 and the State
Government's Order dated 10.04.2013 being placed
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on record in the appeal, has filed the writ petition in
W.P.No.101046/2021 impugning the KHB's
Resolution dated 10.12.2012, the State Government's
order dated 10.04.2013 and for quashing of the Sale
Deed dated 23.08.2006 on the ground that the
impugned Sale Deed is obtained without prior
approval. Insofar as the cause of action, the
appellant has contended that the KHB has placed on
record these documents for the first time in the year
2020 though proceedings were pending and as such,
and because his father is no more, he is entitled to
call in question these Resolution and Order and for
quashing of the Sale Deed dated 23.08.2006.
12.1 The appellant has asserted that the
subject property was not required for the purposes of
the 100 Dwelling Housing Scheme and therefore was
not included in the approval granted on 17.06.2006
under Section 33 (1) of the KHB Act. The prior
approval under this provision is mandatory, and
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because the approval is granted for the first time on
10.04.2013, the purchase of the subject property is
without due authority in law. The appellant has
contended that if permission could be granted under
Section 33 of the KHB Act for purchase the subject
property, it should have been prior to the date of
purchase.
12.2 The writ Court in the light of these
assertions and contentions has framed the following
two points for consideration:
[ii] Whether the sale deed dated
23.08.2006 and the acquisition of
the subject property without
obtaining prior approval from the
State Government under Section 33
of the KHB Act is valid and legal,
and
[ii] Whether this writ petition in
W.P.No.101046/2021 is barred
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either by the principles of res
judicata or constructive res judicata.
12.3 The writ court, in the light of the KHB
Resolution dated 10.12.2012 and the State
Government's approval dated 10.04.2013, has opined
that the KHB has purchased the subject property
without the State Government's prior approval. The
writ Court, while addressing the question whether
the absence on lack of prior approval would vitiate
the sale deed dated 23.08.2006 rendering it illegal
and invalid, has opined that the State Government's
prior approval is a sine qua non in view of the
provisions of the Section 33(1) of the KHB Act and
that ex post facto approval or ratification will be
permissible if the statute contemplates the same and
if the statutory provision contemplates only prior
approval, ex post facto approval or ratification would
neither be valid nor cure the defect on account of
lack of prior approval.
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12.4 The writ Court on the question of the writ
petition being barred by either Res judicata or
Constructive Res judicata has opined that in the
present case, the question whether the sale deed
dated 23.08.2006 was void because of lack of prior
approval as contemplated under Section 33 of the
KHB Act is not adjudicated either in writ petition in
W.P.No.65687/2009 or in writ appeal in
W.A.No.30910/2013 or in O.S.No.68/2014. Insofar
as the application of constructive Res judicata, the
writ Court has also refused to accept the KHB's
contention that the writ petition would be barred by
constructive Res judicata because of the pending
dispute in RFA No.100272/2015 [emanating from the
suit in O.SNo.68/2014] opining that this contention
cannot be accepted for reasons such as the appeal in
RFA No.100272/2015 is still pending adjudication
and it has not attained finality and because it is
stated on behalf of the appellant that he would
withdraw this appeal if it could be opined that this
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writ petition is not barred by res judicata. The writ
Court has also indicated that the liberty reserved by
the Division Bench in Writ Appeal No.30910/2013 to
the plaintiff to seek cancellation of the Sale Deed
dated 23.08.2006, on the ground of fraud and
misrepresentation, would inure to the appellant's
benefit.
12.5 Sri Gurudas Kannur and Sri C. S. Patil,
the learned Senior Counsel and the learned counsel
on record for the appellant respectively, and Sri
Basavaraj V. Sabarad, and Sri H. R. Gundappa, the
learned Senior Counsel and the learned counsel on
record for the KHB respectively, are heard. The
learned senior Counsels and the learned counsels
have taken this Court through the different records
that bring forth the different proceedings as referred
to above and the rival submissions. The learned
Senior Counsels and the learned counsels have also
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clarified the respective positions when called upon by
this Court.
12.6 The plaintiff [as also the appellant],
as is obvious from the above, canvass threefold
grievance with the sale deed dated 23.08.2006 in the
suit in OS No. 68/2014 and in the writ petition in WP
No. 101046/2021. The plaintiff in the suit has
alleged that the sale deed dated 23.08.2006 is a
result of misrepresentation and fraud, and the
appellant in the writ petition has alleged that the sale
deed dated 23.08.2006 is obtained by the KHB
without State Government's prior approval as
contemplated under Section 33[1] of the KHB Act.
The KHB has contended inter alia that the plaintiff
has also urged in this suit that the sale deed dated
23.08.2006 is void because it is without the State
Government's prior approval, and therefore, the writ
petition by the appellant, who claims under the
plaintiff, is barred by res judicata.
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12.7 In the light of these essential rival
contentions, which are considered by the civil Court
and the writ Court, this Court will have to re-examine
the evidence on record to decide the following
questions.
[a] Whether this Court must interfere with
the Civil Court's opinion in OS No.
68/2014 that the plaintiff has failed to
establish that the impugned sale deed
dated 23.08.2006 because of
misrepresentation and fraud is void,
and
[b] Whether this Court must interfere with
the writ Court's opinion [in
W.P.No.101046/2021] that the sale
deed dated 23.08.2006 is vitiated and
rendered invalid because it is without
'prior approval' of the State
Government under section 33(1) of the
KHB Act and that the writ petition is
not barred by the principles of Res
judicata or by Constructive Res
judicata.
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On Civil Court's finding on alleged
misrepresentation and fraud:
13. The plaintiff, in support of his allegation of
misrepresentation and fraud, has essentially alleged
that he was encouraged to participate in the sale
transaction [and in the Meeting on 17.03.2006 under
the Chairmanship of the Deputy Commissioner to
decide on the consensual value of the subject property]
because he was falsely made to believe that the State
Government has granted necessary sanction of the
Scheme/Programme including the subject property,
and that there was prior approval for purchase of the
subject property. The plaintiff has also alleged that
the fourth defendant in the suit in O.S.No.68/2014,
taking advantage of the fact that he believed that the
true value of the subject property would not be
immediately realized if there was compulsory
acquisition, lured him to execute the impugned sale
deed agree to pay back every part of the sale
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consideration paid in excess of the rate payable at
Rs.5,00,000/- per acre.
13.1 The plaintiff, as regards the first allegation
essentially relies upon the State Government's order
dated 17.06.2006 which, admittedly, refers to a
specific set of survey numbers in Gamanagatti and
Suthagatti Villages. This aspect must be considered
in detail when the questions of prior approval and res
judicata are examined. As regards his case that he
was misled to believe that there was prior approval
and hence persuaded to participate in the Meeting on
17.03.2006, this Court must observe at the outset
that the plaintiff has not placed on record any
evidence, neither ocular nor documentary, to
substantiate his allegation. The civil Court has
observed on appreciation of evidence that the
plaintiff, who has retired from Forest Service, is not a
lay person and he could have very well verified the
documents to ascertain whether the subject property
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was covered by the State Government's prior
approval. The civil Court has also rightly observed
that the plaintiff has not even alleged that he
requested for certain documents, and the KHB
refused to give him those documents.
13.2 The plaintiff's admitted participation in
the Meeting on 17.03.2006, the execution of the
consent letter dated 26.06.2006, the completion of
the transaction with the sale deed dated 23.08.2006
and the utilization of the sale proceeds for purchase
of certain other properties completely belies the
plaintiff's case of misrepresentation and fraud.
Further, the KHB has placed on record material to
demonstrate that the plaintiff has purchased 18
acres lands after the transaction under the sale deed
dated 23.08.2006. The KHB has marked the
certified copy of these sale deeds:
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Date of the Details of the property Sale Consideration
Sale Deed
Exhibits
The land bearing Sy.
[measuring 31 guntas]
of Unkal Village,
Ex. D. 1 07.08.2008
Hubballi Taluk
Rs.10,00,000/-
The land bearing Sy.
No.86/1+2+ 3/K
[measuring 3 acres 34
guntas] of Pale
Village, Hubballi
Ex D 2 22.01.2007 Taluk. Rs. 1,30,000/-
The land bearing Sy.
No.87/1+ 2B/1
[measuring 2 acres 24
guntas] of Pale
Village, Hubballi
Ex D 3 22.01.2007 Taluk Rs. 2,60,000/-
The land bearing Sy.
No.86/1+2 +3/B
[measuring 6 acres 38
guntas] of Pale
Village, Hubballi
Ex D 4 07.02.2007 Taluk Rs. 7,00,000/-
The land bearing Sy.
No.86/1+2+3 /A/1
[measuring 3 acres 5
guntas] of Pale
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Ex D 5 22.01.2007 Village, Hubballi
Taluk
Rs. 3,20,000/-
The land bearing Sy.
No.110/2 [measuring
36 guntas] of Raynal
Village, Hubballi
Ex D 6 08.08.2008
Taluk
Rs. 5,00,000/-
13.3 Significantly, the KHB, without any
contra material on record, is able to establish that the
petitioner has sought for exemption [allowance] under
the provisions of the IT Act primarily relying upon the
assertion that he had transferred the subject
property under the Sale Deed dated 23.08.2006 and
utilized the sale consideration for purchase of the
lands. The proceedings in writ petition in
W.P.No.62406/2011 in this regard are not disputed.
The plaintiff, who has purchased properties investing
the price received for the sale of the subject property
availing certain tax exemptions, is trying to retain
this benefit while impugning the sale deed upon the
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condition of returning the sale consideration paid to
him for such transfer. This should not only be
unconscionable but also impermissible in law.
13.4 The provisions of Section of 647 of the
Indian Contract Act,1872 stipulate that a party
voiding the contract must restore the benefit received
under the contract. In the facts and circumstances
of the case, this Court must refer to the proposition
stated succinctly in the year 1932 in Mundakath
Mathu v. Vishnu Nambudripad8 extracting from an
earlier decision. It is stated thus in this decision, and
this proposition must apply on all its fours in the
present case.
"The principle on which sections 64 and 65
rest is not confined to cases expressly
7 When a person at whose option a contract is voidable
rescinds it, the other party thereto need not perform any
promise therein contained in which he is promisor. The party
rescinding a voidable contract shall, if he has received any
benefit thereunder from another party to such contract,
restore such benefit, so far as may be, to the person from
whom it was received.
8 The Law Weekly, 1932 Page 171
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included in either of them and is thus stated in
Clough v. London North Western Rail Co.
No man can at once treat the
contract as avoided by him, so as to
resume the property which he
parted with under it, and at the
same time keep the money or other
advantages which he has obtained
under it.
This rule is applied as rule of equity and
good conscience."
13.5 Further, the plaintiff has stated in his
chief examination that the fourth defendant, making
him believe that the value for the subject property
was fixed at Rs.6,90,000 per acre because of his
intervention and there was an assurance to share the
amount in excess of the value payable at the rate of
Rs.5,00,000/- per acre, constrained him to deposit
the cheque issued by the KHB in a particular
account, that the fourth defendant collected a self
cheque for Rs.2,96,400/- on the date of the sale deed
itself, and that after he withdrew this amount, he
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handed over the passbook to him to ensure that he
received only the value at Rs.5,00,000/- per acre.
However, the plaintiff, as rightly observed by the civil
Court, has not even produced his bank statements to
substantiate this allegation.
13.6 It is settled that a party who alleges
misrepresentation and fraud must not only plead the
necessary details but also place on record evidence
that corroborates the allegation, and the plaintiff has
failed on both these counts. This Court must also
observe that no effort is made to demonstrate that
the civil Court's conclusion that the evidence
demonstrates that the KHB has laid roads and UGD
lines and drawn electricity wires in the subject
property is exceptionable. In view of the afore, this
Court is of the considered view that the civil Court's
Judgment and decree on the ground of
misrepresentation and fraud does not call for any
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interference, and the first question is answered
accordingly.
On the lack of 'Prior Approval' under the
provisions of the KHB Act
14. The plaintiff's case that the subject
property is purchased by the KHB under the sale
deed dated 23.08.2006 contrary to the provisions of
the KHB Act is firstly on the ground that the State
Government has not sanctioned the Scheme, or
approved the budget, for the execution of the 100
Dwelling Houses Scheme including the subject
property, and secondly, on the ground that there is
no prior approval. This aspect of the petitioner's
grievance must be considered in the light of the
provisions of the KHB Act.
14.1 The provisions of Section 17 the KHB
Act, which is in Chapter III of the Act, enable the
KHB to incur expenditure and undertake work in any
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area for execution of Housing Schemes, Land
Development Schemes, Infrastructure Development,
Construction and disposal of the Commercial
premises and the Building Constructions Scheme as it
may consider necessary or as may be entrusted to it
by the State Government or Government
undertakings or under the joint venture or public
private arrangements subject to such conditions.
The KHB for its Housing Scheme9, notwithstanding
anything contained in any other law, may inter alia
provide for acquisition of immovable properties by
purchase, exchange or otherwise when these
properties would be necessary for execution of the
Scheme.
14.2 The provisions of Chapter III of the KHB
Act also stipulate the terms for preparation of a
programme10 [an exercise which is defined under
9. Section 18 of the KHB Act contemplate what the KHB may
provide for in a Housing Scheme.
10 The provisions of Section 19 (2) of the KHB Act stipulate
that a programme shall contain such particulars of a
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Section 2(n) of the KHB Act] and a budget therefor
with the State Government sanction's thereof and the
publication of the programme in the official Gazette.
Further, the KHB is vested with the power to submit
supplementary programme and budget and to vary,
at any time, any programme [and any part included in
the programmed sanctioned by the State Government]
but subject to the condition that no variation shall be
made if it involves an expenditure in excess of 20% of
the amount as originally sanctioned for the execution
of either Housing Scheme or a Land Development
Scheme included in such programme. The provisions
of Section 24 of the KHB Act, also in Chapter III,
stipulate that KHB can proceed to execute the
Programme [which will relate the Schemes as referred
to above] only after a programme has been
sanctioned and published by the State Government,
Housing Scheme, a Land Development Scheme and Labor
Housing Scheme which KHB proposes to execute, whether
partly or otherwise, during the next year.
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and subject to variation as is contemplated under
Section 23.
14.3 In the present case, the KHB relies upon
the Government Notification dated
18.05.2011[Annexure R10 in the writ proceedings] to
assert that the State Government [as is contemplated
under Section 20 of the KHB Act] has accorded, with
the varying difficulties to the KHB in the execution of
the different Housing Schemes promoted from the
year 2001, the budget approval to the tune of Rs.
30,87,098.80 Lakhs for the different Housing
Schemes listed in the Schedule - I appended to this
notification. It is seen from Entry No. 136 of this
Schedule that the budget is approved for the
development of 210 Acres of land with 945 houses
therein in Gamanagatti and Suthagatti villages.
14.4 The State Government, by this
notification, has also directed the Karnataka Housing
Board's Directors to undertake certain technical
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specifications as outlined in Schedule - II of the
Order. This Court must opine that this notification,
insofar as the present proceedings, puts to rest the
plaintiff's case [and the appellant's case] that the
State Government has not accorded approval for the
construction of dwelling houses in Gamanagatti and
Suthagatti villages.
14.5 The provisions of Section 33(1) in
Chapter IV of the KHB Act vest in the KHB's Board
the power to purchase, lease, exchange or procure by
agreement land from any person for the purposes of a
Housing Scheme or Land Development Scheme.
However, the power to purchase or exchange upon
paying compensation to the owners is subject to the
condition that is part of the proviso to this sub-
section. The provisions of Section 33 of the KHB Act,
as it stood prior to amendment11, read as under:
11 These provisions have been substituted by Act No.24/2016
with effect from 28.07.2016 and the permission is
contemplated where the project involves land worth more
than 250 lakhs and lease is for more than ten years.
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"Section 33. Power to purchase or lease
by agreement.- (1) The Board may enter
into an agreement with any person for the
acquisition form him by purchase, lease or
exchange, or any land which is needed for
the purposes of a housing scheme or land
development scheme or any interest in such
land or for compensating the owners of any
such right in respect of any deprivation
thereof or interference therewith:
Provided that the previous approval of the
State Government shall be obtained in case
of purchase or exchange involving land
worth more than rupees ten lakhs or lease
for more than five years.
(2) The Board may also take steps for the
compulsory acquisition of any land or any
interest therein required for the execution of
a housing scheme or land development
scheme in the manner provided in the Land
Acquisition Act, 1894, as modified by this
Act and the acquisition of any land or any
interest therein for the purposes of this Act
shall be deemed to be acquisition for a public
purpose within the meaning of the Land
Acquisition Act, 1894."
14.6 In the case of Purchase or exchange [or
sharing basis of immovable property in lieu of
compensation], as stipulated in proviso to Section
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33(1) of the Act, the State Government's previous
approval is necessary cases of projects involving
lands worth more than Rs.10 lakhs or the lease for
more than 5 years. The KHB under Section 33(2) of
the KHB Act is also vested with authority to take
steps for compulsory acquisition of any land through
the State Government when required for the
execution of a Housing Scheme or a Land
Development Scheme.
14.7 As canvassed by Sri Gurudas Kannur
and Sri C. S. Patil the question whether prior
approval for purchase of lands required for a Scheme
is mandatory or not has come up for consideration by
the Apex Court in the Karnataka Housing Board
and another vs. State of Karnataka and
Others12, and the Apex Court has exposited, while
considering the question whether initiation of the
proceedings for acquisition of land invoking the
powers under Section 33(2) of the KHB Act without a
12 2022(11) SCALE 305
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Housing Scheme or without the sanctioned Housing
Scheme under Section 24(2) would be void or non-est,
has held that the prior approval as contemplated
under Section 33(1) of the KHB Act would be
mandatory. This exposition is in paragraph 38 which
read as follows:
"Section 33 in Chapter-IV actually deals
with the power of KHB to acquire land.
Sub-sections (1) and (2) thereof envisage
different modes of acquisition which are
different in nature. To put it succinctly, in
the matter of acquisition under Section
33(1), 'consent' is required and in respect
of unwilling owners acquisition may be
effected under sub-Section (2) thereof.
What is relevant to be noted is that Section
33 deals with acquisition of land or interest
thereon and it is not dealing with sanction
of the schemes. Obviously, for acquiring
land or interest thereon, upon entering into
an agreement with any person, by
following anyone of the three modes
prescribed under Section 33(1) prior
approval of the State Government is
mandatory, subject to its proviso."
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14.8 Sri Basavaraj V. Sabarad and Sri H. R.
Gundappa do not dispute the proposition that the
State Government's prior approval, as contemplated
under Section 33(1) of the KHB Act, for purchase of
the subject property is mandatory when the value of
the project lands [including the subject property] is
more than 10 lakhs [as the statutory provision stood
at the relevant point of time], but they contend that
the writ Court has failed to consider the
circumstances which demonstrate the purchase of
the subject property is covered by the prior approval
granted by the State Government vide Order dated
17.06.2006. In this regard, the learned
Senior/learned Counsel emphasize the following:
[a] The State Government, on
17.06.2006 has accorded
permission for purchase of 400 acres
at the rate of Rs.6,90,000/- per acre
for the purposes of '100 Dwelling
Housing Scheme'. The State
Government has indeed referred to
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certain survey numbers in the
villages of Gamanagatti and
Suthagatti, but the approval is for a
purchase of a compact parcel of 400
acres.
[b] The Assistant Executive Engineer
concerned, in the month of August
2006, has filed a report [after
referring to the earlier proceedings
resulting with the permission on
17.06.2006] stating that an extent of
47 acres is purchased.
[c] The Assistant Executive Engineer
has also reported that the prior
approval is for purchase of an extent
of 427 acres in the villages of
Gamanagatti and Suthagatti, but
because of certain civil disputes and
the application of the PTCL Act, the
KHB can purchase 86 acres 38
guntas in Gamanagatti villages and
78 acres 06 guntas in Suthagatti
villages and therefore, the other
adjacent lands must be purchased
to make a compact block.
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[d] The Commissioner of KHB, in the
light of this Report by the Assistant
Executive Engineer, has informed
the State Government by his
Communication dated 26.10.2006
that the prior approval is for
purchase of 400 acres and the other
lands in these two villages can be
purchased limiting the purchase to a
compact parcel of 400 acres.
[e] It is after this verification and
communication, that the plaintiff has
given his consent to sell the subject
property pursuant to the prior
approval vide the State
Government's Order dated
17.06.2006 and that the State
Government's decision on
10.04.2013, after the KHB's
resolution dated 10.12.2012, is only
a ratification and not a fresh
approval.
14.9 It is not obvious whether these aspects
were canvassed before the writ Court, and the writ
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Court has premised its opinion on the distinction
between the expressions 'approval' and 'prior
approval' as interpreted by the Apex Court in Bajaj
Hindustan Limited's case (supra). The Apex Court
in this decision, while expositing that the expression
'approval' includes ratification and ex post facto
approval, has held that if the absence of the
expression 'prior' indicates the permissibility of ex-
post facto approval or ratification, the use of the
expression 'prior' in the statute mandates previous
approval or prior approval. The writ Court, based on
these propositions, has held ex post facto approval or
ratification would not validate or cure the defect on
account of want / absence / lack of prior approval.
14.10 However, the controversy for the
present is vastly narrowed down with Sri Basavaraj V
Sabarad accepting that prior approval under Section
33[1] of the KHB Act for purchase of land [when the
value involved in the project is more than the
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prescribed value] is mandatory. This Court will have
to now consider whether the State Government's
prior approval vide its Order dated 17.06.2006 could
be construed as approval permitting purchase of the
subject property. In this regard, this Court must
firstly observe that the appellant does not dispute
that the State Government has granted prior approval
for purchase of a compact parcel of 400 acres of land
in Gamanagatti and Suttagatti Villages; that the KHB
has not been able to purchase 400 acres as permitted
because of certain title disputes and the applicability
of the provisions of PTCL Act; that the KHB has
ultimately [including the subject property] purchased
only 210 and odd acres for the purposes of this
project.
14.11 Further, the petitioner also does not
dispute that the communication within the KHB and
by the KHB with the State Government in this regard
is simultaneous with the completion of the
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transaction for the subject property. These
circumstances give the factual context, and within
the factual context, this Court will have to examine
whether the State Government's prior approval vide
Order dated 17.06.2006 would also cover the
purchase of the subject property under the impugned
sale deed dated 23.08.2006. This Court must also
consider the statutory scheme under the KHB Act
while examining the aforesaid circumstances.
14.12 As delineated earlier, the State
Government grants approval for a programme [which
must contain the particulars of the relevant schemes
and such other details as are prescribed] under
Section 20 of the KHB Act, and the State Government
also grants prior approval for purchase of lands
required for implementation of the programme [a
project] under Section 33[1]. The provisions of
Section 24[2] of the KHB Act stipulate that the KHB
shall not execute any scheme unless it is sanctioned
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by the State Government as part of a programme, but
for prior approval under Section 33[1] of the KHB Act,
the prohibition against acquiring interest in the
required lands is based on the value of the land
involved in the project, and the tenure of the lease if
there is lease. The requirement of prior approval is
not absolute and is necessitated when the value
crosses the prescribed limit or the lease is for a
tenure beyond the fixed period.
14.13 It follows from these statutory
arrangements that firstly a programme is approved by
the State Government, and the State Government
next grants prior approval to acquire interest in lands
subject to the conditions as aforesaid, and as such,
the prior approval is in the context of an approved
programme including the relevant schemes. This
Court must opine that the prior approval must
therefore necessarily be understood in the context of
a programme [scheme] that is approved. Hence, if
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there is a controversy on whether there is State
Government's prior approval as contemplated under
Section 33[1] of the KHB Act, such controversy will
have to be resolved reading the prior approval granted
in the context of the programme [scheme]. In the
present case, with the essential facts as aforesaid not
being disputed and admittedly because the subject
property is utilized for the purposes of executing the
housing scheme in the two villages, this Court is of
the considered view that the State Government's
Order dated 17.06.2006 will cover the purchase of
the subject property. This Court must also observe
that only because the State Government has
accorded specific permission on 10.04.2013, the
efficacy of the prior approval under the Order dated
17.06.2006 is not undermined.
On the grounds of Res- judicata/ Constructive Res
judicata and the Writ Court's conclusion in this
regard.
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15. The KHB's case is that the writ petition is
barred by the doctrine of Res judicata or Constructive
Res judicata because the question, whether the Sale
Deed dated 23.08.2006 is void because of lack of
prior approval as contemplated under Section 33 of
the KHB Act, is canvassed and adjudicated in the
writ proceedings in W.P.No.65687/2009 [and in writ
appeal in W.A.No.30910/2013]. The KHB's case is
also that the question is raised in the suits in
O.S.No.412/2007 and O.S.No.68/2014, and this
question is pending adjudication in the present
appeal.
15.1 The plaintiff even in the writ petition in
WP No. 65687/2009, as part of his grievance with the
transaction, has alleged that the sale deed dated
23.08.2006 is void because there is no prior approval
of the State Government, but ultimately this writ
petition has culminated with a Division Bench of this
Court in WA No. 30910/2013 reserving liberty to the
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plaintiff to file a suit to impugn the sale deed dated
23.08.2006. As such, this Court is in respectful
agreement with the writ Court's finding in this
regard.
15.2 This Court is not persuaded to opine that
this question, though canvassed, is finally
adjudicated in the said earlier writ proceedings. In
the suit in O.S.No.412/2007, the questions put forth
for decision is whether the appellant [as a member of
the plaintiff's family] could show that the subject
property was joint family property and is transferred
by the plaintiff without his consent, and this question
is answered finally in the appeal in RFA 4066/2012.
15.3 However, the writ Court has refused
to accept the KHB's contention that the writ petition
is barred by Res judicata because of the pending
dispute in RFA No.100272/2015 [emanating from the
suit in O.S. No.68/2014] opining that this contention
cannot be accepted for reasons such as the appeal in
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RFA No.100272/2015 is still pending adjudication
and it has not attained finality and because it is
stated on behalf of the appellant that he would
withdraw this appeal if it could be opined that this
writ petition is not barred by res judicata . The writ
Court's conclusions in this regard read as under:
"(i) The aforesaid facts and circumstances and
the submissions made by the learned senior
counsel with regard to the petitioner availing
only the remedy of challenging the Sale Deed
on the ground of violation of Section 33(1) and
withdrawing / abandoning the petitioner's
claim for cancellation of the Sale Deed on the
grounds of fraud and misrepresentation is
sufficient to come to the conclusion that the
present petition is not barred by res judicata.
Accordingly, placing on record, the submission
made by the learned senior counsel on behalf
of the petitioner that the petitioner would
withdraw RFA No 100272/2015 and issuing
directions to the petitioner in this regard, I am
of the considered opinion that the present
petition is not barred by res judicata."
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15.4 The KHB's grievance with this
conclusion is essentially because the plaintiff has
specifically impugned the sale deed dated 23.08.2006
on the ground that it is void because there was no
prior approval as contemplated under Section 33(1) of
the KHB Act and as such, the civil Court has also
framed an Issue in this regard. The KHB's case in
this regard is premised in the contention that when
this aspect is pending consideration in the present
appeal, the appellant has filed the writ petition taking
advantage of the fact that the KHB's Resolution dated
10.12.2012 and the State Government's Order dated
10.04.2013 are placed on record in the appeal.
15.5 The plaintiff, as regards the KHB's
authority to enter into negotiations and purchase
immovable properties, after an elaborate reference to
the provisions of the KHB Act, has specifically
contended the following.
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a) The KHB can purchase any immovable
property for implementation of
Housing Scheme or a Land
Development Scheme or a Labour
Dwelling Scheme, and the
expenditure to be incurred for the
execution of the Schemes, as part of a
Programme, is included in the annual
estimate/budget prepared for the
execution of the Scheme/s.
b) The KHB is empowered to purchase
[acquire] properties under Section 33
of the KHB Act, and this power can be
exercised only where the properties
are needed for implementing a
Housing Scheme or a Land
Development Scheme.
c) This power to purchase is conditioned
by the requirement of prior approval
of the State Government if the value
of the land proposed for a Project is
more than Rs.10,00,000/- and this
requirement of prior approval is
mandatory.
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d) There is no prior approval of the
Government to purchase the subject
property and as such, the sale deed
dated 23.08.2006 is null and void.
15.6 The KHB, in rebuttal to the plaintiff's
case that the subject property is purchased without
the prior approval under Section 33[1] of the KHB Act
[apart from relying upon the statutory scheme refuting
the plaintiff's reading of the provisions], has pleaded
thus, and the civil Court has framed Issue No. 213
because of these rival pleadings.
"35. As per the letter of the 2nd
defendant dated 02.08.2006 written to
Housing Commissioner & the 3rd
defendant brought to the notice as on that
date, 47 Acres of land purchased,
whereas Government ordered a purchase
of 400 Acres. However it was stated in
that letter the Sy. Nos. mentioned in the
Government order totally measured only
164 Acres and 2 Guntas. The 2nd
defendant had sought for clarification to
13 Issue No. 2. Whether the plaintiff proves that sale deed
dated 23.08.2006 is void document?
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the 3rd defendant, some of the lands
under litigation and some of the lands
belong to schedule caste and schedule
tribes in approved schemes, further he
sought for the purchase of adjacent lands
situated, not under dispute for the due
execution of Housing Scheme.
Accordingly permission accorded by 3rd
defendant. The defendant No.1 to 3 of the
Housing Board executing the Housing
Scheme under no loss and no profit basis,
in the interest of general public."
15.7 This Court must observe that it is
unmistakably established that the plaintiff and KHB
have put in issue in the suit the question of the
validity of the Sale Deed dated 23.08.2006 for an
alleged lack of prior approval. It is also obvious that
the civil Court, in the thicket of the material brought
on record, has not rendered its opinion on Issue
No.2. However, undeniably, the question relating to
the alleged lack of prior approval under Section 33(1)
of the KHB Act was pending consideration in the
present appeal. As such, the question is whether the
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petitioner could have invoked the writ petition in WP
No. 101046/2011 challenging the sale deed on the
ground that the sale deed is without prior approval.
15.8 This Court must opine that as this
Court is seized of this question in the appeal in
RFA No.100272/2015, the appellant could not have
filed the writ petition in WP No. 101046/2021- and
that this writ petition is barred definitely by the
principle of Constructive Res judicata inasmuch as
this principle applies when a given question ought
to be subject matter in a pending proceeding. This
Court must draw support from the following
reiteration by the Apex Court in Samir Kumar
Majumder v. Union of India and Others14
"Almost two centuries ago, in Henderson v.
Henderson, (1843) 3 Hare, 100, the Vice-
Chancellor Sir James Wigram felicitously puts
the principle thus:--
14 2023 SCC Online SC 1182
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"In trying this question I believe I state
the rule of the Court correctly when I say
that, where a given matter becomes the
subject of litigation in, and of adjudication
by, a Court of competent jurisdiction, the
Court requires the parties to that litigation
to bring forward their whole case, and will
not (except under special circumstances)
permit the same parties to open the same
subject of litigation in respect of matter
which might have been brought forward as
part of the subject in contest, but which
was not brought forward, only because
they have, from negligence, inadvertence, or
even accident, omitted part of their case.
The plea of res judicata applies, except in
special cases, not only to points upon which
the Court was actually required by the
parties to form an opinion and pronounce a
judgment, but to every point which properly
belonged to the subject of litigation, and
which the parties, exercising reasonable
diligence, might have brought forward at
the time. ...."
This principle popularly known as the
doctrine of constructive res judicata, based on
the might and ought theory, has been
recognized by this Court in several judgments."
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15.9 In view of this Court's opinion on the
aspect of prior approval and Res judicata, the next
question for consideration is answered in favour of
the KHB holding that the purchase of the subject
property is covered by the State Government's prior
approval dated 17.06.2006 and that the writ
proceedings in W.P. No.101046/2021 is barred by
Res judicata.
ORDER
The appeal in RFA No.100272/2015 is
dismissed, and the writ appeal in W.A.
No.100305/2021 is allowed setting aside
the writ Court's order dated 08.10.2021 in
W.P. No.101046/2021.
SD/-
JUDGE
SD/-
JUDGE
nv*
