Karnataka High Court
Sri Chinna Narayana Swamy vs The Commissioner on 25 February, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.13049 OF 2014 (BDA)
C/W
WRIT PETITION NO.47184 OF 2011 (BDA)
WRIT PETITION NO.47185 OF 2011 (BDA)
IN WRIT PETITION NO.13049/2014
BETWEEN:
SRI. CHINNA NARAYANA SWAMY
S/O LATE PATEL SHETTAPPA
AGED ABOUT 74 YEARS
R/AT NO.152, "SRI. MADHWA"
SIXTH CROSS, NINTH MAIN
N.T.I. LAYOUT
VIDYARANYAPURA
BANGALORE - 560 097.
...PETITIONER
(BY SRI. H.T. NATARAJ., ADVOCATE)
AND:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
2. THE DEPUTY SECRETARY
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
2
3. SATISH KUMAR S.,
S/O LATE SADASHIVAN
MAJOR
NO.473, ANANDAPUR SLUM
HAL 3RD STAGE, BANGALORE.
4. SHIVAKUMAR S.,
S/O LATE SADASIVAN
MAJOR
NO.473, ANANDAPUR SLUM
HAL 3RD STAGE, BANGALORE .
...RESPONDENTS
(BY SRI. K. KRISHNA, ADVOCATE FOR R1 & R2;
SMT. SUMA JANARDHAN GAONKAR, ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT TO THE RESPONDENTS BY DIRECTING THE
CONCERNED OFFICIALS TO RESTORE THE POSSESSION OF THE
SITE BEARING NO.473, SITUATED AT ANANDAPURA SLUM
EXTENSION, HAL 3RD STAGE, BANGALORE MEASURING EAST
TO WEST 20 FEET AND NORTH TO SOUTH 25 FEET IN FAVOUR
OF THE PETITIONER IN VIEW OF THE ORDER PASSED IN WRIT
PETITION.NO.47185/2011 (BDA) DATED:29.01.2013 VIDE
ANNEXURE - L.
IN WRIT PETITION NO.47184/2011
BETWEEN:
SRI. CHINNA NARAYANA SWAMY
S/O LATE PATEL SHETTAPPA
AGED ABOUT 71 YEARS
3
R/AT NO.5-132, SECOND(2) CROSS
FIFTH (5) MAIN,
CHAMUNDESHWARI LAYOUT
VIDYARANYAPURA POST
BANGALORE - 560 097.
...PETITIONER
(BY SRI. H.T. NATARAJ., ADVOCATE)
AND:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
2. THE DEPUTY SECRETARY
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
3. SMT. KHATUN BI
W/O SRI. MOHADEEN SAB
AGED ABOUT 60 YEARS
R/AT NO.164 'D', 1ST MAIN
SHESHADRIPURAM
BANGALORE - 560 020.
4. SRI. K.K.ANIKARAJ
S/O SRI. KUPPASWAMY
MAJOR IN AGE
R/AT NO.106/C, H.A.L.III STAGE
ANANDAPURAM SLUM
BANGALORE - 560 075.
...RESPONDENTS
(BY SRI. M. UNNIKRISHNAN, ADVOCATE FOR R1 & R2;
SRI. RAGHAVENDRA V., ADVOCATE FOR R4;
VIDE ORDER DATED:05.11.2012 NOTICE TO R3 HELD
SUFFICIENT)
4
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE CANCELLATION DEED DATED 02.01.2002 EXECUTED BY
THE BANGALORE DEVELOPMENT AUTHORITY WHICH IS
REGISTERED AS DOCUMENT NUMBER 13281/2001-02 IN BOOK
-I VOLUME 424 IN THE OFFICE OF THE ADDITIONAL SUB-
REGUSTRAR, BANGALORE DISTRICT FOLLOWED BY AN LETTER
OF ALLOTMENT DATED:03.01.2002 BEARING
NO.BDA/DSI/472/ANANDPURA/HAL III STAGE EXECUTED BY
THE RESPONDENTS ONE AND TWO BY HOLDING THAT THE
ORDER PASSED BY THE SECOND RESPONDENT IS ILLEGAL AND
WITHOUT JURISDICTION AND NOT IN ACCORDANCE WITH
LAW.
IN WRIT PETITION NO.47185/2011
BETWEEN:
SRI. CHINNA NARAYANA SWAMY
S/O LATE PATEL SHETTAPPA
AGED ABOUT 75 YEARS
R/AT NO.5-132, SECOND(2) CROSS
FIFTH (5) MAIN,
CHAMUNDESHWARI LAYOUT
VIDYARANYAPURA POST
BANGALORE - 560 097.
...PETITIONER
(BY SRI. H.T. NATARAJ., ADVOCATE)
AND:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
2. THE DEPUTY SECRETARY
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
5
KUMARA PARK WEST
BANGALORE - 560 020.
3. SMT. MAHABOOB
D/O SRI. SABAJAN SAHEB
AGED ABOUT 59 YEARS
R/AT NO.164'D'
FIRST MAIN ROAD
SHESHADRIPURAM MAIN ROAD
BANGALORE - 560 020.
4. SMT. SULOCHANA
W/O SRI. SADASHIVAN
SINCE DEAD REPRESENTED BY
HER LEGAL HEIRS
4(a) SRI. SATISH KUMAR S.,
D/O LATE SADASHIVAN
AGED ABOUT 45 YEARS
R/AT NO.473, ANANDAPUR SLUM
HAL 3RD STAGE, BANGALORE.
4(b) SRI. SHIVAKUMAR S.,
S/O LATE SADASHIVAN
AGED ABOUT 44 YEARS
R/AT NO.473, ANANDAPUR SLUM
HAL 3RD STAGE, BENGALURU ...
...RESPONDENTS
(BY SRI. K. KRISHNA, ADVOCATE FOR R1 & R2;
SRI. S.N. HATTI., ADVOCATE FOR R4;
VIDE ORDER DATED:05.11.2012 NOTICE TO R3 HELD
SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE CANCELLATION DEED DATED 02.01.2002 EXECUTED BY
THE BANGALORE DEVELOPMENT AUTHORITY WHICH IS
6
REGISTERED AS DOCUMENT NUMBER 13281/2001-02 IN BOOK
-I VOLUME-424 IN THE OFFICE OF THE ADDITIONAL SUB-
REGUSTRAR, BANGALORE DISTRICT FOLLOWED BY AN LETTER
OF ALLOTMENT DATED:03.01.2002 EXECUTED BY THE R1 & R2
HOLDING THAT THE ORDER PASSED BY THE SECOND
RESPONDENT IN ILLEGAL AND WITHOUT JURISDICTION AND
NOT IN ACCORDANCE WITH LAW AND PRODUCED AS
ANNEXURE-N & P.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, MADE
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
CAV ORDER
Common petitioner namely, Sri.Chinna Narayana Swamy
in these writ petitions claiming to be the owner of sites bearing
Nos.472 and 473 both situated adjacent to each other at HAL
3rd Stage earlier known as Anandapura Slum Extension each
measuring East to West 20 feet, North to South 25 feet
allotment of which was cancelled by the respondent-BDA and
were re-allotted in favour of private respondents, is before this
Court seeking following reliefs;
7
(a). In W.P.No.47184/2011;
a] To issue a writ of certiorari or any other
appropriate writ, order or directions as against the
respondent number one and two to quash the
cancellation deed dated 02/1/2002 executed by the
Bangalore Development Authority which is
registered as document number 13281/2001-02 in
BooK-I, Volume 424 in the office of the Additional
sub-registrar, Bangalore District, Produced as
Annexure- P followed by an letter of allotment
dated 03/1/2002 bearing
No.BDA./DSI/472/Anandpura/ HAL III Stage
executed by the respondents one and two &
Produced as Annexure- Q by holding that the order
passed by the second respondent is illegal and
without jurisdiction and not in accordance with law.
[b] To issue a writ of mandamus or any other
appropriate writ, order or directions to respondent
number one and two to restore the order of
allotment dated 1/5/1975 and so also hold that the
registered sale deed dated 17/03/1992 executed
by the respondent number one and two in favour of
third respondent is valid and subsisting.
[c] To grant such other relief or relief's as this
Hon'ble Court deems fit to grant in the facts and
circumstances of the case.
(b). In W.P.No.47185/2011;
"a] To issue a writ of certiorari or any other
appropriate writ, order or directions as against the
respondent number one and two to quash the
cancellation deed dated 02/1/2002 executed by the
Bangalore Development Authority which is registered
as document number 13283/2001-02 in BooK-I,
Volume 424 in the office of the Additional sub-
registrar, Bangalore District, followed by an letter of
allotment dated 03/1/2002 bearing
No.BDA./DSI/473/Anandpura/ HAL III Stage executed
8
by the respondents one and two by holding that the
order passed by the second respondent is illegal and
without jurisdiction and not in accordance with law.
[b] To issue a writ of mandamus or any other
appropriate writ, order or directions to respondent
number one and two to restore the order of allotment
in favour of respondent number three dated 1/5/1975
and so also hold that the registered sale deed dated
01/08/1992 executed by the respondent number one
and two in favour of third respondent is valid and
subsisting.
[b] [1] To issue a Writ of Certiorari against
Respondent no. 4(a) and 4(b) by quashing subsequent
allotment dated 3/1/2002 bearing
no.BDA/DSI/473/Anandpura/HAL III stage as per
Annexure - P is illegal, unsustainable and without
jurisdiction. Hence, liable to be quashed"
(c). In W.P.No.13049/2014;
"a). To issue a writ of mandamus or any other
appropriate writ, order or directions to the
respondents by directing the concerned officials to
restore the possession of the Site bearing No.473,
situated at Anandapura Slum Extension, HAL Third
Stage, Bangalore measuring East to West- 20 feet
and North to South 25 feet in favour of the
petitioner."
2. Brief facts of the case involved in these writ
petitions are that;
(a) That originally immovable properties bearing site
Nos.472 and 473 each measuring East to West 20 Ft. and
North to South 25 Ft., both situated at HAL III Stage, earlier
9
known as Anandapura Slum Extension, were in possession of
Smt. Khatunbi wife of Mohadeen Sab and Smt. Mahaboob
daughter of Sri.Sabajaan Sab respectively. It appears the
entire area was acquired in terms of a scheme formulated by
the then City Improvement Trust Board to regularize and to re-
allot the same to the original occupants. Accordingly, the then
CITB as per its Board resolution dated 26.12.1974 allotted the
aforesaid sites in the names of aforesaid occupants in terms of
letters of allotment dated 01.05.1975. Pursuant thereof, the
respondent -BDA which succeeded to then CITB issued
possession certificates dated 30.03.1981 confirming the
possession of said Smt. Khatunbi and Smt. Mahaboob. That
subsequent to expiry of period of prohibition of alienation of 10
years, said Smt. Khatunbi had obtained a deed of sale in her
name on 17.03.1992 and said Smt. Mahaboob obtained the
deed of sale on 01.08.1992, which were executed and
registered in their favour by the respondent -BDA respectively.
(b) That thereafter, aforesaid Smt.Mahaboob sold site
No.473 in favour of said Smt. Jayalakshmi under a deed of sale
dated 22.09.1993. Similarly Smt. Khatunbi had sold site No.472
10
in favour of one Smt. Jayalakshmi under a deed of sale dated
28.05.1997. The BDA had registered the khata in respect of
the aforesaid sites in the name of said Smt.Jayalakshmi. The
said Smt.Jayalakshmi is none other than the wife of the
petitioner herein. Thus, said Smt. Jayalakshmi became absolute
owner in possession and enjoyment of the aforesaid sites. That
the said Smt.Jayalakshmi passed away on 02.08.1999 leaving
behind the petitioner to succeed to her estate. Consequent
upon her demise, the petitioner became absolute owner of the
property.
(c) That however, due to mental depression, hardship and
agony caused to him due to bereavement of his wife, he could
not put up construction on the aforesaid site.
(d) That when things stood thus, Deputy Secretary of
respondent-BDA had initiated the proceedings for cancellation
of the allotments and the deeds of sale that were executed in
favour of Smt.Khatunbi and Smt.Mahaboob the original
allottees upon the representation made by one Thimmarayappa,
one of the office bearers of Dalitha Kriya Samithi Karnataka
alleging that the said sites had fallen vacant and were to be
11
given to the needy persons. Based on the said representation,
the respondent- BDA allotted the said site No.472 in favour of
one Sri.K.Kanikaraj the respondent No.4 in
W.P.No.47184/2011, cancelling the earlier allotment that was
made in favour of Smt.Khatunbi on 01.05.1975. Similarly,
allotted the said site No.473 in favour of Smt. Sulochana the
respondent No.4 in W.P.No.47185/2011 cancelling the earlier
allotment made in favour of said Smt.Mahaboob on 01.05.1975.
(e) That the original allottees as well as
Smt.Jayalakshmi had been kept under dark with regard to the
cancellation and re-allotment made by the respondent-BDA.
That when the petitioner learnt that certain persons were
making attempt to put-up unauthorised construction on the
aforesaid sites belonging to the petitioner and his deceased
wife. That he had accordingly lodged a complaint to the
jurisdictional police about the illegal and high handed acts and
since the police did not take any action petitioner approached
the respondent-authorities seeking their intervention to stop
the illegal construction. The respondent-BDA instead of taking
action against trespassers, did not even respond to the
12
representation made by the petitioner. The respondent No.4 in
the meanwhile had put-up construction over the property on
the basis of the alleged allotment made in his favour by the
respondent -BDA.
(f) That the petitioner being absolute owner of the
property had made an application before the respondent-BDA
under the Right to Information Act on 31.10.2011 seeking
details with regard to the matter. In response thereof, the
respondent Nos. 1 to 3 made available proceedings pertaining
to the aforesaid property No.472 between 20.01.1979 and
11.03.2002 to the petitioner on 09.11.2011 and with regard to
property bearing No.473 between 20.01.1979 and 16.09.2011
on 17.11.2011. Being aggrieved by the said illegal action of the
respondent-BDA, petitioner filed a writ petition in
W.P.No.21630/2010 seeking direction to the respondents to
cancel the allotment made in favour of the private respondent
on 03.01.2002. Since there were certain defects in the said writ
petition the same was permitted to be withdrawn with liberty to
seek appropriate remedy in accordance with law. Accordingly,
13
the petitioner withdrew the said writ petition and filed the
present writ petitions.
4. Similar are the facts in W.P.No.13049/2014 and
same is filed seeking direction in the nature of writ of
mandamus directing the respondent-BDA to restore the
possession of site No.473 in favour of the petitioner.
5. Sri. H.T. Nataraj, learned counsel appearing for the
petitioner taking this Court through the records submitted;
(a) That the respondent- BDA had no authority under
law to unilaterally cancel the allotment and the sale deeds that
had been executed in favour of the original allottees namely,
Smt.Khatunbi and Smt.Mahaboob in respect of the aforesaid
site Nos.472 and 473 respectively.
(b) That in the absence of any authority vested with the
respondent-BDA, the action is illegal and void ab initio, as such
the petitioner is entitled for the reliefs as sought for.
(c) That the petitioner learnt about the aforesaid illegal
action only during the year 2011 and he approached the Court
14
within reasonable time and as such there is no delay on the part
of the petitioner.
(d) That since the respondent-BDA has illegally cancelled
the allotment, it is the responsibility of the respondent-BDA to
restore the things to their original position.
(e) He relied upon the following orders passed by this
Court in;
(i) W.P.Nos.11102/2008 c/w W.P.No.16147/2009 and
16954/2009 dated 15.12.2010 reported in
ILR 2011 Kar.120
(ii) W.A.No.2768/2009 dated 27.11.2009;
(iii) W.A.No.4037/2010 dated 13.04.2011;
(iv) W.P.No.21090/2012 dated 13.08.2012
(v) R.F.A.No.809/1997 dated 13.04.2007 reported in ILR
2008 Kar.2245
Hence, he sought for allowing of the petitions.
6. In response, Ms. Suma Janardha Gaonkar, learned
counsel appearing for the private respondents sought dismissal
of the writ petitions primarily on the ground of delay, laches,
acquiescence and estoppel.
15
(a) She submitted that the petitioner is the husband of
subsequent purchaser of the aforesaid sites. Admittedly, the
cancellation and subsequent allotment in favour of the private
respondents had taken place in the year 2002. That petitioner
having kept quiet for over decade cannot come in a writ petition
seeking reliefs of this nature.
(b) She submitted even as admitted by the petitioner the
private respondents had put up construction on the aforesaid
sites to the knowledge of the petitioner who had taken no
action in the matter thereby forfeited his right to invoke the
provisions of Article 226 against the respondent-authorities.
(c) She referred to the averments made in writ
petitions to contend that there is no whisper made by the
petitioner with regard to reason for delay in approaching the
Court.
(d) She relied upon the judgment of the Apex Court in
the case of Chairman, State Bank of India and Another vs.
M.J James reported in (2022) 2 SCC 301 and referring to
paragraphs 39, 40 and 41 of the said judgment she insisted
16
that the petition is liable to be dismissed on the ground of
acquiescence, delay and laches.
7. Sri. K Krishna, learned counsel appearing for the
respondent-BDA on the other hand submitted that;
(a) the respondent -BDA was constrained to allot the said
sites to the private respondents herein, inasmuch as, the very
purpose to which the allotment was made had not been
materialised. Though the sites in questions were allotted to the
original allottee in the year 1972-1973 and the said sites had
been kept vacant without putting up any construction thereon
as required under the Rules of allotment. Since the sites had
not been put to use, the respondent-authority had resolved to
cancel the allotment and to allot the same to the deserving
persons.
(b) He submitted petitioner in any case being the husband
of subsequent purchaser cannot question the cancellation of
allotment on behalf of the original allottee. He however
submitted notwithstanding the aforesaid factual aspects of the
matter, the respondent-BDA is willing to allot alternate sites to
the petitioner. He submitted in fact alternate sites to be allotted
17
to the petitioner have been identified as site Nos. 349 and 350
formed in Sy.No.108 of Kenchanapura Village both measuring
20 feet X 30 feet in Nadaprabhu Kempegowda layout and the
petitioner may be directed to accept the said allotment which
would meet the ends of justice. Hence, seeks for dismissal of
these petitions.
8. Heard and perused the records.
9. There is no dispute of the fact that originally one
Smt.Khatunbi and Smt.Mahaboob had been allotted site bearing
Nos.472 and 473 respectively in the year 1975 by the then
CITB. It is also not in dispute that subsequently, the respondent
-BDA which has succeeded to the office of CITB had executed
deeds of sale in favour of the aforesaid original allottees. The
aforesaid original allottees in turn had sold the said sites in
favour of Smt.Jayalakshmi wife of the petitioner herein. It is
also not in dispute that the respondent- BDA cancelled the said
allotment in the year 2002 and had allotted the said sites in
favour of the private respondents in these petitions on the
purported premise of non compliance of the terms of the
18
allotment that was made originally in favour of Smt.Khatunbi
and Smt.Mehaboob.
10. The Coordinate Bench of this Court in the orders
passed in the case of Sri.K.Raju vs. Bangalore Development
Authority reported in ILR 2011 Kar.120 and in the case of
Binny Mill Labour Welfare House Building Co-operative
Society Limited vs. D.R.Mruthyunjaya Aradhya reported in
ILR 2008 Kar. 2245 has held that the BDA has no power to
unilaterally cancel the deeds of sale. Cancellation of deeds of
sale, if any, has to be done only by having recourse to
provisions of Section 36 of the Specific Relief Act, 1963 by
approaching a competent Court of civil jurisdiction, inasmuch
as, once the allotment is made, sale deed is executed, BDA
loses its right to cancel the same. Therefore, as rightly
contended by the learned counsel for the petitioner the question
of cancellation of allotment for non-compliance of the terms as
sought to be contended by the respondent-BDA would not arise,
since the BDA did not retain any right over the properties.
11. Having said that the question that would arise for
consideration in the fact situation of these cases is "as to
19
whether the petitioner would be entitled for relief as sought for
by invoking the extraordinary jurisdiction under Article 226 of
the Constitution merely because respondent-BDA has
unilaterally cancelled the allotment made and the deeds of sale
executed in favour of the original allottee?"
12. Though at the first blush, the answer to the
aforesaid question would be in the affirmative, however, a little
further probe into the facts of the matter would indicate
otherwise.
13. Admittedly, even according to the petitioner, the
respondent-BDA cancelled the original allotment and the deeds
of sale in respect of the aforesaid sites executed in favour of
original allottees and thereafter allotted the same in favour of
the private respondents in the year 2002, who have admittedly
put up construction of residential houses over the said sites.
Petitioner in the writ petitions contended that he was mentally
depressed and he was undergoing untold hardship due to
bereavement of his wife and could not put up construction on
the aforesaid sites.
20
14. At paragraph No.22 of the writ petition, the petitioner
has specifically and categorically contended that when he learnt
about the illegal construction being carried on the aforesaid
sites, he approached the jurisdictional Police and since Police
did not initiate any action, he approached the respondents and
lodged complaint before the authorities requesting them to stop
the illegal and high handed acts of the persons who were
indulged in acts of trespass and who were making attempt to
put up construction and were unnecessarily creating cloud with
regard to title of the petitioner by complaint dated 25.01.2002.
At Paragraph No.23 it is contended that despite his repeated
requests and demand there was no response by the
respondents. At paragraph No.25 it is contended that he had
filed a complaint before the respondent No.1 on 24.06.2010 as
per Annexure-R. At paragraph Nos.26 and 27 the petitioner
has contended that he made application on 30.01.2011 seeking
information under Right to Information Act, in response to
which the respondents had issued information for the period
between 20.01.1979 and 11.03.2002/16.09.2011. Though, the
petitioner claims to have approached this Court by filing Writ
petition in W.P.No.21630/2010, the same is stated to have
21
been withdrawn on 25.02.2011 due to certain technical defects
and thereafter he has filed the present writ petitions.
15. Except the above, no other explanation is provided in
the writ petitions for the petitioner not taking any action
between the year 2002 till the year 2010.
16. Clearly the petitioner despite being completely
aware of private respondents claiming their rights over the
aforesaid sites in terms of the allotment made in their favour by
the Respondent -BDA on 03.01.2002 and they putting up
construction over the subject sites has done nothing until the
year 2010 when he filed complaint before the respondent No.1
on 24.06.2010.
17. Apex Court in the case of CHAIRMAN, STATE
BANK OF INDIA AND ANOTHER vs. M.J. JAMES reported in
(2022) 2 SCC 301 at paragraphs 39, 40 and 41 while dealing
with the aspect of acquiescence, delay and laches has held as
under ;
"39. Before proceeding further, it is important to
clarify distinction between "acquiescence" and
"delay and laches". Doctrine of acquiescence is an
equitable doctrine which applies when a party
having a right stands by and sees another dealing
22
in a manner inconsistent with that right, while the
act is in progress and after violation is completed,
which conduct reflects his assent or accord. He
cannot afterwards complain. In literal sense, the
term acquiescence means silent assent, tacit
consent, concurrence, or acceptance, which
denotes conduct that is evidence of an intention of
a party to abandon an equitable right and also to
denote conduct from which another party will be
justified in inferring such an intention.
Acquiescence can be either direct with full
knowledge and express approbation, or indirect
where a person having the right to set aside the
action stands by and sees another dealing in a
manner inconsistent with that right and in spite of
the infringement takes no action mirroring
acceptance. However, acquiescence will not apply if
lapse of time is of no importance or consequence.
40. Laches unlike limitation is flexible. However,
both limitation and laches destroy the remedy but
not the right. Laches like acquiescence is based
upon equitable considerations, but laches unlike
acquiescence imports even simple passivity. On the
other hand, acquiescence implies active assent and
is based upon the rule of estoppel in pais. As a
form of estoppel, it bars a party afterwards from
complaining of the violation of the right. Even
indirect acquiescence implies almost active
consent, which is not to be inferred by mere silence
or inaction which is involved in laches.
Acquiescence in this manner is quite distinct from
delay. Acquiescence virtually destroys the right of
the person. Given the aforesaid legal position,
inactive acquiescence on the part of the respondent
can be inferred till the filing of the appeal, and not
for the period post filing of the appeal.
Nevertheless, this acquiescence being in the nature
of estoppel bars the respondent from claiming
violation of the right of fair representation.
41. The questions of prejudice, change of position,
creation of third-party rights or interests on the
part of the party seeking relief are important and
relevant aspects as delay may obscure facts,
23
encourage dubious claims, and may prevent fair
and just adjudication. Often, relevant and material
evidence go missing or are not traceable causing
prejudice to the opposite party. It is, therefore,
necessary for the court to consciously examine
whether a party has chosen to sit over the matter
and has woken up to gain any advantage and
benefit, which aspects have been noticed in Dehri
Rohtas Light Railway Co. Ltd. v. District Board,
Bhojpur and State of Maharashtra v. Digambar.
These facets, when proven, must be factored and
balanced, even when there is delay and laches on
the part of the authorities. These have bearing on
grant and withholding of relief. Therefore, we have
factored in the aspect of prejudice to the appellants
in view of the relief granted in the impugned
judgment."
18. The material evidence in the nature of photographs
produced by the private respondents undisputedly evidence the
fact that the private respondents have put-up residential
construction of pakka nature. Petitioner cannot therefore be
heard to say that he was not aware of such a construction being
put up particularly in the light of averment made in paragraphs
22 to 24 of the writ petition. As noted in the aforesaid judgment
by the Apex Court, though the same has been passed in a
proceedings involving a departmental inquiry, the principles of
law laid down therein squarely applicable to the instant case as
well. Petitioner though claims that he was under depression and
under bereavement having lost his wife, had made
24
representation only in the year 2010 in between which private
respondents had already put up construction. No fault can be
found with the private respondent for having put up a
construction and having been living in the said premises for
over a decade. Third party rights which have been created
cannot be undone in favour of a person who despite having
clear knowledge about the same did nothing to undo the same
within reasonable time as provided under law.
19. Invoking extraordinary jurisdiction under Article 226
of the Constitution of India also warrants party so invoking to
be vigilant about his rights and is expected to approach the
Court within reasonable time from the time of alleged breach or
abridgement of his statutory/constitutional rights. No
explanation of any nature whatsoever is provided in the writ
petitions except stating at paragraph 25 that the petitioner was
suffering from ailments such as Bypass Surgery and Hepatitis-
B. No details are provided in this regard either.
20. As already noted the act of the respondent -BDA
though cannot be condoned for its unilateral action of
cancellation, at the same time the third party rights that were
25
created by virtue of the said act vesting properties in favour of
the private respondents who in turn had invested their money
and they residing therein also cannot be ignored.
21. However, as submitted by the respondent-BDA they
have identified two plots bearing Nos.349 and 350 formed in
Sy.No.108 of Kenchanapura Village in Nadaprabhu
Kempegowda Layout measuring 20 X30 ft. each which are
larger in extent than the subject property, though the petitioner
himself being the husband of subsequent purchaser had kept
quiet for more than a decade and only thereafter has
approached this Court by filing these writ petitions which
otherwise suffer delay and laches, to meet the ends of justice
and equity between the parties, this Court deems fit to dispose
these writ petitions with the following direction:
ORDER
Respondent-BDA shall allot the sites bearing Nos.349 and
350 each measuring 20ftX30ft forming part of Sy.No.108,
Kenchanapura Village in Nadaprabhu Kempegowda layout in
favour of the petitioner as alternate to the sites which have
been allotted to the private respondents as above and execute
necessary deeds of conveyance and complete such other
formalities within an outer limit of three months from the date
of receipt of certified copy of this order.
Sd/-
(M.G.S. KAMAL)
JUDGE
RU
