JUDGMENT
Mohan, C.J.
1. The Writ Appeal arises out of the Judgment dated 20-9-1990 of our learned brother Justice Balakrishna, allowing W.P.No. 3017 of, 1987 . The facts are as follows:
The father of respondent-2 by name Sri K. Srinivasalu was allotted an industrial site bearing No. 17/B situated in Industrial Suburb, II Stage, Rajajinagar, Bangalore. The extent was 252+243 236+300. ----------- X----------- 2 2 The allotment was made by the City Improvement Trust Board, Bangalore, on 16-9-1962. Possession was taken on 23-2-1963 and subsequently the marginal land adjacent to the site allotted also came to be allotted to K. Srinivasalu in accordance with the resolution of the City Improvement Trust Board passed in subject No. 202 dated 7-7-1967. The rate was fixed at Rs. 8-50 per square yard. The total value was fixed at Rs. 1,06,240/-. It may be mentioned at this stage, the marginal land consisted of two bits measuring 256+116 160X 60+0. --------------- X 550 and -------- 2 2
The allotment was communicated to the said Srinivasalu on 18-7-1967. By a cheque dated 24-7-1967 a sum of Rs. 20,000/- was paid by the allottee. This was in favour of C.I.T.B. and that was specifically for the value of the marginal land. The payment was acknowledged by the C.I.T.B. by letter dated 31-10-1967/ 3-11-1967. The allottee requested for extension of time for payment of the balance amount since he could not pay the entire amount forthwith in view of the financial stringency at that time. Extension of time was sought on 11 -5-1970 and time was granted for 90 days for payment of the balance under intimation dated 13-5-1971.
However, on 26-12-1970, Srinivasalu passed away leaving behind a large family and also huge commitments. Respondent-2 who is the eldest son of Srinivasalu applied to the C.I.T.B. on 22-9-1973 for transfer of the marginal land to his name agreeing to pay the balance of the sital value which was due to the C.I.T.B. The C.I.T.B. by its letter dated 22-9-1973 called upon respondent-2 to produce the death certificate of his father as well as joint affidavit and an indemnity bond of the other heirs for taking further action. The certificate was furnished on 10-10-1973. On 20-12-1973 the joint affidavit and the indemnity bond as required by the C.I.T.B. were also furnished. By letter dated 22-4-1974 the C.I.T.B. informed respondent-2 that a balance amount of Rs. 81,151/- was due to the marginal land allotted in favour of Srinivasalu (father of respondent-2) and asked for payment of the same together with interest at 9% per annum. This payment was to be made on or before 30-4-1974. Respondent-2 thereupon requested for time for payment till 30-5-1974. On 16-5-1974 respondent-2 paid Rs. 90,0007- to the C.I.T.B. He was called upon to pay the balance of Rs. 38,7447/- on or before 5-6-1974. For this as well, extension of time was prayed for by respondent-2. Time was granted till 8-7-1974. On that date, respondent-2 paid Rs. 35,0007- by cheque and for the balance of the small outstanding, he prayed for time. Ultimately, the entire amount had been paid by respondent-2 and intimated the same to the C.I.T.B. by letter dated 16-8-1974 and there was a request for condonation of delay in payment. The C.I.T.B. condoned the delay and accepted the payment with interest though the payment was belated. Thus, it would be clear that as on 16-8-1974 all the arrears due to the C.I.T.B. had been cleared. Respondent-2 expected that he would be granted possession certificate and the khatha would be transferred in his favour. However, till 1976 no action was taken by the C.I.T.B. in spite of the entire amount of Rs. 1,48,7447- being the full value of the marginal site with interest having been paid.
It appears that respondent-2 went on praying for delivery of possession. Then ultimately being disgusted with the attitude of the C.I.T.B. on 8-3-1973 he asked the authority to refund the amount. This fetter was referred by the C.I.T.B. for legal opinion. The opinion was to the effect that refund could not be granted since there was no provision for claim of refund. On 12-7-1977 respondent-2 met the Chairman of the Bangalore Development Authority (the successor of the C.I.T.B.) and stated his difficulties. The Chairman issued instructions to the officials to grant possession certificate to respondent-2.
Notwithstanding the instructions, possession was not delivered. Respondent-2 issued a Lawyer’s notice on 21-1-1981 demanding possession of the marginal land. But, nothing was done. He made repeated representations on various dates. Even then, possession was not delivered. On 29-1-1987 again another legal notice was issued to the B.D.A. demanding possession. This was replied to by the B.D.A. on 13-2-1987 stating that the marginal land earlier allotted to respondent-2 had already been allotted and possession certificate had been issued to the appellant herein. This was on 25-7-1983. Therefore the land was not available for delivery of possession in favour of respondent-2.
On enquiry, respondent-2 came to know that his letter dated 8-3-1976 for refund of the amount had been taken advantage of and just two or three days prior to the resignation to the post of Chairman of the B.D.A., respondent-3 contrived to have a note put up by the then Secretary on 18-1-1980 and approved the note put up to him by the Secretary thereby accepting the request for surrender of marginal land from respondent-2. Thereupon, an endorsement was issued in favour of the appellant intimating the allotment in its favour. He also understood that the said endorsement dated 19-1-1980 was actually received by one Rama Prabhu, the Manager of the appellant in person from the office of the B.D.A. on the very same day. In short the allegation is there was a conspiracy or collusion to deprive respondent-2 of the marginal land by questionable means. The order dated 19-1-1980 had been passed for collateral consideration. On 20-1-1980 respondent-3 – Chairman of the B.D.A. had resigned from the post of Chairmanship. Till respondent-2 was officially intimated of the allotment by letter dated 13-2-1987, the fact of allotment in favour of the appellant was never known. Thereupon a request was made for a copy of the allotment order made in favour of the appellant. But, no such copy was furnished. Inasmuch as the Chairman of the B.D.A. demanded a sum of Rs. 30,0007-by way of illegal gratification to drop the show cause notice issued by them to the appellant as well as respondent-2 threatening cancellation of allotment of site No. 17/B, and that not having been complied with by respondent-2, the present allotment in favour of the appellant had come to be made. It is in these circumstances, respondent-2 filed W.P.No. 3017 of 1987 questioning the allotment in favour of the appellant.
2. On behalf of the appellant, a statement of objections had been filed in which it was stated as to the circumstances under which the allotment came to be made in favour of the appellant. There was a civil suit in O.S.No. 2459 of 1982 and it is by reason of that the parties’ right had come to be settled. Thereupon when the appellant made a request for allotment, that came to be made in its favour. The exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, had also been obtained on 24-4-1983 in furtherance of allotment. Two bore wells have also been sunk. The area has been enclosed by a compound wall and also an effluent treatment plant also is shortly to be taken up. In any event, on the singular ground of laches the Writ Petition deserves to be dismissed.
3. The Chairman of the B.D.A. who was arrayed as respondent-3 in the Writ Petition and who continues to be so in the Writ Appeal, denied the allegations of conspiracy, illegal gratification or favouring the appellant.
4. The learned Judge on a consideration of the entire matter at some length came to the conclusion that in this case fair administrative procedure was thrown to the winds. He was also of the view that the power was misused and the present respondent-2 (the petitioner before the learned Judge) was a victim. It was somewhat surprising that the order for grant of possession certificate in favour of respondent-2 had not seen the light of the day. It has been further held by the learned Judge as follows:
“On 13-1-1980, even though a note was put up by the Secretary that the petitioner had paid the entire amount in respect of the marginal land and only possession certificate remained to be issued and he drew the attention of the Chairman that the letter of surrender had been rejected by the Board already, and notwithstanding the Board’s resolution in subject No. 654 approving the order passed by the Chairman dated 20-11-1979, there is no reason why the Chairman did not stick to his earlier direction dated 12-7-1977 when he had directed the Executive Engineer to issue a Possession Certificate to the petitioner. Consistency in the conduct of the Chairman is conspicuously non-existent and too glaring to be ignored. How the same Secretary put up a different note on 18-1-1980 within a matter of five days contrary to the earlier note dated 31-1-1980, is also open to question. Whereas on 13-1-1980 the Secretary indicated indirectly the right of the petitioner to be put in possession, on 18-1-1980 the very Secretary virtually coaxed the Chairman to accept the surrender of land when the letter of surrender was no longer in existence consequent to its withdrawal on 3-7-1977, and for approval of allotment of the marginal land to respondent-2 is shocking indeed and even more shocking is the conduct of the Chairman in approving the note of the Secretary put up on 18-1-1980 and ordering allotment in favour of respondent-2 on the very next day before tendering his resignation to the post of Chairman a day later, on a Sunday.”
He was of the view that the principle of promissory estoppel is attracted to the facts of the case. The agreement executed in favour of the appellant was also not valid in view of the statutory provision contained under Section 10(3) of the Act. As regards delay, he held that though possession was demanded by respondent-2 herein as early as 21-1-1981, nothing had been done in that regard. Therefore, the Writ Petition could not be dismissed on the ground of delay. In any event, respondent-2 was informed of the allotment in favour of the appellant only in the year 1987 cancelling his earlier allotment which has no legal basis and therefore approaching the Court immediately thereafter was perfectly valid. In the result, the allotment of marginal land in favour of the appellant was declared null and void and the endorsement to that effect was quashed. A further direction was issued by the learned Judge to the Bangalore Development Authority to put respondent-2 herein in possession of the marginal land. Aggrieved by this, the appeal has been preferred by M/s Seethalakshmi Hall Flour Mills Ltd.
5. Mr. 3.G. Sundaraswamy, learned Senior Advocate for the appellant, would urge the following for our consideration:
1) There is no allotment in favour of either respondent-2 in the Writ Appeal or his father. The allotment was only in favour of M/s Seethalakshmi Hall Flour Mills – the appellant. Therefore, where by reason of various proceedings between the partners if M/s Seethalakshmi Hall Flour Mills is entitled to the allotment, what has been done by reason of the impugned proceedings is nothing more to perfect the earlier orders of allotment. From this point of view, to quash the same is unwarranted in law.
2) The allotment made in favour of Srinivasalu had come to be validly cancelled on 1-3-1968 itself. If that be so, there was nothing further for respondent-2 herein to pursue. No doubt, there is a letter under which respondent-2 stated that he was not interested in the allotment any more and he wanted the refund of the money paid hitherto. Whether he actually withdrew that letter or not is a moot point. Nevertheless, when he had not chosen to press his claim, it is too late in the day to contend that the allotment made in favour of his father, assuming it to be so, could be proceeded with.
3) The next submission of the learned Counsel is what was originally a proprietary concern became a limited company. That company had sold away the property on 1-5-1979 in favour of the appellant. Therefore, ad rights had come to vest in favour of the appellant.
4) Lastly, it is submitted that an allotment made in favour of the appellant was as early as 19-1-1980 and possession was also delivered on 25-7-1983. Therefore, when respondent-2 approached the Court in 1987 questioning the order of allotment, certainly the delay must be laid at his doors.
6. We will now proceed to consider these points in seriatim.
With the help of the records available before us, we will find out what exactly is the position. Srinivasalu is admittedly the father of respondent-2 – K.S. Prakash. The said Srinivasalu was intimated by letter dated 31st October 1967 (3-11-1967) by the Chairman of the City Improvement Trust Board, Bangalore (the successor being B.D.A.) stating that the cost of the two bits of marginal land adjoining to site No. 17/B in Industrial Suburb, II Stage, Rajajinagar, allotted to him was Rs. 1,01,1517-and he had issued a cheque for Rs. 20,0007- and the balance of Rs. 81,1517- together with interest must be paid early for taking further action in the matter. Thereafter, as we have narrated, the allottee requested for extension of time for payment of the balance amount. Unfortunately, Srinivasalu passed away on 26-12-1970. When by an application dated 22-9-1973 respondent-2 (K.S. Prakash) prayed for transfer of the allotment of the site, the C.I.T.B. writes as follows:
“Please produce death certificate, joint affidavit and indemnity bond to take further action.”
That was accordingly produced and they being Annexures C and D to the Writ Petition. On 22-4-1974 an important letter emanated from the Chairman of the C.I.T.B. stating thus: "Sir, Sub: Allotment of marginal land adjacent to Site No. 17/B in Industrial Suburb, Rajajinagar, payment of balance. Ref: Your letter dated 28-12-1973. I write to state that a sum of Rs. 81,151-00 is due towards the value of marginal land allotted. You may pay the same on or before 30-4-1974 with interest at 9% amounting to Rs. 5,303/- (approximate) failing which, the allotment of marginal land will stand cancelled. Yours faithfully, Sd/-22-4-1974 for Chairman, C.I.T.B. BANGALORE."
The repeated attempts to get possession after payment of the full amount of Rs. 1,48,7447- not having fruitioned, respondent-2 wrote a letter on 8-3-1976 stating that the amount paid by him may be refunded. Unfortunately, when this prayer for refund was referred to the legal Advisor of the B.D.A., an opinion was given to the effect that there was no provision for refund. The matter did not stop there. On 3-7-1977 respondent-2 withdrew the request for refund. Then by letters marked Annexures G, H, J, K, L, M and N, he demanded possession. They are dated 24-6-1983, 3-12-1983, 26-8-1984, 20-2-1985 and 3-4-1986 respectively. At this stage, respondent-2 was informed as follows:
“ADM/A3/17/B/I.S.11/86-87 Office of the Commissioner, Bangalore Development Authority, Bangalore, Dated 13-2-1987
Sri V.H. Ron,
Advocate,
No. 24, I Main Road,
Ganganagar, Bangalore-32.
Sir.
Sub: Issue of possession certificate of the marginal land adjacent to site No. 17/B II Stage, Rajajinagar.
Ref: Your letter dated 29-1-1987.
With reference to the letter cited above, I hereby state that the marginal land adjacent to the site No. 17/B of Industrial Suburb, II Stage has already been allotted and the possession certificate issued on 25-7-1983 in favour of M/s Seethalakshrai Hall Flour Mills Ltd., represented by its Director, Sri I.C. Bagri. Hence, the same is not available for allotment to your client Sri K.S. Prakash.
This is for your information.
Yours faithfully,
Sd/- SECRETARY,
B.D.A., BANGALORE.”
A careful reading of the above letter clearly discloses that not only there had been an allotment in favour of the appellant but possession certificate was also issued on 25-7-1983. Though Mr. Sundaraswamy would urge that these Annexures G to N were only make-believe letters and are not found in the file, we may at once state that there is no warrant for this submission. Therefore, for the first time on 13-2-1987 respondent-2 was informed about the allotment in favour of the appellant. Two lawyer’s notices, one on 1-9-1979 (Annexure-S) and the other on 29-1-1987, had also been issued. First of all we will decide whether there was an allotment in favour of Srinivasalu which subsequently came to be transferred in favour of respondent-2 – K.S. Prakash, his eldest son. We have already extracted the order dated 22-4-1974. It leaves no room for any doubt whatever that it was Prakash who was allotted. Therefore, it is difficult for us to accept the contention urged by Mr. Sundaraswamy that the allottee was only M/s Seethalakshmi Hall Flour Mills Ltd. If there was a valid allotment originally in favour of Srinivasalu and that allotment had come to be transferred in favour of K.S. Prakash, his eldest son, the question would be, whether it has been validly cancelled. While we are on this, we may point out, no doubt by letter dated 8-3-1976, being disgusted with the conduct of the 3.D.A. respondent-2 prayed for refund of the amount paid. However, no action having been taken on that request for refund, he had come to withdraw that letter on 13-7-1977. Therefore, it still remained. In other words, the right of the parties namely, respondent-2 to get possession remained unaltered.
7. It is at this stage, on 2-11-1979 an application was filed by the appellant for allotment. On 19-1-1980 the allotment is stated to have been made. Concerning this, the statement of objections filed by the Chairman, B.O.A., constitutes interesting reading:
“It is not true that this respondent just two or three days earlier to his resigning the post in conspiracy and in collusion with the other lower officials of the Authority including the then Secretary managed to get a note put up by the then Secretary on 18-1-1980 to the effect that the petitioner had requested for the surrender of the marginal land and the said request might be approved and the marginal land be allotted to the second respondent. It is submitted in this connection that all actions are taken by this respondent on the basis of the notes and recommendations made by the heads of departments of the Bangalore Development Authority. All actions were being taken by this respondent considering the notes and recommendations and the materials supplied to him.”
When the allotment had not been validly cancelled, we do not know how a note could be put up on 13-1-1980 that respondent-2 had made a request for refund. This clearly ignores the withdrawal of that letter on 13-7-1977. Though Mr. Sundaraswarny would say that the letter of withdrawal has not been filed by respondent-2, we do not accept the contention because before the learned single Judge who directed the B.O.A. to produce the relevant documents, a xerox copy of the letter addressed by respondent-2 to the Chairman of the B.D.A. dated 13-7-1977 was produced. That is to the following effect:
"The Chairman, 13th July 1977 Bangalore Development Authority, Bangalore. Sub: Withdrawal of letter dated 8-3-1976 in respect of marginal land adjacent to site No. 17/B, Industrial Suburb, Rajajinagar, Bangalore. Dear Sir,
During my personal discussion I had with you on 12-7-1977, you assured me that possession certificate of the marginal land aforesaid would be issued to me at an early date and you further asked me to give this letter withdrawing ray earlier letter dated 8-3-1976 asking for refund of the amount already paid,
In view of the above I hereby state that the aforesaid letter of mine dated 8-3-1976 stands withdrawn. You are requested to take immediate action to issue possession certificate of the marginal land.
Thanking you,
Yours faithfully,
Sd/-
K.S. Prakash.”
Therefore, he had to proceed on the basis, as we have just now mentioned, that the allotment in favour of respondent-2 stood unaltered. In spite of respondent-2 crying hoarse for delivery of possession by the C.I.T.8., the C.I.T.B. having accepted the full value of the site, nothing has been done whatever. In this background the order made in favour of the appellant requires to be scrutinised. From the file of the B.D.A, it is found that a note was put up by the Secretary on 13-1-1380 to the effect that the entire amount had been paid by respondent-2 – K.S. Prakash for the marginal land in question and all that remained was to issue a possession certificate. The request for surrender of the marginal land made by respondent-2 was not accepted by the Board. On the contrary, on 16-1-1980, in implementation of the resolution passed under subject No,654 bifurcating both the sites as per the order of the Chairman dated 20-11-1977 and for issue of sale deeds in favour of respondent-2 and the appellant, an order was passed. On 18-1-1980 a note was put up by the Secretary as though respondent-2 herein had requested for surrender of the marginal land and that his request might be approved. Therefore, the marginal land could be allotted in favour of the appellant after accepting the surrender. Having regard to the serious allegations made in the affidavit, which have not been properly traversed by the then Chairman, it is impossible to resist the conclusion that this note itself had been engineered and thereupon put up by the Secretary at the instance of the Chairman. Therefore, he used this note very conveniently and noted on the file on 18-1-1980 as follows:
“The above noting is approved.”
On the very next day, i.e., on 19-1-1980 the appellant was issued a letter stating that the marginal land had been allotted in his favour. This was not even sent by post but was accepted by one Rama Prabhu on behalf of the appellant personally in the office of the B.O.A. After all this, when there was a furore about the conduct of the Chairman alleging corruption and when a news item on 13-1-1980 appeared in Deccan Herald to the following effect –
“BANGALORE, January 12: Asked whether the Government proposes to change the present Chairman and Presidents of various statutory Boards and Corporations, Mr. Rao said that they would have to resign from their posts forthwith. Otherwise action would be taken according to law. He however made it clear that the Government would not abolish these Boards and Corporations.”
The Chairman resigned on 20-1-1980. It is rather a strange co-incidence that 20-1-1980 happened to be a Sunday (a Sabbath day). On 21-1-1980 the appellant paid the value of the site allotted.
8. While respondent-2 was all the while demanding possession, how the Secretary of the B.D.A. came to put up a note on 18-1-1980 that respondent-2 was requesting for surrender of the marginal land and that his request might be approved is very hard to guess. The manner in which, the note being put up on 18-1-1980, the note being approved on 18-1-1980, the allotment order being passed on 19-1-1980, the Chairman resigned on 20-1-1980 and the payment being made on 21-1-1980 lead to one and the only conclusion that it was all conspired to defeat the just and lawful right of respon-dent-2. Such a conduct, having regard to the serious allegations of not only favouritism but even corruption, is highly reprehensible. We are unable to understand why the Chairman had taken this partisan attitude. This shows that power vested in unscrupulous persons could be misused to achieve their own ends.
9. As rightly pointed out by the learned Judge if the Chairman had given instructions to the Executive Engineer on 12-7-1977 to issue possession certificate in favour of respondent-2, why such a certificate was not issued is ununderstandable. As rightly pointed out by the learned Judge the important event of sale by respondent-2 of the Flour Mills including the main site of 17/B had taken place. This was on 1-5-1970. Concerning this a show cause notice came to be issued on 29-6-1979 proposing to resume site No. 17B along with the buildings thereon. Then a reply was furnished by respondent-2 on 1-9-1979. The Chairman being satisfied with the explanation offered, passed an order on 20-11-1979 approving the bifurcation. Therefore, after all this, to say that respondent-2 was keen on having the marginal land surrendered and was only desirous of getting a refund is a statement to cover up the misdeeds of the B.D.A. Besides, the allotment made in favour of the appellant is also not legally valid in so far as it is clearly in violation of Section 10 of the Bangalore Development Authority Act since the execution of the agreement must be by the Secretary for the B.D.A. The Secretary of the B.D.A. is the person to represent the B.D.A. since the B.D.A. is a corporate body. Therefore, we reject the first of the four arguments advanced by Mr. S.G. Sundaraswamy.
10. Turning to delay, we do not know how respondent-2 herein (petitioner before the learned single Judge) could be held to be guilty of laches. We have already pointed out as to how by repeated letters including lawyer’s notices, respondent-2 was demanding possession. Therefore, he was hoping against hope and ultimately to be visited with “the unkindest cut” namely, letter dated 13-2-1987 when the Writ Petition was filed immediately thereafter. We see no justification whatever to hold that there has been any delay or laches on the part of respondent-2. This case illustrates as to how the authority entrusted with the power (the then Chairman of the 3.D.A.) has not only abused this power but also dealt with the rights of respondent-2 in a cavalier fashion with a view to enrich himself and that is the only conclusion to which we are driven. Thus, we are in entire agreement with the learned Judge.
11. The appeal deserves to be dismissed in limine. Dismissed.