JUDGMENT
1. The ranks of the parties shall be followed as in the lower Court.
The defendant has challenged the judgment and decree of the Trial Court passed in O.S. No. 10912 of 1984, dated 19-8-1996 decree in the suit for specific performance and perpetual injunction. The facts in nutshell are as follows:
The plaintiff was the absolute owner of 1 acre 30 guntas of land in Sy. No. 25, Domlur Village. The defendant acquired it for formation of Domlur II Stage Layout vide final notification dated 13-12-1979. The plaintiff made an application before the defendant for reconveyance of the said land. The defendant passed a resolution dated 17-11-1982 bearing No. 364 to reconvey the entire land i.e., 1 acre 16 guntas on condition that the plaintiff has to pay reconveyance charges as per rules and communicated the same to the plaintiff by a letter. The plaintiff requested the defendant to intimate her the amount payable. The plaintiff and the members of the family were called upon by the defendant to
produce the ration card etc., to enable the defendant to reconvey the said land. The plaintiff paid the charges as demanded and deposited the same with the defendant and allowed to form a road on the said land. The plaintiff has pleaded that she was always willing and ready to perform her part of the job. She presented the suit in the first instance for bare perpetual injunction and later on she got amended the plaint for specific performance and for perpetual injunction.
2. The defendant has pleaded and admitted that the plaintiff was the owner of the said land. It was acquired for the formation of Domlur II Stage Layout, in Domlur area, Bangalore vide final Notification No. HUD 61 MNJ 78, dated 13-12-1979. The award was passed. The possession of the land was taken and handed over to engineering section on 30th January, 1984. It is also admitted that the defendant has resolved by a Resolution No. 364; dated 17-11-1982 as follows:
“The request of Smt. Ramakka W/o. Venkataramanappa for reconveyance of land to an extent of 1 acre 16 guntas in Sy. No. 25 of Domlur Village be approved after utilising the lands required for ready and public purpose and subject to payment of reconveyance charges as per rules”.
3. In the additional written statement after the amendment of the plaint by the plaintiff, it is pleaded that the contention of the plaintiff that she was entitled for the reconveyance of the entire land was not admitted. The prayer for the direction to the defendant for reconveyance is not tenable as such, the plaintiff is not entitled to such relief. It is pleaded that the defendant shall examine the request of the plaintiff in view of the amended provisions of the BDA Act. The defendant has requested to dismiss the suit. Basing upon these pleadings, the lower Court has framed the following issues:
1. Whether plaintiff proves that she is in lawful possession of the suit property as on the date of the suit?
2. Whether the plaintiff proves that defendant is illegally interfering with her possession of the suit property?
3. Whether plaintiff proves that defendant is liable in law to reconvey the suit property in her favour or in favour of her family members?
4. Whether plaintiff proves that she was always ready and willing to pay the reconveyance charges to the defendant?
5. Whether defendant proves that the suit is bad for non-compliance of mandatory requirements of Section 64 of the BDA Act?
6. Whether defendant proves that it has acquired the suit property and took possession of the same on 30-1-1986?
7. To what reliefs the parties are entitled to?
4. On behalf of the plaintiff, her son Sri Jairam who is the power of attorney holder was examined as P.W. 1 and got produced Exs. P. 1 to P.
18 and the evidence for the plaintiffs side was closed. The defendant examined one Assistant Engineer as D.W. 1 and another FDA witness as D.W. 2 and Exs. D. 1 to D. 3 were also produced. After hearing the arguments on both sides, the impugned judgment and decree have been passed. The same has been now challenged.
5. The appellant has contended that the judgment and decree of the Trial Court are illegal, contrary to law, facts and circumstances of the case. The respondent is not entitled for reconveyance of the property to the extent of 4,163.52 sq. mts. out of Sy. No. 25 of Domlur Village. It is also observed that the respondent has failed to prove and establish Issue 3. The contention that it is not liable to reconvey the property is set at naught. It is farther contended that the provisions of Section 38 of the BDA Act, 1976 only enables BDA to reconvey in favour of any person any sites formed in the land which belongs to them, as such, the plaintiff is not entitled for reconveyance of the property.
6. Heard Sri C.B. Srinivasan, learned Counsel for the appellant and Sri S.K. Venkatareddy, learned Counsel for the respondent.
7. According to Mr. Srinivasan, learned Counsel for the appellant, there is no dispute as far as the facts are concerned. The contention is that there was no rule or provision in the BDA Act to pass such a resolution dated 17-11-1982 to recovery the land. There is no promissory estoppel and the BDA has no right to reconvey the said land. He relied upon the following judgments;
(i) B.N. Satyanarayana Rao v. State of Karnataka, , and argued that BDA has no right to convey.
(ii) B. Venkataswamy Reddy v. State of Karnataka, , and argued with reference to paras 36, 37 and 38 to point out that there is no power to BDA to reconvey;
(iii) Smt. Radhamma and Ors. v. Smt. Lakshmamma K. Murthy, 1995(4) Kar. LJ. 145 : and argued that Civil Courts can enforce the pre-existing civil rights. This is the case of reconveyance, hence the suit is not maintainable;
(iv) Chikkamuniyappareddy Memorial Trust, Bangalore v. State of Karnataka and Ors., and referred to para 9 and argued that resolution to reconvey the land cannot be enforced.
8. He relied upon Specific Relief Act (Old Act), Section 45, which is repealed and referred to New Specific Relief Act, 1963 and argued that there is no provision in the new Act for enforcement of public duties and thus referred to Article 226 of the Constitution of India and argued that the jurisdiction to grant such relief is only by way of writ of mandamus. He cited another decision in 2000 AIR SCW 649 and referred to para 11 and contended that Civil Courts are not vested with the powers.
9. As against this submission, Sri S.K. Venkatareddy, learned Counsel for the respondent argued that the plaintiff was the owner in possession of the entire land measuring 1 acre 30 guntas in Sy. No. 25 of Domlur Village. It was acquired by the BDA for the purpose of forming a layout. The plaintiff represented to the defendant for reconveyance of the land which was accepted and that the BDA passed resolution dated 17-11-1982. BDA is liable to reconvey the said land to the plaintiff. He relied upon Section 38-C of the BDA Act, 1976 and also referred to Section 9 of the Validation Act and submitted that the rule of promissory estoppel operates. He relied upon the judgment of the Supreme Court in H.C. Venkataswamy and Ors. v. Bangalore Development Authority and Ors., ( 2001 ) 9 SCC 204, and an unreported judgment of this Court in R. Hanumaiah v. Bangalore Development Authority and Ors., W.A. No. 727 of 1989 (GM), DD: 9/10-7-2001 and Steel Authority of India Limited v. State of Madhya Pradesh and Ors., :
10. Relying upon these judgments, he argued that it is not a contract in the exercise of executive power, but a concluded contract in exercise of statutory power and thus prayed for dismissal of the appeal.
11. Upon hearing these rival submissions and perusal of the records, the points for consideration are:
(i) Whether BDA is liable to reconvey the said land, in view of resolution dated 17-11-1982 as Section 38-C of the BDA Act, 1976 operates? (ii) Whether BDA is liable to reconvey the same land by virtue of promissory estoppel by its conduct? (iii) Whether the impugned judgment and decree of the Trial Court are to be interfered with?
12. As far as the facts of the case are concerned, they are crystal-clear that the defendant including the passing of the resolution has admitted the facts. The evidence of D.Ws. 1 and 2 clearly clinches the issue in favour of the plaintiff as they admit in the cross-examination regarding the resolution.
13. Point No. (i).–By virtue of resolution dated 17-11-1982, the BDA has created an impression in the mind of the plaintiff that 1 acre 16 guntas would be reconveyed to her if she allowed the BDA to form the road in the remaining land and also it is pertinent to note that it has received development charges which is paid through challan, Ex. P. 4.
14. It is a fact that there was no rule or provision to allow under the BDA Act but, it has been amended by inserting Section 38-C which permits BDA to reconvey the land in favour of the owner of the land. Therefore, the arguments of Sri C.B. Srinivasan, learned Counsel for the
appellant cannot be accepted. The judgments cited in cases of B.N. Saty-anarayana Rao and B. Venkataswamy Reddy, supra, does not have any force in view of the insertion of Section 38-C of the BDA Act. However, it emanates from Section 38 of the amended BDA Act and Section 9 of the Validation Act, the resolution passed on 17-11-1982 which is within the two cut off dates is enforceable.
15. In H.C. Venkataswamy’s case, supra, the Hon’ble Supreme Court has clearly pointed out that the BDA (Amendment) Act, 1993 which has come into force with effect from 31st March, 1994 introduced Sections 38-C and 9 of the Validation Act. This validates the resolution within the said period. The BDA has entered into a contract which is concluded in view of Section 38-C of the BDA Act and Section 9 of the Validation Act. Judging from any angle, it is to be stated that the defendant is bound by its resolution dated 17-11-1982.
16. Point No. (ii).–It is seen from the judgment of the Trial Court, para 9 which is as follows:
“Plaintiff has filed a memo in the Court on 16-7-1985 by which she has acknowledged her No Objection in favour of BDA for the formation of a road in the place denoted by the letters ABCD in the sketch annexed to the Memo and to that limited extent she has submitted that the order of injunction is vacated”.
The observation clearly indicates that the BDA has failed to comply with the resolution dated 17-11-1982. Of course initially the suit was only for perpetual injunction and subsequently it has been amended as one for specific performance and perpetual injunction. In view of the memo filed, the portion required for making road, the injunction was vacated. No compensation has so far been given. In other words, it is clear that BDA has promised to reconvey the land to the plaintiff provided that the plaintiff has to forego the land for the purpose of formation of the road, and shall pay the reconveyance charges. In view of these facts and circumstances of the case, the promissory estoppel can be pressed into service. In H.C. Venkataswamy’s case, supra, the Supreme Court observed as follows:
“Even otherwise we are of the view that the resolution of the BDA did substantial justice to the appellants. A situation was created where it may not have been possible for BDA to implement the scheme. The BDA entered into a settlement with the farmers and took a conscious decision to allot plots to them. It was neither fair nor just on the part of BDA and the State Government to have gone back on their decision which was taken with an open mind and after discussion with the farmers. BDA by passing the resolution, in a way, accepted the demand of the farmers for enhanced compensation”.
17. In the case on hand, it is clear that the plaintiff had created such a situation and the BDA has consciously passed the said resolution dated 17-11-1982 and the same was communicated to the plaintiff. In
pursuance of the communication, the plaintiff acted upon it and paid developmental charges and also has allowed the BDA to lay the road as injunction was vacated partially. The Government has approved the said resolution and issued certain directions vide Exs. P. 10 and P, 11 as admitted by D.W. 2. This certainly has compelled the BDA to abide by its resolution. In Chikkamuniyappareddy Memorial Trust’s case, supra and H.C. Venkataswamy’s case, supra, is referred to. In view of the concluded contract, resolution by BDA to be honoured. Therefore, the promissory estoppel operates and the plaintiff is entitled to relief.
18. In R. Hanumaiah’s case, supra, this Court in the resolution dated 26-6-1969 by BDA (erstwhile CITB) had resolved that an area of 8 acres 21 guntas in certain survey numbers to be reconveyed to the petitioners. This was upheld. Therefore, the ratio in Chikkamuniyappareddy Memorial Trust’s case, supra, is of no avail to the BDA.
19. It is also pertinent to note that the plaintiff had pre-existing right in the land. She had obtained injunction order against BDA in the suit which was modified or vacated to the limited extent by allowing the BDA to form the road in the land and with regard to the remaining land the injunction continued. At the cost of the repetition, it has to be stated that plaintiff is entitled for the relief.
20. Point No. (iii).–The lower Court has decreed the suit for specific performance and granted perpetual injunction. In view of reappraisal of evidence in the first appeal, I am of the opinion that the judgment and decree of the Trial Court cannot be interfered with.
21. The last contention of Mr. Srinivasan is that the Civil Courts have no right to pass such judgments. He relied upon Specific Relief Act (Old Act). Section 45 being repealed and no such provision has been enacted in the Specific Relief Act, 1963 the remedy is by way of writ of mandamus under Article 226 of the Constitution of India.
22. Section 38C of the BDA Act, 1976 is a statutory provision. BDA has power to pass such resolution under the said provision. BDA has entered into a concluded contract and it has passed the resolution dated 17-11-1982. The Government has approved the resolution. In view of these facts, the contention of the learned Counsel for the appellant cannot be accepted. Accordingly, point No. (iii) is answered.
23. In the light of the above observations made by me, I am inclined to hold that the Trial Judge has given cogent reasons and unnecessarily he has not made any undue efforts to go against the pleadings. The defendant has admitted the case of the plaintiff, as such, it is estopped from taking up any other contention. Therefore, the following order is passed:
The appeal stands dismissed. The parties to bear their own
costs.