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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 02ND DAY OF NOVEMBER, 2010
PRESENT T
THE HDNBLE MR. J. S. KHEHAR,
AND
THE I-ION'BLE MR. JUST:cE';A..S..DPAcH::1APURE~~,,., %'A
WRIT APPEAL NO.2859'.V'OF 2009 .{I;.33}15{VVIé§3.D§)"
BETWEEN " V' 'A V'
DAVANGERE URBAN .0 s
DEVELOPMENT AUTHORL'FY_
DEVARAJ URS E:~:_frENS1:QN§
DAVANAGERE _. _ .
BY ITS COMMISSIONER. _
. .. APPELLANT
{BY SR1:'._A.'1'JIi?HT.xT.--~F.z_5iI'J KI.j 1V§AP. I & SMTNALINI VENKATESH,
ADVS.) ' ' .
A_N_D
- L,ENIN"v1D...... A SAIVISTHE
17TH CROSS,"«E_{ T J NAGARA
DAVADNGvE.RF§;"~. ' '
REP.-_ BY PR;ES1D ENT
SR1 RAM}-\.C'PLANDRAPPA. RESPONDENT
[BY SR1.'KR£SHNA S. Dlxm ADV.)
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_'i'HIS WRIT APPEAL 1S FILED U/S 4 OF THE
.. KARNATAKA HIGH COURT Age'? PRAYING TO SET ASIDE THE
QRDER PASSED IN THE WP. No.3237/2007 DATED
12.06.2009.
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THIS APPEAL COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, CHIEF JUSTICE
DELIVERED THE FOLLOWING:
ORDER
J.S.KHEHAR, C.J. (Oral):
Through the instant writ appea1_._the ‘C
the Davangere Urban
the order passed by a learned-SingleAJu_dge_1o,f Court ” it
dated 12-O6~2009 by which iztrfi£”%1:>et:»t:on Nov.323§7/2007
was disposed of. While:-C the–.aforesaid Writ
petition, a “the was issued
requiring the?i3aVana§ere–E.rbani’V_DeVelopment Authority to
comply Zvwith’ issued by this Court in
W.P.No.669’Ge/__199’V?, months.
:,.,”;’11VV%”sum and substance, it is not in dispute
counsel for either parties, that the
_issue”‘~which.n«:isA subject matter for consideration in the
:”.v4.”‘-i1Vjist.acnt vi’n*it appeal is, whether the civic amenities site
to the respondent on 2.8.1984 should be treated
~..:as’or1 “lease”, or by way of ”sale”.
C5’
3. Some facts relevant to the controversy need to be
recorded. Based on the allotment of a civic amenity site to the
respondent on 2.8.1984, the Davangere Urban Development
Authority executed a lease–cum-sale agreement in favour:’_’of’the
respondent on 1740-1985. Eased on the aforesaid *
it is the assertion of the respondent, that trielllnlextip.inevitableul
step should have been the execution of salefleedl iinghis
favour. But the respondent W:a;~:.._gdenied’
Whereupon, the respondent Pletitiont 1997
praying for the executiongof’ ap favour, as the
next inevitable step after_the._ lease~cum–sale
agreement dated: writ petition came
to be allowed. “fl6–vEl:’§;~.’l?Ql000. A perusal of the
order dated’ that the Davanagere
VDeve1vop.ment Autho’rity_.w«as directed by this Court to regularise
l”th’eV.ylease–~.cum-«sale agreement executed by the appellant in
favourof thellrespolndent.
AA 4. it «According to the learned counsel for the
appellant, the direction to regularise the lease–cum–sale
‘agreement executed in favour of the respondent was
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incorrect, as the extension of the earlier lease granted to
the respondent on 17-10-1985 by further period Qflrlfldirty
years. This determination at the hands of _
was based on Sections 38 and 39 of the ‘* A’
Development Authorities Act, 1981??’ (h:e1’ein&’irrefe_rredVZita
‘the 1987 Act’). Sections 38″an.d 39’vallore_rr1enti’oned§ are”
being extracted hereunder:
“38. Power of A1ii:iiorit_§_rf§–to sell, or
transfer property such
restrictiori’s,l A and? ‘j-Vllimitfations as
may be? shall have
po ‘lelasle:;y:,; ‘sell.l:orllotherwise transfer any
movable property which
belolngsll tolitr ‘ar1d4″”to”‘appropriate or apply
any 1a4n’dy_lvested”‘inl”or acquired by it for the
of spaces or for building
in any other manner for the
“‘l’purpo’S€__ any Development Scheme.
39..___i’1~ Prohibition of the use of area
A Vliregserved for parks, playgrounds and civic
ilainenities for other purposes — The
A Authority shall not sell or otherwise dispose
of any area reserved for public parks and
playgrounds and civic amenities, for any
other purpose and any disposition so made
shall be null and void.”
5. According to the learned coun–s:e’l V’
appellant, a collective perusal of”Seeti_ons _;
reproduced above reveals, that
Davanagere Urban DeVe1oprnen:t’*iAuthoritya or it
otherwise dispose of an’: area arnenities.
Since it is not disputed that the
lease-cum–sale 2: which was
executed by of the respondent was
indeed civic’ thelcontention of the learned
the app-e-llant that there was no question of
on the “basis of the lease–cum-sa1e
agieasent ydlatetl 17- 10- 1985 under the ‘1987 Act’.
6.” 3 For understanding the rights of the respondent
lV$hiephjlp”s.emerged from the lease–cum–sa1e agreement dated
“‘-l.l:VlI_7__-lI0~I985, it is essential to extract hereunder Clauses
iaewcw
(1) and (11) of the aforesaid agreement dated 1740-1985.
The aforesaid clauses are accordingly being reproduced
hereunder:
“l. The Lessee / Purchaser is herebyput’ it
in possession of the property 8′
Lessee/ Purchaser shall occupy”theA1;ayroperty_
as a tenant thereof for a peri=od~ten:’yea_rs AV
from (Here enter the.__ data
possession) 85-86 or_in event of
being determined e”a1jlierrti1l ujdatte of 8 such
termination. The by the
Lessee / Purchaser ,to’wai’jds’ .th_e’ of the
property H _thxe ‘ tenancy,
be held security
deposit–foi:yth’e’¥dz1e’pe-rfor£n’an’ee of the terms
andiconditionfs-V :51″ .thies_.e—- present.
V ‘At the end of the ten years referred
the total amount of rent paid
it ‘ Purchaser for the period of the
tdenancyx shall be adjusted towards the
* :b’a1ai”1ce of the value of the property.”
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7. There can be no scope for any doubt, that 3.
coflective perusal of Clauses 1 and 11 of the agreement
dated 17». 1o» 1985, would lead to the inevitable coneiusicn,
that on the culmination of the period of tenliifeamgesi
lease, the property in question wcéuAld”‘staIid
the name of the respondent. subject zadj1a1:S’tIlf}Cflt’v
balance Value of the property’;a..V:VV”1’t is c’cn*ce.’C1e’dVVbeforeVV
us during the course of the
mandate of the pprovisions’ Improvement
Board Act, 19fi6;}a’VleaAse nature of the
one executed “on 1740-1985 could
have same would lead to the
eventnalisaiep property in favour of the
..resp..oi:dent…n_’Fhe ‘con-tcntion of the learned counsel for the
assail the determination rendered by
this ptlourt”viijisiilltherefore, based on collective reading of
V’a,,_”Sectionsf3.8 and 39 of the 1987 Act.
We have given our thoughtful consideration to
T the aforestated legal submission advanced by the learned
Wm
counsel for the appellant. It is difficult for us to accept
that the mandate of the provisions of the 1987 Act would
be applicable to the agreement, which was executed’
said % legislative enactment came into. 8
behalf, it would be relevant to mentiorithat,
was enforced with effect from’8V2~-.5–19V8-8,8′ inasViritich_V.Vas_; the
same as per Section 13A__ of ceme into
force on the date as notification may
specify. A .notification”h’ the State
Government dated 2-5-1988.
whereingit’vtvasiislpeisifieddate of enforcement of
the 19887-_AAc_t Therefore, it is clearly
unacceptable. that t_.hle, Legislative enactment, which came
on 1u.’5′.’1-9-8’8 would govern and regulate the
“civic amenity site to the respondent on
that, it would govern and regulate the
3″~___V’l.ease–curn–sale agreement executed on 17.10.1985. The
,:.”a,1ores”.–aid conclusion is unassailable keeping in mind, that
.i_t:has not been the contention of the learned counsel for
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the appellant, that there is any statutory provision
contained in the 1987 Act, which expressly mandates,
that allotments and agreements of the nature executed by
the Davanagere Urban Development Authority
respondent, would be subject to the provisions’-of V’ V’
Act. Besides the aforesaidnconclusion’drawn’by._us’,-Tthve;
said conclusion also emerges from Section rthen
Act. Section 7 8 is being eXtracte’d:i’iereur’1’d_er:,
/78. Conseqi’z’e_nct£d”ofA ceenlstitutiovfi of
‘Urban Developmezit *_
{1) On the :.ssu_e 3 sub..
section an
Urban: Dyeyrdeloppm u:tl’1’ority for any Urban
Improyements Boards
p’,,A’ct,t.,19′.V76′ {Karnaiiaha Act 11 of 1976) or the
or l\/Iysore Improvement Act, 1903
V ” III of 1903), as the case may be,
to be applicable in such Urban
“”Area. °
On such cessor, the Improvement Board
“*[the Bagalkot Town Development Authority]
or the City Improvement Trust Board,
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Mysore constituted under the said Acts for
such Urban Areas shall stand dissolved.
(3) Subject to the provisions of sub–secti;o”n’..’VV’~…’._d’
[2], nothing in sub–section (1) shail affec_t’:”:~3
{a} the previous operation 3 the -..said’7f.,__.
enactments or anything do’ne,’*–or suffered
thereunder ; or
[b] any right. -.._._.j:riv:i;Vlege,1′ “..ap:p1.ication V or
liability. acquired, accrued vAf;nc1′.;rred in
the said «enactment ‘ ”
(c) 1__any;_ forfeiture or
“inc’u,r’1’ed i_n””respect of any
offence ‘ against the
said ,_enactn_1ents,
_ lid)’-.”iany..’investigation, local proceeding or
V respect of such right, privilege,
liability, forfeiture or
npunishinent as aforesaid; and any such
x investigations, legal proceeding or remedy
it v niay be instituted, continued, or enforced,
and any such penalty, forfeiture or
éZl”;fiA.,t,,;;2vw@vw59«
11
punishment may be imposed as if this Act
had not been enacted.
(4) (a) Subject to the preceding provision,
anything done or any action taken (including:
any appointment, or delegation made, ta;§i:—-orl, ‘
fee imposed, notification, order, >instr’urnen_t,””w.. ‘
or direction issued, rule, regizilation,
or scheme framed, certificate”-._ obtairiéti’, ‘
permit or license grantedyyor Vhregistrationl”
effected, in the said Acts be deetnetil
have been done,” or in the
corresponding and
shall contir1u_epZ’ if enforced unless
and “~by”–“_an_:ything done or
any..a,t;t’ti3t1_”‘ta:;1t¢n un:1_et”th.i,s,,A5ct :
‘Every ” and servant of an
if =._pxl1nprfotre”ment Board, *[the Bagalkot Town
” oet{e’1ppt:t~e::~t Authority] and the City
l’ .__fImpvroVejtnent Trust Board, Mysore as the
ca.se.; may be, other than such class of
” mservlants as the Government may by order
specify, shall become employees of the
corresponding Urban Development Authority
3%?”
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and shall, until other provisions are made,
receive the salary and allowances and be
subject to the conditions of service to whichifli’
they were entitled immediately before
constitution of the Authority for
Areas concerned;
[C] All assets and liabilities and?’
contracts made by or on behalf of, Q Q’ — ‘
(i) the lmprovemenflilBoardilg’ if if
(ii) *[the Bagalkot… .. A
Authari-again ‘ ‘ ‘
(iii) the ‘fl’rL1st Board,
immediately’ of. bonstitution
of an:’:VVAu_thori-ty«V..forlthiéyjjrban Area under
this Act ._and “on that date shall
stand trarisferreyd to tiie concerned Urban
” _ Development Autl1–ori’ty ;
a provident fund or
if .__superannuation fund or any other like fund
ha.sf”oeen established for the benefit of the
” viaernlvjvloyees of the Improvement Board *[the
f”B’agalkot Town Development Authority] or
the City Improvement Trust Board, Mysore,
we»
C12
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the moneys standing to the credit of any
such fund on the date of commencement of
this Act together with any other assetsf'”–i:.f”~.V”‘p
belonging to such fund shall transferredftfoi ‘7’
and vest in the Government
Government shall be liable dfisciiargef
obligations of the Improvemerit «. V’
Bagalkot Town Deveiop§:ne’nt
the City improvement .1\vEysore,:}
in respect of such fund ‘;_
(e) Any reference’ in any .enact.rrient’:made
or any any of any of
the repealed. unless a
different. _in.;tent3i;on construed as
a reference “itof-they’4cori”esponding provisions
of this
of SecVtio.riV?_$p.{3] leaves no room for any doubt,
and or any right or privilege vested,
V priorito’ the”–‘V.enforcement of the 1987 Act, would not be
affected provisions of the 1987 Act. Thus viewed,
yiwier satisfied that there is no merit in the first
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contention advanced by the learned counsel for the
appellant.
9. The second contention advanced bylnllthue
learned counsel for the appellant was baseé7l’0i§1 .
judgment rendered by the Apex Courthin M = id ” ‘V ‘V
Singh Baldev Singh Vs. Yashvvant Sing]?9;f:1d””3£11éf3’llliiggzlv’
1 SCC 428.” Having regard <.=(j-.._t.V.}1e
learned counsel for the app€11éi::t_ invited"«l.the_:§Courts'
pointed attention to the'"'fo'll.oWin5g ; observations recorded
therein:
“6. Effect Act, or any
(Cejritraliefict) Regtilationyflmade after the
comrnencement of this Act, repeals any
‘-en’ac;tn1e’nt hitherto made or hereafter to be
‘ .V’in.ade:,” unless a different intention
2 tlielvlrepeal shall not –
A'{‘a] Q: 3: as
, Lb)” * * *
affect any right, privilege, obligation or
liability acquired, accrued or incurred under
‘ any enactment so repealed; or
<eW~_W
l5
(Ci) 4: =5: an
(e) 9k =96 Bk”
The objective of the provision is”
ensure protection of any right or l”
acquired under the repealed act. Tile. ~
exception to it is legislative
contrary. That is, the repealing it
expressly provide or it m-ayyimpliedly_pro\?ide’
against continuance of s”pt_1__ch».vright, obligation
or liability. The narrows
down to if the renewal 1939
Act was a_.Vri.g:h.g, whether any
right -.._ap’peilantWlunder the
to continue
unaffecte(il.lby_gV _o_t Act. A permit
could be reneyéed_”unlder…~S_ection 58(2) of 1939
Act reads as ltmderz
. A permit may be renewed on an
and disposed of as if it were
i A an app’lic_3;tion for a permit:
‘ ..”‘.Provided that the application for the
~ renevwal of a permit shall be made,
(a) in the case of a stage carriage permit or
V’ a public carrier’s permit, not less than one
R
trafiawaw
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hundred and twenty days before the date of its
expiry, and
[b] in any other case, not less than sixty
days before the date of its expiry:
Provided further that, other «
being equal, an application for renewal’.gsh4a1»l.: it
given preference over new app’licati0n–s”forV
permits. ”
Although the but
read with proviso a:’plreferences in
favour of renewal if
other .wefe_lll.eC1:tial,l”‘lA””holder of a
permit footing. The
preiereriee, byl””sub-Section(2} of
Sec–tio’n of a permit and
its grantlcann_ot:bel: to be a mere inchoate
‘right, orla’-righlt vvhiclh does not exist in law. It
be akfelsted right or a fundamental
V 1’igh.t_:’btit::it–certainly is civil right which could
‘be in a court of law and any
acting in contravention of it can be
AA forced to act in accordance with it. For
it v._»_.ii.1stance, if a Regional Transport Authority
under the old Act reused renewal even though
the person applying for renewal was in all
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respects similar to other new applicants then
it could be corrected either by the tribunal or,’
by Way of writ Petition under Article 226.’
Therefore, it is a right which is enforcea_hl.ellifil–‘
law. This right accrued to appellant «
already applied for rer:,:ew.alp’ :, T
application had been p,notiflled».’W_A. Th’ev_-v_llega~l if
machinery was set inV3rrii3t,ionA’by_
* therefore had a right to Vapplicatlion for
EC renewal processed _ ‘*considered if in
I
accordance with be too
I artificial xa or it had
not accrwied lherefore in our
opirii_on;~._ 6(c) of the
General right of the appellant
to his appl_ica’ti.oi:..considered and decided
in fwiithhlaw was saved by sub-
. .. {-4l)”Se:cti0n 217 of Motor Vehicles
gain, the learned counsel for the appellant
3 if invitedthe atterltion of this Court to Sections 38 and 39 of
~ 1987_A~ct, so as to assert, that in View of the different
pintentiron expressed in Sections 38 and 39, as against the
I
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statutory provisions, which existed prior thereto, it would
not be just and appropriate to give effect to the niandate of
the provisions which had been repealed.
11. We have examined the second.-«..
advanced by the learned counsel for
is a substantial difference thell’-,repea1in”g}; vp1jovi.3sion.Vl:i»
contained in the 1987 Act, as the ‘provisions which
was subject matter of :lVi._/s. Gurcharan’s
case supra. in the-case j;re1’ied”npon__bvl’.the’i’learned counsel
for the appe1l~a,nt5:’:itheljdi _repealinf,gll provisions expressly
mention _th._at_ V’fjRe;gn_1anoi;.__n1adeV’after the commencement
of this ilenactment hitherto made or
_ hereafter 11:0 be unless a different intention
A’-.appears,,V.’_,.?f;’ar{‘his mandate as was contained in the
referred to in the judgment relied
upon ‘itdhelllllearned counsel for the appellant, is not
liivailable Section 78 of the 1987 Act. The mandate
“lSection 78 (3) of the 1987 Act is clear and
“”Vu.na1nbignous, namely, that ail previous actions would be
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preserved and the 1987 Act would have no effect thereon.
It is therefore not possible for us to accept the4.Sec:on_d
contention advanced by the learned counsel?”‘t’o§§j–..:thr?.___V.’ _
appellant.
12. No other submission
above, were advanced at the hantiapof the.1ear_11eVc1:VVc’oui9ise1 ‘V
for the appellant.
13. For the reasoha _htere£r1a.bove, we find
no merit in instant the same is
accordir1giy”‘disri3isSer1;« – _
Ji