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G. Umadevi vs Bangalore Development … on 6 March, 1998

Karnataka High Court
G. Umadevi vs Bangalore Development … on 6 March, 1998
Equivalent citations: 1998 (5) KarLJ 199
Bench: H N Tilhari


ORDER

1. The petitioner by this petition under Article 226 of the Constitution of India has prayed for issuance of writ, order or direction to the respondents to consider the case of the petitioner for regularisation and for reallotment of the sites in question and to reallot the sites in question in favour of the petitioner and to issue possession certificates to the petitioners and to cancel or withdraw the sites granted in favour of respondents 2 and 3. Petitioner has further prayed for grant of such other reliefs as this Hon’ble Court deems fit.

2. Petitioner in the writ petition has stated that she has purchased a revenue site bearing No. 3 measuring 40′ x 36′ formed in Sy. No. 15/2 of Kathriguppa Village under registered sale deed dated 10-4-1974 from her vendor Smt. B.N. Suguna for valuable consideration. She has asserted that from the date of purchase of aforementioned site, petitioner has been in peaceful possession and enjoyment of the said site. Petitioner’s case is that her name was indicated in the revenue records. She has asserted that she had purchased the site in question with the sole intention of constructing a house. Petitioner has further asserted that 1st respondent has acquired the land in Sy. No. 15/2 of Kathriguppa Village including the site in question. She alleged that there were large number of revenue site holders similarly situated like petitioner who do

not own any sites or houses and the 1st respondent in the larger interest of the site owners of their own has formed a scheme known as reconveyance scheme so as to reconvey the sites to respective owners after forming of a layout by the 1st respondent. Petitioner has further averred that layout has been formed and the sites were given number. Petitioner’s site which is in dispute namely site No. 3 has been renumbered as 477 and 478 measuring 20′ x 35′ each. Petitioner’s case is that respondent-called upon applications from the respective revenue site holders for considering their case for the purpose of reconveyance and issued notice dated 15-11-1979 to the petitioner directing the petitioner to produce all the documents in support of her case. Petitioner has annexed the copy of that notice as Annexure-D. Petitioner’s case is that she has produced all the documents called for by the 1st respondent for reconveying the revenue site and made several representations for reconveyance. Petitioner further alleged that petitioner’s case was considered and approved by the 1st respondent on 11-1-1980 for regularisation. The copy of the said approval along with the list is produced by the petitioner as Annexure-E and E-1. Petitioner has asserted that application of the petitioner was under process which was approved by the 1st respondent on 11-1-1980 itself for regularisation as it is similar to BDA Site Nos. 490, 410, 412, 418, 445 and 476 which have been reallotted to the respective revenue site holders. Petitioner has further stated that at the time of reallotment of BDA sites to the petitioner, it was found that the said site has been allotted to respondents 2 and 3 respectively on 15-12-1984 after the approval made by the 1st respondent in favour of the petitioner for regularisation. Petitioner’s case is that allotment of site in favour of respondents 2 and 3 is not a regular one and is illegal and on account of communication gap from one section to another in the office of the Bangalore Development Authority-1st respondent. She has further asserted that the land in Sy. No. 15/2 including the revenue site held by the petitioner was acquired by the 1st respondent and possession is with the 1st respondent and the possession certificates were not issued either to the petitioner or to the respondents 2 and 3. Petitioner’s case is that she filed a Suit No. 10402 of 1985 in the Court of City Civil Judge, Mayo Hall, Bangalore for injunction. That suit was dismissed by the judgment and decree dated 5-7-1990 and the Court had held that the suit for injunction was not maintainable and on that ground it was dismissed. Petitioner has stated that she did not prefer any appeal from the judgment and decree passed by the City Civil Judge, Mayo Hall. She has asserted that the dismissal of the suit by the Civil Court is of no consequence as so far as the matter relating to reconveying the site is in favour of the petitioner. Petitioner has challenged the right of respondents 2 and 3 to get the site in question allotted. Petitioner’s case is that after the dismissal of the suit, she again made representation to the 1st respondent for getting reallotment of the site in question and pursuant to those representations, 1st respondent sought some clarification from the Deputy Secretary concerned of the 1st respondent. Petitioner’s case is that she has been making requests from the beginning till today, but so far the site is not reconveyed to the petitioner. As such, the petitioner

has come up with this petition under Article 226 of the Constitution before this Court seeking grant or issuance of writ of mandamus or writ, order or direction in the nature of writ of mandamus.

3. I will make reference to the sale deed (Annexure-A) which is the basis of claim which may per se reveal that the petitioner has not stated the facts correctly and has even concealed the fact that the land has been acquired in 1968. Annexure-A is the sale deed which forms the basis of the claim. It is one of the trite principles of law to be taken note of that no person can transfer a better title than what he has got. The sale deed on which much reliance has been placed is Annexure-A to the writ petition. The transferee in the sale deed mentioned that the transferor i.e., Smt. Suguna has been in possession of the land since she purchased the same from Smt. Puttamma under a registered sale deed. Date of the sale deed is not mentioned. In the sale deed Annexure-A it has been mentioned that vide notification issued in Gazette on 9-5-1968, the land had been acquired as per intimation of Special Land Acquisition Officer. In the sale deed, Smt. Suguna states that on the application submitted by her on 12-8-1969 stating that she will pay the conversion fee, layout charges and taxes etc. as to the said sites and had requested to get the sites reconveyed to herself. But, since 1969 till the date of execution of sale deed Annexure-A dated 10-4-1974, Smt. Suguna states that she did not receive any reply from the Special Land Acquisition Officer or from the 1st respondent. Smt. Suguna has clearly mentioned that no reply has been received in the matter so far. Yet the petitioner came forward to purchase the third item of the sites i.e., the property in dispute and she had agreed that she will solve all the transactions that may come in respect of the said site. Deed note indicates the number of the site that has been sold for Rs. 1,00,000/- and the sale consideration has been paid. Sale deed was also got registered. No doubt, in the sale deed it has been stated that property has been handed over to vendee’s possession. It has further been stated that hereinafter for the payment of layout charges to the CITE and for getting it reconveyed in the name of the vendee and to enjoy it according to his own desire and the vendee will have full rights to get it reconveyed. It has further been mentioned in the sale deed that if reconveyance is not done in favour of the vendee, the compensation amount payable may be received by the vendee i.e., the present petitioner and not by the vendor. It has again been mentioned that if any transactions or problem arose in any manner, vendee should solve it by herself at her expenses. The extract of Mutation Entry dated 17-7- 1969 in relation to this item, the original deed obtained by the vendor from Puttamma, index copy, typed copy deed dated 4-6-1969 submitted to the Land Acquisition Officer, Postal Acknowledgment dated 12-6-1969 received from the office of the Land Acquisition Officer for having reached the said application and the blue print came from Puttamma have been handed over to vendee’s possession. It has further been stated that this deed of absolute sale of vacant site had been executed on vendor’s free will.

4. A perusal of this deed per se reveals that at the time when this deed was executed, the vendor B.S. Suguna was not in possession of the

land in dispute. It had been acquired by the Special Land Acquisition Officer of CITE vide notification dated 9-5-1968. This reveals that the land had already been acquired by the Land Acquisition Officer and thereafter Smt. Suguna had made an application on 12-8-1969. But the Land Acquisition Officer did not reply that application. Under the deed, right of reconveyance no doubt has been given to the vendee, and if reconveyance is not done, it has been declared that the vendee is entitled to receive the compensation amount. This document per se reveals that Smt. Puttamma who had executed the sale deed from whom Smt. B.S. Suguna had purchased this property, had acquired the said property vide sale deed dated 4-6-1969 while acquisition of the property had already been made on 9-5-1968 and after getting the sale deed in her favour, Smt. Suguna executed Annexure-A sale deed in favour of the petitioner. It has to be taken note of that Puttamma had no right over the property as it has been acquired by the Special Land Acquisition Officer as per preliminary notification dated 9-5-1968 and if she had no right, then Puttamma could not transfer any right in favour of Smt. B.S. Suguna. This deed also reveals that the possession was not handed over either to Puttamma or to Suguna. The property had been acquired.

5. On notice of this petition being issued to the respondents, statement of objections supported by an affidavit has been filed on behalf of the 1st respondent. It will be appropriate at this stage to refer to the affidavit or statement of objections supported by the affidavit filed by the 1st respondent. In paragraph 3 of statement of objections it has been stated that.-

“The land bearing Sy. No. 15/2 of Kathriguppa Village of Bangalore South Taluk came to be acquired by the respondent Bangalore Development Authority for the formation of a layout known as Banashankari III Stage under a preliminary notification bearing No. ALM/A 10/S3/64 dated 9-5-1968. The notified Khatedars in respect of the above land is Mukkadappa bin Muniyappa. The final notification has also been published on 25-11-1971”.

Respondent’s case is that notices under Sections 9 and 10 of the Land Acquisition Act came to be served on the interested person on 4-7-1972. The possession of the said land had been taken over on 5-6-1975 after awarding a compensation of Rs. 11,931.25 ps. and thereafter the land was handed over to Engineering section for formation of the layout. Respondent’s case is that the land is vested with the 1st respondent free from all charges and encumbrances. Respondent alleged that any transfer made by Smt. B.S. Suguna in favour of the petitioner vide sale deed dated 10-4-1974 is illegal, null and void as Smt. Suguna had no right, title or interest in the land since after its acquisition and publication of preliminary notification. Respondent has asserted that the land having vested in the Bangalore Development Authority free from all encumbrances, so vendors of the petitioner had no authority to execute the sale deed. It has further been asserted that the provisions of the Karnataka Regularisation of Unauthorised Construction in Urban Areas Act of 1991 cannot be made applicable as the land had already vested with the

Authority. Respondent has asserted in the affidavit that there has been no provision in the BDA Act for reallotment or reconveyance of the sites. They asserted that the petitioner at no point of time is or was in possession of the revenue site which is in dispute.

6. Respondents 2 and 3 have also filed the counter affidavit and they allege that site No. 15/2 of Kathriguppa was allotted in favour of Smt. Nanjamma, and she paid the amount and site No. 477 was allotted in favour of respondent 2. Site No. 478 was allotted in favour of respondent 3. Respondents 2 and 3 claimed to be in possession of the property in question. In paragraph 7 respondents 2 and 3 asserted that site in question in Sy. No. 15/2 which survey number has already been acquired by the CITB, now called BDA and site No. 3 was renumbered as 477 and 478. measuring 20′ x 30′. They asserted that the Bangalore Development Authority was wrong in issuing notice to the petitioner on 15-11-1979 without verifying whether the petitioner was a lawful owner of the property and there was no question of reconveyance. Respondents denied that the petitioner is the owner of the property by virtue of the sale deed. Respondents denied that there was any question of land being allotted and regularised in favour of the petitioner. Respondents further averred that the petitioner must show and prove before the Court of law about re-allotment or reconveyance. Their case is Bangalore Development Authority could not reconvey because there is no law of reconveyance reconveying the sites. It is their case after 1979 till 1980 there was no rule or law which entitled the Bangalore Development Authority to reconvey the sites. They asserted that amendment which has been made in the Act introducing Section 38-C was introduced sometime in May, 1995 and this amendment will not confer the right of reconveyance in favour of the petitioner. They asserted that there is no question of regularisation of possession of in favour of the petitioner as the petitioner is not and has not been in possession of the property in dispute till this date. It may be mentioned here that no rejoinder has been filed by the petitioner to any of the counter affidavits.

7. I have heard the learned Counsel for the petitioner Sri Patel D. Karigowda and Sri S.V. Angadi, learned Counsel for respondent 1 and Sri R.U. Goulay, learned Counsel for respondent 2.

8. Learned Counsel for the petitioner invited my attention to resolutions and very emphatically contended that the petitioner had been entitled to get the site reconveyed. He contended that a resolution had been passed by the authority whereunder the petitioner had been entitled for reconveyance. Learned Counsel contended that the Bangalore Development Authority Act, 1976 has been amended by Karnataka Act 17 of 1994 and Section 38-C has been introduced and inserted in the principal Act whereunder the Bangalore Development Authority has been empowered to make reconveyance of the plot in favour of the petitioner. Learned Counsel contended that in view of the above, petitioner is entitled to get the relief of writ of mandamus being issued against respondent 1 to reconvey the site to the petitioner and put the petitioner in possession thereof.

9. These contentions of the petitioner’s counsel have been hotly contested by the learned Counsel for the respondents. Learned Counsel contended that the land in this case had been acquired vide preliminary notification dated 9-5-1968 and that final notification has been passed in the matter on 25-11-1971. The possession was taken on 5-6-1975. Under the law even when the property was acquired, possession can be taken and compensation may be paid later on. But from the date of notification acquiring the land, has been published, the ownership of the land in dispute vested in the authority. The possession of the land, learned Counsel contended, had not been with the petitioner. Respondents’ counsel contended that it appears from the perusal of the sale deed also that the possession of the land has been taken when the notification was published. Learned Counsel contended therefore no rights did remain with the petitioner as the land has been acquired in 1968 as per the notification published in 1968 and final notification published in 1971. Therefore, learned Counsel contended that Puttamma had no right to make transfer of this land in favour of Smt. B.S. Suguna and Smt. B.S. Suguna had no right to transfer any title or interest in the land in question when she executed a sale deed in favour of the petitioner in the year 1974. Therefore, the petitioner did not get any title to the land nor possession thereof. Under the sale deed executed by Smt. B.S. Suguna only right of reconveyance or right to get compensation has been given. Learned Counsel contended that if the predecessors had a right to get the site reconveyed, no doubt it could be said that the petitioner has got a right to get the site reconveyed. But the question would be that under what law right had been there to get the site reconveyed. Learned Counsel for the respondents referred to two Single Judge’s decision of this Court namely in the case of B.N. Sathyanarayana Rao v State of Karnataka . He has also made a reference to another Single Judge’s (Hon’ble Justice Bopanna) decision in the case of B. Venkataswamy Reddy v State of Karnataka. Learned Counsel for the respondents further referred to an unreported decision of the Division Bench of this Court in the case of Bangalore Development Authority v B.N. Vedanand, decided by a Division Bench of this Court consisting of Hon’ble S. Rajendra Babu, J. and Hon’ble Chidananda Ullal, J. and contended that the law has been laid down in this case that the Bangalore Development Authority has no power to reconvey the site and reconveyance has not at all been contemplated under the Act or the rules and therefore the petitioner’s predecessors in title did not have any right to seek reconveyance. It has been strenuously contended on behalf of respondent 1 by Sri Angadi that the allegation made in the counter affidavit to the effect that compensation to the tune of Rs. 11,931.25 ps. has already been awarded and it has not been disputed and rebutted and once either the petitioner or his predecessors in title thereto, when any of them had received the compensation with respect to the land in dis-

pute, petitioner had no right to get the site reconveyed and because of the fact that compensation has been awarded to the petitioner, petitioner is entitled to the grant of reliefs as claimed.

10. I have applied my mind to the contentions of the learned Counsel for the parties. It will be profitable to observe that it is one of the trite principles of law of writ under Article 226 of the Constitution of India that a person seeking equitable constitutional remedies under Article 226 must come with clean hands and any person seeking reliefs if he makes incorrect averments in the writ petition, he may not be entitled to get equitable reliefs under the Constitution. In such a case where the petitioner conceals the material fact or where he avers a wrong fact, that would itself provide a sufficient ground for dismissing the petition in addition to taking any action for contempt of Court as Court deems fit or to make him deposit exemplary costs in accordance with Section 35-A of CPC. Justice is the basic feature of Constitution as it formed the part of preamble of Constitution whereunder justice socio-economic has been ensured. No person is entitled to misuse it.

11. As regards the merits of the case, it is to be remembered that in order to claim the issuance of writ of mandamus or an order in the nature of writ of mandamus, the burden is on the petitioner seeking that relief first to establish his statutory legal right. He has then to establish that the authorities inspite of being called upon by the notice, reminder or representation to exercise their power and to perform a duty upon which the petitioner’s rights depends, have failed to perform their statutory legal obligation and their failure has resulted in causing injury in law or in fact. Keeping these basic principles in view regarding issuance of writ of mandamus, it has to be examined whether the petitioner has got any right of reconveyance. It has to be remembered that the right of the petitioner to reconveyance depends if at the time of acquisition of the property i.e., Site No. 3 in Sy. No. 15/2, there has been anything or any provision in any Act providing for reconveyance. If there has been no provision for reconveyance either in Act or rules, whatsoever resolution passed by the authority entitling a person for reconveyance, it will not have the effect of conferring any right of reconveyance in favour of the person seeking reconveyance. Neither will doctrine of estoppel will apply because if a person has got no right to reconvey or authority had got no power to reconvey, the pretension of passing of resolution to reconvey being beyond the jurisdiction and power of the authority, the doctrine of estoppel will not have its play. When I so observe, I find support from the decision of this Court in the case of B.N. Sathyanarayana Rao, supra, vide observations contained in paragraph 5 of page 795, the learned Single Judge observes that it is not possible to apply to rule of estoppel where there is no provision contained in the Act or rules framed therein enabling the Bangalore Development Authority to allot or reconvey the site in the manner proposed to be done. Similar view has been expressed by another Hon’ble Single Judge in the case of B. Venkataswamy Reddy, supra.

12. As regards the possession, the right of reconveyance it might have been mentioned in the sale deed Annexure-A. But the question whether there is any Act or rules for reconveyance. I called upon the learned Counsel for the petitioner to show any provision of law under the Act or the rules which may be said to be conferring a right of reconveyance. Learned Counsel for the petitioner only brought to my notice Section 38-C which has been introduced in BDA Act, 1976 by the Karnataka Act 17 of 1994. This Karnataka Act 1994 came into force with immediate effect of its being published by the Government. May be from 1994 May vide Section 5 of Act No. 17 of 1994, Sections 38-B and 38-C were introduced in the principal Act. It has to be taken note of that land has been acquired in this case in 1968 or at the most in 1971. Because final notification was published in 1971. Section 5 of Act No. 17 of 1994 very clearly states and provides as under.-

“Section 5 of Act No. 17 of 1994 reads, “After Section 38-A of the principal Act, the following shall be deemed to have been inserted with effect from the 20th day of December, 1975 namely Sections 38-B and 38-C have been mentioned therein in extenso”.

A reading of this part of Section 5 of Act No. 17 of 1994 clearly reveals no doubt that by virtue of deeming clause, amendment has been given retrospective effect, but only with effect from 20-12-1975. It means that Section 38-C will be deemed to have come into effect with effect from 20-12-1975 and not earlier. Earlier the land was acquired by the Special Land Acquisition Officer of the CITE earlier to BDA Act. Earlier to this BDA Act of 1976, City Improvement Trust Board was in existence and operation. No provision has been brought to my notice whereunder CITE Act was entitled to make reconveyance. Amendment has been made in BDA Act, 1976. But the acquisition had been made before coming into force of BDA Act. No provision of law has been cited before me to show or establish that CITE did have the power to reconvey. In the cases referred to above i.e., in the case of B. Venkataswamy Reddy and B.N. Sathyanarayana Rao, it had been held by the Hon’ble K.A. Swamy, J., that neither the provisions of the Act nor the rules framed under the Act enabled the BDA to reconvey the site. Rules do not provide for reconveyance. Therefore, it is not possible to hold that the petitioner has a right to seek reconveyance. Similar view has been expressed in the case of B. Venkataswamy Reddy, supra, after making reference to various provisions of the Act as it existed in that time. If BDA were to be given the power to reconvey the land vested in it by exercising the power vested under Section 13 of the Act, it will defeat the very purpose of constituting the special authority for development of city of Bangalore. Once it is held that resolutions were void, the petitioner cannot seek any other right either by acquisition or by the principle of promissory estoppel. It appears that prior to the introduction of Section 38-C, there did not exist any power or authority of reconveyance either in the CITB or in the BDA. So no right to get reconveyance did exist. As mentioned earlier Section 38-C has been introduced with effect from 20-12-1975 and not earlier. Section 38-C reads as under:

38-C. Power of authority to make allotment in certain cases.-

Notwithstanding anything contained in this Act or in any other law or any development scheme sanctioned under this Act, or City Improvement Trust Board Act, 1945 where the Authority or the erstwhile City Improvement Trust Board, Bangalore, has already passed a resolution to reconvey in favour of any persons any site formed in the land which belong to them or vested in or acquired by them for the purpose of any development scheme and on the ground that it is not practicable to include such site for the purpose of the development schemes, the Authority may allot such site by way of sale or lease in favour of such person subject to the following conditions.-

(a) the allottee shall be liable to pay any charges as the authority may levy from time to time; and

(b) the total extent of the site allotted under this section together with the land already held by the allottee shall not exceed the ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976″.

Under this provision, power has been conferred on the Bangalore Development Authority, if the City Improvement Trust Board had already passed a resolution to reconvey the land in favour of a person or any site formed in the land which belong to them and which had vested or had been acquired by the BDA or CITE for the purpose of any development scheme and on the ground that it is not practicable to include such site for the purpose of the development scheme, then Authority can allot such site by way of sale or lease in favour of such person i.e., the person to whom the site belonged originally. This provision is applicable only on proof of the fact that earlier CITE, Bangalore, had passed any such resolution to reconvey the site in favour of the person from whom the land has been acquired and that it is not practicable to include such site for the purpose of development scheme. In this present case, petitioner or his predecessor i.e., original owner of land had taken the compensation of Rs. 11,931.25 ps. Petitioner is not seeking the relief that the Bangalore Development Authority be directed to sell this plot in favour of the petitioner or that lease be given to him. When this is not the case of the petitioner, and she only wants reconveyance, in my view, Section 38-C may not be of any help. The transfer deed did not confer any title over the land in favour of the petitioner. Because land had already been acquired by the Special Land Acquisition Officer, at that time, there was no such provision. At the most, the BDA after coming into existence, if CITB had passed any resolution for reconveyance, it may be said that BDA has got the power to reconvey in favour of the owner of land and further as the owner had no right to get reconveyance of said site he could not confer any such right to Smt. Suguna nor Smt. Suguna could confer such right which did not then exist on the date of sale deed dated 10-4-1974 or earlier. Further there is no such allegation that CITB had passed any such resolution earlier for reconveyance.

13. Thus considered in my opinion, Section 38-C of the Act cannot be said to be of any help or assistance to the petitioner. The site in question had already been allotted in favour of respondents 2 and 3 dated 15-12-1984 vide Annexure-R1 and the respondents have paid the amount as appears from the record on 31-1-1985, 8-3-1985 and 15-3-1985, and respondents 2 and 3 have also raised construction as per Annexure-R9. The allegation that they had immediately made constructions and are actually living since 1985 has not been denied. In such circumstances, in my opinion, it would neither be just nor proper to allow the writ petition. This petition has been filed in 1995. The allotment in favour of respondents 2 and 3 has been made in 1984 by way of sale. When there was no power of reconveyance, the third party interest has come into existence. Compensation has been received by the petitioner. Therefore, in such circumstances, when this petition has been filed after twelve years from the date of allotment in favour of the respondents 2 and 3, it does not appear just and proper to issue writ of mandamus even if it be taken that authority has been conferred with power in the circumstances referred to in Section 38-C to allot the site by way of sale or lease to the previous owner and the section which has been introduced in 1994 has been given retrospective effect only with effect from 20-12-1975. Justice requires that petition be dismissed. In the circumstances narrated above, because no resolution has been produced and compensation has been received by the petitioner and third party interest is involved, so this writ petition cannot be allowed. If the petitioner wants to purchase any other site, he may be given alternative BDA site. Subject to the above observations, writ petition is hereby dismissed. No order as to costs.

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