Karnataka High Court
B.N. Vedanand vs The Bangalore Development Authority on 16 July, 1990
Equivalent citations: AIR1991KANT175, ILR1990KAR2504, AIR 1991 KARNATAKA 175, ILR (1990) KAR 2504
ORDER
1. The petitioner was the owner of a revenue site measuring 30 feet x 40 feet situated in Sy. No. 15-2 of Yedivur-Nagasandra Village, Uttarahalli Hobli, Bangalore South Taluk. A large exent of the area was acquired by the Bangalore Development Authority including the aforesaid revenue site and possession of the site was taken from the petitioner on 30-11-1965. On the same day, the petitioner gave a representation to the Bangalore Development Authority that he was entitled to a site in lieu of the acquired land. An endorsement was issued in reply to the representation of the petitioner dated 11-11-1976 under Annexure-A signed by the Secretary, Bangalore Development Authority. Bangalore which reads as follows: --
"Sub : Allotment of site in lieu of revenue site acquired by the B.D.A. Bangalore.
The Bangalore Development Authority, Bangalore has acquired your site bearing No... measuring 30' X 40' situated in Sy. No. 15/2 of Yedivur Nagasandra and the possession of the land was taken on.....
You will be allotted a site at the old allotment rate on filing an affidavit within one month from the date of receipt of this letter to the effect that you or your wife or husband, dependent children, parents, sisters and brothers do not own any site or house within the Bangalore Metropolitan Area. The embossed affidavit form can be had from the Accounts Section of this office on payment of Rs. 6/-. The affidavit may be sworn to before Sri K. M. Revankar, Special Land Acquisition Officer, B.D.A. Bangalore who is empowered to administer oaths during the office working hours. The original sale deed or photostat of the original sale deed may also be produced along with the affidavit.
Yours faithfully, Sd/-
Secretary.
Bangalore Development Authority.
Bangalore."
Thereafter, the petitioner complied with the requirement of the endorsement and obtained an acknowledgment from the Bangalore Development Authority for having done so on 30-11-1976. But the petitioner was not allotted a site as assured under Annexure-A. The petitioner made several visits to the office and gave several representations but invain,
2. On 4-3-1983, the petitioner also gave a representation to the Governor of Karnataka. more or less on the same lines as he had done before the Bangalore Development Authority requesting for suitable instructions to the Bangalore Development Authority to allot a suitable site to the petitioner, A notice through the Counsel was also issued to the Bangalore Development Authority dated 22-11-1982 asking for allotment of a site to the petitioner without further delay.
3. Since all the efforts of the petitioner failed, the petitioner has approached this Court seeking a mandamus to the respondent to allot a suitable site at the allotment rate prevailing during 1965 and approximately measuring 30 feet x 40 feet in arty of the Banashankari I Stage or II Stage or J.P. Nagar Extensions at Bangalore,
4. The learned Counsel appearing for the petitioner filed an application under S. 151, C.P.C. in order to urge additional grounds and the same was allowed and according to the additional grounds the site of the petitioner was acquired by the respondent in pursuance of representation given by the petitioner on 30-11-1965 whereupon Annexure-A is stated to have been issued by the respondent assuring allotment of a site to the petitioner. It is categorically stated by the petitioner that he did not ask for reconveyance of the same site. What he asked for was in lieu of his own land which was acquired by the Bangalore Development Authority, a separate site in the same area be allotted to him in lieu of compensation and in response to the same, a firm assurance was given by the respondent. The petitioner maintains that an individual communication was issued to the petitioner in response to his representation assuring that separate site would be allotted in substitution for the compensation which was payable to the petitioner. It is also stated that the petitioner never received notices under Ss. 9 and 10 of the Land Acquisition Act. No enquiry as contemplated under S. 11 of the Land Acquisition Act was held. No award notice was issued to the petitioner under S. 12 of the Land Acquisition Act and ultimately no compensation was paid to him either.
5. The respondent has filed a detailed statement of objections.
It is contended on behalf of the respondent that the writ petition is not maintainable and that the petitioner is not supported by any legal right. It is stated that once the land is acquired, the petitioner has no legal right to claim allotment of a site and no writ of mandamus could be issued to compel allotment of a site to the petitioner, as the preparation of a scheme, formation of layout, and allotment of sites are governed by the Bangalore Development Authority Act and Rules framed thereunder. It is also stated that allotment of a site to a person whose land is acquired cannot be claimed as a matter of right.
6. Para 3 of the statement of objections, makes interesting reading. According to para 3, it is stated that due to political pressure and on the eve of election, it appears a letter was addressed to the Revenue Site Holders whose lands/sites arc acquired, to file necessary documents and that their applications would be considered for allotment of sites with a view to give a site if possible. But in pursuance of this general statement made, more than forty thousand to fifty thousand such persons filed applications for allotment of sites. Probably, the number of these applications were more than the total number of sites available to the B.D.A. itself. If all such petitions like the one of the petitioner are to be granted, no other citizen would be able to get a site from the B.D.A. and it may not be even possible for the B.D.A. to allot sites to such persons. Further the allotment of sites are governed by the Allotment Rules framed from time to time i.e., 1972, 1982 and 1984 Rules. It is relevant to state here, however, a provision is made in 1984 Allotment Rules giving preference to persons who have lost their sites/lands for allotment of a site. Once the land is acquired, this respondent is not competent either to allot a site or rcconvey site against the provisions of the Act and Rules, Further even if there is any assurance or commitment on the part of the authority and if that assurance and promise is beyond the scope and authority of the provision of the Act and Rules governing that authority, such a promise cannot be enforced in the Court of law much less a writ in the nature of mandamus can be issued. Lastly, it is contended that on the ground of delay and laches also, the petitioner is not entitled for the relief claimed in the writ petition.
7. Whereas the learned Counsel appearing for the petitioner relied upon a decision of the Supreme Court rendered in The Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd., the learned Counsel for the respondent relied upon not only the decision in the case of B.N. Satyanarayana Rao v. State of Karnataka (ILR 1987 Kant 790) but also on certain unreported decisions in W.Ps. No. 11976/84 and 17534/87 DD 14-9-1988 in B. Vcnkataswamy Reddy v. State of Karnataka, AIR 1989 NOC Kant 100, apart from the decision rendered in the Bangalore District Co-operative Central Bank Employees Co-operative Society Ltd, v. The Bangalore Development Authority in W.P. 12119/88 decided on 13-10-1988. The learned Counsel appearing for the respondent also brought to my notice that the decisions relied upon by the respondent were upheld by a Division Bench of this Court.
8. It is necessary to look into the facts of the case in order to decide whether one or the other decision is applicable. The instant case offiers a fact pattern which is not to be found in any of the decisions relied upon by the learned Counsel appearing for the parties. This case appears to stand on its own and is distinguishable from the cases referred to by the learned Counsel appearing for both the parties. The learned Counsel appearing for the respondent after looking into the records of the acquisition proceedings was able to show that the compensation was paid not to the petitioner but to the vendor's vendor of the petitioner whose name was found in the award. The petitioner has based his claim on the fact that he being the owner of a site measuring 30' * 40' is entitled to an allotment of a site of more or less the same dimension in places like Banashankari I Stage or II Stage or J. P. Nagar Extension of Bangalore in lieu of the compensation to which he was entitled as the owner of the site that was acquired by the B.D.A. The specific contention of the learned Counsel for the petitioner is that the petitioner is not seeking reconveyance of site that was acquired by the B.D.A. but he is only asking for a site elsewhere of similar dimension in lieu of the compensation which was not given to him. It is also the case of the petitioner that the respondent has specifically addressed a letter to the petitioner in response to his representation dated 30-11-1965 on the day when the petitioner surrendered possession of his land to the B.D. A. holding out an emphatic assurance in the nature of an implied agreement that the petitioner would be allotted a site at the old allotment rale on filing an affidavit within one month from the date of receipt to the effect that he or his wife or husband, dependent children, parents, sisters and brothers do not own any site or house within the Bangalore Metropolitan Area. Annexure A is the endorsement issued by the responsible official of the B.D.A. holding office of Secretary intimating the petitioner that an embossed affidavit form can be had from the Accounts Section of the office of the B.D.A, and the affidavit may be sworn to before Shri K. M. Revankar, Special Land Acquisition Officer, B.D.A. Bangalore who is empowered to administer oaths during the office working hours. The petitioner was also directed to produce the original sale deed along with the affidavit.
9. The fact that the petitioner was called upon to produce the original sale deed or the photostat of the original sale deed along with the affidavit gives an indication that the Special Land Acquisition Officer who was empowered to administer oath desired to look into the sale deed even alter the acquisition had been completed. It is probable that since the petitioner asserted that he had not received the compensation though he is the owner of the land insisted upon the allotment of a site of equal dimension was called upon to produce either the original sale deed or photostat of the same so that the authority could satisfy it.self that the petitioner in fact is the owner and also for the purpose of grant of site to the petitioner in lieu of the compensation to which he was entitled to and had not received. If the petitioner had received the compensation or if he was not the owner of the land then there would have been no necessity for the Secretary of the B.D.A. to call upon the petitioner to produce the original sale deed or photostat of the same before the Special Land Acquisition Officer, B.D.A. What emerges from Annexurc A is that the B.D.A. being satisfied that the petitioner's claim was bona fide and justified, intended to do justice to the petitioner by offering him a site at the old allotment rate on filing of an affidavit within the stipulated period and in the manner required under Annexurc A. It is a specific and an exclusive communication addressed to the petitioner by the Secretary and the B.D. A. which categorically states that the petitioner will be allotted a site at the old allotment rate on filing an affidavit within a stipulated period and other formalities intended in the Annexure A. By no stretch of imagination can Annexure A be characterised as a general circular or general intimation offering site at the old allotment rate by reconveyance. I am of the opinion that it is an intimation which is exclusive and individualised in so far as the petitioner is concerned as addressed by the Secretary of the B.D.A. and not a mass communication to all the aspirants who want similar benefit. A distinction has to be made between an application lor reconveyance and an application for allotment of site in lieu of the compensation not received. The entire case of the petitioner is based on the fact that though the petitioner is the owner of the site which was acquired by the B.D. A. he has not been paid the compensation and in the alternative he has sought for an allotment of another site of the same dimension elsewhere. The most reasonable probability I would presume in the circumstances of the case is that the Secretary, B.D.A, accepted the reasoning and soundness of the case of the petitioner and therefore held out an unequivocal promise under Annexure A. In these circumstances, it is difficult for me to accept the contention that the assertion held out by the Secretary of the B.D.A. is contrary to law, and that it has no authority of law. On the other hand, I am of the opinion that Annexure A answers the test of fairness as well as reasonableness. I am unable to see how the respondent could resile from the commitment made under Annexure A, It appears to me that what is involved in the instant ease is more in the nature of an exchange of land rather than reconveyance of land.
10. In the decision relied upon by the learned Counsel for the petitioner in (The Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd.), it was held that the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent. The respondent acting upon the solemn promise made by the appellant incurred huge expenditure and if the appellant is not held to its promise, the respondent would be put in a very disadvantageous position and, therefore, also the principle of promissory estoppel can be involved in this case. ( and Relied on).
11. In the case of B. N. Satyanarayana Rao v. State of Karnataka (ILR 1987 Kant 790) in para 5 the principle laid down is of relevance to the facts of this case to some extent. The relevant portion reads as follows :
"It is not the ease of the petitioner that pursuant to the aforesaid notification they received a communication from the B.D. A. to file the affidavit claiming allotment of sites by reconveyance. Therefore, unless each of the petitioners had received the communication from the B.D.A. assuring them to allot a site by way of reconveyance or otherwise and further instructing them to file necessary affidavit or application pursuant thereto, they had no reason to believe that the B.D.A. had promised to allot or rcconvey a site to each one of them. No such claim is made or no such communication is received. In addition to this, it is not possible to apply the rule of promissory estoppel in cases where there is no provision contained in the Act, or in the Rules framed thereunder enabling the B.D.A. to allot or reconvey the sites in the manner proposed to be done by the notification (Annexure B)". In the reasoning that is adopted in the said decision, two aspects stand out. The first aspect is that the Court was not considering a case wherein each of the petitioners had received communication from the B.D.A. assuring them allotment of a site and further instructing them to file necessary affidavits or applications pursuant thereto. In the said case, no claim was made and no such communication was received. The second aspect is that the learned Judge held that it is not possible to apply rule of promissory estoppel in cases where there is no provision contained in the Act or in rules framed thereunder enabling the B.D.A. to reconvey the sites in the manner proposed to be done by the notification (Annexure B). The sentence begins as follows: "In addition to this, it is not possible to apply the rule of promissory estoppel.....". It is difficult for me to construe that what the learned Judge meant was that it is not possible to apply the rule of promissory estoppel even where there is a claim made and a communication received and even where each of the petitioners had received the communication from the B.D. A. assuring them to allot a site by way of reconveyance or otherwise and instructing them further to file the necessary affidavits or applications pursuant thereto. The question remains unanswered inasmuch as there is no finding as to what would happen if the petitioner therein and each one of them had received a communication from the B.D.A. pursuant to the aforesaid notification to file the affidavit claiming allotment of sites by reconveyance and particularly if each one of them had received a communication from the B.D. A. to that effect. The fact that the notification which was considered in the said case was of a general nature flowing from a resolution of the B.D.A. is not disputed. I may also point out, that already as observed by me, the petitioner is not seeking reconveyance of any land but what he is seeking is only allotment of a site in lieu of the acquisition of a site belonging to him without payment of the compensation.
12. In W.P. Nos. 11976/84 and 17534/ 1987 DD 14-9-1988, AIR 1989 NOC Kant 100 the petitioners challenged the impugned acquisition on the basis of certain resolutions passed by the B.D. A. the first resolution was passed by the B.D.A. on 17-11-1982 in Subject No. 241 accepting to the request of the petitioner. That resolution reads as under :
"Request of Sri B. Venkataswamy Reddy -- To the extent of 3 acres 25 guntas in Sy. No. 345, Banasawadi village for distributing among 19 members of his family to be approved."
Subsequently, this resolution was withdrawn on 30-4-1984 in Subject No. 287 and the same was communicated to the petitioner therein. It is in this context that the petitioner pleaded application of principles of promissory estoppel. Patently, the facts with which I am concerned in this Writ Petition cannot be regarded as similar or identical to the fact pattern in the said writ petitions. Of particular importance is the fact that in the said writ petitions, the question that arose for consideration was the application of principles of promissory estoppel in regard to denotification of land from the petitioners. In the instant case, we are not concerned with the question of denotification in the sense it is understood. I do not think that the principle laid down in the said writ petitions is applicable to the facts of this case.
13. In W.P. No. 12119/1988, the point that arose for consideration was whether the B.D.A. has the power to make bulk allotment of land acquired for the purpose of a development scheme in favour of....Ultimately, the Court took the view that it is impermissible for the B.D.A. under the B.D.A. Act to make bulk allotment for Co-operative Societies. It goes without saying that the facts of that case are not in pari materia with the facts of this case nor can the principle be applied out of context. I am of the opinion that the point decided and the principle laid down in the said cases have no bearing on the facts of this case.
14. The learned Counsel appearing for the respondent invited my attention to para 4 of the decision in the case of B. N. Satyanarayana Rao v. State of Karnataka, 1LR 1987 Kant 790 at p. 794.
"I now proceed to consider the case of the petitioners on merits. It is now well established by reason of a decision of a Division Bench of this Court in A. V. Laxman v. B.D.A. that there is no right in the owner of the land which is acquired for the purpose of scheme under the Act to seek reconveyance of site forming part of the scheme or layout formed by the B.D.A. In para 4 of the judgment in the aforesaid W.A. 729 of 1983 while considering the contention of the appellant that he is entitled to seek reconveyance, it is held as follows:--
'The learned Judge while dismissing the writ petition has observed that there is no right vested in the appellant to claim that relief from the B.D.A We entirely agree with the view taken by the learned single Judge.' Learned Counsel for the petitioner has not been able to place reliance on any of the provisions in the Act or on the Rules framed thereunder which enable the B.D.A. to re-convey the site. Reconveyance in a way is opposed to the scheme itself. Scheme is formed for the purpose of forming site for allotting them as per the Rules. The Rules do not provide for reconveyance. Therefore, it is not possible to hold that the petitioners have a right to seek reconveyance."
Reconveyance of a land relates to the land which has already been conveyed by virtue of the acquisition. What was conveyed in the instant case is a strip of land measuring 30' * 40' to the acquiring authority. What is sought by the petitioner is not the very same land taken away by virtue of an acquisition proceeding but a site of almost same dimension in a different area such as Banashankari I Stage or IT Stage or J. P. Nagar Extension of Bangalore. Another distinguishing feature is that the petitioner is claiming allotment because he lias not received the compensation for the site that was taken away from him and secondly based on the implied agreement and consent of B.D.A. which in deference to his representations, issued Annexure A contracting to allot a site of similar dimension to the petitioner subject to his compliance with the directions contained in Annexure A. The petitioner acted upon Annexure A and reasonably asked the B.D.A. to fulfil its part of the obligation. Under these circumstances, I do not see how the request of the petitioner could be characterised as a request for reconveyance of land. As already observed by me, the facts of this case are distinguishable from the facts which are referred to in the decisions on which strong reliance is placed by the learned Counsel appearing for the B.D.A. The principles which govern the cases referred to by the learned Counsel for the respondent arc of no assistance in resolving the dispute raised in this writ petition.
15. The learned Counsel for the respondent forcefully contended that a contractual right cannot be enforced by invoking the writ jurisdiction and particularly, in the nature of mandamus. The position which confronts both the petitioner and the respondent is of such a nature that it cannot be said that the right of the petitioner to allotment of a site in lieu of compensation partakes entirely the character of a contractual right. It is an accepted principle that the property of a citizen cannot be taken away without the payment of compensation. Since the petitioner has not received the compensation from the acquiring authority, the petitioner prefers to be compensated in kind by means of allotment of an alternative site. The nature of right enjoyed by the petitioner partakes the character of constitutional right and the petitioner certainly is entitled to seek a writ of mandamus in the facts and circumstances of 1 the case.
16. Lastly, it was contended on behalf of the respondent that the Secretary of the B.D.A. had no authority of law to issue Annexure A to the petitioner. It is a strange case of B.D.A. disowning action taken by its own Secretary and the presumption is that what is communicated by the Secretary is in fact and substance a decision of B.D.A. In any event, this contention does not find a place in the statement of objections filed on behalf of the respondent. On the other hand, in para 3 of the objection statement, it is stated by the respondent that due to political pressure and on the eve of election, it appears, a letter was addressed to the Revenue site holders whose lands/sites are acquired to file necessary documents and that their applications may be considered for allotment of sites, with a view to give a site if possible. But in pursuance of this general statement made, more than forty thousand to fifty thousand such persons filed applications for allotment of sites. It is also contended in the statement of objections that even if there is any assurance or commitment on the part of the authority and if that assurance and promise is beyond the scope and authority of the provisions of the Act and Rules governing that authority, such a promise cannot be enforced in the Court of law. I do not see how this Court can accept the plea that a letter was addressed to the revenue site holders due to political pressure and on the eve of the elections. Secondly, the objections contained in para 3 refers only to the letter addressed to the revenue site holders by way of a general statement. This is contrary to the facts of this case because the petitioner is relying upon a direct reply to the representation made by him for allotment of an alternate site. Secondly, the B.D.A. cannot go behind its commitment to give an alternate site to the petitioner which is not in the nature of reconveyance at all. Hence, the submissions made by the learned Counsel for the respondent do not commend acceptance.
17. For the reasons stated above, the writ petition is allowed. The respondent is directed to allot a suitable site at the allotment rate prevailing during 1965 and approximately measuring 30 feet x 40 feet in any of the Banashankari I Stage or II Stage or J. P. Nagar Extension at Bangalore or in any other area in the proximity.
18. Petition allowed.