Karnataka High Court
The Bangalore Development Authority, ... vs Akkallappa (Dead) By L.Rs on 24 March, 2000
Equivalent citations: 2000(6)KARLJ374, 2001 AIR - KANT. H. C. R. 524, 2001 AIHC 957 (2000) 6 KANT LJ 374, (2000) 6 KANT LJ 374
JUDGMENT
1. I have heard Sri R.A. Kulkarni holding brief for Sri R.S. Hegde, learned Counsel for the appellant, and Smt. Hymavathi holding brief for Sri H.R. Ananthakrishna Murthy, learned Counsel for the respondents.
2. This is defendant's appeal from the judgment and decree dated 18-2-1997 passed by the IV Additional City Civil Judge, Bangalore, in O.S. No. 10686 of 1987. The plaintiff filed the above suit for the decree directing the defendant to reconvey the suit schedule property namely portions of land bearing Sy. No. 50 of Doopanahalli Village, HAL II Stage, HAL, Bangalore, measuring
(i) 48'+72' x 90'+90' 2 2
(ii) 80'+83' x 3'+30' The plaintiff also sought decree for permanent injunction restraining the defendant/appellant, its agents and officers, contractors and servants or anyone from selling or allotting the site in the schedule property in favour of any person.
3. According to the plaintiffs case, plaintiff has been the original owner of the suit schedule property which admittedly had even acquired by the defendant/appellant. According to the plaintiff/respondent's case, plaintiff represented to the defendant/appellant for reconveyance of his land and thereafter filed the writ petition in this Court which had been dismissed. At the stage of writ appeal, it has been stated that the defendant/appellant had undertaken that it would consider the question of reconveyance of the properties to the plaintiff if the application is made within a particular period. The plaintiff alleged that in pursuance thereof, plaintiff made an application for reconveyance and a resolution was passed on 17-11-1982 to reconvey the same to the plaintiff and others. The plaintiff further alleged that the plaintiff's application for reconveyance has been pending for consideration in view of the amendment of the Bangalore Development Authorities Act. The plaintiff claims that the plaintiff has a vested right in the suit property that it should be reconveyed and the plaintiff is ready and willing to comply with the obligations laid on him under the said resolution. But the defendant has been avoiding to reconvey the same and is trying to sell the sites formed in the suit property by way of public auction. According to the plaintiff, a reference was made to determine the claims of the parties under Sections 30 and 31 of the Land Acquisition Act in L.A.C. No. 43 of 1978 which was renumbered as 984 of 1980. With these allegations, the plaintiff filed the above suit.
4. The defendant filed the written statement contesting the plaint case and contended that land of Sy. No. 50 had been acquired vide preliminary Notification No. RDH 22 LTB 59, dated 17-12-1959 and final Notification No. RDH 17 LTB 60, dated 20-9-1960. The defendant further alleged thereafter the award had been given and possession of the suit property had been taken on 30-3-1977. The defendant further alleged that pursuant to taking of possession of said land, a layout had been formed in H.A.L. II Stage and sites were distributed to Public, as per rules. According to the procedure, the corner sites formed in Sy. No. 50 of Doopanahalli including the suit properties which are also corner sites have been proposed to be sold in public auction. 13-9-1987 was set down for auction sales, but sale could not be held because of the status quo order passed by this Court. The authorities denied that the plaintiff made any application for reconveyance. The defendant further alleged that the plaintiffs suit was not maintainable in view of Section 64 of the B.D.A. Act as the plaintiff had not issued any notice thereunder. The defendant also filed additional written statement in reply to the amended plaint contending that the boundaries mentioned in Item No. 2 of the suit schedule are wholly imaginary and illegal to gain, The defendant did not accept the boundaries.
5. The Trial Court framed the following issues and additional issues:
(1) Whether the plaintiff was in lawful possession of the suit property on the date of suit?
(2) Whether the alleged interference is true?
(3) Whether the plaintiff is entitled for permanent injunction as prayed for?
(4) Whether the suit is not maintainable for want of notice under Section 64 of the BDA Act?
Additional Issues:
(1) Whether the plaintiff is entitled for reconveyance of the suit schedule property from the defendant?
(2) Whether the plaintiff proves the identity of the suit schedule property with the boundaries given in suit schedule?
6. The Trial Court held that the plaintiffs have been in possession of the land and that alleged interference is true. The Trial Court further held that so far as schedule Item No. 2 property is concerned, the identity of that Item No. 2 is not proved. The identity of only Item No. 1 of the suit schedule property had been established. It held, as such, plaintiff is not entitled to any claim for reconveyance of Item No. 2. But so far as Item No. 1 of schedule A property is concerned, the Court found that identity is established and further it held that there being a great threat of dispossession and suit being for injunction and there being immediate threat, no suit, without giving notice under Section 65, was maintainable. The Trial Court further opined that in view of Section 38(c) of the Bangalore Development Act, the Board is empowered to reconvey the property in favour of the person from whom the land was acquired. Therefore, it held that the plaintiff was entitled for reconveyance of suit schedule property Item No. 1. But, no doubt, it has mentioned that if it is not feasible for the Bangalore Development Authority to reconvey the suit schedule property Item No. 1, it may convey any other property in the said layout. Having recorded these findings, the Trial Court decreed the suit.
7. Feeling aggrieved from the judgment and decree of the Trial Court issuing directions to the defendant/appellant to reconvey the suit schedule property Item No. 1 to the plaintiff as well as grant of decree for injunction against the defendant/appellant, the defendant has come up in appeal.
8. The learned Counsel for the appellant namely the Bangalore Development Authority contended that the Court below illegally held that the plaintiff was entitled to reconveyance in view of Section 38C. The learned Counsel contended that Section 38C by itself does not give a right to persons like plaintiff to seek reconveyance. But, it empowers the Board to allot by gale or by hire any land which has been acquired for the purpose of development scheme along with other sites or survey numbers and then the Bangalore Development Authority can pass a resolution for reconveyance on the ground that in its opinion it is not practicable to include that particular site or survey number in development scheme. Then, on this basis, it can pass a resolution that it may be reconveyed and once the reconveyance resolution is passed, then no doubt authority had been empowered to allot that site or land to be reconveyed by way of sale or by way of lease in favour of such person from whom it has been acquired, subject to conditions mentioned in Section 38C. The learned Counsel contended that on the plaint allegations per se it appears that the defendant has included that land in development scheme and has drawn or made sites as plaintiff himself has asserted that the defendant is taking steps to form sites and then to allot and sell them. The suit that has been filed clearly indicates that in view of resolution of the Bangalore Development Authority and plaintiffs case, the land had been included in the site. So, learned Counsel contended that Section 38C could not be applied and the Bangalore Development Authority had no power to reconvey. The learned Counsel contended that the lower Court wrongly applied Section 38C and illegally held that the plaintiff/respondent is entitled to reconveyance. The learned Counsel further contended that no doubt at the writ appeal stage it was stated by the learned Counsel that if an application is made, it may be considered, if law permits. But law did not permit as it could not be said that it was not practicable to include that land. The learned Counsel further contended that in view of the above, plaintiff/respondent had not been entitled to decree for reconveyance of that land in survey number or part of survey number. The learned Counsel further contended had plaintiff applied for fresh allotment of some site formed by the Bangalore Development Authority, his application could be considered. But his application for reconveyance could not be considered as it was not feasible and within the powers of the authority to pass resolution under Section 38C. The learned Counsel contended, as such, decree passed by the Trial Court may be set aside.
9. These contentions of the learned Counsel for the appellant have hotly been contested by the respondents Counsel Smt. Hymavathi. The learned Counsel contended that before this Court in writ appeal an undertaking was given on behalf of the Bangalore Development Authority that in the matter of reconveyance, if an application is made in time, it would be considered as far as in the best interest of the plaintiff and therefore the defendant/appellant was bound to reconvey, as on that undertaking, the application was moved. So, defendant was estopped from denying that plaintiff's right.
10. I have applied my mind to the contentions raised by the learned Counsel for the parties.
The first question to be considered is whether it was open to the Bangalore Development Authority to reconvey the property of the plaintiff which had been acquired. In the Bangalore Development Authority Act, originally there was no such provision as Section 38C. Section 38C had been introduced by Section 5 of B.D.A. III (Amendment) Act, 1993. Section 5 makes this amendment retrospective with effect from the date of commencement of the Act. Section 5 of the Karnataka Act No. 17 of 1994 reads as under:
"Section 5. Insertion of new Sections 38B and 38C.-After Section 38A of the principal Act, the following shall be deemed to have been inserted with effect from the Twentieth day of December, 1975, namely:
"Section 38B. Power of Authority to make bulk allotment.-Notwithstanding anything contained in this Act or Development Scheme sanctioned under this Act, the Authority may, subject to any restriction, condition and limitation as may be prescribed, make bulk allotment by way of sale, lease or otherwise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme.-
(i) to the State Government; or
(ii) to the Central Government; or
(iii) to any Corporation, Body or Organisation owned or controlled by the Central Government or the State Government; or
(iv) to any Housing Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959); or
(v) to any society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960); or
(vi) to a trust created wholly for charitable, educational or religious purpose:
Provided that prior approval of the Government shall be obtained for allotment of land to any category listed above.
Section 38C. 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 scheme, 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"."
11. A reading of this section per se reveals that if a resolution has been passed by the Bangalore Development Authority or by the City Improvement Trust Board that a specific land or any site which had been acquired for the purpose of any development scheme, and, that it is not practicable to include that site for the purpose of development scheme and it has passed a resolution on that basis to reconvey the land in favour of any person, then it is after passing of the resolution fulfilling these conditions, the authority would stand empowered to allot such site even to the person from whom it is acquired. It may allot such site by way of sale or by way of lease. The allotment or reconveyance would be subject to the conditions as mentioned in clauses (a) and (b) of Section 38C.
12. In the present case, the plaintiff/respondent invited my attention to Ex. P. 12 and submitted that this has been the resolution passed by the authority and therefore the authority was bound to reconvey by allotment.
13. The appellant's Counsel contended that this resolution (Ex. P. 12) is not the resolution in terms of Section 38C. So, on the basis of this resolution, the plaintiff cannot claim reconveyance.
14. I have examined the resolution with Subject No. 378. It reads as under.-
"(2) Subject No. 378.
Reconveyance/reallotment schemes in Thippasandra and Doopanahalli area.
It was resolved.. ..
(i) the request for reconveyance of Sy. Nos. 21, 24/2, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 50 of Doopanahalli Village, Sy. Nos. 123, 133, 134, 135 and 136 of Thippasandra Village and Sy. No. 29 of Domlur Village be approved subject to collection of reconveyance charges at Rs. 16/- per sq. mtr.;
(ii) the Executive Engineer, East Division, and the Special Additional Land Acquisition Officer, BDA, will get the above areas surveyed and earmark the extract extents to be reconveyed out of the above Sy. Nos. and the SALAO will issue a general notification requesting all the revenue site owners of the area earmarked for reconveyance under the above Sy. Nos. to file their reconveyance applications along with the original deeds within 4 months from the date of issue of notices so as to consider their applications for reconveyance".
15. This Ex. P. 12 is the extract of proceedings of the Bangalore Development Authority's meeting dated 17-11-1982 under it, it has been mentioned as if Chairman has signed the same. The learned Counsel for the appellant contended that the Chairman by himself is not the Bangalore Development Authority. He further contended that the resolution has not been in consonance with and does not fulfill the requisite elements of Section 38C.
16. Ex. P. 12, no doubt, does not indicate that the Bangalore Development Authority passed the resolution, taking, or forming the opinion, that it is not practicable to include the site or land in question in scheme for the purpose of development scheme. But the entire resolution must have been made by the Development Authority. No explanation has been furnished why the copy of that resolution in full was not filed in the Court. If a resolution had been filed and if it would have been proved to have been in terms of Section 38C for reconveyance of Sy. No. 50, then no doubt the plaintiff would have been entitled for reconveyance. But, that question and to that aspect of matter and to the essentials of Section 38C it appears the Trial Court did not apply its mind at all. The Trial Court at least should have itself asked the defendant/appellant to furnish the full and complete copy of the resolution of the Board dated 17-11-1982 and examined it. No doubt, according to the plaint allegations it appears that the land was included in the development scheme, sites were drawn and were being allotted, So, plaintiff felt apprehended that his site may also go.
17. In this view of the matter, it appears that on own plaint allegations it could not be said that it was not practicable to include the land in question in the development scheme. That being the position, in my opinion, no resolution could be passed for reconveyance. The copy of the resolution which is on record Ex. P. 12 does not fulfill the requirements of Section 38C and as it does not fulfill aforesaid requirement, then the Bangalore Development Authority could not be said to be having the authority to reconvey the land. No doubt, the Bangalore Development Authority can allot any other plot, as observed by the Civil Judge, by way of sale or hire etc. If the plaintiff has made any application or makes an application, then the plaintiff may not be entitled for reconveyance of that very land, but he can be allotted any other site, if it is not possible and feasible to reallot the schedule land which is the subject-matter of litigation.
In this view of the matter, the appeal has to be allowed by modifying the operative portion of the decree of the Trial Court.
If the defendant/appellant finds that it is not feasible and it is not in its power to reconvey the plaintiffs land which has been acquired, it may consider the plaintiff's application for allotment of a site in accordance with law and rules, subject to the terms and conditions to be imposed by the Board. The suit is decreed only to this extent. Rest Trial Court's decree is set aside. If the plaintiff had not already made any application for fresh allotment and if he makes a fresh application within a period of three months from the date of receipt of copy of this judgment, the authority will consider his application for fresh allotment in accordance with law and rules and then pending decision on his application for allotment, the plaintiff/respondent should not be deprived of the roof on his head. The appellant/authorities are expected to act expeditiously because they cannot remove the plaintiff from possession till his application for allotment is disposed of. If the plaintiff does not make any application within three months as above mentioned, the benefit of interim order may come to an end and the authorities may take action in accordance with law.