Karnataka High Court
The Commissioner vs S Venkatarama Reddy on 29 November, 2022
Author: V. Srishananda
Bench: V. Srishananda
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.2045/2011 (INJ)
BETWEEN
THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD
BANGALORE-560 020. ...APPELLANT
(BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE
A/W SRI G.M.ANANDA, ADVOCATE)
AND
1. S VENKATARAMA REDDY
S/O SRINIVASA REDDY,
AGED 42 YEARS
2. SMT VINUTHA M REDDY
W/O SRI MADHUSUDANA REDDY
AGED 45 YEARS
BOTH RESIDING AT MAIN ROAD
ALAHALLI, ANJANAPURA POST
UTTARAHALLI HOBLI
BANGALORE-62
...RESPONDENTS
(BY SRI S.K.V.CHALAPATHY, SR. ADVOCATE A/W
SMT. ANAGHA JAYAPRAKASH, ADVOCATE)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED10.08.2011
PASSED IN O.S.10158/2005 ON THE FILE OF THE ADDL.
CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT
FOR THE PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.09.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. The defendant, Commissioner, Bengaluru Development Authority, [hereinafter referred to as the 'BDA' for short] has challenged the validity of the judgment and decree passed in OS No.10158/2005 dated 10.08.2011 on the file of the XL Addl. City Civil Judge, Bengaluru, in this appeal.
2. The parties are referred to as plaintiffs and defendant for the sake of convenience as per their original ranking before the Trial Court.
3. Shorn of unnecessary details, factual matrix of the case on hand reveals as under:
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Plaintiffs being the brother and sister are the absolute owners in possession of the property bearing Survey No.26/1 measuring 2 acres 32 guntas situated at Alahalli village, Uttarahalli Hobli, Bengaluru South Taluk [hereinafter referred to as the 'suit schedule property' for short]. The plaintiffs have purchased an extent of 32 guntas in Survey No.26/1 of Alahalli village from the previous owners by names Sheik Kumruddin and Sheik Fakru Rehaman and thereafter, they again purchased the remaining 2 acres of land, in the same Survey Number through a registered sale deed dated 23.01.1992 from its previous owners Smt.Chand Bibi and her sons Sheik Khasim and Sheik Basheer and their children. On purchase of the said land, the plaintiffs got mutated the revenue entries in respect of the suit schedule property and they were paying taxes regularly.
4. When the matter stood thus, Bengaluru Development Authority notified their land for acquisition and also neighboring lands in the same village by issuing 4 notifications dated 26.07.1991 and 14.12.1993. A mistake occurred in those notifications inasmuch as the name of the plaintiffs was wrongly shown as Venkataramappa S/o.Srinivasa Reddy instead of Venkataramana Reddy S/o.Srinivasa Reddy. Since, there was a mistake committed by the Bengaluru Development Authority in wrongly mentioning the name of the owner, the plaintiffs could not file any objections before the Land Acquisition Officer. Subsequently, the plaintiffs challenged the acquisition and notifications issued in respect of the land bearing Survey No.26/1 (suit schedule property) in Writ Petition Nos.32760 and 32761/1996 before this Court. When the said Writ Petition was pending, the Government of Karnataka introduced a scheme whereby if the owners of the lands notified for acquisition want to form a private layout, they would be permitted to do so, provided they agree to surrender 30% of the sites so formed in the lands intended for acquisition by the Bengaluru Development Authority, to be handed over to the Bengaluru 5 Development Authority free of cost subject to few other conditions.
5. When the Writ Petitions were listed for final hearing, plaintiffs and defendant filed a joint memo on 06.09.1999 stating that the plaintiffs would be permitted to form a private lay out and they should surrender 30% of the sites formed in the lay out to the Bengaluru Development Authority free of cost. As such, the Bengaluru Development Authority did not take possession of the land and permitted the plaintiffs to form a private lay out and to surrender 30% sites to Bengaluru Development Authority. Placing joint memo on record, the Writ Petitions were permitted to be withdrawn by order dated 20.08.1999.
6. Thereafter, plaintiffs applied for conversion of the land to non-agricultural/residential purpose to the Deputy Commissioner. However, learned Deputy Commissioner rejected their application by order dated 6.3.2002 on the ground that the katha of the suit property 6 is in the name of Bengaluru Development Authority in view of acquisition.
7. Being aggrieved by the order of the Deputy Commissioner, plaintiffs challenged the same before the Karnataka Appellate Tribunal in Appeal No.228/2000. The said appeal was also rejected. Therefore, the plaintiffs were constrained to file Writ Petition No.37032/2002 on the file of this court.
8. When the said Writ Petition was pending, the Deputy Commissioner was intimated by letter dated 03.11.2001 by the Bengaluru Development Authority, that it has no objections for granting conversion of the land to non-agricultural residential purpose. Finally, by order dated 30.01.2004, the Writ Petition was allowed by quashing the order of the Deputy Commissioner as well as Karnataka Appellate Tribunal and directed the Deputy Commissioner to re-consider the application filed by the plaintiffs for granting permission to convert the land from non-agricultural to residential purpose. Thereafter, by 7 order dated 03.07.2004, Deputy Commissioner permitted the conversion on payment of conversion fine of Rs.1,52,515/-. On payment of the said sum, the Tahsildar, Bengaluru South Taluk, issued necessary conversion certificate in favour of the plaintiffs. Subsequently, the plaintiffs approached the Bengaluru Development Authority by application dated 15.06.2004 seeking permission to develop the said land by making payment towards development charges. However, Bengaluru Development Authority kept the said application pending. Repeated requests made by the plaintiffs to Bengaluru Development Authority did not yield any positive result.
9. The plaint averments further reveal that in November, 2005, the Land Acquisition Officer attached to the Bengaluru Development Authority intimated to the plaintiffs that an award has already been passed and the matter has been referred to Civil Court in LAC No.55/1996. The plaintiffs were placed exparte in the said 8 Land Acquisition proceedings. Thereafter, the plaintiffs challenged the exparte order passed in LAC No.55/1996 and got restored the Reference Application by filing necessary Petition.
10. It is further contended that when once the Bengaluru Development Authority has permitted the plaintiffs to form a private layout, as per the Government notification bearing No.HUD 341/1995 dated 17.11.2005, the action on the part of the Bengaluru Development Authority to pass an award and referred the matter to the City Civil Court, Bengaluru, under the provisions of Sections 30 and 31 of the Land Acquisition Act is per se illegal and the same is non-est in the eye of law.
11. Plaint averments further reveal that after the joint memo was placed, plaintiffs continue to remain in possession of the suit property and the plaintiffs possession cannot be disturbed by the officials of the defendant. But, on 10.12.2005 officials of the Bengaluru Development Authority came near the suit property and 9 threatened the plaintiffs that they would commence the lay out work in the said land and it was resisted by the plaintiffs. Left with no alternative, plaintiffs were constrained to file the suit for perpetual injunction against the Bengaluru Development Authority in respect of the suit property on the same cause of action.
12. Pursuant to receipt of suit summons, Bengaluru Development Authority appeared by engaging a counsel and filed detail written statement denying the plaint averments. The Bengaluru Development Authority further contended that the suit seeking permanent injunction alone is not maintainable as the plaintiffs are not owners of the entire suit property in view of acquisition of land and possession was taken over. The Bengaluru Development Authority specifically denied that the plaintiffs are in lawful possession of the suit property as the possession of the property has already been taken by the defendant by completing the acquisition process and sought for dismissal of the suit.
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13. Bengaluru Development Authority did not dispute the filing of Writ Petition Nos.32760 and 32761 of 1996, by the plaintiffs; the joint memo filed by the plaintiffs and Bengaluru Development Authority; and withdrawal of the Writ Petitions. The Bengaluru Development Authority also admitted the order passed in Writ Petition No.37032/2002. Further, Bengaluru Development Authority also contended that the acquisition process was completed and the same was also published in Udayavani newspaper and therefore, the suit of the plaintiffs needs to be dismissed.
14. Based on the rival contentions, the learned Trial Judge framed the following issues:
(1) Whether the plaintiffs prove the lawful possession over the suit schedule property as on the date of suit?
(2) Whether the plaintiffs further prove the alleged interference of defendant in the suit schedule property?11
(3) Whether defendant proves that the suit schedule property is vested with it by virtue of acquisition?
(4) Whether the plaintiffs entitled for the relief of permanent injunction against the defendant as prayed?
(5) What decree or order?
15. In order to prove the case of the plaintiffs, first plaintiff got himself examined as PW-1 and relied on 23 documents which were exhibited and marked as Exs.P1 to 23 comprising of Certified copy of sale deeds, RTC extracts, mutation extract, joint memo, letter, order, official memorandum, challan, copy of judgment, mutation register extract and RTC extracts.
16. On behalf of the defendant Sri H.L.Shivaramu, one of the officials of the Bengaluru Development Authority is examined as DW-1 and relied on 7 documentary evidence which were exhibited and marked as Exs.D1 to D7. Thereafter, learned Trial Judge heard the parties in detail and decreed the suit of the plaintiffs. 12
17. Being aggrieved by decreeing the suit of the plaintiffs, the defendant - Bengaluru Development Authority has preferred this appeal on the following grounds:
"The judgment and decree of the Court below is prima facie, illegal and without authority of law. The impugned Judgment and Decree suffer from illegalities apparent on the face of the record. The findings recorded are contrary to law.
It is an undisputed fact that BDA evolved a scheme called J.P.Nagar 9th Stage and acquired vast extent of land by issuing preliminary notification dt. 13.11.1988 in which the land in Sy.No.26/1 of Alahalli village was also included. The final notification came to be issued on 27.07.1991 and after conducting award proceedings the possession was also taken and handed over to Engineering Section.
Thus, the land stood vested in the
authority free from all encumbrances.
Whereas, the plaintiffs have purchased the property under Sale Deeds dt.23.01.1992 13 and being subsequent purchasers they have not acquired any right, title or possession. Without noticing this aspect and when once the land has vested in the authority the Court ought not to have decreed the suit. Hence, the finding on Issue No.3 is erroneous and liable to be set aside.
The learned Trial Judge has failed to appreciate the case of the defendant -
BDA in a proper perspective and in accordance with law. The documents produced as per Ex.D2 and D3 (Preliminary & Final notifications of
acquisition), Ex.D4 (Copy of the award), Ex.D5 (Possession Mahazar) and Ex.D7 (Copy of notification) show that land was not only acquired in accordance with law, it stood vested in the authority free from all encumbrances. In the circumstances, the Court below ought to have noted that so long as the acquisition was not set aside by a competent Court of law the land would be the property of the BDA and the possession of the BDA also cannot be disputed. It is a trite position in law that 14 the possession of acquired land can be taken by drawing mahazar and thereupon the land would vest in the acquiring body.
It is not necessary that the Land Acquisition Officer himself should take possession and possession taken by any of his authorized officials would complete the process of taking possession and this procedure is in accordance with law.
The finding of the Court below that the BDA has failed to prove the fact of lawful acquisition of the scheduled land is erroneous and liable to be set aside. For recording this finding, the Court below has not assigned any reasons and has totally over-looked the documentary and oral evidence adduced on behalf of the BDA.
The Judgment and Decree of the Court below is liable to be set aside on issue Nos.1, 2 and 4 also. The finding of the Court below that the plaintiffs have proved lawful possession as on the date of the suit and interference by the defendant, is contrary to facts, evidence and the law. Basically, the plaintiffs cannot be held to 15 have any legally recognizable title to the property being subsequent purchasers. Nextly, once the land is acquired and possession is taken which is evidenced by Exs.D2, D3, D4, D5, D6 and D7, the question of the plaintiffs remaining in possession or continuing in possession does not arise. The Court has recorded such finding based on the entries made in RTC extracts, Mutation registers produced as Exs.P17 to P23. But it is trite law that the entries made in Municipal records and tax paid receipts etc., are not documents of title or possession of a party. The further reasons that DW1 had made certain admissions with regard to Ex.P10, Ex.P12 etc., does not amount to his accepting the possession of the plaintiffs over the suit schedule property.The finding of the Court on Issue Nos. 1
and 2 is also based on the joint memo marked as Ex.D.10 under which it is alleged that the BDA had agreed to permit the plaintiffs to develop the land in question subject to surrendering 30% of 16 developed sites to the BDA. It is said that the memo was not acted upon and on the contrary it was subsequently withdrawn and the BDA had passed resolution dt.20.02.2010 in subjection No.89/2010 to recall the memo. If there was any breach of this alleged contract between the plaintiffs and the BDA it cannot be a ground to decree the suit for bare injunction. Firstly, the suit itself was not maintainable since no declaration whatsoever was sought. Secondly, if there was breach of an agreement the remedy open to the plaintiffs was to seek specific performance of the alleged agreement and not to seek injunction against the acquiring authority. Hence, the findings are liable to be set aside.
It is submitted that the acquisition proceedings are commenced and held on the basis of entries made in the revenue records. In other words, the names mentioned in the notifications of acquisition are as were appearing in the revenue records. Hence, there was no 17 defect in the acquisition proceedings as has been observed by the Court below. So also, the entries in the revenue records, payment of land revenue, conversion fine etc., in respect of the land acquired do not have the effect of erasing the finality of acquisition. Admittedly, the acquisition is not challenged and has reached finality and therefore the judgment and decree of the Court below are liable to be set aside."
18. Sri Ashok Haranahalli, learned Senior counsel appearing on behalf of Sri G.M. Ananda, learned counsel, reiterating the grounds urged in the Memorandum of appeal contended that the Writ Petition Nos.32760 and 32761 of 1996 have been withdrawn in terms of the Joint Memo and no order came to be passed by the court. As such, the Joint Memo is not binding on the Bengaluru Development Authority.
19. He further contended that the lands were notified for acquisition and the acquisition was also complete and the same is not challenged by the plaintiffs 18 and therefore, the contention of the plaintiffs that they are in possession of the suit property cannot be countenanced in law.
20. He also pointed out that when once the acquisition proceedings are concluded and a Reference has been made under the provisions of sections 30 and 31 of the Land Acquisition Act in LAC No.55/96, the alleged possession of the plaintiffs in respect of the suit property is illegal possession. He also contended that in catena of judgments, the Hon'ble Apex Court has ruled that possession of property by a person, which has been acquired under the provisions of the Land Acquisition Act, cannot be countenanced as lawful possession and therefore, decreeing the suit of the plaintiffs is per se illegal and sought for allowing the appeal.
21. He also pointed out that the resolution passed by the Commissioner, Bengaluru Development Authority which is marked at Ex.D1 clearly shows that the request of the plaintiffs to form a private lay out in the suit property 19 could not have been agreed to by the Bengaluru Development Authority and therefore, the Bengaluru Development Authority withdrew its consent and proceeded to acquire the suit property as per the notifications issued earlier and thus sought for allowing the appeal.
22. Per contra, Sri S.K.V.Chalapathy, learned Senior counsel and Si Ramesh Babu, learned counsel representing the plaintiffs vehemently contended that when once the BDA has agreed to give up the acquisition proceedings and permitted the plaintiffs to avail the existing scheme of developing private layout in the suit property with a condition to hand over 30% of the developed sites to the BDA and that BDA has addressed a letter to the Deputy Commissioner that it had no objection to issue conversion order after the order came to be passed in WP Nos.32760 and 32761 of 1996, a joint memo came to be filed the thereafter, the BDA is estopped from contending contra.
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23. It is also argued that the Resolution Subject No.89/2010 dated 20.02.2010 marked at Ex.D1 was quashed by this court in WP No.37032/2002 and therefore, the BDA cannot contend that possession of the plaintiffs in respect of the suit property is illegal possession. Further, when once Ex.D1 is quashed by the High Court as aforesaid, BDA cannot contend that the acquisition process was completed and award came to be passed. It is also brought to the notice of this court that LAC No.55/1996 after it was restored to the file by allowing the Petition filed by the plaintiffs, was ultimately dismissed holding that there was no acquisition of the land and the same has not been challenged by the BDA and as such, the appeal grounds are devoid of merits and sought for dismissal of the appeal.
24. On behalf of the respondents, following judgments have been relied on and the relevant portions of the said judgments are culled out hereunder: 21
1. Ananda.P Vs. State of Karnataka in MANU/KA/1462/2014. The relevant portion of the judgment reads thus:
"3. In the above facts and circumstances, it is to be seen that the award having been passed in the year 1986 pursuant to the final notification in the year 1978, the claim of the BDA is that the Scheme has been substantially implemented within a period of five years and thereafter has been successfully completed. However, it is not denied that the petitioners are even today in possession of the land in question. Though it is contended that the occupation is illegal, if indeed the BDA had implemented the Scheme fully and finally, it is inexplicable that the land occupied by the petitioner has remained untouched. If the petitioners were in unauthorized occupation of the same and the BDA seeking to contend that the Scheme has been fully implemented, would have required the petitioners being evicted from the land in question in accordance with law. There is no claim by the BDA that any such steps were taken or are intended to be taken and there was no impediment at any point of time for the BDA to take action against the petitioners or any other unauthorized occupants of the land in question. In any event, if the final notification was of the year 1978, the law requires that the Scheme, in respect of which, the acquisition proceedings were initiated, ought to 22 have been implemented, within a period of five years. Even if there was substantial implementation at the end of 5 years, namely, by 1983, the Scheme ought to have been fully and finally implemented within a reasonable time. However, for reasons best known, and as contended by the learned Counsel for the petitioners, the Scheme not having been implemented, over the extent of land in several villages, apparently, the land in question were left out of the Scheme or were never intended to be integrated with the Scheme and to that extent, by operation of law, would have the effect of Scheme having lapsed. The learned counsel for the BDA would interject to contend that the delay in the implementation of the Scheme was on account of several litigations that were initiated in the course of the implementation of the Scheme and it was stalled time and again by the several litigants and therefore, there was considerable delay in the implementation of the same and produced a copy of the order pertaining to one such proceedings in WP 24632/2012 decided on 2.1.2013. However, it is noticed that the said petition pertains to lands in Survey No.114, 115 and 117 of Mathikere village and had nothing to do with the land of the petitioners or the lands in the vicinity of the petitioners' land. However, there is material filed along with the statement of objections, such as the mahazar indicating that there was a proceeding in taking over 23 possession of the petitioners' land as well as the notification issued under Section 16(2) of the LA Act. However, the actual taking over of physical possession of the land, even if it could be contended that such possession was taken, would have to be demonstrated by producing acceptable evidence. The issuance of notification under Section 16(2) would arise only if it is demonstrated that actual physical possession was taken pursuant to the acceptable evidence produced before the court. The only document which could possibly establish this would be the mahazar drawn up on the date of alleged taking of possession of the land in question. The mahazar that is produced at Annexure-R.4 to the statement of objections is a cyclostyled document with blanks filled in. It is a standard format used by the BDA in all its proceedings to demonstrate that the physical possession has been taken. The mahazar is routinely signed by few unknown persons whose parentage is not indicated nor their addresses. As pointed out innumerable times, the document, such as the mahazar, establishing taking of physical possession, is an important document, which would necessarily have to be utilised in establishing a fact. Especially, when it is disputed that the BDA has indeed taken possession, to establish that it would be necessary for the BDA, as in the present case on hand, to examine those persons, who were present and who had endorsed the said mahazar.24
It would be impossible to identify people, who are said to have signed the mahazar in the present case on hand, in the absence of their parentage or addresses. It is also not evident from the mahazar that the owner of the land was duly notified and if it was in occupation of persons, that such persons were intimated and on their refusal to vacate the premises, the mahazar has been drawn of taking such physical possession thereafter. There is no such evidence forthcoming from the mahazar. Since it is not in dispute that the land in question is under the occupation of the petitioners and others over time, the said mahazar would not be acceptable proof of the fact of having taken possession of the land in question. In any event, it is evident that the land in question was never integrated as part of the Scheme of formation of the Gokul II Stage Rajmahal Vilas II Stage Layout, for which the land was acquired. In which event, in so far as the land of the petitioners is concerned, the Scheme has lapsed and the acquisition proceedings are therefore redundant and stand quashed in so far as the petitioners' land is concerned. "
2. P.K.Kalburqi vs. State of Karnataka and Others reported in (2005) 12 SCC 489. The relevant portion of the judgment reads thus:
"9. A plain reading of the said section would indicate that the power conferred on the Deputy 25 Commissioner is enabling in nature, and if such a notification is issued it shall be evidence of the fact that possession was taken, though not conclusive. Such a notification would be a piece of evidence which may establish that possession of the lands was in fact taken. It is not as if in the absence of such a notification the Court cannot consider the other evidence on record which has a bearing on this question. We are, therefore, satisfied that the High Court was right in coming to the conclusion that possession of the lands was taken by the State and there was therefore no authority in the State Government to issue a notification denotifying the lands under Section 19(7) of the Karnataka Urban Development Authorities Act, 1987."
3. M/S Bharath Earth Movers Gruha Nirmana Sahakari Sangha Niyamitha Vs. State of Karnataka by its Secretary, Revenue Department and Others reported in ILR 2016 KAR 2339. The relevant portion of the judgment reads thus:
"49. So far as the possession aspect is concerned, the Court has to see whether actual physical possession has been taken by the Government irrespective of Section 16 of the old Act because the New Act says that if actual physical possession has not been taken by the Government and 26 it is continued with the owners, in such an eventuality also, the acquisition proceedings shall lapse."
4. Prahlad Singh and Others Vs. Union of India and Others reported in (2011) 5 SCC 386. The relevant portion of the judgment reads thus:
"21. A reading of the khasra girdawari and jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10-2-2011/11-2-2011 issued by the Uttar Haryana Bijli Vitran Nigam Ltd. relates to Appellant 1, Prahlad Singh and this, prima facie, supports the appellants' assertion that physical possession of the land is still with them."
5. Puran Singh and Others Vs. The State of Punjab in (1975) 4 SCC 518. The relevant portion of the judgment reads thus:
"12. In this case there was a concurrent finding of fact that Jamuna was in effective possession of the field on the date of occurrence and the prosecution had alleged that PWs 17 and 19 had taken possession of the property but the finding of the Court was that PWs 17 and 19 had not been put in possession by virtue of the delivery of possession given by the Court.27
It was against this context that the observations referred to above were made. This Court clearly pointed out that where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him. The only condition laid down by this Court was that the possession of the trespasser must be settled possession. The Court explained that the settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. This particular expression has persuaded the High Court to hold that since the possession of the appellants' party in this case was only a month old, it cannot be deemed to be a settled possession. We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to "settled possession". There is no special charm or magic in the word settled possession nor is it a ritualistic formula which can be confined in a 28 straitjacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possendie (sic possidendi). The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and 29
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence.
These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram case."
6. Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu (Dead) by LRs and Another in (2004)1 SCC
769. The relevant portion of the judgment reads thus:
"7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani [(2003) 7 SCC 350] . In between, to quote a few out of several, in Lallu Yeshwant Singh v. Rao Jagdish Singh [AIR 1968 SC 620 : (1968) 2 SCR 203] this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired.30
The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to court and obtain an order for possession before he could eject the lessee. The Court quoted with approval the law as stated by a Full Bench of the Allahabad High Court in Yar Mohd. v. Lakshmi Das [AIR 1959 All 1 : 1958 All LJ 628 (FB)] (AIR at p. 4):
"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause." (AIR p. 5, para 13) In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander [AIR 1968 SC 1165 : (1968) 3 SCR 163] this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The Court quoted Loft's maxim -- "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that 31 hath the very right)" and said: (AIR p. 1175, para
20) "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time."
In M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Shobha Venkat Rao [(1989) 4 SCC 131] it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC 426] this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
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8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the 33 rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
11. In the present case the trial court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property."
25. In view of the rival contentions of the parties, following points would arise for consideration:
(1) Whether the appellant has made out a case that the suit land has been acquired and therefore, plaintiffs are not in lawful possession of the suit 34 property and thus they are not entitled for an order of injunction.?
(2) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
(3) What order?
26. This court carefully considered the rival contentions of the parties and also perused the decisions relied on by the parties in respect of their respective contentions.
27. At the outset, there is no dispute that the plaintiffs are the owners of the suit property having purchased the same under the sale deeds dated 02.04.1986 and 23.01.1992 which are marked at Exs.P1 and P2. Exs.P3 to 7 are the RTC extracts in respect of the suit property and Exs.P8 and P9 are the Certified copy of mutation register extract. Admittedly, acquisition proceedings were commenced by issuing notifications on 26.7.1991 and 14.12.1993.
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28. It is not in dispute that the name of the owners of the land was shown as Venkatarama Shetty S/o.Srinivasa Shetty instead of Venkataramanareddy S/o. Srinivas Reddy. Therefore, the very notifications itself is defective.
29. Nevertheless, the plaintiffs having come to know about the intention of acquisition of the land bearing Survey No.26/1 measuring 2 acres 32 guntas in Alahalli village, Uttarahalli Hobli, Bengaluru South Taluk, plaintiffs filed Writ Petitions challenging the very acquisition notifications in WP Nos.32760 and 32761 of 1996 before this court.
30. When the matter was pending before this Court, there was an amicable settlement between the BDA and the plaintiffs, as the plaintiffs wanted to take advantage of the notifications issued by the Government of Karnataka, under notification No.HUD 341-95 dated 17.11.2005. The said notification is the scheme which was evolved by State Government. In the said scheme, the 36 land owner may form a private lay out with the consent of the BDA in the land which is intended to be acquired by the BDA for the purpose of forming house site with a condition that 30% of the developed sites are to be handed over to the BDA. Accordingly, a joint memo came to be filed in WP Nos.32760-61/1996 and Writ Petitions filed by the plaintiffs was withdrawn in view of the fact that the BDA had agreed for plaintiffs to take advantage of the above referred scheme.
31. The contents of the Joint memo is extracted hereunder for ready reference:
"JOINT MEMO "The petitioners have made a representation dated 28-5-1999 stating that they intend to develop the land SY.No.26\1 measuring 2acres 32guntas of Avalahalli village, under the same terms and conditions of the tripartite agreement dated 5-3 1998, as the lands are adjacent to the existing group Housings Scheme and they shall surrender 12% Of the built up area to the B.D.A. free of cost. On the basis of the said representation, the parties in the 37 above ease, have entered in to an agreement with the following terms and conditions;
(1) The petitioners, Sri. S. Venkataram Reddy S/o J.Srinivasa Reddy and Mrs. Vinutha M.Reddy D/O. J.Srinivasa Reddy, shall develop the land Sy.no 26/1 measuring 2acres 32guntas situated at Avalahalli village, under the same terms & conditions as they entered into with the Bangalore Development Authority, as per the tripartite agreement dated 5-3-1998 in respect of the adjoining lands and they should surrender 12% of the built up area in the Bangalore Development Authority i.e., respondents 1 and 3, free of cost.
(2) It is agreed between the parties that the respondent authority shall withdraw the objections filed in the above writ petitions."
32. Thereafter, it is not in dispute and as borne out by the material on record, that plaintiffs approached the Deputy Commissioner for change of usage of suit property from agricultural land to non-agricultural/residential purpose. The applications sought for converting land to residential purpose has been rejected by the Deputy Commissioner on the ground that katha of the property stood in the name of the BDA by virtue of acquisition. 38
33. Plaintiffs were constrained to challenge before the Karnataka Appellate Tribunal in Appeal No.228/2000 and that the Appellate court also concurred with the finding recorded by the Deputy Commissioner, which had driven the plaintiffs to file Writ Petition before this Court in WP No.37032/2002. The said Writ Petition on contest came to be allowed and order of the Deputy Commissioner was quashed and directed the Deputy Commissioner to re- consider the application seeking grant of permission. BDA wrote a letter to the Deputy Commissioner that it has no objection for allowing the application filed by the plaintiff seeking conversion of the suit property for residential purpose. Considering the same, Deputy Commissioner by order dated 3.7.2004 permitted the conversion of the suit land for residential purpose on payment of conversion fee of Rs.1,52,515/- and conversion certificate was also issued by the Tahsildar, Bengaluru South Taluk.
34. Thereafter, the plaintiffs approached the BDA by application dated 15.6.2004 and sought for permission 39 of the BDA to develop the land as a private layout and plaintiffs were ready to pay the necessary fee in that regard.
35. However, material on record shows that BDA did not process the application filed by the plaintiffs for a considerable period of time. Instead the BDA completed the acquisition proceedings and referred the matter to the Civil court under Sections 30 and 31 of the Land Acquisition Act for adjudication as to who is entitled for possession in LAC No.55/1996.
36. It is also not in dispute that said LAC No.55/1996 was decided exparte and soon after the plaintiffs came to know about the same, they filed necessary petition in Misc.Petition No.832/2005 seeking restoration of the LAC No.55/1996. It is also not in dispute that LAC No.55/1996 was restored on to the file. Later on, on contest, said reference petition came to be dismissed holding that there is no acquisition of the suit 40 property. BDA did not challenge the said order. As such, the finding recorded by Reference Court has become final.
37. It is the case of the defendant BDA that the Commissioner of BDA revisited into the issue and by the minutes of the Board meeting discussed the matter and passed Ex.D1, wherein, the BDA placed reliance on the order passed in Writ Petition No.10165/2008 dated 5.1.2010 in respect of the land in Survey No.89 of Uttarahalli village and directed the legal department of BDA to contest the claim of the plaintiffs.
38. The said action on the part of the BDA was challenged by the plaintiffs by filing Writ Petition No.39204/2010. A co-ordinate bench of this court by order dated 28.2.2012 allowed the said Writ Petition and quashed the resolution in Subject No.89/2010 vide Ex.D1. The relevant portion of the order passed in Writ Petition No.39204/2010 is culled out hereunder for ready reference:
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"4. Said judgment is not applicable to the case on hand. In the matter on hand, as aforementioned, a joint memo came to be filed by the petitioner as well as BDA represented by Commissioner as well as Land Acquisition Officer of BDA on 6.9.1999 before this Court in W.P.Nos.32760-32761/1996 as per Annexure- H. In the joint memo, it is specifically agreed by the BDA that the petitioner shall develop the land bearing Sy.No.26/1 measuring 2 acres 32 guntas at Alahalli village under the same terms and conditions as they entered with BDA as per Tripartite agreement dated 5.3.1998 in respect of adjoining land and they should surrender 12% of the built up area to BDA free of cost. It was also agreed by BDA that the Authority has withdrawn all the objections filed in the writ petitions. Based on the said joint memo, writ petitions came to be withdrawn by the petitioners. Thereafter, the land in question was converted, with the intervention of this Court in W.P.No.37032/2002. When facts stood thus, arbitrarily the respondent has passed the resolution behind the back of the petitioners and sought to withdraw the joint memo filed by them before this Court, based on the 42 judgment of this Court in W.P.No.10165/2008.
The petitioner is not party in W.P.No.10165/2008. The facts are totally
different in W.P.No.10165/2008. In the said matter, there was no joint memo as such by the parties and there was no Court order also. Not even permission was granted in the said writ petition to go ahead with the Group Housing Project at an earlier point of time.
Therefore, the conclusion reached in W.P.No.10165/2008 is not applicable to the facts on hand.
Once the BDA has conceded unequivocally before this Court as back in the year 1999 itself by filing a joint memo as per Annexure-H and consequently, the writ petition came to be withdrawn, it is no open for BDA to take 'U-turn' and pass impugned resolution withdrawing the joint memo. There is no question of withdrawing the joint memo filed before the Court unilaterally, particularly when there is no fault on the part of the petitioner.
5. The very fact that joint memo was filed duly signed by both the parties, it is not open for either of the parties to proceed 43 against such solemn undertaking given before the Court. Moreover, compromise was entered between the parties and joint memo was filed in the year 1999. Impugned resolution came to be passed on 20th February 2010 i.e., after lapse of about 11 years. Such an action by the BDA passing resolution is detrimental to the interest of the petitioner, that too, going against the very purport of its earlier undertaking given before this Court. Thus the impugned resolution Annexure-R1 is not only illegal, but also arbitrary. Accordingly, the same cannot be sustained."
39. On the contrary, the plaintiffs have placed these aspects of the matter before the Trial Court and sought an order of injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property. The Trial Court on cumulative consideration of the materials placed on record, especially taking note of the fact that Ex.D1 stands quashed by order dated 28.02.2012 passed in WP 44 No.39204/2010 decreed the suit of the plaintiffs by the impugned judgment.
40. On re-appreciation of the entire material on record and in the light of the appeal grounds, it is crystal clear that the BDA not only permitted the plaintiffs to take resort to the scheme passed in HUD No.341-95 dated 17.11.2005 by filing a joint memo referred to supra, But subsequently permitted the plaintiffs to get the suit land converted by addressing a letter to the Deputy Commissioner, pursuant to the order passed in WP No.37032/2002 dated 30.01.2004, could not have passed Ex.D1. Nevertheless, having passed Ex.D1, they opposed the grounds urged in the said Writ Petition. A co-ordinate bench of this court taking note of the conduct of the BDA in permitting the plaintiffs to avail the benefit of the scheme No.HUD.341-95 dated 17.11.2005 and also taking note of all other relevant aspects of the matter allowed the Writ Petition filed by the plaintiffs by order dated 28.02.2012 as referred to supra.
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41. It is pertinent to note that BDA did not challenge the order passed in Writ Petition No.39204/2010 and they accepted the order. When once Ex.D1 is quashed by this court by a considered order, BDA is estopped from contending that the suit property is acquired and possession of the suit property by plaintiffs is illegal.
42. In all fairness after the order came to be passed in WP No.39204/2010, BDA should have processed the application filed by the plaintiffs for developing the suit property as per the scheme vide order No.HUD No.341-95 dated 17.11.2005. On the contrary BDA is unnecessarily spending its time and money on an unwanted litigation. BDA being a statutory body, had the services of the legal experts, filed written statement and further contested the suit even after Ex.D1 stood quashed and the order of the coordinate bench in order came to be passed in WP No.39204/2010 having become final. Further, BDA should not have chosen to challenge the judgment and decree 46 passed in OS No.10158/2005, which is impugned in the present appeal as a righteous litigant.
43. This court in order to afford an opportunity for the BDA to retrace its steps, directed the Commissioner BDA to be present in the court and find out whether Bengaluru Development Authority is still interested in prosecuting the appeal and this court explained the chronological events to the Commissioner BDA and afforded an opportunity to find out whether the BDA would be interested in withdrawing the appeal or not. However, it was submitted on behalf of the BDA that they would like to pursue the present appeal on merits. Accordingly, this court heard the arguments of both sides as referred to supra on merits.
44. As could be seen from the above discussion, when once the resolution dated 20.02.2010 vide Ex.D1 came to be quashed by this court in Writ Petition No.39204/2010 by a considered order, there remains nothing for the BDA to oppose the claim of the plaintiffs. 47
45. BDA being a statutory body, is expected to process the application filed by the plaintiffs for seeking permission to develop the land in pursuance of the Government order. Appellant not only failed to do so, but also took a false contention that the acquisition proceedings is complete. As referred to supra, on restoration of LAC No.55/96, a finding has been recorded by the Reference Court in categorical terms in the order dated 23.04.2018 that BDA failed to establish the acquisition of the land. BDA being the interested party in the Reference filed under Sections 30 and 31 of the Land Acquisition Act, in LAC No.55/1996 did not choose to challenge the final order dated 23.04.2018 passed in the said case.
46. However, before this court, an argument is put forth on behalf of the BDA that the finding recorded by the learned Judge in LAC No.55/1996 that there is no acquisition has no legal bearing on the present case inasmuch as the issue involved in the reference case is 48 with regard to apportionment of compensation and the validity of the acquisition to be decided by the learned Trial Judge.
47. It is no doubt true that a civil court cannot hold that a land is properly acquired or not. But fact remains that the BDA being the party to the joint memo which was signed by the learned counsel who represent the BDA and the then Commissioner of BDA, could not have ventured to pass a resolution vide Ex.D1. As such, a coordinate bench of this Court vide order dated 28.02.2012 in Writ Petition No.39204/2010 quashed Ex.D1. BDA did not challenge the said order. Therefore BDA cannot re-agitate the issue with regard to the acquisition of the land.
48. When BDA has been a party to the joint memo and acted in pursuance of the Joint Memo in writing a letter to the Deputy Commissioner for issue of acquisition order cannot now be permitted to re-agitate that the joint memo is not acted upon and the land is acquired in accordance with law. In this regard, principle of 49 promissory estoppel is pressed into service on behalf of the respondent.
49. With regard to application of promissory estoppel, this court places reliance on the judgment of the Hon'ble Apex Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC: (Tax) 144 at page 451, the relevant portion of the said judgment reads thus:
"33. The State, however, contended that the doctrine of promissory estoppel had no application in the present case because the appellant did not suffer any detriment by acting on the representation made by the Government: the vanaspati factory set up by the appellant was quite a profitable concern and there was no prejudice caused to the appellant. This contention of the State is clearly unsustainable and must be rejected. We do not think it is necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise. This position was impliedly 50 accepted by Denning J., in the High Trees case when the learned Judge pointed out that the promise must be one "which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact acted on", (emphasis supplied). If a promise is "acted on", "such action, in law as in physics, must necessarily result in an alteration of position". This was again reiterated by Lord Denning in W.J. Alan & Co. Ltd. v. El Nasr Export and Import Co. [(1972) 2 All ER 127, 140] where the learned Law Lord made it clear that alteration of position "only means that he (the promisee) must have been led to act differently from what he would otherwise have done. And, if you study the cases in which the doctrine has been applied, you will see that all that is required is that the one should have acted on the belief induced by the other party". Viscount Simonds also observed in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. [(1955) 2 All ER 657] that "... the gist of the equity lies in the fact that one party has by his conduct led the other to alter his position".
The judgment of Lord Tucker in the same case would be found to depend likewise on a fundamental finding of alteration of position, and the same may be said of that of Lord Cohen. Then 51 again in Emmanuel Ayodeji Ajayi v. Briscoe Lord Hodson said: "This equity is, however, subject to the qualification (1) that the other party has altered his position". The same requirement was also emphasised by Lord Diplock in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Terquay) Ltd. [(1970) 2 All ER 871] What is necessary, therefore, is no more than that there should be alteration of position on the part of the promisee. The alteration of position need not involve any detriment to the promisee. If detriment were a necessary element, there would be no need for the doctrine of promissory estoppel because, in that event, in quite a few cases, the detriment would form the consideration and the promise would be binding as a contract. There is in fact not a single case in England where detriment is insisted upon as a necessary ingredient of promissory estoppel. In fact, in W.J. Alan & Co. Ltd. v. El Nasr Export and Import Co., Lord Denning expressly rejected detriment as an essential ingredient of .promissory estoppel, saying:
"A seller may accept a less sum for his goods than the contracted price, thus inducing (his buyer) to believe that he will not enforce payment of the balance: see Central London Property Trust Ltd. v. High Trees House Ltd. and D. & C. Builders Ltd. v. Rees [(1956) 3 All ER 837] . In none of these cases 52 does the party who acts on the belief suffer any detriment. It is not a detriment, but a benefit to him to have an extension of time or to pay less, or as the case may be. Nevertheless, he has conducted his affairs on the basis that he has had that benefit and it would not be equitable now to deprive him of it."
We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which would result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. The classic exposition of detriment in this sense is to be found in the following passage from the judgment of Dixon, J. in the Australian case of Grundt v. Great Boulder Pty. Gold Mines Ltd. [(1938) 59 CLR 641 (Aus)] :
"... It is often said simply that the party asserting the estoppel must have been induced to 53 act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong, and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice."
If this is the kind of detriment contemplated, it would necessarily be present in every case of promissory estoppel, because it is on account of 54 such detriment which the promisee would suffer if the promisor were to act differently from his promise, that the Court would consider it inequitable to allow the promisor to go back upon his promise. It would, therefore, be correct to say that in order to invoke the doctrine of promissory estoppel it is enough to show that the promisee has, acting in reliance on the promise, altered his position and it is not necessary for him to further show that he has acted to his detriment. Here, the appellant clearly altered its position by borrowing moneys from various financial institutions, purchasing plant and machinery from De Smet (India) Pvt. Ltd., Bombay and setting up a vanaspati plant, in the belief induced by the representation of the Government that sales tax exemption would be granted for a period of three years from the date of commencement of the production. The Government was, therefore, bound on the principle of promissory estoppel to make good the representation made by it. Of course, it may be pointed out that if the U.P. Sales Tax Act, 1948 did not contain a provision enabling the Government to grant exemption, it would not be possible to enforce the representation against the Government, because the Government cannot be compelled to act contrary to the statute, but since Section 4 of the U.P. Sales Tax Act, 1948 confers 55 power on the Government to grant exemption from sales tax, the Government can legitimately be held bound by its promise to exempt the appellant from payment of sales tax. It is true that taxation is a sovereign or governmental function, but, for reasons which we have already discussed, no distinction can be made between the exercise of a sovereign or governmental function and a trading or business activity of the Government, so far as the doctrine of promissory estoppel is concerned. Whatever be the nature of the function which the Government is discharging, the Government is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied, the Government can be compelled to carry out the promise made by it. We are, therefore, of the view that in the present case the Government was bound to exempt the appellant from payment of sales tax in respect of sales of vanaspati effected by it in the State of Uttar Pradesh for a period of three years from the date of commencement of the production and was not entitled to recover such sales tax from the appellant."
50. The legal principles enunciated in the above decision is consistently followed in the subsequent decisions namely (1) City and Industrial Development 56 Corporation of Maharashtra Ltd. v. Shishir Realty (P) Ltd., 2021 SCC Online SC 1141; (2) SBI v. MJ. James, (2022) 2 SCC 301; (3) Yamuna Expressway Industrial Development Authority v. Shakuntla Education & Welfare Society, reported in 2022 SCC OnLine SC 655 , (4) Augustan Textile Colours Ltd, v. Director of Industries, reported in (2022) 6 SCC 626 and other decisions.
51. Applying the principles of law enunciated in the above decisions to the facts of this case, BDA having been party to the Joint Memo and allowed the plaintiffs to take part of the scheme referred to supra and plaintiffs in the fond hope of developing the suit land having applied to the Deputy Commissioner for change of use of land, BDA having addressed the letter to the Deputy Commissioner that it has no objection for conversion of land, cannot contend that the BDA has not agreed for the development of private lay out by the plaintiffs and therefore, they decided to acquire the land and in fact, in pursuance of 57 Ex.D1 they acquired the land and proceeded with the acquisition proceedings.
52. Therefore, when once the very basis to defend the suit of the plaintiffs in pursuance of Ex.D1 which has been quashed in WP No.39207/2010, the grounds urged in the Appeal Memorandum are hardly sufficient to interfere with the well reasoned order of the learned Trial Judge.
53. Having said thus, BDA being the statutory body, has got a different role to play as a litigant than an ordinary litigant. In other words, Government or statutory bodies should participate in a litigation as a model litigant. It is expected of a statutory body that it would be true to the justice delivery system in its approach and stand that would be taken by it. BDA has to participate in a litigation in all fairness and transparency.
54. "Transparency" is a term of wide amplitude and can have varied meaning depending on the facts and circumstances of each case. Transparency in the common 58 parlance would mean: (1) easily seen through; (2) recognised; (3) understood; (4) detected; (5) manifest; (6) evident; (7) obvious; (8) clear etc.
55. However, when it comes for the action of the Government or a statutory body, the transparency could be understood that it is a concept that "actions of Government or a statutory body and the decision processes should be clear and open to easy scrutiny by public." More so, when such actions are liable for judicial review.
56. The Hon'ble Apex Court in the case of BALCO Employees' Union v. Union of India reported in (2002) 2 SCC 333 has held that "Transparency does not mean the conducting of the government business while sitting at the crossroads in public, rather it means that the manner in which the decision is taken, is made known to public". In terms of complying with the requirement of transparency by a statutory body/Regulator, in its decision-making 59 process, the term would largely include the following aspects:
(a) the public and the stakeholders being made aware of the intention of particular statutory body to make a regulation, tariff order or such other decision;
(b) allowing access to the stakeholders including the public to the facts, data, material and other relevant factors that the decision-making body wishes to refer and rely on while making its decision;
(c) holding consultation with stakeholders and allowing them to participate by giving their views and counterviews to the issues raised by the decision-
making body;
(d) statutory body takes the decision after taking note of the major views and counterviews on the issue it is addressing, document the same and give reasons in writing in support of its decision which is in a form that is easily accessible to all.
57. To achieve the said object, in the case on hand, BDA is headed by a Chairman, who is an IAS Officer. The Board is comprising of other learned and well informed members as well. They ought to have taken the decision 60 in a transparent manner. Especially while revisiting the issue in respect of the case on hand before passing Ex.D1. More so, when BDA was a party to the Joint Memo filed in WP No.32760-61/1996. It is also pertinent to note that the respondent/plaintiffs were not even intimated about the Ex.D1 let alone affording an opportunity for the plaintiffs to participate in the proceedings before Ex.D1 came into existence.
58. In the impugned judgment, the Trial Court has recognized the possession of the suit property by the plaintiffs in view of the above factual aspects and also found that there was an interference by the defendant inasmuch as the officials of the BDA had tried to form the Layout in the suit land. As such, the Trial Court recorded a categorical finding on the said aspects and granted an order of permanent injunction.
59. The principles of law relied on by the learned counsel for respondents amply fortify the stand taken by this court in appreciating the case on hand. 61
60. Thus, even after re-appreciation of the materials on record, there is no hesitation in the mind of this court to hold that the appellant has failed to point out any legal infirmity or perversity in reaching out such findings by the Trial Court. Hence, Point Nos.1 & 2 are answered in the Negative.
61. In view of the foregoing discussion, this court is of the considered opinion that the appellant has not made out any case whatsoever that the plaintiffs are not in a lawful possession of the suit property.
62. Having held thus, BDA being a statutory body, is established by tax payers money. Needless to emphasize that the expenses of the employees and other incidental expenses of such statutory body is met by tax payers money. In such circumstances, action of the BDA should be in consonance to advance the cause of justice and not otherwise.
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63. But, in the case on hand, BDA, being a party to the Joint Memo involved itself in un-wanted litigation. Practically at every stage, BDA acted in a manner worse than an ordinary litigant. This conduct of the BDA is evident from the fact that even after Ex.D1 stood quashed in WP No.39204/2010, suit of the plaintiff was contested and basis for the same is Ex.D1. The appeal grounds referred to supra does not even mention that Ex.D1 was quashed by this Court. There is no mention of Ex.D1 in the synopsis. On the contrary, BDA said to have completed the acquisition proceedings and filed a Reference Petition under Section 30 and 31 of the Land Acquisition Act in LAC No.55/1996 referred to supra. There was an exparte order passed in the said Reference Petition. Plaintiffs, on coming to know of the exparte order, moved the court with proper petition and got the said Reference Petition restored. Thereafter, on contest Reference petition came to be dismissed holding that the BDA failed to establish that the suit property was acquired in accordance with law. Even after such a finding is 63 recorded by the Reference Court by the BDA, one of the grounds raised in the Appeal Memo is that suit property is acquired by the BDA and therefore, the impugned judgment is incorrect. BDA being a statutory body having not challenged the dismissal order passed in LAC No.55/1996, could not make it as a ground in the present appeal to re-consider the same. So also in ground No.6, again BDA has relied on Ex.D1 which was already quashed by this court as referred to supra.
64. It is pertinent to note that there is a legal section in the Bengaluru Development Authority and before presenting the appeal, the draft appeal memorandum would have been scrutinised by the legal Section before formal approval is taken from the Chairman.
65. Knowing fully well that LAC No.55/1996 is dismissed and no appeal has been filed, Ex.D1 being quashed and no appeal has been filed against the said order, placing reliance on Ex.D1 again and contending that land is acquired, in the considered opinion of this court, is 64 not only negligent act attributable to BDA, but also, the approach of the BDA should be termed as callous in nature.
66. Having concluded thus, it is now the duty of this court to curb to consider a statutory body conducting litigation in an un-realistic manner making frivolous attempts to keep the lis alive. One of the methods which is required to assess such attitude of a party is imposition of exemplary cost to the erring party.
67. Such litigants, if allowed to go Scot free would not only encourage unscrupulous elements to try their luck with similar petitions/appeals resulting in burden to the justice dispensation system, but also result in loss of confidence in the public at large about the efficacy of the Institution as well. Therefore, it is the duty of this court to check such litigants by saddling appropriate exemplary costs by resorting to power vested in this Court under Section 35A of CPC.
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68. In so far as the powers of this court is concerned, Section 35A of the CPC can be resorted to, which reads as under:
"35A. Compensatory costs in respect of false or vexatious claims or defences.-- (1) If in any suit or other proceedings including an execution proceeding but excluding an appeal or a revision any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if it so thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding three thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:66
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 or under a corresponding law in force in any part of India to which the said Act does not extend and not being a Court constituted under such Act or law, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees :
Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.
(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.
(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.67
69. The Hon'ble Apex Court in the case of Vinod Seth Vs. Devinder Bajaj reported in (2010) 8 SCC 1, had an occasion to rule as under:
"(a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence.
(b) Costs should ensure that the provisions of the Code, the Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court.
(c) Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs.
(d) The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases. In many other jurisdictions, in view of the existence of appropriate and adequate provisions for costs, the litigants are persuaded 68 to settle nearly 90% of the civil suits before they come up to trial.
(e) The provisions relating to costs should not however obstruct access to courts and justice. Under no circumstances, the costs should be a deterrent, to a citizen with a genuine or bona fide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the courts."
70. In Manitoba Law Reform Commission, in its Report on "Costs Awards in Civil Litigation" has held as under:
"Costs Awards in Civil Litigation" sets out six broad goals -- not all mutually compatible -- that costs rules should strive to achieve. The first goal is indemnification: successful litigants ought to be at least partially indemnified against their legal costs. The second is deterrence:
potential litigants should be encouraged to think carefully before engaging the civil justice system to achieve their goals and should also be encouraged to refrain from taking unnecessary steps within that system. The third goal is to make costs rules easy to understand and simple to apply. The fourth is to encourage early settlement of disputes, and the fifth is to facilitate access to justice. The sixth and final 69 goal the Commission considered important is flexibility: the rules must allow Judges to ensure that justice is done in particular cases."
71. The Hon'ble Apex Court also had an occasion to deal with the present system of imposing cost in Civil litigation in the case of Ashok Kumar Mittal Vs. Ram Kumar Gupta reported in (2009) 2 SCC 656 : (2009) 1 SCC (Cri) 836, where under in paragraph No.9, it has held as under:
"9. The present system of levying meagre costs in civil matters (or no costs in some matters), no doubt, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation borne out of ego or greed, or resorted to as a "buying time" tactic. More realistic approach relating to costs may be the need of the hour. Whether we should adopt suitably, the western models of awarding actual and more realistic costs is a matter that requires to be debated and should engage the urgent attention of the Law Commission of India."
72. What may be the appropriate cost that is to be imposed by a court is a moot question. Halsbury's Law of England, has pointed out few contingencies where few 70 ingredients which are to be taken note of while imposing appropriate cost as under:
"In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including:
(i) the conduct of all the parties;
(ii) whether a party has succeeded on part of his case, even if he has not been wholly successful;
and
(iii) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention.
The conduct of the parties includes:
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim."
73. In Salem Advocate Bar Association Vs. Union of India, the Hon'ble Apex Court while dealing with the 71 imposition of appropriate cost in a civil litigation has held as under:
"All that this Court stated was that the actual reasonable cost has to be provided for in the rules by appropriate amendment. In fact, the very next sentence in para 37 of the decision of this Court is that the High Courts should examine these aspects and wherever necessary, make requisite rules, regulations or practice directions.
What has been observed by this Court about actual realistic costs is an observation requiring the High Courts to amend their rules and regulations to provide for actual realistic costs, where they are not so provided....
The observation in Salem Advocate Bar Assn. (2) is a direction to amend the rules so as to provide for actual realistic costs and not to ignore the existing rules. The decision in Salem Advocate Bar Assn. (2) is therefore of no assistance to justify the award of such costs. The Rules permit costs to be awarded only as per the Schedule."
74. Thus, imposition of appropriate costs and wherever it is necessary, exemplary costs, would deter the 72 unrighteous litigation being entertained in the court of law and compensate the true litigant.
75. It is needless to emphasize that it is the duty of the Court in imposing exemplary cost. Statutory body having been established by tax payers money and its expenses is met within the tax payers money. In such circumstances, action of the Board should be in consonance with the cause of justice and not otherwise.
76. A Government or a statutory body must therefore act in the highest and physical professional standards. BDA, thus, should have litigate honestly and fairly in resolving the dispute as early as possible in contrast to an ordinary litigant.
77. Further, Government or statutory bodies are invested with necessary paraphernalia than a individual litigant. Therefore, they should strive hard in lessening the burden on the judiciary by their fairness in resolving the disputes in the court of law. In other words, Government 73 or statutory bodies can act as a model litigant. But BDA has failed to do so in the case on hand as discussed supra.
78. In view of foregoing discussion, invariably Point Nos.1 & 2, are answered in the Negative and Affirmative respectively.
79. POINT NO.3: In view of the findings on Point Nos.1 & 2 above, following order is passed:
ORDER
(i) Appeal is dismissed with costs.
(ii) This Court quantifies the cost in a sum of Rs.5,00,000/- [Rupees Five Lakhs] only payable by the Bengaluru Development Authority to the plaintiffs.
Sd/-
JUDGE PL*