Karnataka High Court
B. Venkataswamy Reddy vs State Of Karnataka on 14 September, 1988
Equivalent citations: ILR1989KAR75
ORDER Bopanna, J.
1. These two petitions are disposed of by a common order since common questions of law arise for consideration in both these petitions.
2. In Writ Petition No. 11976 of 1984 the preliminary notification in respect of the land in question was made on 21-3-1977 and the final notification was made on 14-5-1980. The petitioner has filed this Writ Petition in the year 1984. In Writ Petition No. 17534 of 1087 the preliminary notification was made on 9-5-1968 and the final notification was made on 28-10-1971. Notices under Sections 9 and 10 of the Land Acquisition Act were served on the petitioners on 7-12-1978, The award was passed on 4-6-1981. Award notices were served on the petitioners on 17-11-1981. The petitioners have filed their claim petition claiming compensation as per Annexures B and C on 17-11-1978. All the same in both the petitions the petitioners have challenged the Impugned acquisition proceedings on the basis of certain resolutions passed by the Bangalore Development Authority (B.D.A. for short) in their favour. In the first Writ Petition, a resolution was passed by the B.D.A. on 17-11-1982 in Subject No. 241 acceding to the request of the petitioner for denotification of the land bearing Survey No. 345 of Banaswadi village measuring 3 acres 23 guntas. That resolution reads as under:
"The request of Sri. B. Venkataswamy Reddy for denotification of land to an extent of 3 acres 23 guntas in Sy.No. 345 of Banaswadi village, for distributing among 18 members of his family be approved."
It is not in dispute that subsequently this resolution was withdrawn on 30-4-1984 in Subject No. 287. The same was communicated to the petitioner on 10-7-1984. The petitioner has filed this petition on 17-7-1984 and contends that since he is entitled to plead promissory estoppel in support of his challenge to the impugned acquisition proceedings, the delay in approaching this Court has to be reckoned from the date of withdrawal of the resolution and not from the date of the impugned preliminary or the final notification. Likewise in Writ Petition No. 17534 of 1987 a resolution was passed by the B.D.A. in favour of the petitioner therein on 30-9-1982. But, that resolution was not approved by the Government by its order dated 20-9-1983. Writ Petition was filed in the year 1987. In this case also the petitioner has raised the plea of promissory estoppel in his favour and therefore he has pleaded that the delay in approaching this Court should be reckoned from the date of the resolution made by the B.D.A. in his favour and not from the date of the impugned preliminary or the final notification.
3. Though these Writ Petitions could have been disposed of on the ground of laches, inasmuch as certain substantial questions of law have been raised by the petitioners on the power of the B.D.A. to denotify the lands and reconvey the same to the parties concerned, I have heard the learned Counsel for the parties on merits without confining myself to the question of laches only.
4. It is submitted by the learned Counsel for the petitioners, relying on the provisions of Section 38 of the Bangalore Development Authority Act (in short the Act) that the power is conferred on the B.D.A. to transfer the lands to the petitioners by making a proper resolution to that effect.
5. But, it is contended by the learned Counsel for the B.D.A. that this point is no more re Integra In the light of the earlier Judgment of this Court reported in B.N. SATHYANARAYANA RAO v. STATE OF KARNATAKA which was affirmed in Writ Appeals Nos.3T53 to 3159 of 1984 and in the tight of a decision of this Court in H.N. ABDUL REHMAN v. STATE OF KARNATAKA AND ORS. W.P. 8321 of 1984 DD 29-6-1984. In para 5 of the decision this Court has taken the view that:
"There is no provision in the Act or in the Rules framed thereunder which enables the B.D.A. to reconvey the site to the original owner. Reconveyance in a way is opposed to the scheme itself. Scheme is formed for the purpose of forming sites for allotting them as per the Rules. The Rules do not provide for reconveyance. Therefore, it is not possible to hold that there is any light to seek reconveyance."
This Court has further held in para 5 of the Judgment thus:
"It is not possible to apply the rule of promissory estoppel in cases where there is no provision contained in the Act, or in the Rules framed thereunder enabling the BDA to allot or reconvey the sites in the manner proposed to be done by the notification. Therefore, the BDA cannot be directed to allot or reconvey the sites on the ground that it had promised to allot or reconvey the sites,"
In Writ Petition No. 8321 of 1984, the learned Judge (Puttaswamy, J) has held thus:
"Acquisition of the land is by State Government and not by the B.D.A. When Government had initiated acquisition proceedings and had completed the same, it was not open to the B.D.A. to pass a resolution on 1-12-1982 and create any right in favour of the petitioner. In any event, the resolution passed by the B.D.A. on 1-12-1982 did not affect the right of State Government to initiate acquisition proceedings and complete the same and take an award on 21-5-1984."
So, this decision in substance supports the view of the learned Judge (Swami, J) in the decision , 6, However, it is contended by the learned Counsel for the petitioners that these decisions require reconsideration since both the learned Judges did not examine the provisions of Section 38 of the Act, which expressly confer a power on the B.D.A. to lease, to sell or to transfer the property belonging to it. They contended that if the entire scheme of the Act is taken into consideration with special reference to Sections 3, 14, 19, 37 and 38 read with the provisions of Section 48 of the Land Acquisition Act, the power of the B.D.A. to reconvey the lands to the petitioners could be discerned from the provisions of Section 38 of the Act and since this Section was not considered by both the learned Judges in the decisions referred to above, this Court should consider this question without reference to the decision of those two learned Judges.
7. If I were to take a different view which had been adopted by the two learned Judges in the aforesaid decisions, the matter must necessarily go before a Division Bench. But, since I am inclined to take the view that the power under Section 38 of the Act if that Section is read with other provisions on which the learned Counsel for the petitioners have relied, does not confer a right on the B.D.A. to transfer the lands in question to the petitioners, there is no need for me to refer these matters to the Division Bench. The action of the B.D.A. and the Government could be upheld on a proper construction of Section 38 of the Act read with other provisions of the Act. Accordingly, without going into the question of laches which was canvassed by the learned Counsel for the B.D.A., these petitions are disposed of on merits. If the B.D.A. has no power to reconvey the lands in question under Section 38, the plea of promissory estoppel should fail because that plea could be advanced and sustained only if the B.D.A. had the requisite power to reconvey the land. Before going into the construction of Section 38 and other provisions of the Act, the applicability of the plea of promissory estoppel to the facts of these cases should be noticed in the light of the recent decision of the Supreme Court in DELH1 CLOTH & GENERAL MILLS LTD. v. UNION OF INDIA . After a consideration of the earlier cases on the point, th^ Supreme Court Observed in para 25 of its Judgment as:
"It is, however, quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. It, therefore, requires that he who seeks equity roust do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement."
We are concerned with the first part of the dictum , laid down by the Supreme Court in para 25 of this Judgment.
8. So the petitioners should make out that the resolutions made in their favour were validly made and they were within the competence of the B.D.A. under the provisions of the Act or the Rules made thereunder. That takes me to the construction of Section 38 in the light of the other provisions of the Act.
9. Section 38 comes under Chapter V of the Act. Chapter V deals with Property and Finance of the Board. Section 38 of the Act reads as:
"Power or Authority to lease, sell or transfer property.
Subject to such restrictions, conditions and limitations as may be prescribed, the Authority shall have power to lease, sell or otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme."
On the plain terms of Section 38, it consists of 2 parts. The first part deals with the power of the B.D.A. to lease, sell or otherwise transfer any movable or immovable property which belongs to it. The second part deals with the power of the B.D.A. to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. The comma after the first part of Section 38 makes it clear that these 2 parts should be read disjunctively and not conjunctively. So, there is a distinction between the power of the B.D.A. in regard to movable and immovable properties which belong to it and the power of the B.D.A. to appropriate or apply any land vested in it or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. The legislature having used 2 different expressions to indicate the powers of the B.D.A. as regards movable and immovable properties belonging to it and property vested in it or acquired by it, this Court has to go into the intendment of legislature by giving proper meaning to the words 'belongs to it' and the words 'vested in or acquired by it.' The B.D.A. can independently of the proceedings under the Land Acquisition Act acquire land as is evident from Section 3 read with Section 35 of the Act. Sub-section (2) of Section 3 of the Act enables the B.D.A. to acquire, hold and dispose of both movable and immovable property. Section 35 and Section 36 come under Chapter IV of the Act and that Chapter deals with Acquisition of Land. Section 35 of the Act reads as:
"Authority to have power to acquire land by agreement. - Subject to the provisions of this Act and with the previous approval of the Government, the Authority may enter into an agreement with the owner of any land or any interest therein, whether situated within or without the Bangalore Metropolitan Area for the purchase of such land.
Section 36(1) reacts as:
"Provisions applicable to the acquisition of land otherwise than by agreement. -
(1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894."
Section 36(3) also requires to be noticed and it reads as:
"After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Authority agreeing to pay any further costs which may be incurred an account of the acquisition, transfer the land to the authority, and the land shall thereupon vest in the authority."
The contention of the petitioners is that the power of reconveyance could be discerned from the other provisions of the Act, viz., Sections 3, 13(a), 14, 19(4), 31, 35 read with Section 38 of the Act. Section 14 comes under Chapter II of the Act which is a general provision dealing with the Constitution and incorporation of B.D.A. and the general working of the B.D.A. Section 14 specifies the objects of the B.D.A. and that object is to acquire, hold, manage and dispose of movable and immovable property, whether within or outside the area under its jurisdiction, to carry out building, engineering and other operations and generally to do all things necessary or expedient for the purpose of such development and for purposes incidental thereto. Section 19 deals with he sanction of the scheme prepared under Section 15 of the Act. Section 19(1) comes under Chapter III - Development Scheme and reads as:
"Upon sanction, declaration to be published: giving particulars of land to be acquired.
"Upon sanction of the scheme, the Government shall publish in the official Gazette declaration stating the fact of such sanction and that the land proposed to be acquired by the authority for the purposes of the scheme is required for a public purpose,"
Section 19(4) of the Act reads as:
"If at any time it appears to the Authority that an improvement can be made in any part of the scheme the Authority may alter the scheme for the said purpose and shall subject to the provisions of Sub-sections (5) and (6) forthwith proceed to execute the scheme as altered."
From these sub-sections it is sought to be made out that the B.D.A. has power to alter the scheme and any land which is not required after such alteration could be conveyed to the original owner of the land and that is why under Section 13 of the Act, the BDA has got the power to make appropriate resolutions to implement the scheme and the incidental power to recon-vey the land by making resolutions if the land in question is not required for the implementation of the scheme. In my view, Sections 13, 14 and 19 on which the learned Counsel for the petitioners have relied do not throw any light on the proper construction of Section 38 of the Act. These provisions come under Chapters II and III of the Act which deal with the general working of the B.D.A. and not with the power of the B.D.A. to acquire land otherwise than under the provisions of Section 35 of the Act. In my view, for a proper construction of Section 38 of the Act, provisions of Sections 35, 36 and 37 of the Act should be taken into consideration, since these are the provisions which come under Chapters IV and V of the Act and have a bearing on the power of the B.D.A. to acquire land otherwise than by private agreement. Under Section 35 of the Act, the power of the B.D.A. to enter into an agreement with the owner of any land cannot be disputed. In these cases, the land in question was not purchased by entering into private agreements. Under Section 36(1) the acquisition of land under the Act otherwise than by agreement is regulated by the provisions, so far as they are applicable, of the Land Acquisition Act. That means to say, under the Land Acquisition Act the State Government, as in these cases, is the authority to acquire the land. That is also clear from Subsection (3) of Section 36 of the Act which lays down that "After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the costs of the acquisition and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority." This is further clear from Section 19(1) of the Act since the Government shall publish in the Official Gazette the declaration stating the fact of such sanction and that the land proposed to be acquired by the Authority for the purposes of the scheme is required for a public purpose. Under Section 37 of the Act the Government has got additional power to transfer to B.D.A. or to vest in B.D.A. any land belonging to it or to the Corporation or to a local Authority. That is in addition to the power under Section 36 to acquire the land under the Land Acquisition Act and vest the same in B.D.A. on payment of costs of acquisition and further costs under Section 36(3) of the Act. Under Section 37(3) of the Act, the Government by notification in the Gazette has the power to revest in itself or transfer to itself or the Corporation or the local Authority concerned the land in question if the same is not required by the B.D.A. for the purpose of the Act or any other land vesting in the B.D.A. is required by the Government or Corporation or a local Authority. So, if Sections 36, 37 and 38 of the Act are read together it is clear that a distinction is made between the power of the B.D.A. to sell or otherwise transfer any movable or immovable property belonging to it and the power of the B.D.A. to appropriate or apply the land vested in or acquired by it for the formation of open spaces or building purpose or for any other development scheme.
10. Now the point for consideration is whether the land in question comes under the first part of Section 38 or under the second part of Section 38 of the Act. Admittedly, the land did not belong to the B.D.A. since the same was not purchased under the provisions of Section 35 of the Act, i.e., by agreement between the parties. The lands were acquired by the Government under the provisions of Section 36(1) and they vested in the B.D.A. under the provisions of Section 36(3). If that be so, these lands come under the second part of Section 38 of the Act, i.e., the B.D.A. has power to appropriate or apply any land vested in it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. That is to say, the resolutions in question passed by the B.D.A. could have been within its powers if they had related to lands belonging to it and not the lands which had vested in under the provisions of Section 36 of the Act. That should be the proper construction as is evident from the entire scheme of the Act. The scheme is for the development of the City of Bangalore and the area adjacent thereto and for matters connected therewith and with that object the B.D.A. was constituted. The legislature created this authority with that object in view and it has also empowered the State Government to lend a helping hand to it by invoking the provisions of the Land Acquisition Act. So the B.D.A. is freed from the various legal procedure that will have to be complied with for acquiring the land for its development schemes. The same pattern of legislation is found in similar other acts, viz., K.I.D. Act, Karnataka Area Development Boards Act, etc. If the B.D.A. were to be given the power to reconvey the land vested in it, by exercising the power under Section 13 of the Act, that would be self-defeating and destructive of the purpose of constituting a special authority for the development of the City of Bangalore. Thus construed, both the resolutions in favour of the petitioners in both the petitions are without jurisdiction and void and once it is held that the resolutions are void the petitioners cannot seek any other right either by acquiescence or by the principle of promissory estoppel.
11. It is asserted by the learned Counsel for the petitioner in the first Writ Petition that pursuant to the resolution of the B.D.A. the petitioner had put up huge constructions at considerable cost and the land also consists of a family burial ground. This is a matter to be considered by the screening committee, if a proper representation is made by the petitioner in the first Writ Petition in terms of the orders made by this Court in several other Writ Petitions on similar facts. The petitioner in the second Writ Petition has submitted that the land is most unsuitable for the development scheme of the B.D.A. since the lands are surrounded by rocks and other natural growth which are totally unsuitable for any development scheme. These are matters, for the acquiring bodies to investigate and the acquiring authority having found that the lands are required for the purpose of its development scheme, it is not open to this Court to substitute its view to the views of the authorities concerned.
12. It is further submitted by the Counsel for the petitioner that in similar cases the B.D.A. had passed resolutions on the lines made in their favour and the Government had also issued notifications denotifying the lands from the acquisition proceedings. In my view, this decision taken by the B.D.A. and the Government is opposed to the provisions of the Act and beyond their powers. The Government had done an act without a proper understanding of its powers under the Act. But on that ground the petitioner cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution and ask this Court to compound the errors made by the Government by invoking Article 14 of the Constitution, It is well settled that every departure from a rule or regulation will not enure to the benefit of the parties for invoking the provisions of Article 14 of the Constitution. A similar argument was advanced before the Division Bench of this Court in Writ Appeal No. 581 of 1975 and in para 2 of the Judgment of the Division Bench it was ruled thus:
"Assuming for the sake of argument that the other lands which have been acquired by the Trust Board have been reconveyed that by itself is not sufficient to hold that the appellants have a legal right in their favour for getting the lands acquired from them reconveyed to them. When the lands are acquired by the Trust Board they become the property of the Trust Board and the Trust Board has to deal with its own sites in accordance with law. In the absence of a statutory provision entitling the appellants to get reconveyance they would not be entitled to seek any relief from this Court under Article 226 of the Constitution on the ground that the Trust Board has in similar cases reconyeyed lands in favour of persons from whom they were acquired. Hence this prayer cannot be granted."
13. However, it is contended by the learned Counsel for the petitioners that by virtue of the resolutions made in the year 1982 in their favour they could not apply for higher compensation for the lands in question. It is submitted that the petitioners were misled by the resolutions and that is the reason they did not seek higher compensation for the lands in question. It should be noted that the resolution came into existence after the awards were passed. The petitioner had received the award notices also. But, they did not choose to challenge the award, but preferred to rely on the resolutions which were berefit of legal competence of the B.D.A. and, therefore, it is not proper for this Court to interfere with the awards made in the year 1978 and reopen the same at this distance of time for enab-4. Rachappa v. State of Karnatakaling the petitioners to claim higher compensation. But the petitioner's right in the second petition to a site in the land in question cannot be denied in the light of the decision of the Supreme Court in SLP(C) No. 294 of 1085 Narayanaswamy v. State. In this Special Leave Petition preferred against the decision of this Court in G. NARAYANASWAMY REDDY v. THE STATE OF KARNATAKA W.A.No. 1484 of 1984 DD 8-8-1984AND ANR., the Supreme Court observed as follows after referring to the provisions contained in Section 21(2) of the Delhi Development Act, 1957:
"We have suggested in the above decision to all Development authorities in India to provide a house site to every person whose land is acquired for purposes of City and Town extensions at a reasonable price in accordance with the rules. The Bangalore Development Authority, may, therefore, consider the case of the petitioner and decide whether he is entitled to a site under the Rules of the Bangalore Development Authority. If he is found entitled to a site he may be granted a site in accordance with law."
These observations would be applicable to the petitioner in W.P.No. 17534 of 1987.
14. As regards the petitioner in Writ Petition No. 11976 of 1984, the observation made by this Court in similar cases holds good. This petitioner is entitled to take advantage of the Government Order dated 12-10-1987 by making a suitable representation to the Screening Committee to be constituted by the State Government within 6 weeks from the date of receipt of this order. The Screening Committee shall consider the representation of the petitioner in the light of the guidelines issued by the Government. Till then, the petitioner shall not be dispossessed from the construction in question nor the construction be demolished by the B.D.A. However, it is made clear that the petitioner shall not put up any further construction so as to prejudice the rights of the B.D.A.
15. Accordingly, these petitions are dismissed with a direction to the B.D.A. as made in paras 13 and 14 above. Whether the petitioners would be entitled to higher compensation is a matter to be considered by the authorities under Section 18 of the Land Acquisition Act if the petitioners make a proper representation before the authorities constituted under Section 13 of the Land Acquisition Act and if such representations are within time.