Karnataka High Court
Bengaluru Development Authority vs Smt Manjula on 12 September, 2019
Bench: L.Narayana Swamy, P.S.Dinesh Kumar
1
WA No.129/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
WRIT APPEAL No.129/2016 (BDA)
BETWEEN :
1. BENGALURU DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA KRUPA WEST
BENGALURU-560 020
REP. BY ITS COMMISSIONER
2. THE DEPUTY SECRETARY-1
BENGALURU DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD
KUMARA KRUPA WEST
BENGALURU-560 020 ... APPELLANTS
(BY SHRI. M.B. PRABHAKAR, ADVOCATE)
AND :
SMT. MANJULA
W/O LATE V. KRISHNAMURTHY
AGED ABOUT 41 YEARS
R/AT NO.4, 3RD CROSS, 80 FT. ROAD
NAGARABHAVI 2ND STAGE
PAPIREDDY PALYA
BENGALURU-560 072 ... RESPONDENT
(BY SHRI. T.N. VISHWANATH, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.4586/2014 DATED
14.08.2015.
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WA No.129/2016
THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.03.2019, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH
KUMAR J, PRONOUNCED THE FOLLOWING:-
JUDGMENT
Bengaluru Development Authority has presented this appeal challenging the order dated 14th August 2015 passed by the Hon'ble Single Judge in W.P.No.4586/2014 (LA-BDA).
2. For the sake of convenience, parties shall be referred as per their status in the writ petition.
3. Briefly stated the facts of the case are, writ petitioner has filed the instant writ petition contending inter alia that Bengaluru Development Authority(BDA) has utilized 37 guntas of land in Sy. No.27 of Mallathahalli village, Bengaluru North Taluk belonging to the petitioner for the purpose of formation of outer ring road. At the time of utilizing the land petitioner objected to the same and it was assured by the BDA that alternative land would be allotted.
3 WA No.129/20164. Petitioner has filed the instant writ petition with following prayers:
(i) for a writ of mandamus and to direct BDA to allot 100% of the land i.e., 37 guntas utilized by it;
(ii) for a writ of mandamus and to direct BDA to allot alternate land to an extent of 18½ guntas in a layout formed by them;
(iii) for a writ of mandamus and to direct BDA to pay compensation as per the amended Land Acquisition Act;
(iv) for a writ of mandamus and to direct BDA to allot alternate sites in the ratio of 40:60 in favour of the petitioners.
5. The Hon'ble Single Judge has recorded in the impugned order that as per resolution No.102/2006 dated 4th July 2006 a land loser was entitled for 75% of the land lost and as per resolution No.4/2012 dated 4 WA No.129/2016 16th January 2012, a land loser was entitled for 50% of the land lost. Accordingly, allowing the writ petition in part, the Hon'ble Single Judge has directed the BDA to allot developed land in lieu of monetary compensation equivalent to 75% of the land utilized excluding the land equivalent to 50% which has been handed over to the petitioner.
6. Feeling aggrieved by the impugned order, BDA has preferred this appeal.
7. We have heard seven writ appeals filed by the BDA simultaneously including this appeal. In W.A. No.697/2018 we have dealt with the issue in extenso and recorded as follows:
"12. We have carefully considered rival contentions and perused the records.
13. Petitioner's principal contention is that, he is entitled for allotment of developed sites equivalent to the area of the land lost by him.5 WA No.129/2016
14. It cannot be gainsaid that petitioner is not entitled for just and appropriate compensation for the land utilized by the BDA. The main ground raised by Shri. Kannur is that, if some land owners have received compensation more than the value of the land either in the form of monetary compensation or allotment of developed sites under the orders of the Court, the same shall not enure to petitioner's benefit inasmuch as there is no equality in illegality.
15. The claim of writ petitioner that the benefit which flowed from various orders of this Court to different land losers must be extended to the petitioner also, cannot be countenanced. We say so because a litigant cannot cry foul of unequal treatment or discrimination based on an inter-party judgments in which land losers may have been benefited more than their entitlement.
16. In the case of Vishal Properties Pvt. Ltd., Vs. State of U.P.1 it is held as follows:
"13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality.1
(2007)11 SCC 172 6 WA No.129/2016 Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In Sushanta Tagore v. Union of India [(2005) 3 SCC 16] this Court rejected such a contention as sought to be advanced in the present case by observing: (SCC pp. 28-
29, para 36) "36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality."
17. In the case of Basavaraj Vs. Special Land Acquisition Officer2 the Hon'ble Supreme Court of India has held as follows:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner.2
(2013)14 SCC 81 7 WA No.129/2016 If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order.
A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide:
Chandigarh Administration & Anr. v. Jagjit Singh & Anr., AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; and Fuljit Kaur v. State of Punjab, AIR 2010 SC 1937)."
(Emphasis supplied)
18. In the case of Mohd. Yusuf and others etc. Vs. State of Haryana and others3, Hon'ble Supreme Court of India has ruled that no hypothetical view should be taken while awarding compensation. The relevant passage reads as follows:
"14. In a catena of cases, this Court has held that compensation should be adequate and there must be no injustice with the land owners since they stand deprived from their very vital right i.e., Right to Property. At the same time, it is also to be kept in mind that no hypothetical view shall be taken as it may be harmful to the public exchequer in case of acquisition for public purposes. Hence, courts must maintain balance between both the parties.
(Emphasis supplied) 3 (2018)16 SCC 105 8 WA No.129/2016
19. We have also considered Shri.Kannur's submission with regard to cost incurred in development of land by the BDA. As per the calculation furnished before this Court, BDA would be able to sell only 55% of the land it acquires. Therefore, it would be incongruous to hold that petitioner shall be entitled to developed sites equivalent to 100% of the area of land lost by him.
20. Thus, in view of settled position of law, we are of the considered view that petitioner's prayer for grant of equal area of developed land does not merit any consideration."
8. The conspectus of facts of this case shows that BDA has handed over land equivalent to 50% of the area of land lost. The prayer in the writ petition is for a direction to the BDA to allot land equivalent to 100% area. In view of our conclusions in W.A. No.697/2018 extracted above, this appeal merits consideration and deserves to be allowed. Hence, the following:
9 WA No.129/2016ORDER
(a) Appeal is allowed;
(b) The order dated 14th August 2015 passed by Hon'ble Single Judge in W.P. No.4586/2014 is set-aside;
(c) Writ petition No.4586/2014 is dismissed;
(d) Petitioner shall be at liberty to accept 50% of the land already handed over to her and agitate her rights with regard to the valuation of the same and seek appropriate relief before appropriate forum.
No costs.
Sd/-
JUDGE Sd/-
JUDGE SPS