Karnataka High Court
Vijaynagar Industrial Workers' ... vs State Of Karnataka And Another on 22 January, 1998
Equivalent citations: ILR1998KAR2479, 1998(4)KARLJ117, AIR 1998 KARNATAKA 361, (1998) ILR (KANT) 2479 (1998) 4 KANT LJ 117, (1998) 4 KANT LJ 117
ORDER
1. The petitioner is a Housing Society registered under the provisions of the Karnataka Co-operative Societies Act. The petitioner has filed this writ petition for a direction to the State Government to issue an order in consonance with the resolution passed by the BDA in subject No. 998 dated 22-4-1988 to part with the land measuring 42 acres 22 guntas situated at Nagarbhavi village, in favour of the petitioner and for other reliefs.
2. The petitioner has not pressed the prayer in so far as it relates to the quashing of the notification issued by the State Government under Section 19(1) of the BDA Act. The learned Counsel for the petitioner addressed his arguments in respect of the other two prayers in the writ petition.
3. The brief facts of the case are as follows:
In the year 1982 the petitioner had entered into an agreement with the owners in respect of certain survey numbers in Bangalore North Taluk. Under the said agreement the land owners agreed to sell the land belonging to them in favour of the petitioner. It is submitted that on the basis of the said agreement of sale and on the request of the Society, the State Government issued the notification for acquisition of the land for the benefit of the petitioner-society. But the said proceedings did not continue and accordingly, they were dropped. The notification under Section 17(1) was issued under the BDA Act, (for short the Act') proposing to acquire the land for the implementation of the scheme called Nagarbhavi II Stage. In the said notification the lands in respect of which the petitioner entered into an agreement with the land owner were included. Ultimately, a final notification was issued under Section 19(1) of the Act, on 7-11-1985 excluding these lands. Thereafter, the Government issued another notification dated 4-9-1986 under Section 19(1) of the Act, in respect of the lands which are the subject-matter of this writ petition.
4. It is submitted by the learned Counsel for the BDA that after issuance of the final notification an award was passed and consequently possession was taken. In the meanwhile, the petitioner has filed a suit in OS. No, 4926 of 1989 in the Court of the 13th Additional City Civil Judge, Bangalore, for declaration that the acquisition proceedings lapsed in view of Section 11-A of the Land Acquisition Act and for permanent injunction. The said suit was decreed by the City Civil Court. The judgment and decree was challenged by the BDA in RFA No. 447 of 1991 before this Court. This Court by its judgment and decree dated 7-7-1997, allowed the appeal and set aside the judgment and decree passed by the Trial Court. In the suit referred to above, the case of the petitioner is that there is no proper acquisition. Even assuming that the notification issued under Section 19(1) of the Act, is valid, the acquisition proceedings have lapsed in view of Section 11-A of the Land Acquisition Act. But ultimately, this Court by its judgment and decree upheld the validity of the acquisition proceedings by setting aside the judgment and decree passed by the Trial Court.
5. The suit was filed by the petitioner in the year 1989. During the pendency of the suit the petitioner has filed this writ petition for the relief as stated supra.
6. Sri T.S. Ramachandra, learned Counsel for the petitioner submitted that the BDA in its resolution dated 22-4-1988 resolved to allot 42 acres 22 guntas of land acquired by the BDA for the petitioner-society but it was not given effect to in view of the decision in the case of Telecom Employees Co-operative Housing Society Limited v Scheduled Castes, Scheduled Tribes, Minority Communities and Backward Classes Improvement Centre, wherein it is held that the BDA has no power to make bulk allotment. After this decision, the Act has been amended by introducing Sections 38-B and 38-C authorising the BDA to make bulk allotment and to validate the bulk allotment already made by the BDA. In view of this amendment, it is the case of the petitioner that it is entitled to ask for delivery of possession of the land on the basis of the resolution referred to above.
7. The learned Counsel for the BDA submitted that though there is such a resolution, the said resolution does not create any right in favour of the petitioner since the BDA has not taken any steps to allot any land in favour of the petitioner-society pursuant to the said resolution and accordingly contended that the petitioner has no right to ask either for delivery of possession or for allotment of the land in its favour.
8. The BDA in its proceedings dated 22-4-1988 decided to allot the entire area of 42 acres 22 guntas acquired by the BDA to the petitioner-society, but thereafter, the BDA has not sent any intimation to the petitioner-society intimating the allotment if any on the basis of the resolution. The resolution is an internal affair of the BDA and on the basis of the said resolution since no steps are taken for the purpose of allotting the land pursuant to the resolution, no right is created in favour of the petitioner so as to enforce the same as against the BDA in accordance with law.
9. The learned Counsel for the petitioner contended that in respect of societies which are similarly situated, the BDA has allotted the land under Sections 38-B and 38-C of the Act and if that is so, there is no reason to discriminate the petitioner-society in not implementing the resolution passed by the BDA. In support of this contention Sri T.S. Ramachandra, learned Counsel relied upon an unreported judgment of this Court in W.P. No. 3363 of 1990, dated 27-9-1995. The petitioner in the said writ petition is one of the societies referred to in the resolution dated 22-4-1988. This Court in the said writ petition directed the BDA to implement the resolution passed by the BDA in subject No. 998 dated 22-4-1988. This direction was issued in that writ petition as there was no dispute regarding prior approval of the Government for the allotment of the land in favour of the petitioner. At the time of the arguments the learned Counsel for the BDA has produced the Government Order bearing No. HUD-587 MNX 87, dated 6-1-1989, wherein, it is clear that the Government in exercise of the power conferred under Section 65 of the Act, directed the BDA to make bulk allotment of land to Mysore Income-tax Department House Building Co-operative Society. In the instant case, there is no such Government order issued by the Government directing the BDA to make bulk allotment to the petitioner-society. In the absence of any such Government order, it cannot be said that there is a prior approval by the State Government for the purpose of making bulk allotment in favour of the petitioner-society. Therefore, the said decision has no application to this case, since the facts in this case are different from the facts in that case.
10. The learned Counsel for the petitioner-society submitted that there was an earlier order or proceeding by the State Government according approval to make bulk allotment in favour of the petitioner-
society. But he has not produced any such Government Order issued by the Government in exercise of the power conferred under Section 65 of the BDA Act, so as to say that there is prior approval or direction issued by the State Government for the purpose of making bulk allotment in favour of the petitioner-society.
11. The prayer in the writ petition is not for a direction to the BDA to deliver possession on the ground that there has been bulk allotment in favour of the petitioner-society. From a reading of prayer No. (ii) in the writ petition it is clear that even according to the petitioner there is no bulk allotment. In prayer No. (i) what is prayed for is a direction to the State Government to issue an order in consonance with the resolution passed by the BDA in subject No. 998, dated 22-4-1988 to part with the land to an extent of 42 acres 22 guntas. In order to seek such a direction from the hands of this Court, the petitioner must show what his legal right is as against the State Government to compel the Government to issue the' order as prayed for in the writ petition. Therefore, no such direction can be issued to the Government as prayed for in the writ petition.
12. Sri T.S. Ramachandra, learned Counsel for the petitioner also relied upon some unreported decisions in support of his case. In my opinion those decisions are in no way helpful to the petitioner, because admittedly in this case, on the basis of the resolution there is no order of allotment made by the BDA in favour of the petitioner-society.
13. Section 38-B as amended by Act No. 17 of 1994 provides for bulk allotment. Under this section, the BDA may make bulk allotment with the prior approval of the Government. Section 8 of the Act 17 of 1994 reads as follows.--
"Notwithstanding anything contained in any law or any judgment, decree or order of any Court or other authority, any bulk allotment of land by way of sale, lease or otherwise made by the Authority after the twentieth day of December, 1975, and before the commencement of this Act, in favour of,.....
(iv) any Housing Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959.....
(hereinafter referred to as allottee) shall be deemed to have been validly made and shall have effect for all purposes as if, it had been made under Section 38B of the principal Act as amended by this Act and accordingly,..."
From a reading of the above, it is clear that the bulk allotment made by the BDA in accordance with Section 38-B is validated. Any allotment to be made under Section 38-B is after obtaining the approval of the State Government. In the case on hand, there is no such prior approval or Government Order permitting the BDA to make any bulk allotment. Secondly, there is no order of bulk allotment made by the BDA in favour of the Society pursuant to the resolution passed by the BDA. Therefore, it cannot be said that there is any such bulk allotment made in favour of the petitioner so as to hold the allotment if any is validated under Section 8 of the Act referred to above.
14. Therefore, in my opinion, even though the BDA has passed a resolution in the year 1988 to allot the land in favour of the petitioner society, the said resolution does not amount to an order of allotment as it has not been communicated to the petitioner. Further there is no Government Order according approval for bulk allotment in favour of the petitioner-society.
15. Sri N.K. Patil, learned Counsel for the BDA submitted that the petitioner having filed a suit challenging the acquisition proceedings, prior to the filing of the suit ought to have disclosed the fact of filing the petition in the writ petition which has been filed subsequently. According to him, the non-disclosure of this fact which was within its knowledge amounts to suppression of material facts.
16. It is not disputed that the petitioner had filed a suit challenging acquisition proceedings prior to the filing of the writ petition. The fact of filing the suit was within the knowledge of the petitioner and therefore, it ought to have disclosed the said fact in the writ petition. The non-disclosure of the said fact which was within its knowledge amounts to suppression of material fact. Therefore, even on this ground also the petitioner is not entitled for any relief from this Court under Article 226 of the Constitution.
17. The petitioner-society unnecessarily has been filing cases against the BDA, even though it has no right whatsoever to ask for allotment of land in its favour. In the first instance, even though the petitioner-society has no right whatsoever to question the correctness or otherwise of the acquisition proceedings has filed the suit for declaration that the acquisition proceedings have lapsed. The petitioner-society had filed the suit for a declaration that the acquisition proceedings have lapsed on the basis of an agreement of sale entered into between the petitioner-society and the land owners. This agreement of sale will not in any way give right to the petitioner society to challenge the correctness or otherwise of the acquisition proceedings in view of the law laid down by the Supreme Court. During the pendency of the suit, even though there is no order of bulk allotment in its favour it has filed the writ petition seeking for direction to the State Government to issue an order in terms of the order passed by the BDA on 22-4-1988. In order to seek such direction, the petitioner must have a legal right to ask the Government to issue Government order, on the basis of the Resolution. From the second prayer of the writ petition, it is seen that even according to the petitioner, there is no order of bulk allotment made by the BDA in its favour. Though the petitioner has not pressed the third prayer, it is not known how the petitioner could challenge the notification issued under Section 19(1) of the BDA Act, when he has already challenged the said notification in the suit referred to above. There is no bona fide on the part of the petitioner in instituting the proceedings by way of filing a suit and writ petition either for the same relief or for some other relief. Therefore, I am of the view that it is a fit case to impose heavy cost on the petitioner.
For the reasons stated above, writ petition is dismissed with costs. Petitioner to pay a sum of Rs. 5,000/- as cost to the respondents.