Karnataka High Court
Bangalore Development Authority vs Doddammuniswamappa S/O Munipothappa on 4 September, 2012
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNTAKA AT BANGALORE
DATED THIS THE 4th DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT APPEAL Nos.768-784/2012(BDA)
BETWEEN:
1. BANGALORE DEVELOPMENT AUTHORITY
SANKEY ROAD, BANGALORE
REPRESENTED BY ITS CHAIRMAN
2. TOWN PLANNING MEMBER,
BANGALORE DEVELOPMENT AUTHORITY
SANKEY ROAD, BANGALORE
BANGALORE CITY. : Appellants
(By Shri. Udaya Holla, Senior Counsel a/w
Shri. B.V. Shankarnarayana Rao, Advocate)
AND:
1. DODDAMMUNISWAMAPPA
S/O MUNIPOTHAPPA
AGED 85 YEARS, R/A SY NOS 107/1
SY.NO.107/2, AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY.
2
2. D. M. KRISHNA,
S/O SODDAMUNISWAMAPPA
AGED 58 YEARS
R/A SY NOS, 107/1, SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
3. JAYARAMA
S/O .DODDAMUNISWAMAPPA
AGED 58 YEARS
R/A SY NOS, 107/1, SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
4. GIRISH P. H.
S/O DODDAMUNISWAMAPPA
AGED 51 YEARS
R/A SY NOS, 107/1, SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
5. MUNIPOTHAPA
S/O LATE CHIKKAMUNISWAMAPPA
AGED 61 YEARS
R/A SY NOS, 107/1, SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY.
6. SUNIL. K.
S/O LATE MUNIYAPPA
AGED 55 YEARS
R/A SY NOS, 107/1, SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE,
HAL II STAGE
BANGALORE CITY
7. GOPALAKRISHNA .D.
S/O. LATE CHUIKKAMUNISWAMAPPA
AGED 56 YEARS
R/A SY NOS, 107/1,
SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE,
3
HAL II STAGE
BANGALORE CITY
8. NAGARAJA. C.
S/O LT CHIKKAMUNISWAMPPA
AGED 56 YEARS
R/A SY NOS, 107/1, SY NO.107/2, AND 112/
AT THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
9. MARIYAPPA. C
S/O CHIKKAMUNISWAMAPPA
AGED 55 YEARS
R/O 107/1, SY NO.107/2 AND 112/2
AT THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
10. RAMAKRISHNA
S/O CHIKKAPULLAMMA
AGED 60 YEARS
R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
11. ASHOK. C
S/O CHIKKAPULLAMMA
AGED 50 YEARS, R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
12. VENKATESH. C
S/O CHIKKAPULLAMMA
AGED 46 YEARS, R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
13. SRINIVASA. C
4
S/O CHIKKAPULLAMMA
AGED 48 YEARS
R/A NOS 107/1, SY NO.107/2, AND 112/2 AT
THIPPASANDRA VILLAGE HAL II STAGE
BANGALORE CITY
14. SHANKAR. C
S/O CHIKKAPULLAMMA
AGED 45 YEARS, R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY.
15. RAMESH
S/O CHIKKAPULLAMMA
AGED 53 YEARS, R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
16. KUMAR. M
S/O MUNIPOTHAPPA
AGED 50 YEARS, R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
17. SRINIVAS. M.
S/O MUNIPOTHAPPA
AGED 50 YEARS, R/A SY NOS.1071
SY NO. 107/2 AND 112/2 AT
THIPPASANDRA VILLAGE, HAL II STAGE
BANGALORE CITY
18. THE STATE OF KARNATAKA
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, M.S.BUILDING,
DR.AMBEDKAR VEEDHI
REPRESENTED BY ITS SECRETARY
BANGALORE CITY
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19. BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRLCE, BANGALORE
REPRESENTED BY ITS COMMISSIONER
BANGALORE CITY
....RESPONDENTS
(**By Shri. V.Lakshminarayana &
Shri P.B. Raju, Advocate for R-1 to 6
Shri. P.S. Manjunath, Advocate for R-7 to 17
Shri. BAsavaraj Kareddy, Principal. Govt Advocate for R-18)
These Writ Appeals are filed under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in the Writ
Petition Nos.37489 and 37763-37778/2009 (BDA) dated
16.09.2010.
These Writ Appeals having been heard and reserved for
pronouncement of judgment, this day, the Chief Justice delivered
the following:
JUDGMENT
These Appeals have been filed by the Bangalore Development Authority (BDA), assailing the Order of the learned Single Judge allowing several writ petitions filed by owners/occupants of the lands which were part of the subject matter of acquisition pursuant to the Preliminary and Final Notifications issued in the year 1964, i.e., half a century ago. This acquisition was intended for the formation of a layout called HAL-II Stage by the erstwhile City Improvement Trust Board which has been succeeded by the BDA. The prayers in the writ petitions before the learned Single Judge ** Correction carried out "as per the order of the Hon'ble Court dt. 11.12.2012"
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who passed the impugned Order dated 16.09.2010 in W.P. Nos.37489 and 37763-37778 of 2009 read thus:
a) Issue a writ of mandamus directing the 2nd respondent-
B.D.A. to implement the Board Resolution dated 06.08.1982 in Subject No.168 to re-convey the lands 1A-06 Guntas in Sy.No.107/1, 107/2 and 112 of Thippasandra village to its respective owners forthwith, and restrain BDA 2nd respondent by writ of prohibition from interfering with the use and enjoyment of respective owners.
b) Direct the 3rd respondent for issuance of khatha Certificates to the respective owners in Sy.No.107/1, 107/2 and 112 of Thippasandra village in pursuance of the re-conveyance of the lands by the B.D.A. for the benefit of its actual owners.
c) Declare that the letter dated 26.05.2009 in No.BDA/TPM/CLU-149/2009-10 issued by the Respondent-4 Town Planning Member is illegal, void and unconstitutional and not binding on the respective owners of lands in Sy.Nos.107/1, 107/2 and 112 of Thippasandra village, to an extent of 01 Acre 06 Guntas.
The operative part of the impugned Order reads as follows:
"A mandamus shall ensue to the 2nd respondent
- BDA to implement the resolution dated 6.10.1982 in 7 Subject No.168 Annexure-"A", form the layout of sites in the said area, allot the sites in favour of the petitioners on receipt of the betterment fee under the BDA Act, 1976, while ensuring that the existing buildings are not demolished, in any event, within a period of six months.
It is needless to state that the petitioners would not obstruct BDA in the formation of the roads.
The communication dated 26.05.2009 Annexure
-"S" of the 4th respondent is quashed."
2. Although a notification under Section 16(2) of the Land Acquisition Act, 1894 came to be issued for acquisition of total extent of land measuring 04 acres 20 guntas in four survey numbers, the uncontroverted position is that possession of land admeasuring 1 acre 06 guntas in three survey numbers, that is 17 guntas in Sy.No.107/1, 16 guntas in Sy.No.107/2; and 13 guntas in Sy. No.112/2 of Thippasandra village was not taken over for the reason that it was fully built up and occupied by a large number of persons. A resolution came to be passed by the BDA on 06.10.1982 (also mentioned as 06.08.1992) for reconveyance of this fraction of the land which was the subject matter of the acquisition, on verification of the title and on calculation of reconveyance charges as per the Rules. It is also not disputed that the BDA in 8 its subsequent meeting held on 23.10.1996 reiterated its resolve to reconvey the land in question to the Petitioners/owners/occupants on payment of betterment fee of Rs.2,77,385/-, at the rate of Rs.10/- per square meters. A public notice also came to be issued by the BDA on 11.03.1998 proposing to change the use of the subject land from park to residential.
3. The issuance of the public notice dated 11.03.1998 had the effect of following of a so-called Public Interest Litigation bearing Writ Petition No.5950/1998. We used the phrase 'so- called' for the reason that the petitioners in those proceedings were the allottees of plots situated in the subject 01 acre 06 guntas of land. By Orders dated 26.07.2004, the Division Bench presided over by the Hon'ble Chief Justice had dismissed the Public Interest Litigation with costs; making it clear that the dismissal of PIL would not preclude the BDA/concerned Authority proceeding further, in accordance with law. The Division Bench took note of Section 14-A of the Karnataka Town and Country Planning Act, 1961 ('KTCP Act' for short) which permitted change of land use from the Outline Development Plan, if the circumstances prevailing at the site so warranted. Our learned brothers had also kept in perspective Section 38-C of the BDA Act which reads as follows:- 9
"38-C: Power of Authority to make allotment in certain cases - Notwithstanding anything contained in this Act or in any other law or any development scheme sanctioned under this Act, or City Improvement Trust Board Act, 1945, where the authority or the erstwhile City Improvement Trust Board, Bangalore has already passed a resolution to re-convey in favour of any persons any site formed in the land which belongs to them or vested in or acquired by them for the purpose of any development scheme and on the ground that it is not practicable to include such site for the purpose of the development scheme, the authority may allot such site by way of sale or lease in favour of such person subject to the following conditions.-
a) the allottee shall be liable to pay any charges as the authority may levy from time to time; and
b) the total extent of the site allotted under this section together with the land already held by the allottee shall not exceed the ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976."
(2) Notwithstanding anything contained in this Act or in any other law or any development scheme 10 sanctioned under this Act or the City of Bangalore Improvement Act, 1945, but without prejudice to sub-section (1), where the Authority after carrying out a survey of land, vested in or acquired by it, is of the opinion that such land cannot be used by it on account of existing structure or building thereon or it is not practicable to include such land for the purpose of development scheme or formation of sites, the Authority may with prior approval of the Government allot such land by sale in favour of the original owner of the land or the purchaser from the original owner or purchaser in respect of the land, who has put up the structure or building on the land or in favour of such original owner, purchaser or General Power of Attorney holder who is in possession of the land, subject to the conditions that.-
(i) the structure or building was in existence on such land prior to the First day of January, 1995 or such original owner, purchaser or General Power of Attorney holder has been in possession of the land since prior to the First day of January, 1995 and has continued to be in possession of the land as on the date of commencement of the Bangalore Development Authority (Amendment) Act, 1999;
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(ii) the allottee makes payment towards the allotment of land, such amount as the Authority may, subject to the general or special order of the Government determine from time to time; and
(iii) the total extent of the land allotted under this sub-section together with the land already held by the allottee shall not exceed the ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976.
Explanation.- For the purpose of this sub-section.-
(a) 'land' includes site,
(b) 'original owner of the land' means a person
who was occupant of the land immediately
before publication of the development
scheme which contained proposal for
acquisition of such land."
4. On the strength of this provision, our learned Brothers had found no irregularity in implementing the Resolution of the erstwhile CITB, Bangalore to reconvey the subject land in favour of the owners [whose prayer for implementation has been accepted by the Court]. It was also emphasized that the Authority could re- allot the plots/land if it was found absolutely impracticable to 12 include the said land/plots within the development scheme. Furthermore, our learned Brothers had noted that de-notifying of this land as park in the revised Comprehensive Development Plan 1995 ('CDP 1995' for short) would not be legally efficacious as the decision had already been taken much earlier to CDP 1995 i.e., on 06.08.1982 (06.10.1982) to re-allot or re-convey the land to the owners who were occupants thereof. The Division Bench also took note of the fact that there was opposition to the acquisition of only a fraction of the land which stood occupied by the owners who indeed did not object to the rest being the preponderant part of their land for acquisition for public purposes. It was noted that the PIL endeavoured to assail the Resolution of the BDA dated 06.08.1982 after a long lapse of 16 years. The Orders dated 26.07.2004 have been kept in view by the learned Single Judge while passing the impugned Order.
5. It is just and necessary to note that after supporting the cause/concern of the Petitioners who were the Respondents in the earlier/previous writ petition and who are the owners/occupants of a small piece of land which had been acquired for formation HAL-II stage layout, this time around the BDA strenuously opposed the writ petition. Reliance was placed on Bangalore Development 13 Authority Vs R. Hanumaiah is (2005) 12 SCC 508 : ILR 2005 KAR 5533.
6. In this second salvo of litigation, the BDA/Appellant has taken the stance that claims can be predicated only on the Land Acquisition Act, 1894 which does not postulate or envisage de- notification or re-conveyance that too a piece of land. Secondly it was contended that the said land was earmarked as 'park-open space' as per the revised CDP 1995. The following paragraphs from Hanumaiah is called to be reproduced for facility of reference:
"21. Section 38-C commences with a non obstante clause. It provides that irrespective of anything contained in any law or any judgment, decree or order of any court where in pursuance of any resolution passed by the Authority or the erstwhile City Improvement Trust Board, Bangalore in favour of any person reconveying the site formed in the land which belong to them or vested in or acquired by them for the purpose of any development scheme and on the ground that it is not practicable to include such site for the purpose of any development scheme, the Authority may allot such site for the purpose of development scheme by way of sale or lease in favour of such persons subject to the allottee paying such charges which the Authority may levy 14 from time to time and the extent of site allotted under this provision together with the land already held by the allottee shall not exceed ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976.
22. Section 9 of the Amendment Act speaks of validation of certain allotment. It also starts with a non obstante clause and provides that if a resolution has been passed by the Bangalore Development Authority or the City Improvement Trust Board to reconvey in favour of any person any site out of the land which belonged to him or vested or acquired from him for the purpose of any development scheme, the Authority has already made allotment of such site by way of sale, lease or otherwise in favour of such person after 20-12-1974 and before 8-5-1986, then such allotment shall be deemed to have been validly made and shall have effect for all purpose as if it is made under Section 38-C of the principal Act as amended by Act 17 of 1984.
xxxx
27. The Division Bench in the impugned judgment has taken the view that the correspondence exchanged between the parties established that the respondent acted on the representation or the promise held out to him to his prejudice and altered his position to his detriment in not pressing his claim 15 for higher compensation and withdrawing the legal proceedings. That the respondent had also not claimed the compensation that was offered to him, which was redeposited by him with the Authority. That the appellant could not be permitted to resile from the representation or promise made by it to the respondent as the respondent had acted on the representation and altered his position to his prejudice. Plea taken by the appellant that rule of promissory estoppel shall not apply to do or perform an act prohibited by law or not authorised by law was rejected by observing that act to reconvey the land was not prohibited as there was a shift in the judicial thinking in Muniyappa case. It was held that the appellant was bound to reconvey the land to the petitioner as per its resolution. That the appellant was debarred from resiling from the promise/representation made especially in view of the fact that the respondent acting on the promise made to him had altered his position to his prejudice.
28. The doctrine of promissory estoppel is not based on the principle of estoppel. It is a doctrine evolved by equity in order to prevent injustice. Where a party by his word or conduct makes a promise to another person in unequivocal and clear terms intending to create legal relations knowing or intending that it would be acted upon by the party to 16 whom the promise is made and it is so acted upon by the other party the promise would be binding on the party making it. It would not be entitled to go back on the promise made. This Court in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. after analysing the doctrine of promissory estoppel as applied in the courts of England and the United States held that in India the law may be taken to be settled that principle of promissory estoppel would be applicable to the Government as well where it makes a promise knowing or intending that it would be acted upon by the promisee, and the promisee in fact acting on the promise alters his position, then the Government will be held bound by the promise and such a promise would be enforceable against the Government at the instance of the promisee. That the Government stood on the same footing as a private individual so far as the obligation of law is concerned. The Government, committed as it is to the rule of law, cannot claim immunity from the applicability of rule of promissory estoppel and repudiate a promise made to it on the ground that such a promise may fetter its future executive action. It was pointed out that since the doctrine of promissory estoppel is equitable doctrine it must yield when the equity so requires and if it can be shown by the Government that, having regard to the facts as they have transpired, it would be inequitable to hold the Government to the promise 17 made by it, the court will not raise an equity in favour of the promisee and enforce the promise against the Government. Another exception carved out was that doctrine of promissory estoppel cannot be invoked to compel the Government or even a private party to do an act prohibited by law. It was observed in para 28 as under: (SCC p. 447) "It may also be noted that promissory estoppel cannot be invoked to compel the Government or even a private party to do an act prohibited by law. There can also be no promissory estoppel against the exercise of legislative power. The legislature can never be precluded from exercising its legislative function by resort to the doctrine of promissory estoppel. Vide State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd."
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38. Learned counsel for the respondent vehemently contended that Section 29 of the City of Bangalore Improvement Act, 1945 was different in content and scope than Section 38 of the Bangalore Development Act. Since the resolution was passed under the City of Bangalore Improvement Act, 1945, the resolution has to be seen and interpreted in the light of Section 29 of the City of Bangalore Improvement Act, 1945. That Section 76(3) of the BDA Act provides that any right, privilege, obligation 18 or liability acquired, accrued or incurred arising under the old Act shall remain intact. We do not find any force in the submission.
57. Equally untenable is the plea of the respondents that promise of CITB to reconvey is enforceable in law".
7. Reliance has been placed by the Appellant almost entirely on paragraph-28 above. However, we should not lose sight of the context, which was with regard to the claim of promissory estoppel. In the said case the Apex Court was pleased to hold that:
"46. The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the Government which was then transferred to CITB, predecessor-in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State Government."19
It will be fatal to ignore paragraph 22 which actually sets the scene for a decision in the factual matrix itself which presents before us. Their Lordships had opined that Section 38-C has prospective operation and would not regulate or impact upon the allotment made between 20.12.1974 and 08.05.1986. We must immediately highlight that the BDA Resolution is dated 06.10.1982 and reads thus:
"Bangalore Development Authority Meeting dated 06.10.1982 Subject No.168 Sub: De-notification/Re-conveyance of Sy.No.107/1, 107/2 and 112 of Thippasandra.
It was resolved to re-convey the land to an extent of one acre six guntas in Sy.No.107/1, 107/2 and 112 of Thippasandra, HAL II Stage, in favour of the respective owners, subject to verifications of their title by the Secretary, BDA, and also subject to collection of re-conveyance charges as per Rules".
Hanumaiah therefore does not militate against the case of the Respondents.
8. Before moving further it would be apposite to mention the recent decision of the Apex Court in Prahlad Singh Vs. Union 20 of India (2011) 5 SCC 386. Their Lordships were called upon to consider Section 16 of the Land Acquisition Act, 1894 which envisages that - "When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances". In Prahlad Singh their Lordships held as follows:
"13. We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is don, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority . . . . . . .".21
The dicta is to the effect that if actual possession of the land is not taken, such land cannot vest in the State. In the case in hand, in the background of the uncontroverted case of the parties that as against the entire land owned by the respondents, only a fraction thereof measuring 01 acres 06 guntas could not be taken possession of because it was heavily built up as well as heavily populated/occupied. The effect is that this parcel of the land though notified was not acquired as physical/actual possession was not taken by the BDA and therefore it would not be necessary to go in to the question of whether it could be re-conveyed or de- notified, on the premise of Hanumaiah as the facts in the present case are wholly distinct.
9. We think it apposite to mention Khub Chand Vs State of Rajasthan, AIR 1967 Supreme Court 1074 for giving meaning to the words 'may' and 'thereupon' that are to found in Section 16 and also in Sections 4 & 5 of the Rajasthan Land Acquisition Act. The Supreme Court reiterated the dictum in several earlier precedents to the effect that under certain circumstances the word 'may' could also be construed as mandatory and held that the issuance of a notice to the party concerned was an essential 22 procedure, as a pre-requisite of entering upon the land and interfering with the possession of the given. It was held that use of the word 'thereupon' supported the interpretative consideration that it was only after a notice had been issued to the affected person, the public officer or his servants can enter the land and it is condition for the exercise of the power of entry and non- compliance with the said condition makes the entry of the officer or his servants unlawful. In view of the above dicta, we are of the view that if this condition is not complied with, it would tantamount to trespass even by State Officials. We may also briefly note that in Bangalore Medical Trust Vs B.S. Muddappa (1991) 4 SCC 54 - AIR 1991 SC 1902, the Supreme Court was not dealing with a situation where an area earmarked as open space reserved for public park could be converted/diverted for use of civic amenity site for the purpose of hospital/nursing home in respect of the lands that already stood acquired. Since taking over of possession has been once again held in Prahlad Singh to be an essential subject in the land acquisition process/proceedings, the proposed acquisition in the case in hand to an extent of 01 acre 06 guntas remained unquiet and after the passage of half a century, must be treated as having been abandoned. The only alternative 23 would be to commence acquisition de novo if the State found it expedite to acquire the land for the establishment of open space/public park. This proposal may also prove once again futile and to be impossible to implement, in view of the fact that the land admeasuring 01 acre 06 guntas is heavily constructed/built up and thickly populated. We also think it to be anachronistic for the BDA to project its case on CDP of 1995 with regard to land acquisition, which had commenced decades earlier. Clearly, this is a contradistinction in terms and would not be akin to wine becoming better with the passage of time.
10. At this stage, we are reminded of the extracted enunciation of law contained in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 which the Court should never tire from reiterating.
" The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional 24 grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older".
This extract has more recently been reiterated in Bangalore Development Authority -vs- R. Hanumaiah (2005) 12 SCC 508.
11. We must also record that our attention was drawn to Offshore Holding Vs Bangalore Development Authority (2011) 3 SCC 139 which we think would not be directly relevant for unraveling the legal nodes before us. The Supreme Court held that the BDA Act 1976 and the Land Acquisition Act 1894 operated 25 in different orbits and that therefore, the provision of Section 11A of the latter Act should not be extrapolated into the former Act; that the acquisition of the land under the BDA Act was incidental to the primary object of that statute which is to carryout planned development of the metropolis with Bangalore has already become.
12. We are also of the considered view that the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985 is not applicable to the facts of the case in hand. Section 2(f) of the said Act defines - " 'Open Space' means any land on which there are no buildings or of which not more than one twentieth part is covered with buildings and the whole or the remainder of which is used or meant for purpose of recreation, air or light or set apart for civic amenity purposes. Likewise, Section 2(g) of the said Act defines - " 'park' means a piece of land on which there are no buildings or of which not more than twentieth part is covered with buildings, and the whole or remainder of which is laid out as a garden with trees, plants or flower beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light". Similarly, Section 2(h) defines
- " 'play-field' means a piece of land adapted for the purpose of play, game or sport and used by schools or colleges or clubs or 26 general public and includes land set apart as a play-field by a Local Authority". We are not convinced that this Act can apply to the factual matrix where the land in question is, to repeat, fully constructed/built up and heavily populated. The intention behind the statute is indeed salutary inasmuch as it acknowledges the wisdom of the implacable and abiding necessity of maintaining 'open space', 'park' and 'play field' in urban conglomeration. The accent and emphasis is on enforcing an embargo on public using existing 'park' 'play-fields' and 'open space' to alternative use even as civic amenity of hospital etc, as was the case in Muddappa.
13. We must also deal with other two arguments raised before us, which we think are largely irrelevant, keeping in perspective the view taken by us above. Firstly, the learned counsel for the Respondents are justifiable incensed with the 'approbation and reprobation' that is manifest in the stand of the BDA, inasmuch as, the erstwhile CITB, the predecessor of the BDA had taken a decision to reconvey the land in question and passed a Resolution as long back as on 06.08.1982. Added to this, the stand of the BDA in the earlier PIL proceedings remained resolute in supporting its decision to re-convey or de-notify the parcel of 01 27 acre 06 guntas of land out of total extent of 04 acres 20 guntas of land belonging to the contesting respondents in the earlier PIL proceedings and the writ petitioners in the present proceedings. We agree that the statutory Authority like BDA is certainly circumscribed by that position which it has adopted, since even an individual is not permitted in law to change his stance like shifting sands. We reiterate the following passage from treaties on Promissory Estoppel by Dr. BIGGELO which is to the following effect:
"If parties in a Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of justice would in most cases be paralysed, the coercive process of law available only between those who consented for its exercise to be set at naught by all. But the right of all men honest and dishonest are in the keeping of the Courts and consistency of proceedings is therefore required of all those who come or brought before them."
Whether it is seen as the reprehensible act of 'approbation and reprobation' or a failure to comply the principle of promissory estoppel, the conduct of the BDA cannot be appreciated and must be held to be impermissible in law.
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14. For these manifest and varied reasons we find that the appeals filed by the BDA are devoid of merit and liable for rejection. The appeals are dismissed but with no order as to costs. It is our fervent hope that this controversy and litigation which has been festering for half a century may be finally interred.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr