MUNIYAPPA v. BANGALORE DEVELOPMENT AUTHORITY — 1991 DIGILAW 604 (KAR)

B. N. KRISHNAN, J. ( 1 ) THE appellant was the writ petitioner in Writ Petition No. 2495 of 1979 wherein he had sought for issue of a writ of mandamus to the respondent-Bangalore development Authority to deliver the possession certificate in respect of 1 acre of land in Sy. No. 5/3c of Jadahalli denoted by 'abcd' in the plan-Annexure-B as per the agreement Ex. 'a' executed by it. The learned Judge held that the BDA had or has no power to reconvey the land acquired to implement a scheme and so negatived the contention of the learned Advocate for the petitioner and held that there was no proper pleading to accept the contention advanced by the learned Advocate for the appellant that the respondent had agreed to grant him an acre of land and even if that contention were to be accepted writ jurisdiction was not the proper forum to enforce such a contract and the petitioner should have approached the civil Court in that regard for specific performance of the agreement in question. Consequently, the writ petition came to be dismissed. It is being aggrieved by this order that the writ petitioner has preferred the present appeal. ( 2 ) IN this appeal, the learned Advocate for the appellant prayed for permission to urge an additional ground that what was sought and was granted by the predecessor of the respondent, viz. , the City Improvement Trust Board was allotment of the site measuring 1 acre and it had been loosely worded as 'reconveyance' and the several documents produced in this appeal go to support such a contention. The learned Advocate for the appellant was permitted to raise this additional ground, and the respondent's Advocate was afforded an opportunity to meet the said case and also file his additional objections in that regard. ( 3 ) THE learned Single Judge has pointed out that the BDA had or has no power to reconvey the lands acquired to implement a scheme relying upon the decision of this Court in B. N. Sathyanarayana Rao v State of Karnataka, ILR1987 Kar. 790 and in B. Venkataswamy Reddy v State ofkamataka, ILR 1989 Kar. 75. This proposition is absolutely unexceptionable having regard to the provisions of the BDA Act as also the Rules of Allotment of Sites framed under the said Act. 790 and in B. Venkataswamy Reddy v State ofkamataka, ILR 1989 Kar. 75. This proposition is absolutely unexceptionable having regard to the provisions of the BDA Act as also the Rules of Allotment of Sites framed under the said Act. ( 4 ) BUT what was urged before us was that the CITB had wider powers than the BDA and in exercise of the said powers it had in fact allotted the land measuring 1 acre out of the entire extent of land in the said survey number and all the formalities required to be fulfilled for the said allotment had been carried out by the petitioner and only thing that remains over is, the grant of possession certificate and these aspects were not properly highlighted before the learned Single Judge in the course of the pleadings or during the course of arguments and therefore it has landed the petitioner in such a predicament of being asked to sue for specific performance of the agreement in his favour. 3. To understand this contention urged on behalf of the appellant, few more facts in the background of the provisions of the Rules of Allotment framed under the provisions of the City of Bangalore Improvement Act should be noticed. 4. The appellant, who was the original owner of the land in Sy. No. 5/3c of jadahalli village which had been acquired by the CITB had been requesting for reconveyance of one acre of land for establishing an industry. On such application the CITB passed a resolution on 7-8-1963 which is referred to in the agenda of the meeting dated 13-11-1963. That resolution reads:"note The Board at its meeting held on 7-8-1963 resolved as follows: 1. XX XX XX 2. xx xx xx 3. In case of Sri Muniyappa comes forward for starting any industry in the area his request/or grant of a suitable area in the same survey number be examined and placed before the Board. " (emphasis supplied) pursuant to the resolution dated 7-8-1963, the Chairman of the Board wrote as per ex. A3, dated 18-2-1964 to the petitioner as hereunder:" With reference to your letter dated 10-8-1960 requesting/or grant of land in the above survey number, I write to request you to intimate if you propose starting any industry in the area. If so, the details regarding the industry you are going to start may be indicated. A3, dated 18-2-1964 to the petitioner as hereunder:" With reference to your letter dated 10-8-1960 requesting/or grant of land in the above survey number, I write to request you to intimate if you propose starting any industry in the area. If so, the details regarding the industry you are going to start may be indicated. When your request for grant of a suitable area in the said survey number will be considered. "thereafter, CITB passed another resolution dated 12-1-1972 at its meeting dated 12-1-1972 on Subject No. 646. It reads:"it was resolved: that one acre of land in Sy. No. 5/3c of Jadahalli be reconveyed to Sri muniyappa for starting of an industry subject to payment of layout charges and usual conditions of reconveyance, and the plan shall be in accordance with the comprehesive plan of the Board for the area. "copy of this resolution is produced by the learned counsel for the BDA along with memo dated 30-7-1991. It is wrongly stated to be the resolution of the BDA which came into existence only in 1976. The learned counsel for the BDA stated that it is the resolution of the then CITB. As can be seen from the resolution the CITB decided to reconvey 1 acre of land in Sy. No. 5/3c of Jedahalli subject to payment of layout charges and usual conditions of reconveyance. It may be seen that in the earlier resolution dated 7-8-1963, the Board had resolved to grant a suitable land in the same survey number to the appellant to start an industry. The letter dated 18-2-1964 was also to the same effect. However, in the resolution dated 12-1-1972 the wording used was reconveyance. After the resolution dated 12-1-1972 the Chairman of the board wrote to the petitioner as per Annexure-A4, dated 8-4-1972 as hereunder:"adverting to the above subject, I write to state that the Board at its meeting held on 12-1-1972 has resolved to reconvey an acre of land out of Sy. No. 5/3c of jadahalli village for starting of an industry, subject to the usual conditions of reconveyance and the plan shall be in accordance with comprehensive plan of the Board for the area. No. 5/3c of jadahalli village for starting of an industry, subject to the usual conditions of reconveyance and the plan shall be in accordance with comprehensive plan of the Board for the area. Hence you are requested, (1) to produce the relevant documents for the ownership of the land, (2) to agree to give an agreement stating that you will not claim any compensation for the land, (3) that your layout plan shall be in accordance with comprehensive plan of the area and (4) agree to the payment of lavout charges. " ( 5 ) IT is the case of the petitioner that he has complied with all the requirements imposed on him as per the resolution dated 12-1-1972, in that, he had paid the layout charges of Rs. 23,900/- and also interest on the same amounting to Rs. 2,828/- and further he had also refunded a sum of Rs. 3,720/- deposited as compensation in respect of one acre of land as demanded under Annexure-A13, dated 27-2-1978 as could be made out by the letter dated 29-9-1978 (Annexure-A13 ). ( 6 ) AT this stage it may be noticed that before the BDA Act, 1976 came into force, it was the City of Bangalore Improvement Act, 1945 (for short 'c1tb Act') that was in force. Under Section 3 of the said Act, the duty of carrying out the provisions of ihe said Act vested in a Board called the 'trustees for the Improvement of City of bangalore' (for short 'citb' ). This Act and the CITB were respectively replaced by ihe BDA Act and the BDA. Under the provisions of the CITB Act, the City of Bangalore improvement (Allotment of Site Rules, 1964) had been framed which was in force on the date on which the resolution dated 12-1-1972 extracted earlier was passed and Rules 3,4 and 5 of the said rules are material for our purpose. They read as hcreunder: "3. Offer of sites for allotment, (1) Whenever the Board has formed an extension or layout in pursuance of any scheme, the Board may, subject to the general or special orders of the Government, offer any or all the sites in such extension or layout for allotment to persons eligible for allotment of sites under these rules. Offer of sites for allotment, (1) Whenever the Board has formed an extension or layout in pursuance of any scheme, the Board may, subject to the general or special orders of the Government, offer any or all the sites in such extension or layout for allotment to persons eligible for allotment of sites under these rules. (2) Due publicity shall be given in respect of the sites for allotment specifying their location, number, the amount payable as earnest money, the last date for submission of application and such other particulars as the Chairman may consider necessary, by affixing a notice to the notice board of the Board, and any other office as the Chairman may decide from time to time and by publication in not less than three daily newspapers published in the City of Bangalore in english and Kannada having a wide circulation in the city. 4. Reservation of sites. (1) The Board may (with the previous sanction of the government reserve sites in any area for allotment to any specified class of persons and such class may consist of employees in any office or establishment in the City of Bangalore. (2) Where sites are reserved under sub-rule (1) the procedure to be followed for allotment shall be determined by the Board subject to the order of the government. 5. Allotment of sites to individuals or body of persons or institutions in special cases. Notwithstanding anything contained in Rule 3, the Chairman of the board may allot sites other than the sites in respect of which applications are called for under Rule 3 or reserved under Rule 4 provided that the allottee of such site satisfies the requirements of Rule 9 and that the value of the site docs not exceed Rs. 5,000. If the value exceeds Rs. 5,000 such allotment may be made by the Board". It may be noticed that Rules 4 and 5 are in the nature of exceptions to the general provisions adumbrated in Rule 3. The requirements for exercise of power of allotment of sites under Rule 5 are: 1. No application should have been called for under Rule 3 in respect of the site proposed to be allotted under Rule 5; 2. The said site should not have been reserved under Rule 4; 3. The value of the site should not exceed Rs. The requirements for exercise of power of allotment of sites under Rule 5 are: 1. No application should have been called for under Rule 3 in respect of the site proposed to be allotted under Rule 5; 2. The said site should not have been reserved under Rule 4; 3. The value of the site should not exceed Rs. 5,000/- if the Chairman of the board has to exercise the power under this Rule to allot the site and if it exceeds rs. 5,000/- it is the Board which has to exercise the power under this rule; lastly, 4. The allottee of such a site should satisfy the requirement of Rule 9 which prescribes the eligibility for allotment, viz. , that that the person should ordinarily be a resident in the area under the jurisdiction of the Board and secondly that he or any member of his family should not own or has been allotted a site or house by the Board or any other authority within the area under the jurisdiction of the Board. As far as the land allotted to the appellant is concerned, there is no dispute that: (i) no application was called for under Rule 3; (ii) It was not reserved under Rule 4; (iii) the value of it was more than Rs. 5,000-00 and therefore only the Board was empowered to allot the same. As stated above, it was the Board which resolved on 12-1-1972 to allot the site subject to payment of the price fixed and fulfilling of other conditions imposed. It is not disputed by the respondent that the petitioner-appellant has complied with all the requirements as imposed by the Board in its resolution dated 12-1-1972. Further, it is not the case of the Board that the petitioner had become ineligible for allotment of the said site under Rule 9, which reads:"9. It is not disputed by the respondent that the petitioner-appellant has complied with all the requirements as imposed by the Board in its resolution dated 12-1-1972. Further, it is not the case of the Board that the petitioner had become ineligible for allotment of the said site under Rule 9, which reads:"9. Eligibility for allotment: no person shall be eligible for allotment (1) who is not ordinarily resident in the area under the jurisdiction of the board: provided that the Board may relax the condition in the case of persons who bona fide intend to reside in such area; (2) who arc any member of whose family owns or has been allotted a site or a house by the Board or any other authority, within the area under the jurisdiction of the Board: provided that the Board may in its discretion relax this condition in case where the house owned is found inadequate having regard to the size of the family of the person applying for allotment of a site. "a reading of the Rule at once indicates that it applied only to allotment of residential sites and not for allotment of industrial sites to a person who is owning a residential site or house in the city. This position in law could not be controverted by the respondent, for, the Board granted 2 acres 10 guntas of adjoining land for a factory in favour of one T. Veerappa by the same resolution. ( 7 ) THE only contention that was urged on behalf of the respondent was that the land in the survey number had been acquired for the purpose of a scheme and there was no scope for the CITB to have allotted 1 acre of land contrary to the said scheme exercising the powers under Rule 5. As against this, the contention of the appellant was that the land in question was not acquired for the purpose of any scheme but was acquired under the Land Acquisition Act. He submitted that though in the notification it was stated that the acquiring the land was under the Land Acquisition act for a housing scheme, there was no scheme prepared in terms of Sections 16 to 18 of the Act. He submitted that though in the notification it was stated that the acquiring the land was under the Land Acquisition act for a housing scheme, there was no scheme prepared in terms of Sections 16 to 18 of the Act. We asked the learned counsel whether there was any scheme prepared under Section 16 by the CITB and sanctioned by the Government under section 18 of the C1tb Act, which would get altered by the allotment of site to the appellant? The learned counsel for the BD A was unable to contradict the statement made on behalf of the appellant. Number of adjournments were granted to the learned Advocate for the respondent to place before the Court scheme, if any, and to make out that the land in question had been acquired for such a scheme. He was unable to produce any material in that regard. Therefore, we have to proceed on the basis that the land in question was not acquired and was not covered by the Scheme prepared under Sections 16 to 18 of the CITB Act. Further, it may be noticed that rule 3 of the CITB Rules prescribes the mode of offering the sites formed in a layout and the non-obstante clause of Rule 5 shows that despite the procedure prescribed for allotment of site in an extension or layout in pursuance of any scheme the Chairman and the CITB had the power to allot the site if it fulfilled the other requirements prescribed in Rule. 5. Therefore, in the first instance, it has to be held that there is no material placed to hold that the land in question had in fact been acquired for any scheme and that the allotment of site contravened the scheme. Further, the CITB had the power to allot site under Rule 5 without following the procedure prescribed in Rule 3 provided the other requirements of Rule 5 are fulfilled. No serious contention could be urged on behalf of the respondent to rebut the contention urged on behalf of the appellant that the word 'reconveyance' had been used in the resolution dated 12-1-1972 and all the subsequent correspondence in a loose sense and in fact the said word meant allotment/grant of site within the meaning of Rule 5. As seen earlier the earliest resolution dated 7-8-1963 only spoke of grant and not reconveyance. As seen earlier the earliest resolution dated 7-8-1963 only spoke of grant and not reconveyance. When that is so, and when in fact the resolution coupled with the correspondence between the petitioner and the CITB shows that what was done was an allotment as contemplated under Rule 5, the contention the word 'reconveyance' appears to have been used in a loose sense because the allottee was the previous owner of the said land prior to the acquisition, but in truth it is a case of allotment has to be accepted. If that be so, it has to be held that there was a valid allotment of 1 acre of land in Sy. No. 5/3c as per Resolution No. 646, dated 12- 1-1972 by the CITB in favour, of the petitioner-appellant. Further, he had also complied with all other requirements imposed by the CITB. ( 8 ) THUS the right flowing from allotment of the site accrued to the appellant prior to the coming into force of the BDA Act. That right was saved by Section 76 of the bda Act. The relevant portion of it, reads:"76. Repeal and savings: (1) On the issue of the notification under sub-section (1) of Section 3 constituting the Bangalore Development Authority, the City of Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945) shall stand repealed. XXX XXX XXX (3) Subject to the provisions of sub-section (2) nothing in sub-section (1) shall affect (a) the previous operation of the said Act or any thing duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the said Act. " (emphasis supplied) therefore, the mere fact that there is no provision analogous to Rule 5 referred to above, in the Bangalore Development Authority (Allotment of Sites) Rules, 1982, framed by the BDA did not in any way affect the rights and obligation which came into existence earlier to the coming into force of the BDA Act. This position cannot be contested by the BDA, for, the allotment made by the CITB was acted upon by the BDA itself, which is evidenced by the registered agreement dated 4-12-1979 entered into between the appellant and the BDA. This position cannot be contested by the BDA, for, the allotment made by the CITB was acted upon by the BDA itself, which is evidenced by the registered agreement dated 4-12-1979 entered into between the appellant and the BDA. The relevant portion of the agreement reads: "agreement this Agreement of Reconveyance entered this day of 4th day of December, 1978, by Sri Muniyappa s/o Sri Hanumappa, aged 60 years, residing at No. 74, III cross, Hosahalli, Vijayanagar, Bangalore-40, hereinafter called the 'first Party and the Bangalore Development Authority, Bangalore, represented by its secretary, hereinafter called the 'second Party which term includes his successors in office witnesseth: whereas the first party has applied in the reconveyance of the lands in the scheduled area for the industrial purposes and whereas the second party has agreed to reconvey the first party an extent of land one acre in Authority Resolution no. 646, dated 12-1-1972 more fully described in the Schedule hereunder subject to the following terms and conditions: 2. That the first party shall pay the layout charges to the second party a sum of Rs. 22,0221- has been paid towards the layout charges of one acre of land. xxx xxx xxx (emphasis supplied) 7. The first party shall obtain the title deed from the second party in respect of the schedule property only after complying with all the conditions above stated and only after the building is constructed on the site. Till then he will have possession subject to the above conditions. The first party shall bear all the expenses such as stamp duty, registration charges, etc. , in connection with the execution of sale deed by the second party. ( 9 ) THAT the first party shall not sub-divide the sites. SCHEDULE An extent of 4840 sq. yds. in Sy. No. 5/3c of Jaadahalli village, M. R. C. R. Hosahalli Extention, bounded on: East by : Petrol bunk West by : Saraswathi Iron Foundry North by : Site Nos. 11 and 12 South by : Allotted to KASSIA and Sanidevara Temple. Witnesses: 1. M. Marappa, 74, III Cross, Hosahalh, Bangalore. Signature of the First Party, L. T. M. of Muniyappa, attested by M. Marappa. 2. Revanna, No. 10, III Cross, Hosahalh, Bangalore. Secretary, Bangalore Development Authority, Bangalore, Second Party, Sd/ -. 11 and 12 South by : Allotted to KASSIA and Sanidevara Temple. Witnesses: 1. M. Marappa, 74, III Cross, Hosahalh, Bangalore. Signature of the First Party, L. T. M. of Muniyappa, attested by M. Marappa. 2. Revanna, No. 10, III Cross, Hosahalh, Bangalore. Secretary, Bangalore Development Authority, Bangalore, Second Party, Sd/ -. " in the face of this agreement, it is not open to the BDA to say that the allotment of land in question made by the CITB in favour of the appellant was not binding. 9. It appears to us that the whole controversy has arisen because though the word grant was used in the resolution of the CITB dated 7-8-1963 as also in the letter dated 18-2-1964 of the CITB, the word 'reconveyance' came to be used in subsequent correspondence as also in the agreement, and further the BDA was also under the wrong impression that the land was covered by a scheme and the grant of site to the appellant would contravene the scheme. Once we hold that it is a case of allotment and the land was not covered by a scheme, and therefore there was no contravention of any Scheme, the allotment would be lawful and enforceable. ( 10 ) THE learned Advocate for the respondent-BDA contended that in view of the following decisions his client has been practically deterred from acting upon the resolution of CITB to issue the possession certificate. (1) B. N. Sathyanarayana Rao v State of Karnataka, ILR 1987 Kar. 790. (2) B. Venkataswamy Reddy v Slate ofkamataka, ILR 1989 Kar. 75. (3) Telecom Employees Co-operative Housing Society Ltd. v S. C. , S. T. Minority communities and Backward Class Improvement Centre, ILR 1990 Kar. 3320. (4) B. Umesh v BDA, ILR 1991 Kar. 824. ( 11 ) IN the first instance it may be pointed out that in none of these decisions the provisions of the CITB Act and the allotment Rules framed thereunder and more particularly Rule 5 referred to already vis-a-vis the provisions of the BDA Act and the rules framed thereunder had come up for consideration. 824. ( 11 ) IN the first instance it may be pointed out that in none of these decisions the provisions of the CITB Act and the allotment Rules framed thereunder and more particularly Rule 5 referred to already vis-a-vis the provisions of the BDA Act and the rules framed thereunder had come up for consideration. Secondly, there is absolutely no scope to consider the allotment of 1 acre of land in favour of the petitioner for industrial purpose, as resolved by the CITB as a bulk allotment within the meaning of the third of the decisions referred to above, because, the petitioner is not expected to make sites out of the land allotted to him and sell to any other person, as was the case in the said decision. Thirdly, it may be noticed that in none of these decisions the aspect whether a completed valid allotment under the provisions of the allotment Rules of CITB cannot be given effect to in view of any of the provisions of the BDA Act or the allotment Rules framed thereunder had come up for consideration. Lastly, it may be pointed out that it is not the case of the learned counsel for the respondent that the allotment of 1 aere of land in favour of the petitioner is hit by any provisions of the CITB Act or the Rules framed thereunder and once there is valid allotment in favour of the petitioner under the provisions of the CITB Act there is no provision in the BDA Act or the Rules framed thereunder which enables the respondent not to give further effect to the same. Further, having entered into a registered agreement with the appellant in terms of the resolution dated 12-1-1972 of the CITB, the BDA cannot now turn round and say that it would not act upon the agreement and give the possession certificate to the appellant. ( 12 ) THEREFORE, it is clear that there was absolutely no scope to the BDA to have refused to issue the possession certificate in favour of the petitioner-appellant and this is a fit case where it should be directed to issue the possession certificate in his favour in respect of 1 acre of land allotted in his favour. ( 12 ) THEREFORE, it is clear that there was absolutely no scope to the BDA to have refused to issue the possession certificate in favour of the petitioner-appellant and this is a fit case where it should be directed to issue the possession certificate in his favour in respect of 1 acre of land allotted in his favour. ( 13 ) IN the result, in reversal of the order of the learned Single Judge, we allow the appeal and direct the BDA to issue the possession certificate in respect of the aforesaid one acre of land described in the Schedule to the Agreement dated 4-12-1978. --- *** --- .