K. N. Kamalamma v. Bangalore Development Authority
2008-07-17
A.S.BOPANNA
body2008
DigiLaw.ai
Judgment :- (This review petition filed under order 47 rule 1 of CPC praying for review of the Order/Judgment and decree dated 16.2002 passed in W.P. No.36418/97.) Heard Sri C.B. Srinivasan, learned senior counsel on behalf of Sri Rameshchandra, learned counsel, Sri T.N. Raghupathy and Sri M.R. Rajagopal, learned counsel appearing for the respective petitioners, and sri K. Krishna, learned counsel for the respondent. 2. As common questions of law on similar facts are involved in the aforesaid matters, the same are heard together and disposed of by this common order. These petitioners had filed three connected writ petitions in this Court under Articles 226 and 227 of the constitution of India with a prayer to quash the notices dated 12.1997 and 12.1997 marked as Annexure – B and D respectively issued by the respondent/Bangalore Development Authority (‘the EDA’ for short). The further prayer was made for issuance of writ of mandamus for considering the case of the petitioners for reallotment/reconveyance of sites. The aforesaid petitions were consolidated for hearing and by a common order the matter came to be disposed of by a common order the matter came to be disposed of by a Division Bench on 16.2002. For the reasons recorded therein, the petitions were dismissed. On account of the dismissal of the said petition, petitioner/A.N. kamalamma who had filled W.P. No.36417/1997 and the petitioner in W.P. No.36418/1997 had approached the Hon’ble supreme Court by filing a special Leave petition which was registered as special Leave to Appeal (civil) No.19038/2002 and No.716/2003 respectively. It came up for hearing before the Hon’ble supreme Court on 21.2004. 3. It was contended by the learned counsel appearing for the petitioner before the Hon’ble Supreme Court that the High court had proceeded on some wrong factual premise. The Hon’ble supreme Court was of the view that if it was so, then the remedy of the petitioner lies in filing an application for review pointing out the factual premise wrongly presumed by the High court to exist. The Special Leave Petition came to be dismissed granting liberty to the petitioner to approach the High court seeking a review within 30 days from the day. Similar order came to be passed in the connected SLP (Civil) No.716/2003 and the claim of the petitioner therein to the right of his predecessor-in-interest was also noticed by the Hon’ble supreme Court.
The Special Leave Petition came to be dismissed granting liberty to the petitioner to approach the High court seeking a review within 30 days from the day. Similar order came to be passed in the connected SLP (Civil) No.716/2003 and the claim of the petitioner therein to the right of his predecessor-in-interest was also noticed by the Hon’ble supreme Court. However, following three pleas were raised by the Hon’ble Supreme Court which find place in the said order is reproduced herein below: i) There is a resolution of reconveyance passed by the authority; ii) Sale in favour of the petitioner is of a date prior to the date of acquisition notification; and iii) The Site claimed by the petitioner is not a civic amenity site. Thus essentially we are required to answer the aforesaid three pleas and find out as to whether the aforesaid three pleas have been made out by the petitioners so as to make out a case for review of the order dated 16.2002. .4. Before adverting to consider the factual matrix involved and the contentious urged in respect of the above noted points, one aspect which is required to be noticed is that the petitioner in W.P. No. 36416/1997 had not questioned the order dated 16.2002 before the Hon’ble Supreme Court. However, the review petition in RP No.320/07 is filed seeking review of the order on the same grounds as urged by the other review petitioners. In this regard, since there is delay of 1869 days in filing the review petition as computed from the date of the order, an application is filed under Section 5 of the Limitation Act seeking condonation of delay. The respondents have filed their objections to the said application. The reasons assigned in order to seek condonation of delay would answer both with regard to sufficiency of cause for condonation of delay and also as to whether the petitioner therein can urge the questions formulated for consideration. Hence the reasons pleaded in the application for condonation of delay is noticed.
The reasons assigned in order to seek condonation of delay would answer both with regard to sufficiency of cause for condonation of delay and also as to whether the petitioner therein can urge the questions formulated for consideration. Hence the reasons pleaded in the application for condonation of delay is noticed. The petitioner though had suffered the order dated 16.2002 did not deem it proper to question the same before the Hon’ble Supreme Court, instead had instituted a Civil Suit in O.S. No.4826/2002 before the civil court seeking for a judgment and decree to declare that they are the absolute owner in possession of the property and for mandatory injunction to direct the defendant to execute the formal deed of sale for reconveying the suit schedule property. The declaration for ownership was sought on the basis of adverse possession. .The said suit came to be dismissed by a judgment and decree dated 28.3.2007. As against the same, the petitioner was before this Court in RFA No.1356/07. During the pendency of the said appeal, the petitioner on gaining knowledge of the review petition filed by the Co-petitioners in the earlier round of Writ petition based on the leave granted by the Hon’ble Supreme Court thought it fit to withdraw the regular first appeal and file the present review petition in RP no.320/07. The delay therefore is due to the fact that they were pursuing an alternate remedy before another forum. Considering the fact that two of the petitioners had approached the Hon’ble Supreme Court and the other petitioner was before the Civil Court and the said order being a common order in the three petitioners and further since the review is occasioned in view of the liberty granted by the Hon’ble Supreme Court, the same benefit would have to extend to this petitioner in the common order. In that context, if the delay involved is viewed, the same would constitute sufficient cause since the suit in question was instituted on 27.2002 i.e., about a month after the Writ petition was disposed of and has been agitating the similar contentions and it is not as if the petitioner had slept over the matter not was there any laches on his part.
Since the Hon’ble supreme Court has noticed the plea with regard to the two other petitioners and if the said contentions are held in favour of the review petitioners who are permitted such leave by the Hon’ble Supreme Court, the resultant effect would be that the earlier order dated 16.2002 would indicate error apparent and would call for review. If such review is made, the benefit of the same should also enure to the other Co-petitioners who is now in RP No, 320/07 and as such not only the delay is liable to be condoned but the contentions urged by the other petitioners are also to be considered. Hence IA-I/07 is allowed and the matter is considered on merits. 5. The facts of the case in short as appearing RP No.113/2004 are noticed for the purpose of narration. The petitioner claims to be the owner of sites formed in Sy.No.8/5 and 8/6 of Gerahalli village. According to her, she has purchased the respective sites from the predecessor in title, constructed houses thereon and has been in occupation thereof. Subsequently, the whole of the lands in question had been acquired by the respondent/BDA for the purpose of formation of layout and distribution of sites in accordance with the provisions of the Bangalore Development Act, 1976 (in short referred to as ‘the Act’). It is the case of the petitioner that while forming layouts, the respective sites on which some buildings were constructed had been left out from the layout on the ground that it was not practicable to include them in the layout plan. However the acquisition has been proceeded with for development of a planned layout and the roads etc., were to be provided. It has also been pleaded by the petitioner that in view of incorporation of Section 38-C of the act, BDA has passed the resolution to reconvey the respective sites to each of the owners of the sites with reference to the survey numbers. But then, instead of reconveying it to them, BDA proceeded to issue the impugned notices asking them to demolish the construction put up by the petitioners on such site. Hence the Writ petition was filed. .6. In the said Writ petition, objection statement was filed by the BDA denying the claim of the petitioner.
But then, instead of reconveying it to them, BDA proceeded to issue the impugned notices asking them to demolish the construction put up by the petitioners on such site. Hence the Writ petition was filed. .6. In the said Writ petition, objection statement was filed by the BDA denying the claim of the petitioner. According to it, earlier also, the petitioner had approached this Court by filing W.P. No.7242-7244/94 with the same prayer which came to be dismissed by considered order on 8.7.1997. Thus the subsequently petitions claiming the same relief would be hit by the doctrine of res-judicata. It was also contended by the respondent that instead of seeking recourse to law before the appropriate forum against the earlier order passed by this court on 8.7.1997, the petitioner cannot be permitted to file second petition seeking the same relief. It was submitted that the site in question had been earmarked as civic amenity sites in the layout plan and had been specifically reserved for the Police Station, Primary and Nursery Schools etc. As regards the amended para 3(a) & (b) of the petition, it was admitted that the respondent had resolved to regularize or reconvey the sites in favour of the site owner i.e., sites from 1380-A to H. Thus they have been assigned numbers specifically and these site had been reconveyed in favour of the respective names mentioned by the petitioner in para 3(a). According to the respondent, it had not committed any error or the irregularity in reconveying the sites in favour of the respective persons as per the resolution passed by the authority. As mentioned above, it is contended that since the area where the site of the petitioner is found is a civic amenity site, the benefit of reconveyance in favour of others cannot be of any advantage to the petitioner. Accordingly to it, the petition being misconceived is liable to be dismissed. 7. The petitioner had filed rejoinder to the said statement of objections wherein it has been mentioned with regard to the resolution No.651-657 dated 6.1.1979 and 629 dated 26.1980 which deal with regularization and reallotment as per Annexures-F and G since the land in question had already been developed much prior to the acquisition proceedings.
7. The petitioner had filed rejoinder to the said statement of objections wherein it has been mentioned with regard to the resolution No.651-657 dated 6.1.1979 and 629 dated 26.1980 which deal with regularization and reallotment as per Annexures-F and G since the land in question had already been developed much prior to the acquisition proceedings. Reference has also been made to Civil petition No.1036/1997 filed by the petitioner for review of the order wherein the Court has clarified that liberty is reserved to the petitioner to take such steps as required. But in the meanwhile, since these objection were filed, the said review petition came to be dismissed. According to the petitioner, the reference to a judgment of this Court in the case of Venkataswamy Reddy Vs. State of Karnataka (ILR 1989 (1) Kar page 75) was only mis-conceived as in that case, the Court was only considering the scope of Section 3 of the Act and not with regard to the right of the petitioner to claim reconveyance or for reallotment. It has further been contended by the petitioner that the lands question were already developed and therefore the same could not have been reserved as civic amenity site. In fact, the report of the official who had inspected the spot at that time reveals that the land is developed much prior to the issuance of notification. Reference has also been made with regards to newspaper publication dated 27.2008 published in Deccan Herald Daily describing the last date for preferring applications among site holders. The site are covered under the reconveyance or reallotment scheme under the BDA Act. It was therefore contended by the petitioner that the petitioner’s application for such relief is pending and without any reasons, on orders, have been passed therein. .8. In the backdrop of these averments made by the respective parties, all the three writ petitions were heard and disposed of by a common order. 9. While doing so, the Division Bench referred to the earlier order dated 8.7.1997 passed by this court in W.P. Nos. 7242-7244/1994 and held that the order passed on the said date was not challenged by the aggrieved party and the same had attained finality.
9. While doing so, the Division Bench referred to the earlier order dated 8.7.1997 passed by this court in W.P. Nos. 7242-7244/1994 and held that the order passed on the said date was not challenged by the aggrieved party and the same had attained finality. Hence it was observed that the petitioners cannot be permitted to reagitate their claim for the same relief in the writ petitions on the pretext of invoking Section 38-C of Act more so when the said provision was already available in the statute. Thereafter the right claimed under Section 38-C has been dealt with by the Bench. It was also held that if it was resolved by the BDA that the land is to be reconveyed to the claimant, then the same should have been excluded from the layout on the ground that it may not be practicable to include therein for the purpose of development scheme which was not done. Finally it recorded a finding that there was no express resolution of the respondent resolving that the sites in question were decided to be reconveyed to the petitioners. While dealing with subject No.629, which relates to regularization an reallotment of sites in survey numbers of Avalahalli, Gavipuram and Gerahalli villages under Banashankari III Stages, it was held that the terms ‘reconveyance’ and ‘reallotment’ in law carry different connotations; they did not have identical legal consequence and accordingly reconveyance could be only in favour of the owner of the land which had been already acquired to the BDA for the purpose of the Act whereas re-allotment could be in favour of the allottee of the site whose allotment for any reason whatsoever was either cancelled or annulled and then a subsequent decision was taken by the BDA to re allot the same to him. 10. While considering the contention of BDA that it is a civic amenity site, reference has been made to Section 38-A of the Act to contend that a bar is created from disposing of such sites by the BDA for any purpose other than the one for which they were meant in the layout plan. Lastly, it has been held that when the lands were purchased by the petitioners, their predecessors in title had already lost their title and interest therein in favour of BDA by virtue of the said land acquisition proceedings.
Lastly, it has been held that when the lands were purchased by the petitioners, their predecessors in title had already lost their title and interest therein in favour of BDA by virtue of the said land acquisition proceedings. Thus the petitioners have no subsisting legal right whatsoever in the property in question excepting their right to collect the proportionate compensation. On account of the aforesaid findings having been recorded by the Division Bench, the Writ petitions filed by the petitioners came to be dismissed. As already noticed above, out of the three petitions two petitioners had approached the Hon’ble Supreme Court and the matter had been disposed of granting permission to the petitioners to file review of the said order. That is how, the matters are once again before us. We have referred to this aspect in detail in order to indicate that as against the said findings of this Court in the earlier instance, the Hon’ble Supreme Court did not chose to approve the same even though the appeals were disposed of after hearing and it is not an in limine disposal, and in that context has permitted the petitioners to raise the said pleas noticed above and as such the matter requires detailed reappraisal and not a review in its normal connotation. 11. Though separate review petitions have been filed, we would dispose them by this common order since the review is of the common order in three writ petitions. It has not been disputed before us that all the sites belonging to the petitioners fall in Sy. Nos.8/5 and 10/4 of the Gerehalli village. We shall take up plea No.1.
11. Though separate review petitions have been filed, we would dispose them by this common order since the review is of the common order in three writ petitions. It has not been disputed before us that all the sites belonging to the petitioners fall in Sy. Nos.8/5 and 10/4 of the Gerehalli village. We shall take up plea No.1. i) There is a resolution of reconveyance passed by the authority; To press this point, the learned counsel appearing for the petitioner has drawn our attention to Section 38c of the Act which reads as under: “38-C. Power of authority to makes 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, Bangalore has already passed a resolution to reconvey in favour of any person any site 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”. It came into force with effect from 20.12.1975. A perusal of the said provision makes it clear that it commences with non-abstante clause which states that notwithstanding what is contained in the Act, the authority can reconvey the sites which belong to it or vested in or acquired by it for any development scheme. The site could be reconveyed by the authority provided it is not practicable to include such a site for the purpose of development scheme. The allotment of such site could be made in favour of such person from whom the lands had been acquired and allotment could only be by way of sale or lease subject to the allottees paying such charges which they levy from time to time and extent of site allotted under the said provision together with the land held by the allottee would not exceed the ceiling limit.
To bring this to action there should be a resolution to reconvey which is passed earlier. Therefore the question would be as to whether there was resolution to that effect and the purport of such resolution and if so whether the same would serve the purpose. 12. In this regard, our attention has been drawn to the proceedings of the meeting by the BDA held on 26.1980 which deals with regularization and reallotment of sites. Subject No.629 which pertains to the aforesaid petitioners read thus: “Proceedings of the Meeting of the BDA, Bangalore held on Saturday the 21st June 1980. Subject No.629: Regularisation and reallotment of sites in certain survey numbers of Avalahalli, Gavipuram and Gerehalli villages, under Banashankari III Stage – fixation of layout charges – reg. ....... It was resolved that while approving the regularization and reallotment of sites in Sy.Nos. 5 to 8, 12, 22, 23, to 31, 14, 17, 20 and 21 of Gerahalli village in BSK III Stage. Avalahalli and Gerahalli village in BSK III stage the proposal to collect layout charges at Rs.23/-per sq.yd., intermediate site owners and Rs.34,50 per sq. yd from corner site owners is approved. The Engineer Member is requested to bring up under one subject all other regularization by reallotment cases in other extensions which are pending for a long time, so that the cases of other revenue site owners may also be solved. Sd/- Chairman BDA Bangalore This resolution also shows that it does not deal with Sy. No.10. Regarding Sy.N0.10 we have to advert to the award passed by the Land Acquisition Officer dated 211.1980 under the heading of title and apportionment. It is stated therein that Sy. No.10 of Gerahalli Village of Banashankari III stage has also been included and reference has been made to the resolution No. 451 to 457 of BDA dated 6.1.1979. Accordingly the Land Acquisition Officer states that the land will be developed after taking possession of the land and the sites along with their structures if any will be regularized to the site owners. Thus there is no question of payment of compensation. The same is only a formal award to take the possession of the land by the BDA for the formation of roads, drains etc.
Thus there is no question of payment of compensation. The same is only a formal award to take the possession of the land by the BDA for the formation of roads, drains etc. The perusal of the said awards shows that even though the amount of compensation was worked out, but it was directed not to be disbursed to the land owners, especially, to those who had made constructions on the respective sites. This was also only due to the fact that there was a resolution passed by the BDA for reconveyance of site to those persons who had already made some construction on their land. It is also pertinent to mention with regard to the proceedings of the inspection meeting of the BDA held on 6.1.1979 with regard to subject No.651 to 657. The development works which were proposed to be taken up were indicated by the authority on the said date. Thereafter it was noted that there were uneven land with small hillocks and valleys with unauthorized construction scattered here and there and required a lot of reconnaisance work on the field by Town Planning Section so as to arrive at a realisation picture and to prepare the development plan. Thus it was decided that only execution of civil portion of work would be undertaken. Coming to the resolution passed with regard to reallotment and regularization, it has been contended by the learned counsel for the petitioner that only two conditions were required to be satisfied. They are: i) That it must be impracticable to include the site in the scheme; and ii) there should have been antecedent resolution to this effect; If the petitioner has been also to satisfy these two conditions, then the respondent was bound to reconvey the site in favour of the petitioner. No, doubt, it is true that the word ‘reconveyance’ has not been used in resolution No. 629 and instead the words used are ‘regularization’ and ‘reallotment’ of site. But it is implicit in the resolution of the BDA that what it really meant by regularization and reallotment of the site was only reconveyance of the site. The overall cumulative effect of the aforesaid facts and features of the case is that there was already a resolution for reallotment and regularization of the site which had been passed by the respondent.
The overall cumulative effect of the aforesaid facts and features of the case is that there was already a resolution for reallotment and regularization of the site which had been passed by the respondent. The same is also clearly evident from the award passed by the Land Acquisition Officer. Thus we are of the opinion that there appears sufficient indication that there already existed a resolution for reconveyance passed by the authority in favour of those person with reference to the survey number in the village. Since the petitioners are interested in Sy. Nos.8/5 and 10/4 wherein they have also made construction and since the same is included in the resolution, the condition contained in Section 38-C of the Act is satisfied in the facts of this case. Thus plea No.1 answered in favour of the petitioner and against the respondent. 13. Now coming to plea No.2 the same reads as thus: iii) Sale in favour of the petitioner is of a date prior to the date of acquisition notification. In this regard certain dates and material are to be noted. The date of preliminary notification is 9.5.1968. On 9.5.1964 part of Sy.No.10/4 was sold in favour of the father of the petitioner by predecessor in title i.e., Sri H.T.S Rao. With regard to Sy. No.8/5, the same was sold by registered deed of sale on 7.1964 by Sri V. Lakshman Rao in favour of the father of the petitioner. Even though their names do not find a place in the Column of Khatedar, but it appears to us that soon after purchase of the properly vide aforesaid two registered deeds, of sale, they had not got their names mutated and as such in the original record the names of their predecessor in title Mohammed Sab was continued. But the names have been indicated in the award as anubhavadar. This would go to show that the first petitioner had purchased land even prior to date of preliminary notification. Thus plea No.2 has to be answered in favour of the first petitioner in the first petition and against the respondent without further discussion. 14. However it may be pertinent to mention here that the benefit of prior sale deed may not be available to other petitioners as admittedly some of the sale deeds are subsequent of the date of preliminary notification.
14. However it may be pertinent to mention here that the benefit of prior sale deed may not be available to other petitioners as admittedly some of the sale deeds are subsequent of the date of preliminary notification. But at this stage, suffice it to say that respondent BDA itself has admitted in response to the amendment made in para 3(a) of the petition that they have executed the sale deed in favour of those persons whose names have been mentioned in the said amended para3(a), who had prayed for reconveyance of site on the ground that they had made some constructions despite those persons having purchased subsequent to the preliminary notification. Thus in view of the accepted position that BDA has already the sale deeds in favour of similarly situated persons, the same right cannot be denied to other petitioners even tough their sale deed might have been subsequent to the date of issuance of preliminary notification as it will otherwise amount to discrimination. 15. Though this alone was sufficient, we would be failing in our duty, if we do not refer to the judgments which have been cited by the learned counsel for the parties on this aspect of the matter Learned counsel for the respondent placed reliance on a full bench judgment of this Court in the case of Poornaprajana House Building Co-operative Society Vs. Bailamma @ Dodda Bailamma And ORS (ILR 1998 KAR 1441). Our attention has been drawn to para No.28 of the said judgment which reads as thus: “28. Writ appeals 2090-94/93 arising out of writ petition Nos. 480 to 484/93 have been filed by the purchasers of the lands after the issuance of notification under Section 4(1) of the Act. Now it is a well settled proposition of law that a person who purchases the land subsequent to the issuance of the notification under section 4(1) of the Act, cannot be said to be the owner. Such a purchaser has no right to challenge the acquisition itself, although he is entitled to claim compensation by virtue of sale made in his favour i.e., of right, title and interest of his predecessor. Reference may be made to the judgment of the Supreme Court in Union of India Vs. Sri. Shivkumar Bhargava and Others (JT 1995(6) SC 274).
Such a purchaser has no right to challenge the acquisition itself, although he is entitled to claim compensation by virtue of sale made in his favour i.e., of right, title and interest of his predecessor. Reference may be made to the judgment of the Supreme Court in Union of India Vs. Sri. Shivkumar Bhargava and Others (JT 1995(6) SC 274). It was held that: “The policy of the Government indicated that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification under section 4(1) was published. This was the view of this Court in another case while considering the Full Bench Judgment of the Delhi High Court. Under these circumstance, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification under Section 4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The writ petition stands dismissed. No costs”. 16. A perusal of the aforesaid judgment shows that on para 28 reproduced hereinabove, reference has been made to another judgment of the Supreme Court reported in Union of India Vs. Shivakumar Bhargava & ORS (JT 1995(6) SC 274). In the light of the said observations made in the aforesaid judgments, learned counsel for the respondent strenuously contended before us that due to the fact that some of the petitioners are subsequent purchasers from the original allottee of the site, they would not be entitled to make the prayer for reallotment/reconveyance of site to them. On the other hand, learned counsel for the petitioner submitted before us that the ratio of the aforesaid case in the matter of Poornaprajna Co-operative Society (cited supra) would not be applicable to the facts of this case. To put the point across, learned counsel for the petitioner has taken us through the full text of the judgment reported in JT 1995(6) SC 274 which was referred in Poornaprajna case.
To put the point across, learned counsel for the petitioner has taken us through the full text of the judgment reported in JT 1995(6) SC 274 which was referred in Poornaprajna case. He submitted that the said case dealt with a situation where it was only on account of the policy of the Government that persons whose lands were sought to be acquired were directed to be given one site out of the lands acquired. But this benefit was not extended to those who were the purchases of the land from the original owners after the issuance of notification under Section 4(1) of the Land Acquisition Act, 1894. This would go to show that there was no statutory obligation to allot a piece of land out of the land acquired, but only by way of policy with an intention to help the land owner to some extent, such decision, it was held that the land owner to some extent, such decision was taken by the government. Since it was only a policy decision, it was held that the same would not accrue to those who are purchasers of the land sought to be acquired after issuance of notification under Section 4(1) of the Land Acquisition Act. Thus in our considered opinion, the view expressed by the Full Bench does not apply to the facts on hand since the petitioners who are subsequent purchasers are not questioning the notification but are only seeking benefit of the resolution which had created a right in favour of their vendor. To canvass the point further, learned counsel for the petitioner placed reliance on a Division Bench judgment of this Court in Lakshmana Gowda Vs. State of Karnataka & Others (1981(1) KLJ page 1). Our attention has been drawn to paras 63,64, 65 and 66 which read as thus; .63. However, we do not consider it necessary to further elaborate the discussion relating to the question as it has been answered by the Supreme Court in M.B, Desai Vs. Siddalingappa ( AIR 1973 SC 190 ). There the Supreme Court was dealing with the change in the character of service Inam Lands which were resumed and had to be regranted under the provisions of Bombay Pargana and Kulkarni Watan (Abolition) Act, 1950, the relevant provisions of which are in Pari material with the provisions of the Principal Act.
Siddalingappa ( AIR 1973 SC 190 ). There the Supreme Court was dealing with the change in the character of service Inam Lands which were resumed and had to be regranted under the provisions of Bombay Pargana and Kulkarni Watan (Abolition) Act, 1950, the relevant provisions of which are in Pari material with the provisions of the Principal Act. Dealing with the question as to whether the holders of Watans, who were entitled to regrant of lands resumed under the Act, got title immediately on coming into force of the Act Providing for resumption and regrant or got title to the same after their actual regrant the .Supreme Court held that once an actual regrant was made, the title of the grantee related back to the date of commencement of the Act. From this pronouncement of the Supreme Court, it follows that the holder or the authorized holder of a Service Inam land did not get title to such land simultaneously with the coming into force of the Principal Act Providing for resumption and regrant of such land to the holder or the authorized holder, but he got title to such land only after such actual regrant was made, through by such actual regrant, his title to the land related back to the date of commencement of the Principal Act. .64. Hence, our answer to the question is that the holder or the authorized holder of a service Inam Land did not title to it when that land stood resumed to the Government under sub-section (3) of S.4 of the Principal Act, but he got title to it only when it was regranted to him under S.5 or 6, as the case may be, of the Principal Act. .Re: Question No.3: 2.65. We have already held that though the holder or the authorized holder lf a service Inam Land got little to such land only when it was actually regranted to him under S.5 or 6 of the Principal Act, such title related back to the date of coming into force of that Act.
.Re: Question No.3: 2.65. We have already held that though the holder or the authorized holder lf a service Inam Land got little to such land only when it was actually regranted to him under S.5 or 6 of the Principal Act, such title related back to the date of coming into force of that Act. From this, it would follow that if he purported to alienate such land before it was regranted to him, but after the Principal Act came into force, the doctrine of feeding the grant by estoppel embodied in S.43 of the Transfer of Property Act, would apply and the title he subsequently acquired on such regrant of that land, would enure to the benefit of his alienee who would get a good title to such land after such regrant to his alienor. There is also no good reason why the benefit of S.43 should be denied to such an alienee when the Principal Act did not prohibit the holder or the authorized holder of a service Inam Land from transferring his interest or right therein after it was resumed and before it was regranted to him, 3.66. Hence, our answer to the question it that if the holder or the authorized holder of a Service Inam Land had alienated it after the Principal Act came into force and before it was regranted to him under 4.S.5 or 6 of the Principal Act, the alienee acquired a title to that land after such regrant to his alienor”. 17. In the light of this, it has been argued by the learned counsel for the petitioner that once the regrant is made in favour of the vendor, then the automatic effect thereby would be that the purchaser’s title would get perfected. In view of this, it was contended that section 38-C of the Act is clear which contemplates reconveyance of the title of the site to the land owner if the conditions mentioned therein has been fulfilled by him.
In view of this, it was contended that section 38-C of the Act is clear which contemplates reconveyance of the title of the site to the land owner if the conditions mentioned therein has been fulfilled by him. Therefore, we are of the view that in the instant case if the said principle is applied, the resolution for reconveyance had already enured to the benefit of the Vendor in view of the statutory provision and even though the actual reconveyance was not made by BDA, the purchase of the site by the petitioner though before the benefit of actual reconveyance would fructify in favour of the petitioner when reconveyance is made, in view of the pre-existing resolution. 18. Coming to plea No.3 it reads as under: iii) the site claimed by the petitioner is not a civic amenity site. Section 2(bb) of the BDA Act described Civic Amenity site as under; “Civic amenity “ means: i) a market, a post office, a telephone exchange , a bank fair price shop, a milk booth, a school, a dispensary, a hospital, a pathological laboratory, a maternity home, a child care centre, a library, a gynmasium, a bus stand or a bus depot, ii) a recreation centre run by the Government or the Corporation; iii) a centre for educational, social or cultural activities established by the Central Government or the State Government or by a body established by the Central Government or the State Government; iv) a centre for education, religious social or cultural activities or for philanthropic service run by a cooperative Society Registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) or a Society Registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960) or by a Trust Created wholly for charitable, Educational or Religious purposes; v) a Police Station, an Area Office or a service station of the Corporation or the Bangalore Water Supply and Sewerage Board or the Karnataka Electricity Board; and vii) Such other amenity as the Government may, by notification, specify.” 19. However, the arguments advanced by the learned counsel for the parties would indicate that it is not necessary to deal with this aspect of the matter at great length since as to whether the indication of the relevant area as the civic amenity area in the lay out plan would be justifiable at all would answer this plea.
However, the arguments advanced by the learned counsel for the parties would indicate that it is not necessary to deal with this aspect of the matter at great length since as to whether the indication of the relevant area as the civic amenity area in the lay out plan would be justifiable at all would answer this plea. The original layout plan was placed before us for our perusal on this aspect. The date of approval of the said plan was not clearly legible. Thus we made enquiries from the learned counsel for the respondent who informed us that it as been prepared some time between 12.1982 to 10.1983 which he was able to point out from the dates which had been mentioned below the signatures of the authorities concerned. Thus it becomes evidently clear that this development plan is drawn up subsequent to resolution No.629 which was passed on 26.1980. It may be recalled that in the resolution No.629, certain lands including the lands of the petitioner was resolved to be left from the layout plan as it was already built up and was for reallotment and regularization, meaning thereby that they were kept for being reconveyed. If the said sites were kept for reconveyance, in the subsequent development plan the very same site could not have been earmarked by the respondent for civic amenities and on that basis the benefit cannot be denied. In this view of the matter, the third plea is also answered in favour of the petitioner and against the respondent. 20. For the above said reasons we are of the considered opinion that in view of the pleas raised being held in favour of the petitioners the earlier order dated 16.2002 dismissing the petitions is liable to be reviewed and modified. Accordingly, the following: I) R.P.Nos.94/04, 113/04 and 320/07 are allowed and the order dated 16.2002 in W.P. No.36416 to 36418/1997 (BDA) shall stand reviewed. II) The impugned notice dated 12.1997 and 12.1997 at Annexures-B and D to all the Writ Petitions are quashed. III) The respondent- BDA is directed to consider the case of the petitioners to reconvey the respective sites in question subject to the petitioners complying with the other regular conditions to effect reconveyance. IV) Consequently the Writ Petition in No.36416, 36417 and 36418/1997 are allowed in the above terms but, with no order as to costs.