smt yashoda gowdh vs the state of karnataka on 8 october, 2013

Karnataka High CourtSmt Yashoda Gowdh vs The State Of Karnataka on 8 October, 2013Author: A.S.Bopanna 1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 8TH DAY OF OCTOBER, 2013

BEFORE

THE HON'BLE MR. JUSTICE A S BOPANNA

WRIT PETITION Nos.15692-15694/2013 (GM-RES)

Between:

1. Smt. Yashoda Gowdh W/o late Sri A.B.V. Gowdh Aged about 77 years

2. Smt. Latha Puttanna D/o late Sri A.B.V. Gowdh Aged about 46 years

3. Sri A.V. Bharath S/o late Sri A.B.V. Gowdh Aged about 44 years

All are residing at No.592 III Main Road Sadashivanagar Bangalore - 560 080 ...Petitioners

(By Sri Jayakumar S Patil, Sr.Counsel for Ms. Nalina Mayegowda, Adv.)

And:

1. The State of Karnataka Rep. by the Principal Secretary Urban Development Department Vikasa Soudha Bangalore - 560 001

2. The State of Karnataka Rep. by its Additional Chief Secretary Finance Department 2

Smt Yashoda Gowdh vs The State Of Karnataka on 8 October, 2013

Indian Kanoon - http://indiankanoon.org/doc/169732529/ 1

Vidhana Soudha Bangalore - 560 001

3. Mohammed Musa Sait Wakf Having its office at "Yafa Guest House" No.22, Model School Road Chennai - 600 006 Rep. by its Muthavalli Mr. M. Muneer Sait, Major S/o Ismail Sait R/at No.18, New No.4 Shafee Mohammed Road Chennai - 600 006

4. Bangalore Metro Rail Corporation Ltd. A Company registered under the provisions of the Companies Act, 1956 3rd Floor, BMTC Complex K.H. Road, Shanthinagar Bangalore - 560 027 Rep. by its Director ...Respondents

(By Sri Uday Holla, Sr.Counsel for Sri C.K. Nandakumar, Adv. for R3 Sri Jagadish Mundargi, GA. for R1 & 2 Sri N.N. Harish, Adv. for M/s. Aaren Assts. for R4)

These writ petitions are filed under Articles 226 and227 of the Constitution of India, praying to quash theimpugned Government order dated 12.03.2013 vide Annx-Aand direct the R1 to consider the petitioners proposal as filedbefore the Court by way of the Interlocutory Application videAnnx-F.

These Writ Petitions are having been reserved fororders, coming on for pronouncement this day, the Courtpronounced the following: 3

ORDER

The petitioners are before this Court assailing the Government Order dated 12.03.2013 impugned atAnnexure-A to the petition. By the said order, the Government has approved the proposal of thefourth respondent to enter into Public Private Partnership (PPP) with the third respondent forconstruction of Cubbon Park Station. The petitioners are seeking consideration of their proposal asper Annexure-F to these petitions.



2. The brief facts are that the third respondent is the owner of the property bearing Nos.6 to 14,Cubbon Road, Bangalore. The said property was notified for acquisition for the benefit of the fourthrespondent. The third respondent has challenged the acquisition by filing W.P.No.4297/2010. Thepetitioners herein claiming to have certain leasehold rights in respect of the said property have alsochallenged the acquisition in W.P.Nos.7756-58/2010. The said petitions filed by the petitionersherein and the third respondent herein challenging the acquisition are pending consideration. In themeanwhile, the third respondent who is the owner of the property has put forth a proposal to thefourth respondent to develop the property through a developer whereby the fourth respondentwould be entitled to use the required extent of property without acquisition and payment ofcompensation, while the third respondent would also be benefited. The said proposal afterconsideration has crystallised in the issue of the impugned Government Order. The petitionersherein claim to be aggrieved as they have been excluded from the said process. They contend that byfiling an interlocutory application in their petition in W.P.Nos.7756-58/2010 challenging theacquisition, they have also put forth their proposal to develop the land.

3. To claim right to the said property which is the subject matter of acquisition, they contend thattheir predecessor late A.B.V.Gowdh entered into an agreement of lease dated 31.07.1974 with thethird respondent in respect of the property in issue for an initial period of 56 years with an option ofrenewing the same for a further period of 10 years. He was put in physical possession of the vacantportions and put in constructive possession of the portions which were in possession of the tenants.Thereafter the said A.B.V. Gowdh died on 18.04.1975 and the petitioners being the legal heirs haveinherited the leasehold rights. They contend that the property was in possession of Bharath SancharNigam Ltd., (BSNL). When the petitioner learnt about the acquisition by the Karnataka IndustrialDevelopment Board (KIADB) for the benefit of the fourth respondent and since the petitioners werenot notified, they had filed W.P.No.28455/2009 challenging the acquisition notification. This Courtby the order dated 07.10.2009 disposed of the petition without going into the rival contentions, butpermitted the petitioners to put forth their objections to the acquisition proceedings. Since theacquisition was proceeded further by rejecting objections, the petitioners have filed W.P.Nos.7756-58/2010 which is pending. The proposal to develop is made by filing an application therein. Since inthe meanwhile the proposal of the third respondent has been accepted without involving thepetitioners herein, they claim to be aggrieved on that aspect and also on the aspect that theGovernment order is contrary to law and in violation of the Karnataka Transparency in PublicProcurement Act ('the KTPP' Act for short).

4. The third respondent through their objection statement have at the outset questioned the locusstandi of the petitioners. Their claim of having inherited leasehold rights is denied. Though the leaseagreement dated 31.07.1974 with the predecessor is admitted, it is contended that it has beenterminated. The civil suit filed against BSNL who were in possession and the same attaining finalitybefore the Hon'ble Supreme Court is referred. Further the suit in O.S.No.15507/2000 filed againstthe petitioners and the same being decreed in favour of the third respondent herein is also referredand it is contended that the petitioners have no right whatsoever. With regard to the procedurefollowed in passing the Government Order, the third respondent have sought to contend that thesame is in accordance with law. On that aspect, the other respondents have also filed their separateobjection statement and have averred with regard to the procedure followed and the permissibility



in entering into such PPP agreement for mutual benefit. Hence, the impugned Government Order issought to be justified by all the respondents.

5. Heard, Sri Jayakumar S Patil, learned senior counsel along with Ms. Nalini Mayegowda learnedcounsel for the petitioner, Sri Udaya Holla, learned senior counsel along with Sri C.K. Nandakumar,learned counsel for the third respondent, Sri Jagadish Mundargi, learned Additional GovernmentAdvocate for the first and second respondents and Sri N.N. Harish, learned counsel for the fourthrespondent and perused the petition papers.

6. The learned senior counsel for the petitioners while claiming right in their favour would refer tothe lease deed dated 31.07.1974 and in that context has contended that when acquisitionproceedings was initiated by excluding the petitioner, they had approached this Court inW.P.No.28455/2009. The petitioners had been given the right to file their objections. When thatprocess was completed and the petitioners are before this Court once again challenging theacquisition notification by filing W.P.Nos.7756- 58/2010 and when the third respondent herein havealso filed similar petitions, wherein the validity of acquisition is yet to be decided, the decision todevelop the property on PPP basis should have included the petitioners also. On the other hand, ifthe acquisition was set aside, the petitioners would continue to be the lessees or even if theacquisition is upheld, since their names are included in the notification, they would be entitled to ashare in the compensation which will be apportioned by the Civil Court. Therefore, if such right wasbeing taken away by the impugned Government Order by granting approval to the developmentagreement, the same could not have been done without hearing the petitioners. The learned seniorcounsel further attacked the Government Order as being contrary to the established procedure in asmuch as the Finance Department had disapproved the same and a decision was taken to reject theproposal, but it has been subsequently approved based on the Cabinet approval as per the recital inthe order, but the relevant papers are not produced.

7. The further contention of the learned senior counsel for the petitioners is that when notificationunder Section 28(4) and (5) of the KIADB Act is issued, the property vests with the acquiringauthority. The official respondents have not stated that it has been withdrawn from acquisition norhas any notification been issued. Therefore, when the property remains to be acquired, thedeveloper could not have been involved. The order does not indicate details of agreement and assuch there is non-application of mind. Further, when it is a property under acquisition and ifdevelopment is to be made involving third party, it should have been done only after following theprocedure contemplated under KTPP Act. The provisions in Section 2(a) (e) and (f) are referred. Thedecision in the case of Babu Verghese and others -vs- Bar Council of Kerala and Others [(1999) 3SCC 422] is relied to contend that if the manner of doing a particular act is prescribed under anystatute, the act must be done in that manner or not at all. The decision in the case of ShreeChamundi Mopeds Ltd., -vs- Church of South India Trust Assn. Madras [(1992) 3 SCC 1] is referred,wherein it is held that the stay of operation of an order only means that it would not be in operationfrom the date of stay and it does not mean that the order has been wiped out from existence, tocontend that despite stay of acquisition notification, it would still be a property under acquisitionand cannot be treated as private property.



8. The learned senior counsel for the third respondent has questioned the very locus standi of thepetitioners to raise all such contentions with regard to the Government order when they have noright in respect of the property involved. The sequence of events relating to the civil litigationbetween the parties inter-se was referred with specific reference to the observation made in SLP. Butthe petitioners not having filed any other suit cannot claim any right. BSNL who were in possessionas tenants have vacated the property in 2009. The observation made in W.P.No.28137/2009 doesnot give any right to the petitioners as the same is not done after determining the right. Thepetitioner who has suppressed about the orders passed in civil proceedings is not entitled to anyrelief. The decree in O.S.No.15507/2000 has already declared that the lease does not exist. Since inthe appeal filed there is no interim order, the petitioner cannot continue to claim any rightcontending to be a lessee. The decision in the case of S.P. Changalvaraya Naidu -vs- Jagannath[(1994) 1 SCC 1] wherein it is held that a process of Court cannot be abused and a litigant whoapproaches the Court is bound to produce all documents which are relevant to the litigation and ifhe withholds vital documents, he would be guilty of fraud on the Court is relied to contend that thepetitioners should be non- suited for suppression of facts.

9. The learned senior counsel for the third respondent on the other aspects would contend, since thefinal notification is stayed in W.P.Nos.4297- 98/2010, the land has not yet vested. As per theunderstanding with the third respondent herein the construction of diversion is permitted. The landtherefore remains to be the land of the third respondent and the development is on their own land.The petitioners have not even given proposal except filing application in the writ petition. Theprovisions of KTPP Act would not apply and the need for calling tender does not arise. The decisionsin the case of Netai Bag and others -vs- State of W.B. and others [(2008) 8 SCC

262); in the case of Sachidanand Pandey and Anr. - vs- State of West Bengal and Others [(1987) 2SCC 295]; in the case of Natural Resources Allocation. In. Re.Special Reference [(2012) 10 SCC 1]and in the case of Zee Telefilms Limited and others -vs- State of Karnataka and Others (ILR 1997Karn 1071) are relied to contend that tender or public auction though desirable is not necessary inall cases.

10. The learned counsel for the fourth respondent and learned Government Advocate havecontended that after issue of the acquisition notification, the third respondent who is the owner ofthe property have come up with the proposal for development. Though the Finance Department hadraised certain issues, the High Power committee had considered the same and the State Cabinet hastaken the decision to overrule the issues raised by the Finance Department. Rule 17 (2) of BusinessTransaction Rules are referred. The request of the petitioners is not necessary to be consideredmerely because their names are indicated in the notification. The records of the cabinet approvalwere also referred. The KTPP Act would not apply to the instant case as it is not procurement asinvited by the fourth respondent, nor are they paying money for development, but what is beingallowed is only joint development and after it is finalised, the acquisition notification will bewithdrawn. The decision in the case of Thomas Patra (deceased) by LR -vs- The State of Karnatakaand Others (2005 (3) KCCR 2190) is relied on to contend that it has been held that issue of thenotification under Section 28 (4) & (5) of KIADB Act would not conclude the right until theprocedure under Section 29 of KIADB Act is complete and the Government is empowered to



withdraw the land from acquisition before taking possession.

11. In the backdrop of the rival contentions urged by the learned senior counsel and the counselappearing for the respective parties, in my opinion, though contentions have been urged relating tothe correctness or otherwise of the procedure followed before the impugned Government order waspassed and as to whether the provisions of KTPP Act would be applicable in the present nature oftransaction, the question would be as to whether those issues would arise for consideration in apetition filed by the petitioners herein and whether they have made out a right to assail the same.Therefore, the decisions cited in that regard would arise only in that circumstance, not otherwise. Iam of the said opinion for the reason that serious question has been raised with regard to the veryleasehold right claimed by the petitioners. Hence, if that aspect is considered at the outset and onlyif an unassailable leasehold right is made out in favour of the petitioners, the question as to whetherthe impugned Government order is bad in all respects as contended on behalf of the petitionerswould arise for consideration. On the other hand, even if the petitioners case would point to asituation that the civil litigation between them and the third respondent has not attained finality, thepetitioners may have to work out their remedies as per law and the impugned Government orderwould have to be seen in that perspective.

12. In that view, the fact situation arising in the instant case to determine the inter-se right betweenthe petitioners and the third respondent will have to be adverted to. The fact that a lease deed dated31.07.1974 (Annexure-B) was executed between the predecessor of the petitioners late A.B.V. Gowdhand the third respondent is not in dispute. The said A.B.V. Gowdh died on 18.04.1975 and thepetitioners claim to have inherited the leasehold rights. The question is as to whether thecontentions relating to leasehold right still being in existence is established. At this juncture, thepetitioners in order to claim their right to be considered relating to the joint development based onthe impugned Government order, the order dated 07.10.2009 passed in W.P.Nos.28451-455/2009(Annexure-C) and the names of the petitioners indicated in the notification dated 19.01.2010(published on 20.01.2010) is relied upon. The names of the petitioners though indicated in theacquisition notification as the occupants, the same has been incorporated pursuant to theopportunity directed to be granted by the order dated 07.10.2009 in the earlier petition. A perusal ofthe said order will disclose that this Court had not determined the right but on taking note of therival contentions, this Court was of the view that it is unnecessary to go into that question andgranted opportunity to the petitioners herein to file their objections before the Land AcquisitionOfficer, since in any event the third respondent had been granted such opportunity. Under anycircumstance the Land Acquisition Officer could not have decided the contentious issue relating tothe right to the property based on the rival claims. Therefore, this aspect alone is not sufficient tohold that the right of the petitioners has been accepted by this Court or by the Land AcquisitionOfficer more particularly in the context in which it is being considered at present.

13. Therefore, the other proceedings between the parties, on which reliance has been placed needs tobe noticed. Firstly, it is the case of the third respondent that the obligations under the lease deeddated 31.07.1974 including to evict the tenants and put up construction had not been complied bythe petitioners or their predecessor and as such the lease was terminated by issue of legal noticedated 11.01.1990. At that point, since BSNL was occupying the property, the notice was served on



them as well. Thereafter again a notice dated 06.06.1995 was issued by the third respondent toBSNL directly terminating the lease and suits in O.S.No.10886/95 and O.S.No.10887/95 forrecovery of possession, arrears of rent and damages were filed. The suits were decreed by thejudgment dated 31.10.2000. BSNL had filed appeals in RFA Nos.253/2001 and 254/2001 whichwere dismissed by this Court vide judgment dated 18.11.2006 (Annexure- R7). The judgment anddecree was executed and the possession was taken during the pendency and as such the same wasclosed. The petitioners were objectors in the said execution, but their application was rejected sincethe execution was closed on satisfaction being recorded on behalf of the Decree Holder i.e., the thirdrespondent herein. Further, the petitioners herein had assailed the judgment in RFA Nos.253 and254/2001 by filing SLP (CC 3263/2007) before the Hon'ble Supreme Court which was rejectedwithout prejudice to their right in execution proceedings or in any fresh proceeding. As noticed, theapplication in execution was dismissed, but no other fresh proceeding was initiated by thepetitioners to establish their right in respect of the property in question.

14. On the other hand, the third respondent in fact got issued a legal notice dated 06.03.2000(Annexure-R6) to the petitioners and filed a suit in O.S.No.15507/2000 seeking for declaration thatthe lease deed dated 31.07.1974 is validly and duly terminated and for actual vacant and physicalpossession. The said suit was decreed by the judgment dated 30.01.2012 declaring that the leasedeed dated 31.07.1974 is validly and duly terminated. The relief of possession was however declined(Annexure-R1).

15. The learned senior counsel for the petitioners no doubt sought to contend that the relief ofpossession has been dismissed and as such the petitioners are continuing in possession. Reference ismade to finding on Issue No.6 and it is contended that despite the same, the Government by theimpugned order has aided the dispossession of the petitioners which is not permissible. In that view,on perusal of the judgment, I find that Issue No.6 has been answered in that fashion in view of thefindings rendered on other issues and it has been stated so. While answering Issue No.5 andAdditional Issue No.2, the judgment will disclose that the Court was categorical of the position thatthe defendants No. 1 to 3 therein i.e., the petitioners herein were not in possession and therefore,the damages and compensation was not necessary to be determined which obviously meant that theeviction of persons who were not in possession did not arise. The petitioners however seem to havefiled an appeal in RFA No. 744/2012 and the same is said to be pending wherein those issues wouldarise for consideration.

16. In the above backdrop, it would be appropriate to notice as to what would be the right of thepetitioners in the present circumstance if the process of acquisition was completed instead of thejoint development being resorted to under the PPP Model. On the award being passed and thecompensation being determined, if the petitioners protest the disbursement of compensation to thethird respondent, the Land Acquisition Officer in any event cannot determine the dispute but wouldhave to refer the same to the competent Court. While determining the right therein, the presentposition in the civil litigation wherein the third respondent has independently evicted the tenantswho were in occupation and the decree granted in O.S.No.15507/2000 will militate against thepetitioners in securing a share in the compensation unless the petitioners succeed in the pendingRFA No.744/2012. This would indicate that as on today, the petitioners have not established an



unassailable right even for seeking a share in the compensation as they have suffered setback in theinter-se civil litigation and the only avenue is to succeed in the appeal.

17. If the above aspect is kept in perspective, the contention that the impugned Government Order ispassed without opportunity to the petitioners and that it is without application of mind ignoring theclaim of the petitioners and also without reference to the proposal put forth by them through theirinterlocutory application filed in W.P.Nos.7756-58/2010 (Annexure-F) cannot be accepted at thisstage when the leasehold right claimed itself is in jeopardy due to adverse judgments suffered in theinter-se civil litigations between the petitioners and the third respondent. In such situation, neitherthe Government or the fourth respondent owed any duty nor were they under any legal obligation toconsider the view point of the petitioners in the prevailing circumstance. At this juncture, when theproperty belonging to the third respondent was being acquired and in lieu of such acquisition, thejoint development of the property was proposed and orders were passed, the petitioners cannotobject to the same as the things stand. If at all the petitioners succeed in the pending appeal andmake out any right against the third respondent relating to the property in question, certainly theywould be entitled to enforce their right against the third respondent in a private litigation to seekthat share as per their entitlement from the benefit derived by the third respondent in view of thejoint development.

18. In any event, keeping in view the justification put forth by the respondents No.1, 2 and 4 withregard to the procedure followed with reference to the Business Transaction Rules and the recital tothe Government Order, it will prima facie indicate that the procedure as contemplated has beenfollowed before the impugned order dated 12.03.2013 was issued. Though the learned seniorcounsel for the petitioners had sought to assail the same on the contentions of procedural flaw andviolation of transparency as noticed above, a deeper consideration on that aspect of the matterwould not arise in the instant petition since I have already arrived at the conclusion that thepetitioners have at this juncture not established unassailable leasehold rights in respect of theproperty and when such challenge on all aspects is raised on behalf of the petitioners by contendingthat they have right in respect of the property relating to which the impugned order is passed, thesame does not merit consideration. At best, as indicated above, the petitioners can only claim theirshare to the developed property, if ultimately they succeed in inter-se litigation between thepetitioners and the third respondent. To that extent, the contention of the petitioners is left open tobe urged in the appropriate proceedings.

For all the above said reasons, the challenge to the Government order dated 12.03.2013 is notsustainable. The writ petition is accordingly dismissed. Parties to bear their own costs.

Sd/-

JUDGE akc/bms




smt yashoda gowdh vs the state of karnataka on 8 october, 2013

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