K.A. Swami, J
1. At the stage of admission, records are received. The respondent has been notified and it has put in appearance through a Counsel.
2. As the Appeal can be disposed of on a short point, it is admitted and heard for final disposal.
3. During the course of hearing, the learned Counsel appearing for the respondent B.D.A. has produced two Gazette Notifications dated 20-5-1984 published in the Official Gazette dated 28-6-1984 and 23-11-1989 published in the Official Gazette dated 23-2-1989 issued under Sections 17(1) and 19(1) respectively of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the 'Act') acquiring the suit lands along with several other lands for the formation of Shinivagalu Tank Bed (Breached) and Surrounding Area Layout. Sri U.L.Narayana Rao, learned Senior Counsel appearing for the appellant submits that he has no objection for permitting the B.D.A. to produce the aforesaid two Notifications as additional evidence. I n addition to this, it is submitted by the learned Counsel for the appellant that one of the lands viz., S.No. 21/3 was withdrawn from acquisition and in support of this, he has produced a Gazette Notification bearing No. HUD 400 MNX 89 dated 21-8-1991 published in the Karnataka Gazette dated 19-9-1991 and requests that the said Notification betaken as additional evidence on behalf of the plaintiff-appellant. The learned Counsel appearing for the respondent B.D.A. has no objection for permitting the appellant to produce the said notification as additional evidence. Accordingly, we allow the application filed by the B.D.A. for production of additional evidence and also the application filed by the appellant for producing the aforesaid notification and mark the Notification bearing No. HUD 71 MNX 84 dated 20-5-1984 published in the Karnataka Gazette dated 28-6-1984 as Ex.D.7, the Notification bearing No. HUD 518 MNX 88 dated 23-11-1988 published in the Karnataka Gazette dated 23-2-1989 as Exhibit-D.8 and the Notification bearing No. HUD 400 MNX 89 dated 21 -8-1991 published in the Karnataka Gazette dated 19-9-1991 as Ex.P.20.
4. The appellant-plaintiff filed the aforesaid suit for specific performance and for issuing a direction to the defendant to execute the lease-cum-sale agreement and to issue possession certificate to the plaintiff in respect of the suit schedule property and also for a permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff.
5. The suit property measures 6 1/2 guntas. Out of this, 5 guntas of land is comprised in S.No. 20 and 1 1/2 guntas is comprised in S.No. 21/3 situated in Ejipura village, Begur Hobli, Bangalore South Taluk. The case of the plaintiff was that he was the owner of the suit property; that the defendant-B.D.A. for the purpose of forming a road entered into an agreement with the plaintiff to permit them to form a road and in lieu of it the B.D.A. would give C.A. Site No. 33 situated in IV Block, Koramangala Layout on a land to land basis measuring 97' X 77'; that accordingly he gave possession of the suit property and the plaintiff was also put in possession of C.A.Site No. 33 measuring 97' X 77'; that thereafter the B.D.A. had formed a road covering the suit site. However the B.D.A. was refusing to execute a lease-cum-sale agreement and also give possession certificate. Therefore, the plaintiff sought for the aforesaid reliefs.
6. The defendant BDA contested the suit and inter alia contended that the plaintiff was not entitled to the reliefs sought for in the plaint; that it Was not within the power of the B.D.A. to agree to give a C.A. site to the plaintiff; that the suit property was proposed for acquisition for the formation of a layout called Shinivagalu Tank Bed (Breached) and Surrounding Area Layout and a Preliminary Notification was issued on 25-4-1984; that the allegation that the Executive Engineer of the B.D.A. assured exchange of land in consideration of plaintiff giving up the land comprised in S.Nos.20 and 21/3 for formation of road was not true and correct; that the Executive Engineer of the B.D.A had no power or authority to give any assurance to the defendant so as to bind the B.D.A.; that he had not given any such assurance; that the B.D.A. is required to function in accordance with the provisions of the Bangalore Development Authority Act, 1976; therefore, it had no right to allot civic amenity site and as such the Resolution dated 27-8-1984 on which reliance was placed by the plaintiff was not legal and binding: that possession was not delivered to the plaintiff at any time; that C.A. Site No. 33 was formed in Sy.No. 22/1 of Ejipura village after due acquisition of the land; that W.P.No. 14766/90 filed by the plaintiff challenging the Preliminary Notification issued relating to the above land was withdrawn. Thus the defendant contended that the plaintiff was not entitled to any reliefs claimed in the suit.
7. On the basis of the pleadings of the parties, the trial Court raised the following issues:
1. Whether the plaintiff is entitled to direction against the defendant for executing the lease-cum-sale deed in respect of the suit property?
2. Whether the plaintiff is entitled to permanent injunction sought for?
3. To what order and reliefs the parties are entitled to?
8. The plaintiff examined himself as P.W.1. produced 19 documents which were marked as Ex.P.1 to P.19. The defendant examined two witnesses S.N.Prakash as D.W.1 and one Rajashekhar as D.W.2 and produced six documents which were marked as Exhibits-D.1 to D.6. In this Court also we have marked two documents produced by the defendant as Ex.D.7 and D.8 and one document produced by the plaintiff as Ex.P.20.
9. The trial Court on the basis of the evidence on record and in the light of the contentions urged before it, held thus, in paras 15 and 16 of the judgment:
'15. As far as relief of direction against the defendant to execute the lease-sum-sale agreement is concerned, I think the plaintiff is not entitled to the said relief in view of the voidness of the transaction. Howsoever morally the plaintiff may have a firm footing, but when tested by the provisions of the B.D.A. Act it becomes apparently clear that the agreement whatever the plaintiff entered with the B.D.A. is unenforcible since the B.D.A. being a statutory authority cannot act except in accordance with the provisions contained in the Act and Rules. The decision of the Division Bench of the Karnataka High Court reported in I.L.R.1990 throws ample light on the subject and the powers of B.D.A. to deal with the properties owned by B.D.A., acquired by B.D.A. and vested in B.D.A. Their Lordships have clearly laid down that the B.D.A. has no right to part with the land except in accordance with the provisions of the B.D.A. Act and Rules and while interpreting Section 38 held that it is only by virtue of the rules formulated with regard to allotment of site the B.D.A. can dispose of or release the properties to the public; otherwise than the said rules and the provisions it has been held that the B.D.A. has no right at all. The other ruling of the Karnataka High Court cited at the Bar also clearly indicate that the principles of promissory estoppel is not applicable and, more so, when there are no rules or regulations in the B.D.A. Act or in the Rules for reconveying the lands or alloting the lands other than what is prescribed under the Rules and the Act. Therefore, the aforesaid rulings cited above at the bar clearly apply to the facts of the case and the contract of exchange set up by the plaintiff appears to be a void contract and not within the competence of the B.D.A. Act to have made any such assurance of granting a portion of a site in a civic amenities site acquired by B.D.A for purpose of forming layout.
16. As far as the contention of plaintiff about the possibilities for the B.D.A. to make provision for civic amenities in any other area apart from site No. 33 and the non-description of site No. 33 in Ex.D.6 appears to be untenable contentions because it is the admitted case of the plaintiff that the civic amenities site No. 33 an area measuring 97' X 77' was assured to be given. With regard to making possible provision for providing a civic amenities site otherwise, I think no material is placed by the plaintiff and moreover, when once a layout is formed and the character of site is designated as civic amenities site, it is not within the competence of B.D.A. to change the land or alter the layout. Any alteration of a scheme have to be done and incorporated in Section 19 notification under the B.D.A. Act. Therefore, it appears to me that it is not permissible for the plaintiff to contend that B.D.A. can make provision for civic amenities in some other area, Moreover, the rulings of the Supreme Court cited at the bar is directly on the point and when once a site is designated for the purpose of civic amentias the change of its use is not permitted and it cannot be granted to any private individual. Therefore, it appears to me that on account of illegality in contract the plaintiff is not entitled to seek enforcement of the assurance or the promise whatever made by the B.D.A. and therefore, I find that the plaintiff is not entitled to the relief and answer issue No. 1 in the negative.
17. As far as permanent injunction is concerned, the plaintiff has not shown any material to show that he was inducted in possession and the plaintiff has not produced any material to show that any construction was put up by him and merely because a portion of area in civic amentias area is fenced, it does not mean that the plaintiff is put in possession. If the land is mere vacant land possession follows the title and in the absence of proof of plaintiff's possession by applying the presumption of law, the possession follows the title and S.No. 22/1 having been validly acquired by B.D.A. and B.D.A. having title, the land is presumed to be in possession of the B.D.A. and the plaintiff has failed to prove possession of the site.
Accordingly, the trial Court dismissed the suit.
10. In the light of the contentions urged on both sides, the following Points arise for consideration:
1) Whether the plaintiff is entitled to a decree for specific performance of the resolution dated 27-8-1984 passed by the defendant-BDA marked as Ex.P.2.?
2) Whether the B.D.A. is estopped from refusing to implement the resolution Ex.P.2 dated 27-8-1984; in other words, whether in the facts and circumstances of the case, the principle of promissory estoppel can be applied to the case on hand?
3) Whether the trial Court is justified in law and on facts in dismissing the suit of the plaintiff?
4) What order?
POINT NO. 1
11. It is not in dispute that site No. 33 is a civic amenity site. It is also not in dispute that the aforesaid site was formed out of the land bearing Sy.No. 22/1 of Ejipura village which was validly acquired for the purpose of the scheme framed under the Act. This has also been referred to in para 11 of the judgment of the trial Court. As already pointed out, the trial Court has held that it was not open to the B.D.A. to enter into an agreement with the plaintiff for exchange of suit site No. 33 for the land comprised in S.Nos. 20 and 21/3 of Ejipura village. The learned trial Judge has placed reliance on a Decision of this Court reported in : ILR1990KAR3320 , Telecom Employees Co-operative Housing Society Ltd. v. Scheduled Castes, Scheduled Tribes, Minority Communities & Backward Class Improvement Centre for holding that the Bangalore Development Authority could not have passed a Resolution dated 27-8-1984 Ex.P.2 granting C.A. site No. 33 to the plaintiff.
12. Sri U.L.Narayana Rao, learned Senior Counsel appearing for the appellant contended that having regard to the provisions contained in Section 35 and 38 of the Act, it was open to the B.D.A. to enter into an arrangement as per Ex.P.2. Under Ex.P.2, the B.D.A. has resolved to give C.A.site No. 33 measuring 97' X 77' to the plaintiff in consideration of the plaintiff foregoing 6 1/2 guntas of land comprised in S.No. 20 and 21/3 of Ejipura village.
13. It is not possible to hold that Sections 35 and 38 of the Act empower the B.D.A. to part with Civic Amenity Site for the purpose of formation of a road in lieu of the suit property in question. Section 35 of the Act provides that subject to the provisions of the Act and with the previous approval of the Government, the B.D.A. may enter into an agreement with the owner of any land or any interest therein whether situated within or without the Bangalore Metropolitan area for the purchase of such land. Therefore, firstly, in order to exercise the power under Section 35 of the Act, the B.D.A. has to obtain prior permission of the State Government. Secondly, the purchase of land permissible under Section 35 of the Act is not for the purpose of implementation of the scheme as contemplated in Section 16 of the Act, but it is for its own use only. In the instant case, the C.A.site in question as already pointed out, is formed out of the land acquired for the purpose of development scheme viz., Breaching of Shinivagalu Tank and developing tank bed and surrounding area. Therefore, the power under Section 35 of the Act for giving C.A.site to the plaintiff in lieu of the land comprised in S.Nos. 20 and 21/3 of Ejipura village was not available. Even for a moment it is held that it was permissible, there was no prior permission of the State Government obtained in this regard.
14. Section 38 of the Act has been interpreted by a Division Bench of this Court in Telecom Employees Co-operative Housing Society Ltd. v. Scheduled Castes, Scheduled Tribes, Minority Communities and Backward Classes Improvement Center. As per the said Decision, it is not open to the B.D.A. to exchange a civic amenity site in lieu of the suit property in exercise of its power under Section 38 of the Act. Thus the Resolution Ex.P.2 is beyond the power of the B.D.A.
15. In BANGALORE MEDICAL TRUST v. B.S.MUDDAPPA AND ORS., : [1991]3SCR102 the Supreme Court has held that there is no provision in the Act for alteration in a Scheme by converting one site to another except, of course, if it appeared to be improvement. But even that power is vested in the Authority and not the Government. In the instant case, the B.D.A. has not altered the scheme. Once under the Scheme a particular site is specified as a Civic Amenity Site, that cannot be altered except in accordance with the provisions contained in the Act and not by mere passing a Resolution of the nature in question. There is no evidence adduced by the plaintiff to show that the Scheme was altered in accordance with the provisions of the Act and the C.A. site in question was converted into a general site. Therefore, the Resolution passed by the B.D.A. as per Ex.P.2 was beyond its competence. Hence the trial Court was justified in holding that resolution could not be enforced as it was void and as such the relief sought for by the plaintiff to direct the B.D.A. to execute a lease-cum-sale agreement and to issue Possession Certificate relating to the suit property could not be granted, That being so, it follows that the plaintiff is not entitled to seek the relief of specific performance as sought in the plaint. Accordingly Point No. 1 is answered in the negative.
POINT NO. 2.
16. This is a case in which the plaint is based on the unauthorised act of the B.D.A. Nevertheless it is contended that pursuant to the representation made by the B.D.A. Ex.P.2, P.3 and other documents produced in the suit came into existence, and in pursuance thereof, the plaintiff handed over possession of his property to the defendant which had used it for the purpose of formation of a road. As such the plaintiff altered his position to his disadvantage on the representation made by the defendant. Therefore, the defendant was estopped from contending to the contrary and refusing to execute the lease-cum-sale agreement and issue Possession Certificate. Sri U.LNarayana Rao, learned Senior Counsel appearing for the appellant placed reliance on a Decision of the Supreme Court in VIJ RESINS PVT. LTD. AND ANR. v. STATE OF JAMMU AND KASHMIR AND ORS., : [1989]3SCR257 in this Decision, specific reliance was placed on para 25 of the Judgment which reads thus:
'25. Petitioners in writ petition No. 794/88 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lacs of rupees by way of land and buildings. The petitioner in the other two cases stated that investments had been made by them as welt. The petitioners were invited to set up industries by assuring them supply of the raw material. They changed their position on the basis of representations made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the commitments. We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel. It is true that there is no estoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Government is concerned, the rule of estoppel does not apply and the precedents of this Court are clear. It is unnecessary to go into that aspect of the matter as in our considered opinion the impugned Act suffers from the vice of taking away rights of property without providing for compensation at all and is hit by Article 31(2) of the Constitution.'
It may be pointed out that In the aforesaid case, the act of the State Government in inviting the petitioner therein to invest a sum of Rs. 1.68 crores in the shape of plant and machinery and Rs. 63 lakhs by way of land and building was not opposed to any law nor it was beyond the competence of the State Government. However, by reason of the law passed by the Legislature viz., Jammu and Kashmir Extraction of Resin Act, it became impossible for the State Government to perform its obligation. The petitioner challenged the very validity of the said Act which was struck down as suffering from the vice of taking away a property of a citizen without providing for adequate compensation and as such it was hit by Article 31(2) of the Constitution. Consequently, there was no obstacle whatsoever for the State Government to comply with its obligation or undertaking. Therefore, the Supreme Court held that the Rule of Promissory Estoppel was applicable to the case. Accordingly it directed the State Government to comply with its obligation. The facts stated above make it clear that the ratio of the said Decision cannot be applied to the case on hand. In the instant case, as already pointed out above, the very passing of the Resolution was beyond the competence of the B.D.A.
17. In VASANTKUMAR RADHAKISAN VORA v. THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY, : [1990]3SCR825 the Supreme Court has held thus:
'12. It is equally settled law that the promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield place to the equity, if larger public interest so requires and if it can be shown by the Government or public authority, for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The court on satisfaction would not, in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public authority.
Equally promissory estoppel should not be extended, though it may be founded on an express or implied promise stemmed from the conduct or representation by an office of the State or public authority when it was obtained to play fraud on the constitution and the enforcement would defeat or tend to defeat the constitutional goals. For instance a right to reservation either under Article 15(4) or 16(4) in favour of the Scheduled Castes, Scheduled Tribes or Backward Classes was made with a view to ameliorate their status socially, economically and educationally, so as to assimilate those sections into the main stream of the society. The persons who do not belong to those classes but produce a certificate to mask their social status and secure an appointment to an office or post under the State or public employment or admission into an educational institution maintained by the State or receiving aid from the State, on later investigation, though belated, was found that the certificate produced was false and the candidate was dismissed from the post or office or debarred or sent out from the institution or from the balance course of the study, the plea of promissory estoppel would always be found favour with the courts and being easily extended in favour of the candidate or party that played fraud on the Constitution. It would amount not only putting a premium on the fraud on the Constitution but also a denial to a reserved candidate and the general candidate as well. Therefore, the plea of promissory estoppel should not be extended to such areas.
Though Executive necessity is not always a good defence, this doctrine cannot be extended to legislative acts or to acts prohibited by the statute.'
The aforesaid Rule equally applies to the facts of the present case. Hence we are of the view that the Rule of Promissory Estoppel, in the facts and circumstances of the case, cannot at all be applied. Accordingly Point No. 2 is answered in the negative.
POINT.3
18. It may also be relevant to notice that during the course of hearing, the B.D.A. has produced Exs.D.7 and D.8. According to these documents, the suit property bearing S.No. 20 measuring 5 guntas has been acquired. However, the other property viz., 1 1/2 guntas comprised in S.No. 21/3 though - acquired earlier, came to be withdrawn from acquisition as per Ex.P.20 produced by the plaintiff. Thus major portion of the suit property viz., 5 guntas out of 61/2 guntas has been acquired. Therefore, the plaintiff would be entitled to seek compensation for the same in accordance with law. Hence in the light of the findings recorded on Points 1 and 2, the trial Court is justified in dismissing the suit both in law and on facts. Accordingly Point No. 3 is answered in the affirmative.
19. For the reasons stated above, the Appeal fails and the same is dismissed.
20. The right, if any, of the plaintiff in respect of 1 1/2 guntas comprised in S.No. 21/3 of Ejipura village which has been withdrawn from acquisition, is left open to be agitated in an appropriate proceedings before an appropriate forum.
21. In the facts and circumstances of the case, there will be no order as to costs, in this Appeal.