Bagalkot Town Development Authority Vs. Mallikarjun C. Charnatimath - Court Judgment

R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE14H DAY OF JUNE2021PRESENT THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NO.100075 OF2021(LA-UDA) BETWEEN:

1. Bagalkot Town Development Authority, Rep. by its Ex-Officio Secretary & Chief Engineer, Bagalkot-587103.

2. The Rehabilitation Officer, Bagalkot Town Development Authority, Bagalkot-587103. … Appellants (By Shri Gangadhar J.M., Advocate) AND:

1. Mallkiarjun C. Charantimath, S/o. Late Chandrashekhar Charantimath, Age 49 years, Occ: Business, R/at No.72, Sector No.52, Behind Veerbhadreshwar Temple, Navanagar, Bagalkot-587103.

2. The State of Karnataka, :

2. : Rep. by Secretary to the Department of Urban Development, Vidhana Soudha, Bengaluru-560001.

3. The Commissioner, Upper Krishna Project and Bagalkot Two Development Authority, Bagalkot-587103.

4. The Special Land Acquisition Officer, Upper Krishna Project, Navanagar, Bagalkot-587103. ... Respondents (By Shri Anant Mandagi, Sr. Counsel for Shri Avinath M. Angadi, Advocate for R1; Shri G.K. Hiregoudar, Government Advocate to R2 to R4) - - - - - - - - - This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, 1961, praying this Hon’ble Court to call for the records in W.P.No.110414/2019 and after examining the same; set aside the impugned order dated 17.07.2020, passed by the learned Single Judge in W.P.No.110414/2019 (LA-UDA) and dismiss the writ petition and to grant such other reliefs as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity. This Writ Appeal having been heard and reserved for judgment on 09.06.2021, coming on for pronouncement this day, Krishna S.Dixit, J, delivered the following: :

3. :

JUDGMENT

This Intra-Court Appeal seeks to lay a challenge to the order dated 17.07.2020 entered by the learned Single Judge of this Court in W.P. No.110414/2019 (LA-UDA) whereby the appellant and the State Government “are directed to consider the representation submitted by the petitioner and implement resolution dated 17.12.2012 in accordance with law”. A period of three months has also been prescribed for the compliance of this direction; the said resolution whose implementation is mandamussed provided for allotment of land to the writ petitioner i.e., the respondent herein.

2. After service of notice, the writ petitioner being the opponent has entered appearance through his counsel; the respondent – State Government & its officials are represented by the learned Government Advocate, who supported the case of appellants.

3. Learned counsel for the appellant submits that: the writ petition has been disposed off with no opportunity of filing objections thereto; there are a few resolutions which provide for allotment of land to the writ petitioner, is true; however, the land sought to be allotted to the writ :

4. : petitioner by these resolutions is far in excess of his entitlement under the Rules; without ascertaining prima facie regularity & legality of these resolutions, extraordinary jurisdiction constitutionally vested could not have been exercised in favour of the writ petitioner; petitioner although is a land loser, he has been awarded compensation; therefore it is not a case of allotment of land in lieu of compensation; in any circumstance no mandamus can be issued to enforce the resolution that are made in violation law; so arguing he seeks allowing of the writ appeal; learned Government Advocate supports the case of the appellant.

4. Learned Senior Advocate Mr. Anant Mandagi appearing for the writ petitioner contends that his client is admittedly a project displaced person, having lost his land in acquisition; he has received the compensation, is true; however it has nothing to do with his entitlement to allotment of a site for industrial purpose; several such allotments are made to project displaced persons; there are three resolutions consciously passed by the appellant for allotment of land to him; appellant being the author of :

5. : subject resolutions cannot be heard to say that these resolutions are contrary to law; this appeal lacks bona fide since it is preferred after the issuance of notice in the contempt proceedings; the appellant being a statutory authority has allotted lands to several persons similarly circumstanced & only the petitioner is discriminated against; the impugned order cannot be faultered on the grounds urged in the appeal; so contending he seeks dismissal of the same.

5. We have heard the learned counsel for the parties and perused the papers; we have looked into a plethora of rulings cited at the Bar; however, we have not mentioned about them since they discuss the principles of law relating to allotment of public property, doctrine of promissory estoppel, suppression of material fact & discretionary grant of writ remedy, which are now well settled; we are inclined to grant a limited indulgence in the matter as under and for the following reasons: a) Appellant is constituted as a statutory authority under the provisions of the Karnataka Improvements Board Act, 1976; it has statutory power to acquire and dispose of :

6. : property under the Act and Rules made thereunder, is not in dispute; the Bagalkot Town Development Authority (Allotment of Industrial Sites) Rules, 2004 are promulgated under Section 69 of the Act; they do not govern allotment of sites other than industrial sites; this is evident from the very title of these Rules; this apart, the provisions of Rule 2 define ‘industrial activity’, ‘industrial estate’, ‘industrial site or area’; Section 2(l) which defines ‘project affected entrepreneur’ itself employees the term ‘industrial activity’; the Preamble, text & context of these Rules make it abundantly clear that they govern allotment of “industrial sites” in favour of such of the land losers who have lost their industrial land. b) Rule 2 enacts the Definition Clause of these Rules; clause (l) read with clause (d) Rule 2 defines ‘Project Affected Entrepreneur’ as the one who was carrying on industrial activity within the city limits of Bagalkot as on 01.01.2002; obviously, the writ petitioner answers this definition having lost a small portion of industrial land out of 6 Acres & 6 Guntas in two survey :

7. : numbers; Rule 3 enlists categories of industrial sites or areas, based upon their size & value; Rule 4 provides for allotment of a single industrial site of the required size or category in favour of project affected entrepreneur if he intends to carry on the said industrial activity; Rule 7 empowers the authority to allot a site of bigger or any dimension than mentioned in Rule 3; this allotment may be by way of sale as mentioned in Rule 8 or on the basis of lease cum sale as stated in Rule 4(2); Rule 5 prescribes the procedure for allotment of industrial sites; Rule 7(3) speaks of rates/prices of sites at which allotment is to be made. c) Out of 6 acres & 6 guntas of land which the petitioner has lost in acquisition, only 1 acre & 33 guntas in Sy.No.256/3 was converted to non-agricultural purpose (industrial); he was running an oil mill only in this land, the other 4 acres & 13 guntas in Sy.No.256/3A admittedly being agricultural; he has received compensation for both the lands lost in acquisition, is not in dispute; the extent of land one loses in acquisition is not much relevant for claming an industrial site/area; :

8. : what is relevant is the acquisition of industrial land; if a person has lost 100 acres of land in all of which only 5 acres were being used for industrial purpose, the remaining 95 acres is irrelevant in treating the claim for the grant of industrial site. d) Both the learned counsel for the appellant authority and learned Government Advocate do not dispute the entitlement of the writ petitioner to the allotment of an industrial site of reasonable size and passing of the subject resolutions; in fact, the appellant had passed a resolution in the Board Meeting dated 16.06.2007 for allotting a commercial site admeasuring 7 Acres & 39 Guntas in Sy.Nos.134/2A & 2B in his favour at the rate for which allotments were made in favour of Anjuman and Kalidasa Educational Institutions vide Site Allotment Rules, 1993; pursuant to this, the third respondent- Commissioner (UKP) had issued an Allotment Letter dated 17.12.2008 is also not in dispute; however, this allotment was challenged by one Mr. Mallappa Byadgi in W.P. No.62782 of 2009 and the petitioner was 7th respondent therein; he surrendered this land back on the :

9. : assurance of the Appellant Authority of allotting an alternate land vide Resolution dated 17.12.2012 and therefore, the said writ petition was dismissed on 04.09.2015 as having become infructuous; e) The above Resolution dated 17.12.2012 on which the writ petition was founded reads as under: “«µÀAiÀÄ ¸ÀASÉå:O : ²æà ªÀÄ°èPÁdÄð£À ZÀAzÀæ±ÉÃRgÀAiÀÄå ZÀgÀAwªÀÄoÀ EªÀjUÉ ªÀÄAdÆjAiÀiÁzÀ D¬Ä¯ï «Ä¯ï eÁUÉ gÀzÀÄÝ¥Àr¸ÀĪÀ PÀÄjvÀÄ. oÀgÁªÀÅ: ²æà ªÀÄ°èPÁdÄð£À ZÀAzÀæ±ÉÃRgÀAiÀÄå ZÀgÀAwªÀÄoÀ, EªÀjUÉ D¬Ä¯ï«Ä¯ïUÁV6JPÀgÉ 1 UÀÄAmÉ eÁUÉUÉ gÀÆ.1,45,08,842.00 ªÉÆvÀÛªÀ£ÀÄß 45 ¢£ÀUÀ¼À M¼ÀUÁV ¥Áæ¢Pü ÁgÀPÉÌ ¨sÀj¸À®Ä ¢£ÁAPÀ 02-03-2009 gÀAzÀÄ w¼ÀĪÀ½PÉ ¥ÀvÀæ ¤ÃrzÀÄÝ, E°èAiÀĪÀgÉUÉ ¸ÀzÀjAiÀĪÀgÀÄ ºÀt ¨sÀj¹gÀĪÀ¢®è. ¸ÀzÀjAiÀĪÀgÀÄ ¢£ÁAPÀ 13-12-2012 gÀAzÀÄ Cfð ¸°À è¹ ¸ÀzÀj eÁUÉAiÀÄ §UÉÎ £ÁåAiÀiÁ®AiÀÄzÀ°è ªÁådå EgÀĪÀzÀjAzÀ D¬Ä¯ï «Ä¯ïUÉ eÁUÉ ºÀAaPÉ ªÀiÁqÀ¢gÀĪÀzÀjAzÀ PÉÊUÁjPÉ ¥ÁægÀA©ü¸À®Ä vÉÆAzÀgÉAiÀiÁUÀÄwÛzÉ. F eÁUÉAiÀÄ §zÀ¯ÁV ¨ÉÃgÉ eÁUÉ ªÀÄAdÆj¸À®Ä PÉýgÀĪÀzÀjAzÀ F »AzÉ ªÀÄAdÆj¸À®Ä ¸À¨sÉAiÀÄ°è wêÀiÁð¤¸À¯Á¬ÄvÀÄ. £ÀªÀ£ÀUÀgÀz°À è SÁ° EgÀĪÀ eÁUÉAiÀÄ §UÉÎ ªÀÄÄA¢£À ¸À¨sÉAiÀÄ°è ZÀað¹ wêÀiÁð£À vÀUÉzÀÄPÉƼÀî®Ä ¸À¨sÉ ¤tð¬Ä¹vÀÄ.” What emerges from the above discussion is that the petitioner being the Project Affected Entrepreneur having lost his industrial land in the acquisition, is entitled to allotment of an industrial site and accordingly, the resolutions were passed for making allotment; to this extent, there is some consensus at the Bar. However, learned Government Advocate & the :

10. : Panel Counsel vociferously submit that they have an issue as to what should be the area/extent of an industrial site to be allotted to the petitioner. (f) Learned Government Advocate contends that the petitioner was running his Oil Mill in the non- agricultural land in Sy.No.256/3 which admeasured only 1 Acre & 33 Guntas as mentioned above and therefore, in any event, he cannot lay a claim for a bigger land on the basis of subject resolutions; this aspect having not been adverted to by the learned single Judge, the impugned order in our opinion is infected with a legal infirmity; contra contention of Mr. Mandagi that the appellant being the author of the Resolutions whereby larger extent of land has been granted should be estopped from taking up this contention, does not much impresses us; contention of the kind is founded on the doctrine of promissory estoppel; this doctrine per se can grant a cause of action is true; but it is subject to just all exceptions. g) Ordinarily a land loser can found his claim for the grant of a site on the doctrine of promissory estoppel where :

11. : the allotment is not regulated by law can not be disputed; admittedly we have the 2004 Rules promulgated under the 1976 Act; the Apex Court in a catena of decisions has ruled that the property held by the State & its instrumentalities is always in Public Trust and therefore allotment of the same by sale, lease or otherwise has to be in accordance with the Rules governing the same; even in the absence of Rules the proper mode of disposal is by invoking the public law principles of reasonableness, equality & fairness, vide Saroj Screens Pvt. Ltd., V. Ghanshyam (2012(11) SCC434; therefore, the petitioner can seek enforcement of the subject resolutions only to the extent of they being in accordance with the 2004 Rules and the public law principles; in view of this, he is entitled to the grant of a site measuring 1 acre & 33 guntas only, which he was using for the industrial purpose before it was acquired; he has no right to seek allotment of larger extent. h) The doctrine of promissory estoppel is founded essentially on equity; the sages of law have said that :

12. : ordinarily, equity is justice outside law and therefore it cannot be done contrary to law; we need not say that there is no equity against law; merely because the subject resolutions had assured of granting land in excess of what the petitioner is legally entitled to, a Writ Court does not readily direct the implementation of said resolutions, verbatim; at the same time, the resolutions providing for the grant of excessive lands, do not become void in totto; Courts have to individualise justice by moulding the relief and for that purpose, they can read down the instruments, under which rights are claimed consistent with the law under which they are issued, disregarding their broad language & text and gratuitous grant.

6. Conduct of the petitioner: i) We will be failing in our duty as a Constitutional Court if we do not mention a significant fact a bit hidden in the record; the subject resolutions on which the writ petition was founded, and the writ appeal is being resisted were passed by the statutory Board which comprised inter alia of a Member of Legislative Assembly namely, Mr. :

13. : Veeranna Chanrantimath; his name appears in these resolutions; we ascertained from the Bar that he is none other than the brother of writ petitioner; the subject resolutions prima facie show his participation in the Board Meetings in which the decision to allot a huge land in favour of his brother, has been taken; ii) when attention was drawn to all the above, Mr. Mandagi, at once responded that these brothers are at loggerheads; neither the petitioner nor the appellants have whispered about this in their pleadings or submissions; we are not unsure that this fact was not notified to the learned single Judge, either; this is a grave & culpable lapse on the part of the writ petitioner, if not the other side; this MLA ought to have recused from the Board Meeting when it’s agenda was the grant of land to his brother; the Apex Court has time & again observed that the participation of relatives in the decision making process taints the decision and renders it vulnerable for challenge; the very suppression of an essential fact by a litigant seeking Writ remedy, itself can be a ground for non-suiting him; however, we refrain :

14. : ourselves from taking this extreme view since the writ petitioner has lost the land and he is otherwise entitled to grant of an industrial site of course of a reasonable size under the law. In the above circumstances, this appeal succeeds in part; the impugned order is modified to the effect that the appellant shall implement the subject Resolutions only to the extent of allotting an industrial site admeasuring 1 Acre & 33 guntas only, and report compliance to the Additional Registrar General of this Court within eight weeks; writ petitioner is liable to pay the price for the site in question at the applicable rates and has to comply with all other legal requirements. Costs made easy. SD/- JUDGE SD/- JUDGE Vnp* & Kms