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

Karnataka High Court

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

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

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 and

227 of the Constitution of India, praying to quash the
impugned Government order dated 12.03.2013 vide Annx-A
and direct the R1 to consider the petitioners proposal as filed
before the Court by way of the Interlocutory Application vide
Annx-F.

These Writ Petitions are having been reserved for

orders, coming on for pronouncement this day, the Court
pronounced the following:
3

ORDER

The petitioners are before this Court assailing the Government Order dated 12.03.2013 impugned at
Annexure-A to the petition. By the said order, the Government has approved the proposal of the
fourth respondent to enter into Public Private Partnership (PPP) with the third respondent for
construction of Cubbon Park Station. The petitioners are seeking consideration of their proposal as
per Annexure-F to these petitions.
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Smt Yashoda Gowdh vs The State Of Karnataka on 8 October, 2013

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 fourth
respondent. The third respondent has challenged the acquisition by filing W.P.No.4297/2010. The
petitioners herein claiming to have certain leasehold rights in respect of the said property have also
challenged the acquisition in W.P.Nos.7756-58/2010. The said petitions filed by the petitioners
herein and the third respondent herein challenging the acquisition are pending consideration. In the
meanwhile, the third respondent who is the owner of the property has put forth a proposal to the
fourth respondent to develop the property through a developer whereby the fourth respondent
would be entitled to use the required extent of property without acquisition and payment of
compensation, while the third respondent would also be benefited. The said proposal after
consideration has crystallised in the issue of the impugned Government Order. The petitioners
herein claim to be aggrieved as they have been excluded from the said process. They contend that by
filing an interlocutory application in their petition in W.P.Nos.7756-58/2010 challenging the
acquisition, 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 that
their predecessor late A.B.V.Gowdh entered into an agreement of lease dated 31.07.1974 with the
third respondent in respect of the property in issue for an initial period of 56 years with an option of
renewing the same for a further period of 10 years. He was put in physical possession of the vacant
portions 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 have
inherited the leasehold rights. They contend that the property was in possession of Bharath Sanchar
Nigam Ltd., (BSNL). When the petitioner learnt about the acquisition by the Karnataka Industrial
Development Board (KIADB) for the benefit of the fourth respondent and since the petitioners were
not notified, they had filed W.P.No.28455/2009 challenging the acquisition notification. This Court
by the order dated 07.10.2009 disposed of the petition without going into the rival contentions, but
permitted the petitioners to put forth their objections to the acquisition proceedings. Since the
acquisition was proceeded further by rejecting objections, the petitioners have filed W.P.Nos.775658/2010 which is pending. The proposal to develop is made by filing an application therein. Since in
the meanwhile the proposal of the third respondent has been accepted without involving the
petitioners herein, they claim to be aggrieved on that aspect and also on the aspect that the
Government order is contrary to law and in violation of the Karnataka Transparency in Public
Procurement Act ('the KTPP' Act for short).
4. The third respondent through their objection statement have at the outset questioned the locus
standi of the petitioners. Their claim of having inherited leasehold rights is denied. Though the lease
agreement dated 31.07.1974 with the predecessor is admitted, it is contended that it has been
terminated. The civil suit filed against BSNL who were in possession and the same attaining finality
before the Hon'ble Supreme Court is referred. Further the suit in O.S.No.15507/2000 filed against
the petitioners and the same being decreed in favour of the third respondent herein is also referred
and it is contended that the petitioners have no right whatsoever. With regard to the procedure
followed in passing the Government Order, the third respondent have sought to contend that the
same is in accordance with law. On that aspect, the other respondents have also filed their separate
objection statement and have averred with regard to the procedure followed and the permissibility
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Smt Yashoda Gowdh vs The State Of Karnataka on 8 October, 2013

in entering into such PPP agreement for mutual benefit. Hence, the impugned Government Order is
sought to be justified by all the respondents.
5. Heard, Sri Jayakumar S Patil, learned senior counsel along with Ms. Nalini Mayegowda learned
counsel 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 Government
Advocate for the first and second respondents and Sri N.N. Harish, learned counsel for the fourth
respondent and perused the petition papers.
6. The learned senior counsel for the petitioners while claiming right in their favour would refer to
the lease deed dated 31.07.1974 and in that context has contended that when acquisition
proceedings was initiated by excluding the petitioner, they had approached this Court in
W.P.No.28455/2009. The petitioners had been given the right to file their objections. When that
process was completed and the petitioners are before this Court once again challenging the
acquisition notification by filing W.P.Nos.7756- 58/2010 and when the third respondent herein have
also filed similar petitions, wherein the validity of acquisition is yet to be decided, the decision to
develop the property on PPP basis should have included the petitioners also. On the other hand, if
the acquisition was set aside, the petitioners would continue to be the lessees or even if the
acquisition is upheld, since their names are included in the notification, they would be entitled to a
share in the compensation which will be apportioned by the Civil Court. Therefore, if such right was
being taken away by the impugned Government Order by granting approval to the development
agreement, the same could not have been done without hearing the petitioners. The learned senior
counsel further attacked the Government Order as being contrary to the established procedure in as
much as the Finance Department had disapproved the same and a decision was taken to reject the
proposal, but it has been subsequently approved based on the Cabinet approval as per the recital in
the order, but the relevant papers are not produced.
7. The further contention of the learned senior counsel for the petitioners is that when notification
under Section 28(4) and (5) of the KIADB Act is issued, the property vests with the acquiring
authority. The official respondents have not stated that it has been withdrawn from acquisition nor
has any notification been issued. Therefore, when the property remains to be acquired, the
developer could not have been involved. The order does not indicate details of agreement and as
such there is non-application of mind. Further, when it is a property under acquisition and if
development is to be made involving third party, it should have been done only after following the
procedure contemplated under KTPP Act. The provisions in Section 2(a) (e) and (f) are referred. The
decision in the case of Babu Verghese and others -vs- Bar Council of Kerala and Others [(1999) 3
SCC 422] is relied to contend that if the manner of doing a particular act is prescribed under any
statute, the act must be done in that manner or not at all. The decision in the case of Shree
Chamundi 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 operation
from the date of stay and it does not mean that the order has been wiped out from existence, to
contend that despite stay of acquisition notification, it would still be a property under acquisition
and cannot be treated as private property.

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

8. The learned senior counsel for the third respondent has questioned the very locus standi of the
petitioners to raise all such contentions with regard to the Government order when they have no
right in respect of the property involved. The sequence of events relating to the civil litigation
between the parties inter-se was referred with specific reference to the observation made in SLP. But
the petitioners not having filed any other suit cannot claim any right. BSNL who were in possession
as tenants have vacated the property in 2009. The observation made in W.P.No.28137/2009 does
not give any right to the petitioners as the same is not done after determining the right. The
petitioner who has suppressed about the orders passed in civil proceedings is not entitled to any
relief. The decree in O.S.No.15507/2000 has already declared that the lease does not exist. Since in
the appeal filed there is no interim order, the petitioner cannot continue to claim any right
contending 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 who
approaches the Court is bound to produce all documents which are relevant to the litigation and if
he withholds vital documents, he would be guilty of fraud on the Court is relied to contend that the
petitioners should be non- suited for suppression of facts.
9. The learned senior counsel for the third respondent on the other aspects would contend, since the
final notification is stayed in W.P.Nos.4297- 98/2010, the land has not yet vested. As per the
understanding with the third respondent herein the construction of diversion is permitted. The land
therefore 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. The
provisions of KTPP Act would not apply and the need for calling tender does not arise. The decisions
in 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) 2
SCC 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 1997
Karn 1071) are relied to contend that tender or public auction though desirable is not necessary in
all cases.
10. The learned counsel for the fourth respondent and learned Government Advocate have
contended that after issue of the acquisition notification, the third respondent who is the owner of
the property have come up with the proposal for development. Though the Finance Department had
raised certain issues, the High Power committee had considered the same and the State Cabinet has
taken the decision to overrule the issues raised by the Finance Department. Rule 17 (2) of Business
Transaction Rules are referred. The request of the petitioners is not necessary to be considered
merely because their names are indicated in the notification. The records of the cabinet approval
were also referred. The KTPP Act would not apply to the instant case as it is not procurement as
invited by the fourth respondent, nor are they paying money for development, but what is being
allowed is only joint development and after it is finalised, the acquisition notification will be
withdrawn. The decision in the case of Thomas Patra (deceased) by LR -vs- The State of Karnataka
and Others (2005 (3) KCCR 2190) is relied on to contend that it has been held that issue of the
notification under Section 28 (4) & (5) of KIADB Act would not conclude the right until the
procedure under Section 29 of KIADB Act is complete and the Government is empowered to
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Smt Yashoda Gowdh vs The State Of Karnataka on 8 October, 2013

withdraw the land from acquisition before taking possession.

11. In the backdrop of the rival contentions urged by the learned senior counsel and the counsel
appearing for the respective parties, in my opinion, though contentions have been urged relating to
the correctness or otherwise of the procedure followed before the impugned Government order was
passed and as to whether the provisions of KTPP Act would be applicable in the present nature of
transaction, the question would be as to whether those issues would arise for consideration in a
petition 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. I
am of the said opinion for the reason that serious question has been raised with regard to the very
leasehold right claimed by the petitioners. Hence, if that aspect is considered at the outset and only
if an unassailable leasehold right is made out in favour of the petitioners, the question as to whether
the impugned Government order is bad in all respects as contended on behalf of the petitioners
would arise for consideration. On the other hand, even if the petitioners case would point to a
situation that the civil litigation between them and the third respondent has not attained finality, the
petitioners may have to work out their remedies as per law and the impugned Government order
would 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 between
the petitioners and the third respondent will have to be adverted to. The fact that a lease deed dated
31.07.1974 (Annexure-B) was executed between the predecessor of the petitioners late A.B.V. Gowdh
and the third respondent is not in dispute. The said A.B.V. Gowdh died on 18.04.1975 and the
petitioners claim to have inherited the leasehold rights. The question is as to whether the
contentions relating to leasehold right still being in existence is established. At this juncture, the
petitioners in order to claim their right to be considered relating to the joint development based on
the 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 the
acquisition notification as the occupants, the same has been incorporated pursuant to the
opportunity directed to be granted by the order dated 07.10.2009 in the earlier petition. A perusal of
the said order will disclose that this Court had not determined the right but on taking note of the
rival contentions, this Court was of the view that it is unnecessary to go into that question and
granted opportunity to the petitioners herein to file their objections before the Land Acquisition
Officer, since in any event the third respondent had been granted such opportunity. Under any
circumstance the Land Acquisition Officer could not have decided the contentious issue relating to
the right to the property based on the rival claims. Therefore, this aspect alone is not sufficient to
hold that the right of the petitioners has been accepted by this Court or by the Land Acquisition
Officer 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 to
be noticed. Firstly, it is the case of the third respondent that the obligations under the lease deed
dated 31.07.1974 including to evict the tenants and put up construction had not been complied by
the petitioners or their predecessor and as such the lease was terminated by issue of legal notice
dated 11.01.1990. At that point, since BSNL was occupying the property, the notice was served on
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them as well. Thereafter again a notice dated 06.06.1995 was issued by the third respondent to
BSNL directly terminating the lease and suits in O.S.No.10886/95 and O.S.No.10887/95 for
recovery of possession, arrears of rent and damages were filed. The suits were decreed by the
judgment dated 31.10.2000. BSNL had filed appeals in RFA Nos.253/2001 and 254/2001 which
were dismissed by this Court vide judgment dated 18.11.2006 (Annexure- R7). The judgment and
decree was executed and the possession was taken during the pendency and as such the same was
closed. The petitioners were objectors in the said execution, but their application was rejected since
the execution was closed on satisfaction being recorded on behalf of the Decree Holder i.e., the third
respondent herein. Further, the petitioners herein had assailed the judgment in RFA Nos.253 and
254/2001 by filing SLP (CC 3263/2007) before the Hon'ble Supreme Court which was rejected
without prejudice to their right in execution proceedings or in any fresh proceeding. As noticed, the
application in execution was dismissed, but no other fresh proceeding was initiated by the
petitioners 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 that
the lease deed dated 31.07.1974 is validly and duly terminated and for actual vacant and physical
possession. The said suit was decreed by the judgment dated 30.01.2012 declaring that the lease
deed 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 of
possession has been dismissed and as such the petitioners are continuing in possession. Reference is
made to finding on Issue No.6 and it is contended that despite the same, the Government by the
impugned 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 the
findings rendered on other issues and it has been stated so. While answering Issue No.5 and
Additional Issue No.2, the judgment will disclose that the Court was categorical of the position that
the 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 the
eviction of persons who were not in possession did not arise. The petitioners however seem to have
filed an appeal in RFA No. 744/2012 and the same is said to be pending wherein those issues would
arise for consideration.
16. In the above backdrop, it would be appropriate to notice as to what would be the right of the
petitioners in the present circumstance if the process of acquisition was completed instead of the
joint development being resorted to under the PPP Model. On the award being passed and the
compensation being determined, if the petitioners protest the disbursement of compensation to the
third respondent, the Land Acquisition Officer in any event cannot determine the dispute but would
have to refer the same to the competent Court. While determining the right therein, the present
position in the civil litigation wherein the third respondent has independently evicted the tenants
who were in occupation and the decree granted in O.S.No.15507/2000 will militate against the
petitioners in securing a share in the compensation unless the petitioners succeed in the pending
RFA No.744/2012. This would indicate that as on today, the petitioners have not established an
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Smt Yashoda Gowdh vs The State Of Karnataka on 8 October, 2013

unassailable right even for seeking a share in the compensation as they have suffered setback in the
inter-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 is
passed without opportunity to the petitioners and that it is without application of mind ignoring the
claim of the petitioners and also without reference to the proposal put forth by them through their
interlocutory application filed in W.P.Nos.7756-58/2010 (Annexure-F) cannot be accepted at this
stage when the leasehold right claimed itself is in jeopardy due to adverse judgments suffered in the
inter-se civil litigations between the petitioners and the third respondent. In such situation, neither
the Government or the fourth respondent owed any duty nor were they under any legal obligation to
consider the view point of the petitioners in the prevailing circumstance. At this juncture, when the
property belonging to the third respondent was being acquired and in lieu of such acquisition, the
joint development of the property was proposed and orders were passed, the petitioners cannot
object to the same as the things stand. If at all the petitioners succeed in the pending appeal and
make out any right against the third respondent relating to the property in question, certainly they
would be entitled to enforce their right against the third respondent in a private litigation to seek
that share as per their entitlement from the benefit derived by the third respondent in view of the
joint development.
18. In any event, keeping in view the justification put forth by the respondents No.1, 2 and 4 with
regard to the procedure followed with reference to the Business Transaction Rules and the recital to
the Government Order, it will prima facie indicate that the procedure as contemplated has been
followed before the impugned order dated 12.03.2013 was issued. Though the learned senior
counsel for the petitioners had sought to assail the same on the contentions of procedural flaw and
violation of transparency as noticed above, a deeper consideration on that aspect of the matter
would not arise in the instant petition since I have already arrived at the conclusion that the
petitioners have at this juncture not established unassailable leasehold rights in respect of the
property and when such challenge on all aspects is raised on behalf of the petitioners by contending
that they have right in respect of the property relating to which the impugned order is passed, the
same does not merit consideration. At best, as indicated above, the petitioners can only claim their
share to the developed property, if ultimately they succeed in inter-se litigation between the
petitioners and the third respondent. To that extent, the contention of the petitioners is left open to
be urged in the appropriate proceedings.
For all the above said reasons, the challenge to the Government order dated 12.03.2013 is not
sustainable. The writ petition is accordingly dismissed. Parties to bear their own costs.
Sd/JUDGE akc/bms

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