C.T. Thimmiah and Others vs Venkateshwara Developers and Others

Subhro Kamal Mukherjee, Acting C.J—There is an application for condonation of delay in Writ Appeal Nos. 2272/2014 and connected cases. Learned advocate for the respondents submit that they are not opposing the prayer for condonation of delay and submit that the appeals may be considered on merits.

Therefore, by consent of the parties, the application for condonation of delay stands allowed.

These writ appeals are by the writ petitioner Nos. 3 and 4 and Bruhat Bengaluru Mahanagara Palike (''BBMP'' in short) challenging the decision of the Hon''ble Single Judge dated January 20, 2014 in Writ Petition Nos. 30279 to 30282 of 2013.

The facts are not much in dispute, but interpretation of such facts is surely in dispute.

Admittedly, these writ petitioner Nos. 3 and 4 were owners of 40 acres of land within Bangalore-Mysore Infrastructure Corridor Area Planning Authority (BMICAPA). Some time in the year 2010, BBMP wanted to acquire lands outside the BBMP jurisdiction for construction of waste disposal units. Although offers were made from the month of January 2010, favourable offers did not come from the land owners.

On April 28, 2011, these writ petitioner Nos. 3 and 4 addressed a letter to the BBMP intending to surrender their lands in lieu of Development Right Certificate (DRC). Since the lands were not within the BBMP area, the offer could not be straight away accepted by the BBMP.

The matter was placed before the government for an amicable solution so that a site could be acquired for the purpose of solid waste disposal. There were deliberations before the government. Ultimately, the government decided to treat the matter as a special case as the issue was of a serious nature.

The government, on June 8, 2011, decided to relax the conditions under Section 14-B of the Karnataka Town and Country Planning Act, 1961 (''the Act'' for short) and expressed its consent for issue of Transferable Development Right (TDR) certificates by BMICAPA. Liberty was granted to the owners to utilize the said TDR certificates within a radius of 25 kilometres based on the report of the District Commissioner, Ramanagara District.

It seems that the owners were not capable of initiating development work themselves and, as such, having entered into an agreement with the writ petitioner Nos. 1 and 2, the builders and developers, the writ petitioner Nos. 3 and 4 executed a general power of attorney in favour of the partners of the writ petitioner Nos. 1 and 2 upon receipt of a sum of Rs. 16,48,00,000/- (Rupees sixteen crore and forty eight lakh) only as consideration for the schedule lands. The payments were made by cheques and it is not in dispute that the owners have encashed those cheques and appropriated the amount.

Subsequently, on August 25, 2012, the writ petitioner Nos. 3 and 4 executed an agreement for sale of the same area and the amount that was advanced at the time of execution of the power of attorney was shown as the consideration amount for the sale.

We are of the considered opinion, taking into account the entire transaction, that the land owners conveyed their right, title and interest in favour of the writ petitioner Nos. 1 and 2 on receipt of a sum of Rs. 16,48,00,000/- (Rupees sixteen crore and forty eight lakh) only.

When the government, on January 3, 2013, after a cabinet approval, granted permission to the BBMP to acquire the disputed lands under the TDR scheme, a notification was issued under Section 14-B of Act by BBMP stating that the lands referred to in the notification were required for establishment of garbage disposal plant and they intended to acquire the said lands under TDR scheme. The notification was published in two leading local newspapers, that is, Prajavani and Vijaya Karnataka.

Consequent thereto, the writ petitioner Nos. 3 and 4 executed deeds of relinquishment on March 8, 2013, in favour of the BBMP in consideration of the DRCs. The BBMP, also, issued TDR certificates in favour of the writ petitioner Nos. 3 and 4. The land owners, that is, the writ petitioner Nos. 3 and 4, executed registered deeds of conveyance conveying their right, title and interest in the said DRCs in favour of the writ petitioner Nos. 1 and 2.

Once the right was transferred without any demur or objection by the writ petitioner Nos. 3 and 4 in favour of the writ petitioner Nos. 1 and 2, we can safely hold that the owners lost their interest in relation of their lands or in relation of their DRCs.

The writ petitioner Nos. 1 and 2 approached the authorities for regularization of transfer of the DRCs in their favour. The respondent Nos. 1 and 2, accepting regularization of transfer of DRCs, entered into agreements with third parties. There was some dispute between the BBMP and BMICAPA as to who would issue the DRCs. Both the parties approached the government for settlement of the issues.

In the meantime, on April 1, 2013, BBMP unilaterally cancelled the DRCs. No opportunity was granted either to the writ petitioner Nos. 3 and 4 or the writ petitioner Nos. 1 and 2 before unilateral cancellation of the DRCs.

Having regard to our discussions, we are of the opinion that the writ petitioner Nos. 1 and 2 are right in protesting against such unilateral cancellation of DRCs by the BBMP and requesting to revalidate the DRCs.

In the aforesaid background, the above writ petitions were filed jointly by the four writ petitioners challenging, inter alia, the decision of the BBMP unilaterally cancelling the DRCs. All the parties were notified and they contested the case before the writ court.

The Hon''ble Single Judge, by the order impugned before us, was of the opinion that since acquisition of the lands was for the benefit of the BBMP, the BBMP could not have cancelled the DRCs and could not have objected to transfer of such rights in respect of the lands within its jurisdiction. The BMICAPA was directed to comply with the directions notwithstanding that there was no formal notification extending the authority of the BBMP to issue TDR certificates in view of the government order dated January 3, 2013.

We, thus, do not find any fault in the order of the Hon''ble Single Judge that the parties were to take necessary steps for execution of a rectified deed of relinquishment and the land owners would surrender the TDR certificates to the BBMP. The BMICAPA was rightly directed to issue a fresh TDR certificate in respect of the lands in question.

However, in view of the facts narrated above, we concur with the views expressed by the Hon''ble Single Judge that there has been a transfer of right from the writ petitioner Nos. 3 and 4 in respect of the disputed lands in favour of the writ petitioner Nos. 1 and 2 after the TDR certificates were issued by the BBMP. It shall not be necessary for the petitioner Nos. 3 and 4 to join the proposed future transactions and it would be valid for the respondent Nos. 1 and 2 alone to execute necessary documentation to complete the transaction instead and in place of the petitioner Nos. 3 and 4. BMICAPA is directed to issue fresh TDR certificates to the writ petitioner Nos. 1 and 2 directly and, thereafter, to surrender the old TDR certificates to BBMP.

After all, the writ court is a court of equity. Considering the fact that the writ petitioner Nos. 3 and 4 accepted Rs. 16,48,00,000/- (Rupees sixteen crore and forty eight lakh) only from the builders and developers in consideration of transfer of their right, we cannot shut our eyes to the right that has accrued in favour of the builders and developers.

Before we part with, we must record the submission of Mr. Dwarakanath, learned advocate appearing for the writ petitioner Nos. 3 and 4, that the writ petitioner Nos. 3 and 4 did not join the writ petitioner Nos. 1 and 2 in moving the writ petitions. There was conflict of interest between them and, as such, they could not join together.

In view of the facts narrated hereinabove, we fail to see conflict of interest. In fact, we feel that the interest of the writ petitioner Nos. 3 and 4 were transferred long back in favour of the writ petitioner Nos. 1 and 2. They had received the consideration. The consideration amount is not small. It was Rs. 16,48,00,000/- (Rupees sixteen crore and forty eight lakh) only. Now, it would be unequitable for us to permit them to avoid the transaction taking advantage of spiral rise of land value in the State of Karnataka.

Mr. Dwarakanath, learned advocate, was of the opinion that when the writ petitioner Nos. 3 and 4 do not want to proceed with the said writ petitions, they should be permitted to withdraw the writ petitions. He raised various issues about conflict of interest between the writ petitioners.

It is not possible to transform this appeal forum as a civil court to decide the inter se dispute between the writ petitioners. We are not inclined to permit the writ petitioner Nos. 3 and 4 to withdraw the writ petitions unilaterally without the consent of the writ petitioner Nos. 1 and 2. Moreover, certain findings were arrived at against the writ petitioner Nos. 3 and 4 and they want to withdraw the writ petitions now to reagitate the issue again before another forum.

We cannot, as a court of equity, encourage this kind of attitude. The memo filed by the writ petitioner Nos. 3 and 4 for withdrawal of the writ petitions is, accordingly, dismissed.

The other connected appeals are filed by the BBMP. The matter was adjourned on the last occasion to accommodate the learned senior advocate of BBMP. Today, in the morning session, a prayer was made for adjournment. We wanted the matter to be settled by the parties, but unfortunately, to our dismay, the settlement could not be arrived at. Today, the matter has been fixed for disposal under the heading ''for orders''.

Mr. Devendrappa, learned advocate for BBMP, however, appears and adopts the arguments of Mr. Dwarakanath, learned advocate and Mr. S.G. Pandit, learned advocate appearing for BMICAPA.

Mr. S.G. Pandit, learned advocate, submits that the directions issued by the Hon''ble Single Judge was erroneous.

We fail to see grievance of the BMICAPA as they have not preferred the appeal. As a respondent, they cannot now turn round and say, in appeals by the BBMP and the writ petitioner Nos. 3 and 4, that the order impugned is erroneous. We, further, hold that when BBMP has got possession of the lands in lieu of the relinquishment deeds, BBMP can continue holding the rights over the said lands and BMICAPA must confirm the same.

We, therefore, affirm the order of the Hon''ble Single Judge. We trust and hope that the BBMP and BMICAPA will come together to do whatsoever is necessary to enable the writ petitioner Nos. 1 and 2 to complete the future transactions in the matter, expeditiously.

In view of the disposal of the writ appeals, the other interlocutory applications in Writ Appeal Nos. 600 to 601 of 2014 and connected cases become infructuous and are disposed of accordingly.

We, however, direct the parties to bear their respective costs in these appeals.