Irappa and Ors vs The State of Karnataka and Others

Ashok B. Hinchigeri, J.—All these appeals are presented against the learned Single Judge''s common order, dated 24/2/2015 passed in W.P. No. 65387-396/2011 and other connected petitions.

The facts of the case in brief are that the lands measuring 206.6 acres situated in the four villages of Hiremalligwad, Kelgeri, Chikkamalligwad and Mammigatti were purchased by the Karnataka Housing Board (''KHB'' for short) on several dates in 2006 and 2007 for the purpose of a housing scheme. 40 sale deeds came to be executed, out of which 13 sale deeds were executed through the khathedars'' power of attorney holders. The grievance of the appellants is that the middlemen have siphoned off large chunk of the sale consideration. Alleging that some of the officials, more particularly the respondent Nos. 6 and 7 have played fraud on the appellants, the appellants filed the writ petitions seeking the directions to the Government and Lokayukta to take action against the officials of the KHB. They have also sought the relief of declaration that all the proceedings culminating in the purchase of the lands be annulled. The learned Single Judge, by his order, dated 24/2/2015 dismissed the writ petitions, but by holding that the appellants are entitled to one free 30 X 40 feet site per acre, as per the Government Order, dated 11/5/2011.

Sri V.M. Sheelvant, learned counsel for the appellants submits that the purchase of the lands is void ab initio, as there is no sanctioned scheme.

Sri Sheelvant submits that the four reports submitted by the C.I.D. indict the officials of the KHB of the fraud. He submits that no action whatsoever is being initiated against the erring officials of KHB.

The learned counsel submits that the KHB is supposed to be a non-profit making organization. But the KHB records reveal that it is earning profit of Rs. 27.77 crores in the housing project in question. He submits that the farmers are taken for a ride by the middlemen and are made to undersell their properties. He would therefore agitate for the grant of atleast two housing sites of 30 X 40 feet dimension free of cost.

The learned counsel also takes serious exception to the learned Single Judge depriving the appellants of their right of filing the appeals. He submits that filing the writ appeal is the fundamental right of the appellants and on the ground of their filing the writ appeal, the free allotment of one 30 X 40 feet site cannot be denied to them, because the Government Order, dated 11/5/2011 provides for the granting of such a free site for every one acre of land sold by them.

Sri V.P. Kulkarni, learned counsel appearing for the respondent Nos. 4 and 5 submits that the particulars of fraud are not pleaded. He submits that the appellants have not even mentioned the names of the middlemen or the power of attorney holder. He submits that even the reports of CID/Lokayukta only speak of illegalities and irregularities and not of fraud.

Sri Kulkarni submits that the delay of 4 to 5 years on the part of the appellants in approaching this Court is not at all explained in the memorandum of the writ petition. There is not even a single sentence as to why they took 4 to 5 years to approach this Court. He submits that the equities are also operating in favour of the KHB. Making huge investment of about Rs. 110 crores, the layout is formed and the buildings are erected. Therefore the undoing the scheme or the sale deeds at this juncture would only cause loss to the exchequer.

He submits that the Division Bench, by its judgment, dated 26/4/2013 passed in WA Nos. 124444-45 of 2009 has taken the considered view that there is no necessity to obtain the sanction for the housing scheme for acquiring the property; the approval is required only for implementing the housing scheme.

Without prejudice to these contentions, he submits that the Government has given the permission for purchasing the lands at Survey Nos. 7 to 49 and at the Survey numbers of other blocks in Hiremaligawad Village. This permission is for 300 acres of lands, though the lands purchased aggregate only to 206.6 acres. He submits that the lands purchased form a contiguous stretch. Though the lands are situated in other villages, they are abutting the lands situated in Hiremaligawad Village.

Sri M. Kumar, learned Additional Government Advocate appearing for the respondent Nos. 1 and 3 submits that the Government Order, dated 11.05.2011 (Annexure-R7) amounts to ratifying the purchase of the lands in the four villages in question. He submits that the host of the proceedings of the Government and the KHB shows the presence of the farmers at the time of negotiations and fixation of the price of the lands.

In the course of rejoinder, Sri Sheelwant submits that the permission granted by the Government is only for the purchase of lands situated in Hiremaligawad Village. He submits that the appellants have approached this Court immediately after the CID officers investigated the matter and filed the report thereon. He submits that even the reports were not being supplied to the appellants. They had to apply for the reports and obtain them under the Right to Information Act, 2005.

He makes the last ditch submission, on instructions, that if this Court is not inclined to set aside the order of the learned Single Judge, then the respondent KHB be directed to give one free site measuring 30 x 40 feet and allot/sell another 30 x 40 feet site at the prevailing market value.

The submissions of the learned counsel have received our thoughtful consideration.

The first question that falls for our consideration is whether the learned Single Judge''s order is required to be set aside on the appellants'' allegation of playing fraud by the officials of KHB?

It is trite that if the investigation is to be ordered by this Court into the allegation of fraud, both parties to the fraud are to be made parties to the writ petition. In the instant case, the General Power of Attorney Holders of some of the appellants, who are alleged to have acted as middlemen, are not made parties to the writ petition. No material particulars of the fraud are furnished in the memorandum of the writ petition. We are not persuaded to act on the ipse dixit of the appellants that the action be initiated against the fraudster-officials. However, it is open to the appellants to set the criminal law into motion by filing the private complaint, if they are so advised.

On being asked as to what action is taken against the power of attorney holders, it is submitted at the Bar by Sri. V.M. Sheelavant that no action whatsoever appears to have been initiated. It is not known why the power of attorney holders, who are alleged to have acted as middlemen and made money, are not being brought to the book by the appellants. Let alone taking action against the power of attorney holders, even the power of attorney document is not cancelled or rescinded.

The second contention that the KHB is earning huge profits by purchasing the lands in question and by implementing the Housing Scheme thereon cannot be considered in this private interest litigation. Once the owners sell their lands, they lose their right of questioning utilisation of the land in the post-sale period. If the KHB is making any profits, forbidden by law, the same has to be raised in a duly constituted Public Interest Litigation.

As far as the third contention that the learned Single Judge''s order has the effect of depriving the appellants of their fundamental right of preferring the appeal, is concerned, what can be said is that the Government Order, dated 11.05.2011 is in the nature of an incentive to the sellers of the lands to give the possession of the land in a hassle-free manner. The laudable intentment behind the incentive scheme is to avoid the litigation and to implement the project expeditiously. The learned Single Judge has actually safeguarded the interests of the appellants. The possibility of the authorities refusing to grant the incentive site to the sellers of the lands on the ground of their entangling the KHB in litigation, was looming large. That aspect has been laudably addressed by the learned Single Judge.

The other contention that the Government has not given the sanction for the Housing Scheme in question also fails for the following reasons:

(a) The Division Bench, in Writ Appeal Nos. 124444 and 124445 of 2009 disposed of on 26th April 2013 has held that there is no necessity for obtaining the sanction for the housing scheme for acquiring the property. The approval is required only for the implementation of a housing scheme;

(b) The permission for purchasing about 300 acres of lands situated in Hiremalligwad Village is granted. The said order further states that the lands are at Survey Nos. 7 to 49 of Hiremalligwad Village and also at Survey numbers of other blocks. The purchase of the lands has not exceeded 300 acres of lands. On the other hand, the extent of the purchased lands is 206.6 acres. It is also not in dispute that the lands are purchased in three other villages, the names of which are not specifically mentioned, are abutting the lands purchased in Hiremalligwad Village.

(c) We also find considerable force in the detached submissions of Sri. M. Kumar, learned Additional Government Advocate that the Government Order dated 11.05.2011, which provides for granting of one free 30 X 40 feet site per acre, specifically mentions the name of the four villages. The same amounts to the implied ratification of the purchase of 206.6 acres by the KHB for its housing scheme. Even assuming that the taking of the permission was a mandatory requirement, not taking the permission by the KHB has not put the appellants to any prejudice. The question of whether the sanction is accorded for the purchase of the lands cannot be gone into at the instance of the sellers. The sellers do not have the litigational competence to challenge the sale on the ground that the purchaser had not taken the prior pretermission of the Government.

We also find that learned Single Judge is right in dismissing the writ petitions on the ground of delay and latches. The sale transactions are of the year 2006-2007, whereas the writ petitions are filed five to six years thereafter, in the year 2011. The delay of five to six years is not at all explained in the memorandum of writ petition.

If the appellants have not received the sale consideration, as set out in the sale deeds, their remedy would be to file the duly constituted suits in the competent civil courts. In the guise of challenging the housing scheme, they cannot impliedly raise the challenge to the sale deeds. Thus not finding any illegality or infirmity in the order passed by the learned Single Judge, we dismiss these appeals.

The offer made by the appellants to buy one 30 x 40 feet site at the prevailing market value has to be submitted, in the form of representation, to the KHB.

The KHB shall consider the anticipated representation, if any, sympathetically appreciating that the appellants are the sellers of the lands in question and that they may have suffered the displacement on account of the sale of their lands. By allotting one 30 X 40 feet site per acre at the prevailing market value, subject to availability of the sites, the interests of KHB would not be affected adversely in any way.

Further we also deem it necessary and just to observe that if the Allotment Rules of the KHB do not provide for preferential allotment to the land-losers, it is for the KHB to consider amending their Allotment Rules. Just as the justice is inclusive, the development also has got to be inclusive. The KHB and the Government shall take a decision in the matter in the letter and spirit of this order.

The submission of Sri. H.R. Gundappa, learned counsel for respondent Nos. 4 and 5 that one free site measuring 30 X 40 feet per acre, as per the Government Order, dated 11.05.2011 would be allotted as expeditiously as possible and in any case within three months from the date of the issuance of the certified copy of today''s order, is placed on record. He also hastens to add that in some cases the allotment proceedings are stayed by this Court. He submits that as soon as the writ petitions are disposed of or the interim orders are vacated or modified, the KHB would initiate the process of allotting the free sites in right earnest.