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Judgment
A.S. Bopanna, J.—The petitioners are before this Court assailing the Government Order dated 12.03.2013 impugned at Annexure-A to the petition. By 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. 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.
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. 7756-58/2010 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).
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 in entering into such PPP agreement for mutual benefit. Hence, the impugned Government Order is sought to be justified by all the respondents.
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.
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.
The further contention of the learned senior counsel for the petitioners is that when notification u/s 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, 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 Association CSI Cinod Secretariat, Madras, 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.
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. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, 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.
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. The State of West Bengal and Others, ; in the case of Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, ; in the case of Natural Resources Allocation. In Re: Special Reference No. 1 of 2012, and in the case of Zee Telefilms Limited and Others Vs. State of Karnataka and Others, are relied to contend that tender or public auction though desirable is not necessary in all cases.
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 Patrao since deceased by his LR and Another Vs. The State of Karnataka and Others, is relied on to contend that it has been held that issue of the notification u/s 28(4) & (5) of KIADB Act would not conclude the right until the procedure u/s 29 of KIADB Act is complete and the Government is empowered to withdraw the land from acquisition before taking possession.
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.
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.
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 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.
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).
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.
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 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.
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. 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.