Umrah Developers vs State of Karnataka and Others

Anand Byrareddy, J.—1. Heard the learned Counsel for the petitioner and the learned Additional Advocate General Shri A.G. Shivanna, appearing for the Counsel for the respondents.

The brief facts are as follows:

"It transpires that the second respondent namely, the Deputy Commissioner, Bangalore District had issued several auction notifications during the period 2006 and 2009, wherein several Government lands were offered for sale by public auction. The petitioner is said to have participated in the said auctions and he was declared as the highest bidder in respect of several items of land, which included the land in survey No. 107 measuring 17 acres and survey No. 85 measuring 10 acre 6 guntas of Mylasandra village; survey No. 87 measuring 4 acre 14 guntas of Sreeramanahalli village and survey No. 80 measuring 5 acres 37 guntas and survey No. 81 measuring 1 acre of Kithaganur village. These lands are also morefully described in the schedule to the petition and are referred to as the schedule lands."

The petitioner is said to have paid the entire sale consideration along with the conversion fee and phodi charges to the Deputy Commissioner, who in turn, had issued the sale certificates and conversion orders. And prior to bringing the lands to auction, an auction sketch was prepared by the Government Surveyors which is produced along with the petition.

The particulars of the auction notifications, the auction dates, the highest bid amount and the dates of issuance of sale certificate and conversion orders is shown in a tabular form as hereunder:

It is the case of the petitioner that after issuance of sale certificate, the procedure that was followed was that the Taluk Surveyor would identify the auction land under the supervision of the Tahsildar in order to effect the formality of delivery of physical possession of the land. When the Taluk Surveyor had identified the auctioned land, the petitioner learnt to his shock that High Tension or High Voltage electricity lines and towers (Hereinafter referred to as the ''HT Lines and Towers'', for brevity) were passing through each of the schedule lands.

It is the case of the petitioner that neither the auction notification nor the auction sketch nor the sale certificates nor even the conversion orders referred to HT Lines and Towers passing through the schedule lands. During the time of inspection of the lands, according to the petitioner, before the auction proceedings, the concerned Village accountant had shown the lands and to the knowledge of the petitioner, he had not noticed the existing HT Lines and Towers in the lands so identified.

It is in this circumstance that the petitioner had made a separate representation dated 23.12.2015, in respect of each item of the schedule land, bringing to the attention of the Deputy Commissioner the aforesaid facts and requesting that either the Karnataka Power Transmission Corporation Limited (KPTCL) remove the HT Lines and towers or to pay monthly rent or to allot alternative land in lieu of the location of the HT Lines and towers in the schedule lands. In response to which, the Deputy Commissioner is said to have issued five separate endorsements dated 28.12.2015 stating that the auction sale was on ''as is where is basis'' and there was no scope for issuing directions to the KPTCL or to grant the relief which the petitioner was seeking.

The petitioner claims to have verified the nature of electricity transmission lines passing over the schedule lands and he had discovered that it is of 66 KV capacity. In terms of the Regulations governing the KPTCL, a corridor up to 18 metres, that is 9 metres on each side, calculated from the point at the centre, has to be left out for 66 KV voltage line. In so far as four items of the schedule lands, over which HT Line passes through in the middle cutting across the land and since in four items of the schedule lands, a HT tower located in the schedule land, the petitioner has verified with the KPTCL with regard to the corridor area and it has been confirmed that it is as stated by the petitioner. The petitioner got a private survey made of the lands in question to find out the extent of land that may be affected on account of the corridor being provided in respect of the HT Lines and towers passing over the lands and the surveyor has furnished sketches showing the existing location of the HT Lines and towers in the schedule lands and also the marking with regard to the corridor and also the extent of land that would be affected. According to his calculation, an extent of 3 acre and 14.15 guntas out of 38 acres and 17 guntas would be taken away for the corridor. In view of the stand taken by the respondents as to the petitioner not being entitled to any kind of relief, when the sale price of the entire land has been paid by the petitioner notwithstanding that an extent of 3 acre 14 guntas would be rendered useless, the petitioner left with no remedy, has filed the present petition.

The petition is opposed by the state and statement of objections are filed to contend that it is true that auction notifications were issued between the period 2006 and 2009 and that the petitioner had participated in the auction sale and that he was the highest bidder in respect of the lands mentioned aforesaid. Further, the mahazar was drawn up on 3.4.2007 and 3.8.2005 by the Revenue Inspector in respect of the said lands. It is indicated that there is a HT line passing through the lands and according to the respondent, the petitioner was fully aware of the fact that as on the date of the public auction, that HT lines and towers existed on the land and since the details of the lands were furnished one month prior to the public auction, the bidder was required to verify the extent and allocation of the lands since it was auction on ''as is where is basis'' and it was for the petitioner to ensure that the lands were capable of free enjoyment without any impediment and it was expected of the petitioner to have been certain on this aspect before he bid at the auction. The very idea of indicating that the lands are brought to sale on ''as is where is basis'' is so understood. Accordingly, the petitioner''s highest bid having been accepted it would not lie in his mouth to resile from that position to claim that there was suppression of fact or that he was mislead into purchasing the lands, on which there were HT wires, which rendered a portion of the land useless or rather he would not be enabled to utilize the same to the fullest extent.

The sale transaction having completed in all respects without any demur, the petitioner is estopped from raising any such contentions and raising claims much after the sale transaction was completed in all respects. This is an after thought and would run counter to the petitioner''s conduct in having participated at the auction admittedly after having inspected the land in question, though it is mischievously stated that the village accountant had shown some other lands and not the lands which were ultimately brought to sale. And the petitioner''s claim that he discovered the HT lines and towers only on the date the mahazar was drawn up or possession was handed over is misleading and is only pleaded for convenience to support the claim, which is clearly speculative and has no basis. It is in this vein that the learned Additional Advocate General would canvass on behalf of the State while also pointing out that the petitioner is a regular bidder at the auction of the government lands during the period between 2006 and 2009 and it has been demonstrated that he is a defaulter who makes it a habit of paying part of the auction amount and thereafter raising untenable grounds to grab more benefit from the State Government. In this regard, there were instances where the petitioner had deposited 25% of the bid amount and thereafter had failed to deposit 75% of the bid amount and had sought refund of the 25% of the amount, which was returned to him, though he was not entitled to the same and thereafter sought to claim interest, which had even been allowed by a single judge of this court, and which the division bench has reversed and has passed strictures insofar as the petitioner is concerned and has labelled him as a busy body who makes business out of such participation at the auction, only to seek larger benefit on baseless grounds. The learned Advocate General would produce a copy of the judgment of the Division Bench in this regard in WA 2713/2010 dated 17.1.2011.

In the light of these rival contentions, the point that would arise for consideration is whether the petitioner is entitled to any relief by way of compensation?

The question whether the land was sold unconditionally and since it was notified a month prior to the actual auction sale, it was for the prospective bidders to have inspected the land and to have satisfied themselves that the land is free from any such impediment, which would prevent free enjoyment of the same and therefore, the State is absolved of any liability to meet any claim for damages, would have to be viewed that admittedly, there are HT Lines and towers situate over the schedule lands. This is not in dispute. It is evident that the KPTCL, which is the agency which lays and maintains its power lines through out the State uniformally, has guidelines as to the manner in which the lines shall be laid and maintained. It is also noticed that the streaming of lands over the lands require clearing of bushes and trees which would be under the power lines and maintaining a corridor of varying width dependant on the voltage and in respect of 66KV line, a 18 metre corridor would require to be maintained, namely, 9 metre on either side from the centre of the lines and this cannot be said was not within the knowledge of the State Government when bringing the lands to sale. In that, it would be fully aware that there was no construction or not even tree growth or plant growth under HT lines, which is to be maintained as corridor.

Normally, it would be expected that the KPTCL would acquire such lands which would form a corridor. Owing to high cost that would be involved, it is not done and the HT lines and towers are laid only following the guidelines of not permitting any construction or other activity to be carried on under the power lines. This is certainly known to the State Government while bringing the property to sale. It is not the case of the State Government that the property was brought to sale after deducting the value of the land that would have to be reserved for maintaining a corridor under the HT lines. The rate and the price includes such land which would be earmarked for the corridor. Therefore, for the State to now contend that the land has been purchased on ''as is where is basis'' and the petitioner should take it or leave it is not a stand that would be expected of the State Government. To take this argument further, if this is the contention of the State Government, it cannot be said that the petitioner would be entitled to dismantle the HT lines running over his lands and tower lying in his land. When that is not the case, then it is unfair on the part of the State to hold that the petitioner is bound to suffer the HT lines and to be deprived of the use of the land lying under the HT lines, which would have to be maintained as a corridor as long as the HT lines exist over his land. It is quite possible for the lines to be shifted elsewhere or even placed underground for which the technology is available, which would enable the petitioner to utilize the land to some extent. There is no such proposal or even consideration by the State Government insofar as moving the HT lines concerned. Therefore, the contention that the petitioner is a mischievous bidder who has sought to make allegations which are false and misleading cannot be readily accepted.

From a plain perusal of the auction notice, the sale certificate or even the conversion order, there is no mention of these HT lines and the tower. The contention that mahazars were drawn, whereby the existence of the HT lines and tower was indicated in the mahazar by the revenue inspector, is an internal document of the State government, which was not made available to the petitioner and hence it cannot be said that the petitioner was aware of the HT lines and tower when he bid at the auction. The further circumstance as to the petitioner having been shown some other lands and not lands which have ultimately been purchased, being denied by the State, it would be for the State Government to establish that circumstance namely, that the petitioner was particularly aware that these were the very lands that were being purchased, as was identified by the Village Accountant. There is no affidavit even of the Village Accountant filed in court to that effect. Therefore, the factum of these very lands having been identified cannot be readily accepted. Since large parcels of lands have been auctioned during the period, it is quite possible that there was no clear identification of the exact land that were being sold prior to the auction to the knowledge of each of the bidders. In any event, the fact that the HT lines and tower exists on the land cannot be ignored. Hence, the State Government would be obliged to compensate the petitioner in some measure though the petitioner has furnished the extent of lands that would be lost to his benefit by virtue of the same having to be maintained as a corridor, which is a self serving claim. It would be for the State Government to carry out joint measurement of the corridor to be maintained in terms of the records which may bind the KPTCL as well as the land owners and to accordingly compensate the petitioner either by providing alternative land to the extent that could be lost for the maintenance of the corridor or to pay compensation relatable to the area that would be so lost at the prevailing rate relatable to the guidance value of the land, to enable the petitioner to purchase some other land. These are two options available to the State which it may exercise within three months, if not earlier and implement the same.

The petitions are accordingly allowed, in terms as above.