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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022 BEFORE THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.19198 OF 2022 (LB-RES)
BETWEEN:
SMT MUBEENA W/O SRI. FAROOQ ALI KHAN AGED ABOUT 46 YEARS R/AT NO.21, BENSON A CROSS ROAD, BENSON TOWN POST BANGALORE 560 046
REPRESENTED BY HER GPA HOLDER M/S S REALITY A PARTNERSHIP FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT, 1935 HAVING ITS REGISTERED OFFICE AT NO.23, 3RD FLOOR, GOVINAPPA ROAD, DVG ROAD CROSS, BASAVANAGUDI BANGALORE 560 004 REPRESENTED BY ITS PARTNER AND AUTHORIZED SIGNATORY MR. HARSHA PRAKASH BANSALI AGED ABOUT 30 YEARS
… PETITIONER (BY SRI SAMMITH S, ADVOCATE)
AND:
1 . STATE OF KARNATAKA REPRESENTED BY ITS UNDER SECRETARY DEPARTMENT OF URBAN DEVELOPMENT
2 DR. B.R. AMBEDKAR ROAD VIKASA SOUDHA BANGALORE 01
2 . SATELLITE TOWN RING ROAD, PLANNING AUTHORITY REP BY ITS MEMBER SECRETARY AND JOINT DIRECTOR AND METROPOLITAN PANNER BMRDA, BMRDA OFFICE NO.1, ALI ASKAR ROAD, BANGALORE 560052
... RESPONDENTS
(BY SRI R. SRINIVASA GOWDA, AGA FOR R1 SRI YOGESH D. NAYAK, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED 20.05.2017 ISSUED BY THE RESPONDENT NO.1 AS CONTAINED IN ANNEXURE-D, IN SO FAR AS IMPOSING ADDITIONAL CONDITION THAT 5 PERCENT OF THE TOTAL AREA SHALL BE RESERVED AS LAND BANK FOR SATELLITE TOWN RING ROAD PROJECT AT THE TIME OF APPROVAL OF DEVELOPMENT OF THE LAND AND THE SAME SHALL BE RELINQUISHED IN FAVOUR OF THE SATELLITE TOWN RING ROAD PLANNING AUTHORITY I.E., RESPONDENT NO.2 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
3 O R D E R
The petitioner in partnership with one Mr. Harsh Prakash Bansali constituted a partnership firm through a registered deed for development of the subject property. The petitioner filed an application on 28.07.2020 for change of land use of property bearing Sy. Nos.174 and 175/3 measuring 14 guntas and one acre 25 guntas respectively from agricultural zone to residential zone.
Respondent No. 1 issued a notification dated 24.06.2016 constituting the Satellite Town Ring Road Planning Authority (for short 'STRRPA'), and the subject property comes within the local planning area of STRRPA. Subsequently the respondent No.1 issued the impugned notification dated 20.05.2017 requiring the owners to relinquish 5% of the total land to be reserved for land bank free of cost as a condition precedent for approval of development plan.
4 3. In pursuance of the application dated 28.07.2020, the 2nd respondent in its communication dated 16.12.2020 stated that conversion of lands would be subject to certain terms and conditions and one of the conditions imposed was that the petitioner was required to surrender 5% of the land area towards land bank as specified under the notification dated 20.05.2017 issued by the 1st respondent. Thereafter, the petitioner relinquished 5% of the land area towards land bank on 16.12.2020 by executing a relinquishment deed in favour of the State Government. Thereafter the second respondent by Order dated 07.01.2021, issued the provisional approval letter for conversion of the subject property.
The petitioner has filed the present writ petition seeking for quashing of the notification dated 20.05.2017 in so far it relates to requiring the owner of the land to surrender 5% of the total area towards land bank at the time of approval of development of the land and also the impugned communication dated 16.12.2020 issued by the
5 2nd respondent to the Sub-Registrar, Attibele Hobli, Anekal Taluk, requiring the petitioner to surrender 5% of the land area in terms of the impugned notification.
Learned Counsel appearing for the petitioner submits that by an executive order, the impugned condition imposed in the notification as well as the communication issued by the 2nd respondent are in violation of Article 300A of the Constitution of India and as such the petitioner cannot be deprived of her valuable right over the immovable property. He further submitted that the doctrine of approbate or reprobate applies only to the conduct of parties and it cannot operate against the provisions of statute. In support, he places reliance on the following decisions: i) KT Plantation Pvt. Ltd. -vs- State of Karnataka
reported in AIR 2011 SC 3430.
ii) Commissioner of Income Tax, Madras -vs- V. MR P.
Firm Muar reported in 1961 SC 1216
iii) Union Of India vs N Murugesan reported in 2021 (3)
SLJ 401 (SC).
6 iv) Arun Venkanna Navali -vs- Hubballi Dharwad
Municipal Corporation & Ord. in WP Nos.108208-
108209/2016 and connected matters (DD
22.12.2021).
v) Dr.Arun Kumar B C -vs- State of Karnataka and ors
in WP No.9408/2020 and connected matters
(DD 17.1.2022).
vi) Srivatsa Developers -vs- The BDA and ors. in WP
No.48258/2018 (DD 27.5.2022)
vii) The State Government Housing Co-operative Housing
Society Ltd. -vs- Hubli Dharwad Urban Development
Authority in WP Nos.5260/1991 c/w 927 & 928/1992
(28.5.1999).
On the other hand, the learned Additional Government Advocate appearing on behalf of the first respondent and the learned counsel appearing for the second respondent submit that the petitioner having accepted the condition and having relinquished 5% of the total land area free of cost cannot approbate and reprobate and is estopped from denying the validity or the binding effect of such contract on her.
I have examined the submissions of the learned counsel for the parties.
It is undisputed that the petitioner derived the benefit of the order dated 07.01.2021 permitting the change of use of land from agricultural zone to residential zone. The Respondent No.1 issued a notification dated 24.06.2016 constituting STRR Local planning authority and declared the subject property and other properties come under the jurisdiction of newly constituted planning authority and in pursuance of the same, subsequently issued the Gazette notification dated 20.05.2017 requiring the owners of land to relinquish 5% of land for the purpose of land bank free of cost at the time of approval of development of the land. The petitioner executed a registered relinquishment deed on 16.12.2020 surrendering the land designated to be reserved as land bank under the notification free cost to the state government.
Section 14A of the Karnataka Town and Country Planning Act specifies that the Planning Authority may with the previous approval of the State Government
8 allow such changes in the land use subject to certain terms and conditions. However, Section 14A of KT and CP Act does not specify that the owner of the land is required to surrender the portion of the land designated in the Master plan as a condition precedent for permitting the change of land use.
Article 300-A of the Constitution of India specifies that no person shall be deprived of property save by authority of law. The Apex Court in the case of KT Plantation Pvt. Ltd (supra) has held that the owner of immoveable property cannot be deprived of his properties by mere executive order without any specific legal Authority or support by competent legislation as enumerated under Article 300A of the Constitution of India. Hence, in the absence of any statute, the petitioner cannot be deprived of his valuable right over the property by an executive order.
The petitioner accepted the condition imposed by the respondent no.2 requiring her to surrender the land
9 earmarked as reserved for land bank in the notification free of cost and executed a relinquishment deed in favour of the state government.
The doctrine of approbation and reprobation is only a species of estoppel - it applies only to the conduct of parties. An element of fair play is inbuilt in this principle. As in the case of estoppel, it cannot operate against the provisions of statute as held by the Apex Court in the case of Commissioner of Income Tax, Madras -vs- V. MR P. Firm Muar reported in 1961 SC 1216 and Union Of India vs N Murugesan reported in 2021 (3) SLJ 401 (SC).
The Scott's law of approbation and reprobation is applicable in cases wherein restitution is impossible or inequitable after the exercise of the choice, as held by the Supreme Court in Bhau Ram vs. Baij Nath Singh reported in 1961 AIR 1327.
Hence, the contention of the learned counsel for the respondent that the petitioner after having derived the benefit under the contract cannot approbate or reprobate challenging the validity of the impugned conditions is not acceptable.
The issue involved in this writ petition was also examined by the co-ordinate Bench of this Court in WP No. 44158/2016, wherein it was held that the impugned condition violates Article 300A of the Constitution of India and doctrine of approbate and reprobate does not operate against the provisions of the statute. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed.
ii) The impugned notification dated 20.05.2017 issued by the 1st respondent at Annexure-D in so far as it relates to imposing additional condition that 5% of the total area shall be reserved as land bank for Satellite Town Ring Road project at the time of approval of development
11 of the land and the same shall be relinquished in favour of the Satellite Town Ring Road Planning authority i.e. respondent No.2 and also the communication dated 16.12.2020 at Annexure-E issued by the second respondent in so far as it relates to condition No.5 mandating the petitioner to reserve 5% of the total land as land bank for Satellite Town Ring Road project and relinquish the same in favour of respondent No.2 free of cost are hereby quashed and consequently relinquishment deed dated 16.12.2020 executed by the petitioner is also held to be illegal and void and not binding on the petitioner.
It is made clear that in the event of land belonging to the petitioner is required for public purpose, the same shall be acquired by the Government by following the due process of law as enumerated under Article 300A of the Constitution of India and also section 69 and 70 of KTCP Act.
It is needless to state that the petitioner is at liberty to develop the subject land in accordance with law.
Sd/- JUDGE sac*