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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.44158 OF 2016 (LB-RES)
BETWEEN:
MONDOVI MOTORS PVT LTD., KRS ROAD, MYSORE – 570 005, REP. BY ITS, AUTHORISED REPRESENTATIVE.
...PETITIONER (BY SRI. MANMOHAN P.N., ADVOCATE)
AND:
STATE OF KARNATAKA, DEPARTMENT OF URBAN DEVELOPMENT, M.S. BUILDING, BENGALURU-560 001, REP. BY ITS SECRETARY.
THE UNDER SECRETARY,
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT, M.S. BUILDING, BANGALORE – 560 001.
THE TOWN PLANNING OFFICER, MYSORE URBAN DEVELOPMENT AUTHORITY, JANSI RANI LAXMI BAI ROAD, MYSURU – 570 001
MYSORE CITY CORPORATION, MYSURU – 570 001, REP. BY ITS COMMISSIONER.
...RESPONDENTS (BY SMT. PRATHIMA HONNAPURA, AGA FOR R1 AND R2 SRI. PRASANNA B., ADVOCATE FOR R3 SRI. T.P. VIVEKANANDA, ADVOCATE FOR R4 SMT. GEETAHDEVI M.P., ADVOCATE FOR R5)
THIS WIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 22.02.2011 ISSUED BY THE R- 2 ONLY IN SO FAR AS CONDITION NO.6 IS CONCERNED (PRODUCED AS ANNX-G) AND ETC.,
THIS WRIIT PETITION COMING ON FOR PRELIMINARY HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The property bearing H. No.D-29 (Old No.2268) measuring 11930 sq.ft., situated at Jayalalaxmipuram, Devraj Mohalla, Mysore City is the subject matter of this petition.
The vendor of the petitioner filed an application seeking for change of use of the land in question from residential to commercial purpose under 14(A) of Karnataka Town and Country Planning Act, 1961 with the
3rd respondent. The 3rd respondent recommended with the Respondent No.2 for permitting the change of land use from residential to commercial as requested by the vendor of the petitioner subject to the condition that the vendor of the petitioner shall hand over the possession of 9 mtrs of land designated as service road in the master plan free of cost.
The 2nd respondent acting upon the recommendation of the Respondent No.3 granted approval permitting the petitioner to change the use of land from residential to commercial purpose under Section 14(A) of the Act subject to the condition that the vendor of the petitioner shall handover the possession of 9 mtrs. of land designated as service road in the master plan free of cost. The vendor of the petitioner deposited the requisite charges with the concerned authority as contemplated under Section 18 of the Act.
Taking exception to the condition imposed requiring to hand over the possession of 9.00 mtrs of land designated as road in the master plan free of cost, the vendor of the petitioner filed W.P. No.30898/2011. During the pendency of the said writ petition, the petitioner having purchased the property in question filed an application for impleading him as petitioner No.2 in the said writ petition. However, this court dismissed the writ petition reserving liberty to the petitioner to file a petition afresh. Hence, this writ petition.
Learned Counsel appearing for the Petitioner submits that by an executive order, the Petitioner cannot be deprived of his valuable right over the immovable in violation of Article 300-A of the Constitution of India. In support, reliance is placed on the decision of the Hon’ble Supreme Court in the case of KT Plantation Pvt. Ltd. –vs- State of Karnataka reported in AIR 2011 SC 3430. 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 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).
Learned Additional Government Advocate appearing for state and Learned counsel for appearing respondent No.3 contends that the petitioner and his vendor having derived the benefit of the order granting permission to change the use of land and having accepted the condition cannot approbate and reprobate and is estopped from denying the validity or the binding effect of such contract on him.
7 After examining the arguments of the learned counsel for the parties, the points that arise for consideration are as follows: i) Whether the petitioner by an executive order can be deprived of his right of over the immovable property in violation of Article 300 A of the Constitution of India
ii) Whether the Petitioner having derived the benefit under the contract is estopped from binding of such contract ?
Re.point-(i):
It is undisputed that the vendor of the petitioner and so also the Petitioner derived the benefit of the order passed under Section 14(A) of the Act, permitting him to use the land from residential to commercial purpose, subject to the condition that he shall handover the possession of 9.00 mtrs. of land free of cost, which is designated as service road in the master plan. The Petitioner has also executed a registered relinquishment deed surrendering the land designated as service free cost to the Respondent No.3. No doubt the Petitioner has derived the benefit under the contact by accepting the condition without demur.
Section 14A of the Karnataka Town and Country Planning Act specifies that the Planning Authority may with the previous approval of the State Government allow such changes in the land use subject 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 as road 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.
Reg. Point No.(ii): 11. It is undisputed that the vendor of the petitioner accepted the condition imposed by the 3rd
respondent requiring him to surrender the land earmarked as road in the master plan, free of cost and the petitioner in turn also executed a relinquishment deed in favour of the 3rd respondent.
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.
Section 14A of the KTCP Act does not specify the owner of the land is required to surrender portion of the land earmarked as road in the Master Plan free of cost as a condition precedent to allow the owner to change the land use. In the absence of any legal Authority or support by competent legislature as enumerated in the Article 300A of the Constitution of India, the petitioner cannot be deprived of immoveable property without following due process of law. In the absence of any legal sanctity, the condition imposed is contrary to Article 300A of the Constitution of India and cannot be enforced against the petitioner. 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. Accordingly, I pass the following : ORDER
(i) Writ petition is allowed.
(ii) The order dated 22.02.2011 passed by the 2nd respondent in so far it relates to condition No.6, is hereby quashed and also the Communication dated 18.01.2011 issued by respondent No.3 in so far it relates to imposing condition that the possession of 9.00 mtrs., of land has to be handed over free of cost to the respondents for the purpose of service road and so also the Communication dated 15.04.2011 issued by the 4th respondent in so far as it relates to imposing condition No.4 and so also the relinquishment deed dated 02.04.2016 executed by the petitioner at Annexure-R in favour of the Governor of Karnataka is hereby quashed.
(iii) The respondents are directed to restore the name of the petitioner in the property register concerned in respect of the 9.00 meters of land which is designated for formation of service road in the Master Plan. The said exercise shall be concluded within a period of two months from the date of receipt of certified copy of this order.
(iv) It is made clear that in the event of 9.00 mtrs of land belonging to the petitioner is required for formation of road, the same shall be acquired by the Government by following the due process of law as enumerated under Article 300 of the Constitution of India and also Section 69 of Karnataka Town and Country Planning Act and the petitioner is entitled for the compensation.
Sd/-
JUDGE
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