CHIKKAMUNIYAPPA REDDY MEMORIAL TRUST, BANGALORE v. STATE OF KARNATAKA

ORDER

1. A Public Trust formed and registered on 7-3-1984 in the name and style Chikkamuniyappareddy Memorial Trust, Bangalore represented by its President Dr. KG. Rajureddy is before this Court primarily questioning the legality or otherwise of the Notification in No. HC. PR. ALAO 389 BDA 76-77 issued under Section 19(1) of the City Improvement Trust Board Act, 1945 ('the Improvement Act' for short) published in Karnataka Gazette on 5-5-1977 and the final Notification No. HUD 49 MNJ 78, dated 14-5-1980 issued under sub-section (1) of Section 18 of the Improvement Act published in Karnataka Gazette, dated 12-6-1980 insofar as they relate to acquisition of land bearing Sy. No. 4/3 measuring 3 acres 4 guntas situated at Kachara-kanahalli Village, Bangalore North Taluk. Incidentally, petitioner also seeks a writ of mandamus to direct the State Government to take necessary action in pursuance of the resolution made by the 2nd respondent-Bangalore Development Authority (BDA for short) in No. 571/B, dated 7-8-1987.

2. Briefly stated the facts are: Petitioner-Trust is formed and registered for public and charitable purposes. It was formed on 24-2-1984 and registered before the Sub-Registrar of Assurances on 7-3-1984. As defined in the interpretation clause Section 3 of the Indian Trusts Act, 1982, a 'Trust' is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. The 'author' of the Trust is defined as the person who reposes or declares the confidence. A 'Trustee' is a person who accepts the confidence. The 'beneficiary' is the person for whose benefit the confidence is accepted. The 'Trust property' or 'Trust money' is the subject-matter of Trust. The 'beneficial interest' or 'interest' of the beneficiary is his right against the Trustee as owner of the Trust property and the instrument, if any, by which the Trust is declared is called the 'instrument of Trust'.

3. The essential feature of a Trust involves four ingredients:

(a) Settlor or donor;

(b) Trustee or Trustees;

(c) the beneficiary; and

(d) the subject-matter of the Trust.

4. Keeping in view the definition of the 'Trust' under the Indian Trusts Act, let us peep into the Trust Deed produced by the petitioner before this Court. It states that a Trust by name Chikkamuniyappa Memorial Trust is formed for a charitable purpose and the Trustees have paid each a sum of Rs. 101/-towards the purpose of the Trust and there are 14 Trustees to manage the affairs of the Trust. In the Trust Deed, I do not see any mention of immovable property bearing Sy. No. 4/3 measuring 3 acres 4 guntas of land being apportioned by the owner Sri Doddamuniyappa to the Trust property. However, there is assertion in the petition that the owner of the property viz.,, Sri Doddamuniyappa had apportioned the aforesaid property to the Trust. It is relevant to state here that the Trust was formed on 24-2-1984 and registered on 7-3-1984. The dates are relevant since the respondents have taken a specific contention that on the date when the owner of the property had apportioned the same in favour of the Trust, had no right, title or interest in the property.

5. At this stage, it is relevant also to state that the Trust is not a juristic person. According to its own definition in Section 3 of the Trusts Act, a Trust is an obligation annexed to the ownership of property for the benefit and enjoyment of the person in whose benefit the confidence is accepted by the Trustee. It is the Trustees who are owners of the Trust properties which vest in them. This is because the 'author' of the Trust reposes his confidence in the Trustees and they accept it. By the very nature of relationship, the subject-matter of the Trust which is the Trust property is transferred to the joint ownership of the Trustees and it does not belong to the individual. The petition is maintainable before this Court if it is instituted by a Trust through its President or its office bearer, provided all the Trustees are joined. In the present case, the petition is filed only by the President of the Trust and the fourteen Trustees are not parties to this petition. It is highly doubtful whether such a petition is maintainable before this Court. But the learned Counsels appearing for the respondents have not taken up this defence before this Court either in their statement of objections or at the time of arguing this petition. Therefore, it may not be proper for this Court to reject this petition on this sole ground alone.

6. Now let me notice the facts in the present case. The petitioner-Trust was formed on 7-3-1984 and after its registration, it is questioning the legality or otherwise of the notification issued by BDA in acquiring the lands of Doddamuniyappareddy in Sy. No. 4/3 situated in Kacharakanahalli Village, Bangalore North Taluk. The preliminary notification under sub-sections (1) and (3) of Section 16 of the Bangalore Development Authority Act, 1976 (for short 'BDA Act') was published in the Karnataka Gazette dated 21-3-1977 and the final notification under Section 19(1) of the BDA Act was published in the Karnataka Gazette on 14-5-1980. The award has been made in this case on 13-1-1983 and the possession of the property was taken over by the BDA on 19-2-1983. After such taking over possession of the property, the BDA has allotted sites in favour of the allottees sometime in the month of March, 1985 and December, 1985. As I have already noticed, the Trust was formed only on 24-2-1984 and registered on 7-3-1984, the question would be whether the owner Sri Doddamuniyappa could apportion the property acquired by the BDA by issuing a preliminary notification and declaration under Section 19(1) of the BDA Act. In my view, the issue is no more res Integra in view of the observations made by the Supreme Court in the case of U.P. Jal Nigam, Lucknow, through its Chairman and Another v M/s. Kalra Properties (Private) Limited, Lucknow and Others . In the said case, the Supreme Court has observed as under:

It is settled law that after the notification under Section 4(1) published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4(1) was published on 24-3-1973, possession of the land admittedly was taken, on 5-7-1973, and pumping station house was constructed. No doubt, declaration under Section 6 was published later on 8-7-1973. Admittedly, power under Section 17(4) was exercised dispensing with the enquiry under Section 5-A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17(2) free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11-A as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the'possession is surrendered pursuant thereto. That apart, since M/s. Kalra properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published

7. Keeping in view the law laid down by the Supreme Court, let me now look to the facts in the present case once over again. As I have already indicated that Sri Doddainuniyappa was the owner of the land bearing Sy. No. 4/3 measuring 3 acres 4 guntas situated at Kacharakanahalli Village, Bangalore North Taluk. These lands had been notified by the BDA under the provisions of Improvement Act, 1945 by issuing a notification under Section 16(1) of the Act. This provision is identical with the provision of Section 4(1) of the Land Acquisition Act. Similarly, a declaration has been made by the BDA exercising its powers under sub-section (1) of Section 19 of the Act. This provision is in pari materia with Section 6 of the Land Acquisition Act. The preliminary notification, final notification, award and the possession of the property has been taken over by the BDA much earlier to formation and the registration of the petitioner-Trust since the same was formed and registered some time in the month of March, 1984. On the date when the Trust was formed, Doddamuniyappa had no right, title or interest in the property to apportion the same in favour of the Trust. The Supreme Court in the aforesaid decision has categorically observed that the person who had either purchased the property or has taken over the possession of the property after preliminary notification under Section 4(1) of the Land Acquisition Act has no right whatsoever to challenge an acquisition proceeding under Land Acquisition Act. In my view, the same position applies even to the present case also, since the lands are already vested in the BDA. In my view, the petitioner-Trust cannot challenge the validity or legality of the notification issued by the Bangalore Development Authority exercising its powers under the City Improvement Trust Boards Act, 1945, since the lands had been notified for acquisition much earlier to the formation and registration of the Trust.

8. Since I have held that the petitioner-Trust has no locus standi to question the preliminary and final notifications issued by the BDA, I need not go further to discuss the issues raised by the learned Counsels for the parties to the Us. But out of sheer deference to the arguments advanced by the learned Senior Counsel-Sri M.P. Eshwarappa, I intend to notice those contentions also.

9. Learned Senior Counsel contends before this Court that the BDA by its resolution dated 6-11-1987 had resolved to reconvey the lands in question, in favour of the petitioner-Trust. Further, the Bangalore Development Authority had recommended to the Government for approval subject to the condition that the Trust should surrender the extent of land required for formation of road. Learned Counsel would submit that in view of this resolution of reconveying the immovable property in question, respondent-authority should not have notified the auction of the site by their public notice dated 3-5-1989. In support of this contention, learned Counsel strongly relies upon the provision of Section 38-C of the BDA Act, as inserted by Amendment Act, 1993 by Act 17 of 1994. Learned Counsel also relies upon Clause 9 of the amendment and submits that in view of provisions of Section 38-C of the Act, the BDA had the right to reconvey the property that was already vested in it to the person from whom it had acquired. In support of that contention, learned Counsel strongly relies upon the observations made by the Supreme Court in H.C, Venkataswamy and Others v The Bangalore Development Authority and Others. To understand correctly the submissions made by the learned Senior Counsel for the petitioner, it is useful to refer to the amended provisions of BDA Act of 1993 as Amended Act 17 of 1994. The said provision reads as under:

"38-C. Power of authority to make allotment in certain cases.--Notwithstanding anything contained in this Act or in any other law or any Development scheme sanctioned under this Act, or City Improvement Trust Board Act, 1945, where the authority or the erstwhile City Improvement Trust Board, Bangalore has already passed a resolution to reconvey in favour of any persons any site formed in the land which belong to them or vested in or acquired by them for the purpose of any Development Scheme and on the ground that it is not practicable to include such site for the purpose of the Development Scheme, the authority may allot such site by way of sale or lease in favour of such person subject to the following conditions:

(a) the allottee shall be liable to pay any charges as the authority may levy from time to time; and

(b) the total extent of the site allotted under this section together with the land already held by the allottee shall not exceed the ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976".

The provision commences with non obstante clause. It says irrespective of what is contained in BDA Act, the authority can convey the sites which belongs or vested or acquired by it for any Development Scheme. The site could be reconveyed by the authority provided it is not practicable to include such a site for the purpose of Development Scheme. The allotment of such a site could be made in favour of such person from whom the lands had been acquired. .The allotment could only be by way of sale or lease subject to the allottee paying such charges which the authority may levy from time to time and the extent of site allotted under this provision together with the land held by the allottee would not exceed ceiling limit.

10, Section 9 of the Amendment Act 17 of 1994, speaks of validation of certain allotments. It clearly says that by a resolution passed by the Bangalore Development Authority to reconvey in favour of any person any site out of the land which belonged or acquired or vested in them for the purposes of any Development Scheme. If the Authority has made allotment of such site by way of sale, lease or otherwise in favour of such person after 20-12-1973 and before 8-5-1986, such allotment is deemed to have been validly made and shall have the effect for all purposes, if it is made under Section 38-C the Principal Act as amended by Act 17 of 1984.

11. Keeping in view the amended provisions, let me now look at the resolution passed by the BDA in No. 571/B, dated 7-8-1987. First and foremost what is being reconveyed under the resolution is the land and not the site without assigning any reason for such reconveyance. The reconveyance is not either by way of sale, lease or otherwise to a person from whom the lands had been acquired. The resolution is dated 7-8-1987. The facts would demonstrate that on the date when the BDA passed the resolution they had no authority under the Act to pass such resolution. What is saved under the amended provision is only the order of reconveyance of sites carved out of the land which belongs to them after 20-12-1973 and before 8-5-1986. By the resolution dated 7-8-1987, what the BDA intends to reconvey, is the land measuring 3 acres and 0.74 guntas and what could be reconveyed is only a site under the amended provision. The expression 'land' as defined in Dictionary of English Law, 1959 Edition, Vol. 2, Page 1053 by Earn Jowill is, 'Land' in its restricted sense means soil but in its legal acceptation it is generic term comprehending every species of ground, soil or earth, whatsoever as meadows, pastures, woods, moors, waters, marshes and heath. It includes also houses, mills, castles and other buildings for with the conveyance of the land the structures upon it also. And, besides an indefinite extent upwards, it extends downwards to be globe's centre, whereas 'site' as defined in Black's Law Dictionary only means a plot of ground suitable or set apart for a specific use. In view of this by no stretch of imagination it could be said that there is no difference between a land and site and the contention of learned Counsel that they are one and the same cannot be accepted.

12. The Supreme Court in H.C. Venkataswamy's case, supra, after noticing the resolution passed by the BDA dated 26-6-1984, and keeping in view the amended provisions of Section 38-C and also the Validation Clause, was pleased to hold that in view of provision of Section 38-C of the Act, the BDA had the power to reconvey a site of 40' x 60' to the land owners from whom the lands had been acquired by the BDA. Further, the Court was pleased to observe that the resolution had been passed by the BDA between the dates mentioned under the Validation Clause viz., 20th day of December, 1973 and before 8th day of May 1986. Keeping in view that the reconveyance under the resolution is only sites to the persons from whom lands had been acquired and the resolution had been made between the dates mentioned in the Validation Clause, the Supreme Court reversed the view expressed by this Court and affirmed the resolution made by BDA. In my view, the said decision of the Supreme Court would not assist the petitioner in any manner whatsoever.

13. Learned Counsel, further contends that since the State Government has not approved the resolution passed by the BDA on 6-11-1987 within the reasonable time, it is deemed to have been approved by the Government. This argument of the learned Counsel has no merit whatsoever, since I have held that the BDA had no power and no jurisdiction as on 6-11-1987 to pass such resolution and thereafter recommend it to the State Government.

14. Nextly, learned Senior Counsel contends that the BDA has no authority to revoke its earlier resolution as has been done by their Order No. 1925 dated 10-10-1990. This contention of the learned Senior Counsel was answered by the learned Counsel for the respondent by relying upon Clause 21 of the General Clauses Act, 1899. The said provision reads thus:

"21. Power to make including power to add, to amend, vary or rescind notifications, orders, rules or bye-laws.--Whereby any enactment, a power to issue notification, orders, rules or bye-laws is conferred, then that power, includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications) orders, rules or bye-laws so issued"

The provision of the General Clauses Act makes it very clear that the power to issue a notification includes a power to rescind/revoke a notification which would apply to the resolutions also. A power to pass a resolution carries with it the power to cancel the resolution. This power of revocation is inherent prescribed by the provision conferring the said power.

The BDA which had passed the resolution reconveying the land in Sy. No. 4/3 of Kacharakanahalli village has the power, in my view, to rescind its earlier resolution by invoking the provisions of Clause 21 of the General Clauses Act. In that view of the matter, even this contention of the learned Senior Counsel has no merit whatsoever.

15. Learned Counsel would further submit that in more or less similar cases, respondents had resolved to reconvey the lands to the persons .from whom it had been acquired. In that view of the matter, he submits that the Authority could not have rescinded the earlier notification. The action of the respondent according to the learned Counsel, is not only arbitrary and Discriminatory but also opposed to Article 14 of the Constitution. This argument of the learned Counsel has now been answered by the Supreme Court in Yadu Nandan Garg v State of Rajasthan and Others. Dealing with such contention, the Supreme Court was pleased to observe thus:

"5. It is true, for reasons best known to the authorities, that Anand Nursery had the benefit of the exemption. The wrong exemption under wrong action taken by the authorities will not clothe others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination"

In that view of the matter, even this contention of the learned Counsel, has no merit whatsoever.

16. Lastly, learned Counsel for the petitioner invites my attention to sub-section (2) of Section 1 of the Improvement Act to contend that what could be acquired under the City Improvement Trust Boards Act is only the notified area and if for any reason the authority intends to acquire any other land, the same could be done only by including such area by notification. In the absence of such notification, learned Counsel contends that the authority had no jurisdiction to acquire the lands as has been done under notification dated 7-8-1987.

17. To meet this contention, Sri Thipperudrappa, learned Counsel for BDA invites my attention to the decision of this Court in Vishwabharathi House Building Co-operative Society Limited v The Bangalore Development Authority, to indicate that the issuance of such notification is not necessary. While dealing with this issue, this Court was pleased to observe as under:

"The power invested in the authority under clause (a) of sub-section (1) of Section 15 of the Act to draw up a 'Development Scheme' for the development of 'Bangalore Metropolitan Area' includes not merely the power to draw up such scheme for the area within the Bangalore Metropolitan Area, but also for area adjacent to it. Therefore, the Bangalore Development Authority did have jurisdiction under clause (a) of sub-section (1) of Section 15 of the Act to prepare, frame or draw up a "Development Scheme" respecting an adjacent area of the Bangalore Metropolitan Area . If the authority has thus the power to prepare a Development Scheme for the Bangalore Metropolitan comprised of land in the adjacent area of the Bangalore Metropolitan Area, it necessarily follows that the Authority has, under sub-section (1) of Section 17 of the Act, power to draw up a notification specifying the lands in the adjacent area of the Bangalore Metropolitan Area proposed for acquisition and have a copy of that notification published in the Official Gazette, as provided for under sub-section (3) of Section 17 of the Act, such notifications could not be held to be made ultra vires the powers of authority".

In view of categorical observation made by this Court, in my view, even the last contention of the learned Counsel has no merit.

18. Since I have negatived all the contentions of the learned Senior Counsel for the petitioner, in my view, writ petition deserves to be dismissed.

19. Accordingly, writ petition is dismissed. Rule discharged.

In the facts and circumstances of the case, parties are directed to bear their own costs.