Dismissed

Smt Parvathamma v. the State of Karnataka

Karnataka HC24 Jan 2023WP/30427/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed writ petitions challenging orders requiring petitioner to pay guideline value for reconveyance of land sold to the Housing Board. The Court held the transactions were sales, not transfers with option to reconvey, and public property disposal must comply with statutory rules.

What did the court decide?

Writ petitions dismissed; deposit by petitioners refunded; warning issued against reconveyance except by public auction.

Smt Parvathamma Vs the State of Karnataka — Property and Title | Karnataka HC (2023)

WP No. 32602 of 2017

C/W WP No. 30427 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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WRIT PETITION NO. 32602 OF 2017 (LA-KHB)

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C/W

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WRIT PETITION NO. 30427 OF 2017(LA-KHB)

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IN W.P.NO.32602/2017:

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BETWEEN:

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SMT.R.PADMA @ PADMAVATHI, W/O SRI LATE RAMAIAH, AGED ABOUT 41 YEARS, R/O ADDEVISHWANANTHPURA VILLAGE, HESARAGHATA HOBLI, BANGALORE NORTH TALUK, BANGALORE URBAN DISTRICT, BANGALORE.

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…PETITIONER

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(BY SRI. R HEMANTH RAJ.,ADVOCATE)

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AND:

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA HOUSING DEPARTMENT, REPTD BY ITS SECRETARY, VIKAS SOUDHA, BANGALORE-01.

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KARNATAKA HOUSING BOARD, GOVERNMENT OF KARNATAKA UNDERTAKING, KHB COMPLEX,CAUVERY BHAVAN, KEMPEGOWDA ROAD,

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BANGALORE-09.

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…RESPONDENTS

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(BY SRI. SRIDHAR HEGDE, AGA FOR R1., SMT. PUSHPAKANTHA, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PARYING TO QUASH THE IMPUGNED ORDER DTD21.9.2015 VIDE ANNEXURE-H PASSED BY THE RESPONDENT IN ITS 458TH MEETING OF THE BOARD UNDER AGENDA NO.36 IN SO FAR THE SAME RELATES TO DIRECTING THE PETITIONER TO EFFECT PAYMENT OF GUIDEANCE VALUE FOR RE-CONVEYANCE OF SCHEDULE PROPERTY IN FAVOUR OF THE PETITIONER AND DIRECT THE RESPONDENT TO RECEIVE THE SUM OF RS.5,62,500/FROM THE PETITIONER TOGETHER WITH INTEREST AT 21% PER ANNUM FROM THE DATE OF SALE DEED IN FAVOUR OF THE RESPONDENT TILL THE DATE OF PAYMENT AND CONSEQUNTLY THREE UPON TO RECONVEY THE SAME IN FAVOUR OF THE PETITIONER.

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IN W.P.NO.30427/2017:

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BETWEEN:

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SMT. PARVATHAMMA, W/O LATE SHRI CHIKKARUDRAPPA, SINCE DECEASED REP BY HER LRS

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1A) SMT.SHIVARUDRAMMA, D/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 56 YEARS,

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1B) SRI.BASAVARAJU, S/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 54 YEARS,

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1C) SRI.VEERANNA, S/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 53 YEARS,

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1D) SMT.MANJULA, D/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 43 YEARS,

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1E) SMT.NAGARATHNAMMA, D/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 47 YEARS,

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1F) SRI.PUTTARUDRAPPA, S/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 44 YEARS,

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1G) SMT.LATHA, W/O RUDRESH, AGED ABOUT 38 YEARS,

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1H) KUM R SAHANA, D/O LATE RUDRESH, AGED ABOUT 20 YEARS,

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1I) MASTER R SACHIN, S/O LATE RUDRESH,

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AGED ABOUT 18 YEARS,

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SL NO.1(A) TO (I) RESIDENT OF NO.521, ADDE VISHWANATHAPURA VILLAGE, RAJANKUNTE, HESARGHATTA HOBLI, BANGALORE NORTH TALUK, BANGALORE. SL NO.1(B) TO (I) ARE REPRESENTED BY THEIR GPA HOLDER, SMT. SHIVARUDRAMMA, D/O SRI CHIKKA RUDRAPPA, AND SMT PARVATHAMMA, AGED ABOUT 72 YEARS, AMENDED V.C.O DATED 24.01.2023 (BY SRI.GIRIDHAR S V, ADVOCATE)

…PETITIONERS

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AND:

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THE STATE OF KARNATAKA HOUSING DEPARTMENT, REPRESENTED BY ITS SECRETARY, VIKAS SOUDHA, BANGALORE-01.

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KARNATAKA HOUSING BOARD, GOVERNMENT OF KARNATAKA UNDERTAKING, KHB COMPLEX,CAUVERY BHAVAN, KEMPEGOWDA ROAD, BANGALORE-09.

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…RESPONDENTS

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(BY SRI.SRIDHAR HEGDE, AGA FOR R1., SMT.PUSHPAKANTHA, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS ON THE FILE OF RESPONDENT CULMINATING IN THE ORDER IMPUGNED AND QUASH THE ORDER DATED 21.9.2015 AT ANNEX-G PASSED BY RESPONDENT IN ITS 458^TH MEETING OF THE BOARD UNDER AGENDA NO. 36 DATED 21.9.2015 IN SO FAR THE SAME RELATES TO DIRECTING THE PETITIONER TO EFFECT PAYMENT OF GUIDELINE VALUE FOR RE-CONVEYANCE OF SCHEDULE PROPERTY IN FAVOUR OF THE PETITIONER AND ETC.,

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioners are knocking at the doors of Writ Court seeking quashment of two orders both dated 21.09.2015 passed by the 2^nd Respondent – Karnataka Housing Board whereby they were asked to make payment of ‘Guidance Value’, if they wanted reconveyance of scheduled lands in their favour. Both the learned counsel appearing for the petitioners submit that in similar matters Respondent – Housing Board, has reconvyed the lands to other land owners after getting the sale price back with some interest and therefore, their clients cannot be discriminated against

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as if they are the children of the stepmother. So contending, they seek indulgence of the Writ Court.

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Learned AGA appearing on behalf of Respondent – State and the learned panel counsel appearing for the Housing Board opposed the Petitions making submission in justification of the impugned orders. They contend that admittedly the Petitioners having sold their properties and having received the agreed price, they

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cannot now seek reconveyance in the absence of a condition of enablement in the Conveyances or the law giving such a right. Learned AGA adds that, in matters like this there is no justiciable right which arguably may avail where properties are taken by compulsory purchase under the Land Acquisition laws. So contending, they seek dismissal of the Writ Petitions.

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Both the cases are taken up together with the concurrence of the Bar since they have substantially common fact matrix and relief columns. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter broadly agreeing with the submission made by the learned AGA and the Panel Counsel.

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Indubitably, sale is one of the voluntary modes of transfer of property. Section 54 of the Transfer of Property Act, 1882, defines sale as “ a transfer of ownership in exchange for a price paid or promised or

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part-paid and part-promised.” This definition indicates that

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in order to constitute a sale, there must be transfer of ownership from one person to another, i.e., all rights & interest in the properties possessed by the seller are transferred to the buyer and he does not retain any part of his interest or right in the property sold; or else it would not be a sale. An outright sale is distinguished from a sale with an option of reconveyance, which must be evidenced by the Sale Deed itself. If the sale deed is totally silent about that, the transfer would be an outright sale and not a sale with an option of reconveyance vide VITTAL MAHARM PATIL vs. FAKIRA BHAVSINGH PATIL, AIR 2011 NOC BOMBAY 292. Admittedly, the subject properties were purchased by the Housing Board from the owners thereof after paying the agreed prices. No paragraph from the private conveyances is shown to give the right to previous owners to buy back the property. Such a situation, as already mentioned above, constitutes an

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outright sale or transfer of property bereft of an option for

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reconveyance.

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In support of their clients’ claim for reconveyance, learned counsel appearing for the Petitioners placed heavy reliance on Section 38 of the Karnataka Housing Board Act, 1962. The said section reads as under:

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“Power to dispose of land.- Subject to any rules made by the State Government under this Act, the Board may retain, lease, sell, exchange or otherwise dispose of, any land, building or other property vesting in it and situate in the area comprised in any housing scheme (or land development scheme) sanctioned under this Act.”

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The power of the Board to dispose off its property is not absolute, since in so many words, it is conditioned by the rules to be promulgated by the Government under Section 74 of the 1962 Act. Rule 9(3) of the Karnataka Housing Board Rules, 1964 provides for sale of land is true. However, such a contention does not come to their aid inasmuch as the aforementioned provisions merely bestow

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power upon the Board to lease sell or otherwise dispose of any land and not a statutory mandate for reconveyancing of land to the owners from whom the property was bought.

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Deliberations & decisions as to conveyanceing or reconveyancing of land by the Board has to be carried out by a normative, participative & transparent process spearheaded by the ‘ public interest ’ and not by private negotiation within the four corners of the office room. At this juncture, it is relevant to recall Justice Louis Brandeis’ phrase ‘ sunlight is the best disinfectant’ . In 1913 Harper’s Weekly article, ‘ What Publicity Can Do ?’ he had remarked:

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“… if the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects...” It is not that such a process is to be carried out by conducting Government business while sitting at the crossroads in public, rather it means that the manner in which the decision is taken, should be knowable to public or at least to all stakeholders involved vide BALCO EMPLOYEES’

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UNION vs. UNION OF INDIA 2002 (2) SCC 333. Moreover, such a requirement of transparency is categorically rendered an imperative where the public at large is a stakeholder and where the actions that are carried out are by an instrumentality of State under Article 12 of the Constitution.

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It has long been a settled position of law that when property is to be disposed off by a public authority, such property can be disposed only by public auction and

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not otherwise. What the Apex Court observed in SACHIDANANDA PANDEY vs STATE OF WEST BENGAL, AIR 1987 SC 1109, at paragraph 6.2 is worth reproducing:

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“…On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established. State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations

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where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.”

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Therefore, the Board Resolutions in question not being consistent with the law declared by the Apex Court cannot be treated as justiciable and thus, they cannot be profitably pressed into service.

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The subject properties because of the

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conveyances executed by the owners have become the assets of the Housing Board, which is a statutory authority whose powers are regulated by the provisions of 1962 Act and the Rules promulgated thereunder. The Board, is a legal person, cannot be disputed. A natural person can do all that what is not prohibited by law, and a legal person can do all that which is provided by law vide SATI BHUSHAN MUKHERJEE vs. CORPORATION OF CALCUTTA,

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AIR 1949 CAL 20 wherein the Division Bench decision of

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Calcutta High Court it had observed as under :

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“…There is fundamental distinction between the capacity of a natural person and of an artificial person which has been created by Statute or Charter. To a natural person whatever is not expressly forbidden by law is permitted by the law. He has the capacity to do everything save and expect those forbidden by law. In case of an artificial person – e.g., corporation, which can be created either by charter or by statute the rule applicable to a natural person is revered. Whatever is not permitted expressly or by necessary implication by the constituting instrument is prohibited not by any express or implied prohibition of legislation but by the doctrine of ultra vires…”

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The Board is not only a legal person but an instrumentality

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of State too under Article 12 of the Constitution and therefore, it cannot venture into a private transaction for disposal of its property except as provided by law i.e., Section 39 of the 1962 Act r/w Rule 9(3) of 1964 Rules. What the Housing Board has said in the subject Resolutions is that, if the Petitioners want the subject properties, they can buy them back for Guideline Value as notified by the Government. Therefore, the Petitioners do

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not have a justiciable right to seek reconveyance of the land on the basis of the Board Resolutions in question, much less by returning the sale price with some interest. An argument to the contrary if countenanced, would not only put all public property at the enormous risk of depletion through dubious process but amount to Writ Court being the protector of the public property placing premium on illegality.

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The vehement of submission of learned

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advocates appearing for the Petitioners that the Board on some occasions has sold the property back to the owners thereof after receiving back the consideration with some interest and therefore, Board’s insistence on the payment of Guideline Value is discriminatory of their clients, is difficult to countenance. To put forth the plea of discrimination, the person discriminated should show that the comparable act of the authority on which he seeks parity of treatment, is prima facie lawful. However, that has not been so demonstrated here. In some cases, the

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Board has reconveyed the properties bought earlier, to their erstwhile owners, would not much come to the aid of Petitioners since this Court cannot place its imprimatur on such acts that offend the statutory provisions, to say the least. Admittedly, these properties were not acquired by the State in exercise of its power of eminent domain, but, where bought in the open market. Had they been the so called ’ victims of compulsory acquisition’ , different considerations would have arisen.

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In the above circumstances, these Writ Petitions being devoid of merits are liable to be dismissed and accordingly they are, with a warning to the RespondentState & the RespondentHousing Board against reconveying the properties bought by sale except by public auction and in accordance with law.

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The amount if any, deposited by the Petitioners seeking towards the intended reconveyance, whether by

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