1 [CASE NUMBER] IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON'BLE MR. JUSTICE [ENTITY] WRIT APPEAL No.1536/2016 (BDA) BETWEEN : 1. THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY T. CHOUDAIAH ROAD KUMARA PARK WEST BENGALURU-560 020 REPRESENTED BY THE ADDL. LAND ACQUISITION OFFICER 2. THE SPECIAL LAND ACQUISITION OFFICER, BENGALURU DEVELOPMENT AUTHORITY, T. CHOUDAIAH ROAD KUMARA PARK WEST BENGALURU -560 020 REPRESENTED BY THE ADDL. LAND ACQUISITION OFFICER APPELLANTS (BY SHRI. G.S. KANNUR, SENIOR ADVOCATE FOR SHRI. MURUGESH V. CHARATI, ADVOCATE) AND : SMT. LAKSHMAMMA W/O SRI. MUNIYAPPA AGED ABOUT 60 YEARS R/AT SY.NO.164/1 SRI. LAKSHMI NURSERY FARM 2 [CASE NUMBER] ULLALU VILLAGE, ULLALU UPANAGARA POST, 4TH BLOCK SRI. M. VISHVESHWARAIAH LAYOUT, 100 FEET ROAD BENGALURU -560 056 RESPONDENT (BY SHRI. T.N. VISHWANATHA & SHRI. T.N. RAMESH, ADVOCATES) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.46598/2013 DATED 13.11.2014. THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.03.2019, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, [ENTITY] J, PRONOUNCED THE FOLLOWING:- JUDGMENT
Bengaluru Development Authority has presented this appeal challenging the order dated 13th November 2014 passed by the Hon'ble Single Judge in [CASE NUMBER] (LA-BDA).
2. For the sake of convenience, parties shall be referred as per their status in the writ petition.
3. Briefly stated the facts of the case are, writ petitioner has filed the instant writ petition contending inter alia that Bengaluru Development Authority(BDA) has utilized 7 guntas of land in [CASE NUMBER] of Ullalu village, Bengaluru North Taluk belonging to her for the purpose of formation of 100 ft. road. At the time of utilizing the land petitioner objected to the same and it was assured by the BDA that alternative land would be allotted.
4. Petitioner has filed the instant writ petition with a prayer for a writ of mandamus and a direction to BDA to allot land equivalent to 100% of the area of land lost.
5. The Hon'ble Single Judge has recorded in the impugned order that writ petitioner submitted a representation for allotment of land equivalent to 100% of land lost by him. However, BDA has resolved to allot land equivalent to 50% of land lost by him. Having so recorded, the Hon'ble Single Judge has directed BDA to consider grant of equal extent of land.
6. Feeling aggrieved by the impugned order, BDA has preferred this appeal.
7. We have heard seven writ appeals filed by the BDA simultaneously including this appeal. In [CASE NUMBER] we have dealt with the issue in extenso and recorded as follows:
"12. We have carefully considered rival contentions and perused the records.
13. Petitioner's principal contention is that, he is entitled for allotment of developed sites equivalent to the area of the land lost by him.
14. It cannot be gainsaid that petitioner is not entitled for just and appropriate compensation for the land utilized by the BDA. The main ground raised by Shri. [ENTITY] is that, if some land owners have received compensation more than the value of the land either in the form of monetary compensation or allotment of developed sites under the orders of the Court, the same shall not enure to petitioner's benefit inasmuch as there is no equality in illegality.
15. The claim of writ petitioner that the benefit which flowed from various orders of this Court to different land losers must be extended to the petitioner also, cannot be countenanced. We say so because a litigant cannot cry foul of unequal treatment or discrimination based on an inter-party judgments in which land losers may have been benefited more than their entitlement.
16. In the case of [PRECEDENT] it is held as follows:
"13. Even otherwise, [SECTION] is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In [PRECEDENT] this Court rejected such a contention as sought to be advanced in the present case by observing: (SCC pp. 28-29, para 36) "36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality."
17. In the case of [PRECEDENT] the Hon'ble Supreme Court of India has held as follows:
"8. It is a settled legal proposition that [SECTION] of the [ACT] is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a (2007)11 SCC 172 (2013)14 SCC 81 positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner.
If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, [SECTION] cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide:
[PRECEDENT], M/s. [PRECEDENT]; [PRECEDENT]; and [PRECEDENT])."
(Emphasis supplied)
18. In the case of [PRECEDENT], Hon'ble Supreme Court of India has ruled that no hypothetical view should be taken while awarding compensation. The relevant passage reads as follows:
"14. In a catena of cases, this Court has held that compensation should be adequate and there must be no injustice with the land owners since they stand deprived from their very vital right i.e., Right to Property. At the same time, it is also to be kept in (2018)16 SCC 105 mind that no hypothetical view shall be taken as it may be harmful to the public exchequer in case of acquisition for public purposes. Hence, courts must maintain balance between both the parties.
(Emphasis supplied)
19. We have also considered Shri.[ENTITY]'s submission with regard to cost incurred in development of land by the BDA. As per the calculation furnished before this Court, BDA would be able to sell only 55% of the land it acquires. Therefore, it would be incongruous to hold that petitioner shall be entitled to developed sites equivalent to 100% of the area of land lost by him.
20. Thus, in view of settled position of law, we are of the considered view that petitioner's prayer for grant of equal area of developed land does not merit any consideration."
8. The conspectus of facts of this case shows that BDA has resolved to allot land equivalent to 50% of the area of land lost by the petitioner. The prayer in the writ petition is for a direction to the BDA to allot land equivalent to 100% of the area of land lost. In view of our conclusions in [CASE NUMBER] extracted above, this appeal merits consideration and deserves to be allowed. Hence, the following:
ORDER
(a) Appeal is allowed;
(b) The order dated 13th November 2014 passed by the Hon'ble Single Judge in [CASE NUMBER] is set-aside;
(c) [CASE NUMBER] is dismissed;
(d) Petitioner shall be at liberty to accept 50% of the land allotted as per Resolution No.64/2007 dated 19th April 2007 and agitate her rights with regard to the valuation of the same and seek appropriate relief before appropriate forum.
No costs.
JUDGE Sd/-
JUDGE SPS