Ii) Commissioner Of Income Tax, Madras -Vs v. Mr P. Firm Muar Reported In 1961 Sc 1216 Muar Reported In 1961 Sc 1216

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF AUGUST, 2022 BEFORE THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR -WRIT PETITION NO.15250/2022 (LBRES) BETWEEN: M/S. CHARTERED HOLDINGS A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.27, VICTORIA ROAD BANGALORE-560 047 REPRESENTED BY ITS PARTNER M/S CHARTERED HOUSING PRIVATE LIMITED REPRESENTED BY ITS MANAGING DIRECTOR MR. A. BALAKRISHNA HEGDE. ...PETITIONER (BY SRI SAMMITH S., ADVOCATE) AND: 1. STATE OF KARNATAKA REPRESENTED BY ITS UNDER SECRETARY DEPARTMENT OF URBAN DEVELOPMENT VIKASA SOUDHA BANGALORE-560 001. 2. SATELLITE TOWN RING ROAD PLANNING AUTHORITY REPRESENTED BY ITS MEMBER SECRETARY BMRDA OFFICE, NO.1, ALI ASKAR ROAD BANGALORE-560 052. ...RESPONDENTS (BY SRI R. SRINIVASA GOWDA, AGA FOR R-1; SRI YOGESH D. NAIK, ADVOCATE FOR R-2) SRI YOGESH D. NAIK, ADVOCATE FOR R-2) 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 R-1 VIDE ANNEXURE-H, 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., R-2 AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R one The petitioner in partnership with Mr. A. Lakshminarayan Alva constituted a partnership firm through a registered deed for development of the subject property. The concerned officer passed an order for change of land use of property bearing Sy. No.229/1 and 156/1 measuring 10 acres and 3 acre 28 guntas respectively from agricultural zone to residential zone on an application filed Mr. A. Lakshminarayan Alva. Thereafter he filed an application for conversion of part of subject land. The deputy commissioner by an order dated 20.12.2016 converted the subject property. by 2. Respondent No. 1 issued a notification dated 24.06.2016 forming Satellite Town Ring Road Planning Authority (for short 'STRRPA') wherein the subject property came under 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. 3. Thereafter, A. Lakshminarayan made an application in respect of the remaining land of the subject property and in pursuance of the said application, the 2nd respondent in its communication dated 10.7.2018 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 20.5.2017 issued by the 1st respondent. Thereafter, the petitioner relinquished 5% of the land area towards land bank on 23.2.2019 by executing a relinquishment deed in favour of the State Government. 4. The petitioner has filed the present writ petition seeking for quashing of the notification dated 20.5.2017 insofar 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 10.07.2018 issued to the 2nd respondent requiring the petitioner to surrender 5% of the land area in terms of the impugned notification. 4. The petitioner has filed the present writ petition seeking for quashing of the notification dated 20.5.2017 insofar 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 10.07.2018 issued to the 2nd respondent requiring the petitioner to surrender 5% of the land area in terms of the impugned notification. 5. Learned Counsel appearing for the petitioner submits that by an executive order, the impugned conditions 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 his 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. AIR 2011 SC 3430. ii) Commissioner of Income Tax, Madras -vs- V. MR P. Firm Muar reported in 1961 SC 1216 Muar reported in 1961 SC 1216 iii) Union Of India vs N Murugesan reported in 2021 (3) SLJ 401 (SC). 401 (SC). iv) Arun Venkanna Navali -vs- Hubballi Dharwad Municipal Corporation & Ord. in WP Nos.108208-108209/2016 and connected matters (DD 22.12.2021). 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). 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) 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). Society Ltd. -vs- Hubli Dharwad Urban Development Authority in WP Nos.5260/1991 c/w 927 & 928/1992 (28.5.1999). 6. On the other hand, the learned Additional Government Advocate and the learned counsel appearing for the 2nd 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 him. 7. I have examined the submissions of the learned counsel for the parties. 8. It is undisputed that the petitioner derived the benefit of the order passed under Section 14(A) of the Act, permitting the change of use of land from agricultural zone to residential zone. Thereafter, 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. In pursuance of the same, the 1st respondent issued a notification dated 20.05.2017 notified in the gazette 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 surrendering the land designated to be reserved as land bank under the notification free cost to the state government. 9. 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 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. 9. 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 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. 10. 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 supported 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. 11. The petitioner accepted the condition imposed by the respondent no.2 requiring him to surrender the land earmarked as reserved for land bank in the notification free of cost and executed a relinquishment deed in favour of the state government. 12. 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). 13. 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. 14. 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. 15. The issue involved in this writ petition was examined by the coordinate Bench of this Court in WP No. 44158/2016. Accordingly, I pass the following: ORDER i) Writ petition is allowed. ii) The impugned notification dated 20.5.2017 issued by the 1st respondent at Annexure-H insofar 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 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 10.7.2018 at Annexure-J issued by the 2nd respondent insofar 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 23.2.2019 is also held to be illegal and void. 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 bkm