IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14TH DAY OF AUGUST, 2023

PRESENT

THE HON'BLE MR JUSTICE G.NARENDAR

AND

THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

WRIT APPEAL NO. 1860 OF 2016 (KLR-RES)

BETWEEN:

1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE, M.S.BUILDING, BANGALORE-01 BY ITS SECRETARY

2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT, K.G.ROAD, BANGALORE-09.

…APPELLANTS

(BY SRI. KIRAN KUMAR., AGA)

AND:

M/S SCOTTS PLANTATIONS (P) LTD., NO.481-B, IV PHASE PEENYA, BENGALURU-560 058 BY ITS AUTHORISED SIGNATORY, D.BABU @ YUSUF SHARIFF.

…RESPONDENT

(BY SRI. K. N. PHANINDRA., SENIOR ADVOCATE FOR SRI. PAWAN KUMAR M N., ADVOCATE)

Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 1121/16 DATED 29.02.2016.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

JUDGMENT

This intra Court appeal is filed under Section 4 of the Karnataka High Court Act, 1961 challenging the order dated 29.02.2016 passed in W.P.1121/2016 (KLR-RES) by the learned Single Judge by which the writ petition filed by the respondent was disposed of by quashing the annexures impugned therein.

• 2. Brief facts giving rise to filing of this appeal are:
• a) The respondent has filed the writ petition under Article 226 of the Constitution of India seeking prayer to quash the endorsement dated 31.12.2015 issued by appellant No.2 and the communication dated 14.11.2013 issued by appellant No.1 and further praying to issue writ in the nature of mandamus directing the appellants to receive 75% of

the bid amount in respect of the schedule land and issue sale certificate in respect of schedule land.

• b) The appellant No.2 has issued auction notification dated 31.10.2006 notifying several Government lands for the purpose of auction including the land at Sy.No.8 of Kudragere Village, Dasanapura Hobli, Bengaluru North Taluk measuring 5 acres. It is averred that as per the auction notification, the auction was held on 17.11.2006 and the respondent was the highest bidder in respect of the subject land and his bid was for Rs.3,88,00,000/-.

• c) It is further averred that as per the terms and conditions of the auction notification, the respondent has deposited 25% of the bid amount i.e., Rs.97,00,000/- with the appellants on 18.11.2006. On receipt of the said amount, the confirmation letter dated 11.01.2007 was issued under Section 177 of the Karnataka Land Revenue Act, 1964 (for short, 'the Act of 1964'). The appellant No.2 has called

• 3 -

upon the respondent to pay the balance 75% bid amount vide notice dated 04.02.2007. The respondent has sent communication dated 10.02.2011 requesting the appellants to take appropriate steps to change of land use and they would make the payment of 75% immediately after the change of land use is granted to the land in question.

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d) It is also averred that appellant No.1 has sent communication dated 19.01.2009 to appellant No.2 to send proposal for change of land use and thereafter 75% amount can be collected from the respondent. It is pleaded that the respondent has submitted representations dated 22.09.2012 and 31.12.2015 to the appellant No.2 requesting to issue notice for payment of 75% of the bid amount after the change of land use from Green belt to the residential zone is granted.

e) It is further pleaded that appellants have issued endorsement, letter and official memorandum dated 14.11.2013, 20.12.2013 and 31.12.2015 forfeiting 25% of the bid amount deposited by the respondent. Being aggrieved by the orders of forfeiture, the respondent has filed the writ petition. The learned Single Judge has allowed the writ petition filed by the respondent. Being aggrieved by the order of the learned Single Judge dated 29.02.2016, the State Government is in appeal.

3. Sri.Kiran Kumar, learned Additional Government Advocate for the appellants-State submits that as per the auction held on 17.11.2006, the respondent was the highest bidder and he has remitted 25% of the bid amount on 18.11.2006; further as per the condition No.11 of the auction notification, the respondent was required to remit/deposit balance 75% of the bid amount within the stipulated period and the respondent has failed to do so and without appreciating the said fact,

the learned Single Judge has allowed the petition quashing the impugned orders of forfeiture of 25% of bid amount.

4. It is submitted that the respondent having participated in the auction proceedings was fully aware of the terms and conditions of the auction notification and the appellants have confirmed the sale on 11.01.2007 and thereafter the respondent was called upon to deposit 75% of the bid amount, which the respondent has failed to comply. Hence, the appellant-authorities have forfeited the 25% of the bid amount deposited by the respondent, the action of the appellants is strictly in consonance with the terms and conditions of the auction notification and as per Section 175 of the Act of 1964. However, the learned Single Judge has failed to appreciate the fact that the respondent has not adhered to the terms and conditions of the auction notification and proceeded to allow the petition by directing the respondent to deposit balance 75% of the bid amount and in addition Rs.12,00,000/-, which is as per the present guidance value of the property.

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5. It is further submitted that the respondent has violated the terms of the contract and time is essence of the contract and when the respondent failed to adhere to the terms of the contract, the appellants have forfeited the 25% of the amount deposited by the respondent. However, the learned Single Judge has failed to consider these facts, and the order of Learned Single Judge is contrary to the facts and evidence on record, which is required to be interfered in the present appeal.

6. It is also submitted that after lapse of four years, the respondent had submitted representation stating that the subject land comes within the green belt when the notices were issued by the appellants to pay balance amount. The sale is "as is where is basis" and the respondent was fully aware about the nature of land before participating in the auction. The appellants have sent number of communications to the respondent requesting him to deposit 75% of the bid amount, however, he has not deposited the said amount despite

granting sufficient opportunity. Hence, as per the terms and conditions of the auction notification and as per the provisions of the Act and Rules made thereunder, the appellant authorities have forfeited 25% of the bid amount. Hence, he seeks to allow the appeal by setting aside the order of the learned Single Judge.

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7. Per contra, Sri.K.N.Phanindra, learned senior counsel appearing on behalf of the respondent submits that the impugned orders of forfeiture of 25% of bid amount deposited by the respondent was never communicated to the respondent. The action of the appellant authorities is in violation of the principles of natural justice.

8. It is submitted that in similar set of facts, the learned Single Judge of this Court in W.P.No.48067/2011 has directed the appellant authorities to accept 75% of the bid amount by quashing the forfeiture order. It is further submitted that the forfeiture orders were issued without referring to the communication of the Principal Secretary,

Revenue Department dated 19.01.2009 whereby it is observed that the auctioned land is in green belt and without there being a change of land use, the purchaser cannot be issued with a sale certificate, hence the policy decision was taken to collect 75% of the bid amount after change of land use is granted. The respondent is always ready to deposit 75% of the bid amount, however, he could not do so for the simple reason that the appellant authorities were unable to issue sale certificate or execute sale deed in his favour as the land in question was admittedly in agriculture zone/green belt and there is statutory bar. These factors have been meticulously considered by the learned Single Judge and quashed the impugned orders of forfeiture.

9. It is further submitted that during the pendency of the proceedings before the learned Single Judge the respondent was directed to deposit 75% of the bid amount i.e., Rs.2,91,00,000/- by the learned Single Judge to show bonafides. As per the direction of learned Single Judge,

the respondent has deposited 75% of the bid amount before this Court on 21.01.2016. The learned Single Judge, while disposing of the writ petition, has directed the respondent to pay the guidance value of the land as on the date i.e., Rs.80,00,000/- per acre totally Rs.4,00,00,000/ for 5 acres. The respondent has deposited 25% i.e., Rs.97,00,000/- with the appellants on 18.11.2006 and deposited 75% i.e., 2,91,00,000/-, before this Court and thereafter the respondent has deposited remaining amount of Rs.12,00,000/-. In total, the respondent has deposited a sum of Rs.4,00,00,000/- which is the market value of the subject land as on the date of passing of the order by the learned Single Judge.

10. It is also submitted that the order of the learned Single Judge is equitable order. The learned Single Judge has taken into consideration the fact that the appellant authorities were not in a position to issue sale certificate in favour of the respondent as the subject land was in green belt. The learned Single Judge has

substantially compensated the appellants by directing the respondent to pay the present market value of the land in question, which the respondent has complied with. The order of the learned Single Judge is based on the material available on record and no loss or prejudice is caused to the appellant-State. Hence, he seeks to dismiss the writ appeal filed by the appellant-State.

11. We have heard the learned Additional Government Advocate for the appellants, learned Senior Counsel for the respondent, perused the writ appeal papers and original records made available by the learned AGA.

12. The points that would arise for consideration in this appeal are:

1. Whether the respondent has justified in non deposit of 75% amount before the change of land use?

2. Whether the appellant authorities were in a position to issue sale certificate in favour of the respondent without change of land use?

3. Whether the order of the learned Single Judge requires interference?

13. The answer to the above point No.1 is answered in the affirmative and point Nos.2 and 3 are answered in the Negative for the following reasons:

a. It is not in dispute that the appellant-State have issued the auction notification dated 31.10.2006 to auction the Government land measuring 5 acre at Sy.No.8 of Kudrugere Village, Dasanapura Hobli, Bengaluru North Taluk. In the said auction, the respondent herein was the highest bidder and his bid was for a sum of Rs.3,88,00,000/- which was more than 331% as per the guidelines of the auction as is evident from the communication dated 28.11.2006 of the Deputy Commissioner. It is also not in dispute that pursuant to auction, the respondent has deposited 25% of the bid amount within the stipulated time.

• 12 -

• b. The appellant No.1 sent communication dated 11.01.2007 to appellant No.2, a confirmation letter under Section 177 of the Act of 1964 and thereafter, the respondent was directed to pay 75% of the bid amount vide letter dated 24.02.2007. The respondent has sent a communication to the appellant No.2-Deputy Commissioner requesting to make a demand including the conversion charges. Thereafter, the appellant No.2 has sent communications dated 01.02.2007 and 28.08.2007 stating that the respondent is a non-agriculturist and registration of agricultural land in favour of nonagriculturist is barred under Section 79A and 79B of the Karnataka Land Reforms Act, 1961 (for short, **'**the Act of 1961') and sought approval under Section 109 of the Act of 1961 to register land in favour of the respondent.
• c. There are various correspondences between appellant No.1 and appellant No.2 with regard to

grant of exemption under Section 109 of the Act of 1961. Admittedly, the land in question is an agricultural land and it falls within the agriculture/green zone as per the Comprehensive Development Plan (CDP). The appellant No.2 knowing fully well that the land being an agricultural land, and the bidders, including the respondent herein are the non-agriculturists have participated in the bid proceedings, has allowed the auction proceedings to be held and directed the respondent to deposit the initial amount of 25% of bid amount. The action of appellant No.2 to receive the 25% of the bid amount from a Private Limited Company despite knowing the fact that they cannot acquire the title in view of the bar under Section 79A & 79B of the Act of 1961. The subsequent communication of the appellant No.2 with appellant No.1 clearly demonstrates that the appellant No.2 i.e., Deputy Commissioner, was not in a position to issue sale certificate and complete the transfer of property in

• 14 -

favour of successful bidder i.e., respondent herein, even if, the respondent would have deposited the balance amount of 75% within the stipulated time. The action of appellant No.1 and appellant No.2 clearly demonstrates that the stipulation of deposit of 75% within a certain period as per clause 11 and 13 of the auction notification dated 31.10.2006 has been waived off by their conduct. The communication dated 19.01.2009 from appellant No.1 to appellant No.2, reads as under:

• 15 -

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NC: 2023:KHC:28773-DB WA No. 1860 of 2016

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(E. F±À égï £ÁAiÀÄPï) ¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð, PÀAzÁAiÀÄ EÁSÉ (¨sÀÆ. ªÀÄA).

On bare perusal of the communication referred supra, it is the appellant No.1, who has directed the

appellant No.2 to collect 75% of the balance amount only after the change of land use is permitted. The various communications between appellant No.1 and appellant No.2 on record clearly indicate that the appellants have waived the condition of auction notification, wherein the respondent was required to deposit 75% of the bid amount within the stipulated time. The appellants are bound by the letter dated 19.01.2009. Nothing has prevented the appellants to act as per Clause Nos.11 and 13 of the auction notification, immediately by forfeiting 25% of the bid amount, and by calling for fresh auction. Instead of that, the appellants have allowed the bidder i.e., respondent, to deposit 75% of the bid amount after the change of land use is granted. The respondentbidder cannot be allowed to suffer due to the lapses of the appellant-authorities.

d. The records further demonstrate that the appellant-State has permitted the similarly placed bidders to

deposit the balance amount only after getting all the clearances for the lands in question. When things stood thus, the appellants being the State authorities cannot place the respondent on a different footing than the similarly placed persons. The action of appellants would be unfair by treating the respondent differently than the similarly placed bidders by the State authorities.

e. The original records, which are made available, have certain correspondences/notices sent by appellant No.2 to respondent directing him to make payment of 75% of the bid amount. However, there are also number of correspondences between appellant No.1 and appellant No.2 which indicate that appellant No.2 was not in a position to convey the title in favour of respondent even if 75% of the bid amount is deposited, in view of the embargo under Section 79A & 79B of the Act of 1961.

f. There is no justification on the part of appellant-State now to contend that the respondent has not adhered to the terms of auction notification hence they are justified in forfeiting 25% of the bid amount. The appellants knowing fully well that the respondent is a non-agriculturist had participated in the auction, they have allowed him to deposit 25% of the bid amount and indulge in various correspondences between them for granting exemption under Section 109 of the Act of 1961, now they cannot be allowed to contend that it is the respondent has committed default/violated the terms of the auction notification. It was always open for the appellants to cancel the auction when they came to know that the respondent is a non-agriculturist and they would not be in a position to convey the complete title in favour of the respondent in view of the statutory embargos referred supra and without doing so, the appellants have processed the proposal for change of land use. The action of the appellants in allowing the

respondent to participate in the auction proceedings and making an attempt to grant exemption under Section 109 of the Act of 1961 and subsequent sudden change in the stand, by forfeiting 25% of bid amount deposited by the respondent would clearly goes to demonstrate that the action of the appellants is arbitrary, unjust and in violation of the principles of natural justice.

g. The above conduct of the appellants is an act of waiving off their rights available under the auction notification dated 31.10.2006. In the instant case, the doctrine of waiver is clearly applicable. The term Waiver has been described in Halsbury's Laws of England, 4th Edition, Vol.16 Para 1471 reads as under:

"1471. Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct…. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of

NC: 2023:KHC:28773-DB WA No. 1860 of 2016

a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration…

It seems, that in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the party has taken him at his words and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualifications which has himself so introduced, even though it is not supported in point of law by any consideration."

Waiver is an intentional abandonment or relinquishment of the known right. Waiver may arise where a party to a contract represents to the other expressly or by conduct that he will forego or dispense with the right which he enjoys under the contract or at law and the other party alters his position as a result. In the instant case, the appellants by their conduct have allowed to forego the right to forfeit 25% of the bid amount, which has led the respondent to alter his position. Hence, it can be fairly held that the appellants have waived their right to forfeit 25% of the bid amount by their conduct.

• h. Admittedly, the appellants have not issued any notice to the respondent before issuing the impugned order/communication dated 31.12.2015, 14.11.2013 and 20.12.2013 forfeiting the 25% of the bid amount deposited by the respondent. The action of the appellants is in clear violation of principles of natural justice and on this count also the appellants would not have sustained the impugned orders before the learned Single Judge.

• i. The learned Single Judge while disposing the writ petition has directed the respondent to pay guidance value of the subject land as on the date of disposal i.e., Rs.80,00,000/- per acre and accordingly, the respondent had deposited the entire balance amount before this Court. The order of the learned Single

• 22 -

Judge directing the respondent to deposit the differential amount/the amount as per the guidance value is an equitable order. The learned Single Judge directed the respondent to deposit the balance 75% of the bid amount i.e., Rs.2,91,00,000/-, further the learned Single Judge has directed to deposit Rs.12,00,000/- as a differential amount as per the guidance value. Admittedly, the respondent has paid a sum of Rs.12,00,000/- additional amount than the bid amount. The payment of additional amount of Rs.12,00,000/- by the respondent would compensate the appellant-authorities for the delayed period, if any. In our considered view there is no prejudice or injustice would be caused to the appellants by conveying the title in favour of the respondent as per the auction notification dated 31.10.2006 by withdrawing the amount in deposit.

j. The learned Single Judge has recorded a categorical finding that the appellants have not served with the

order of forfeiture and the appellants were not in a position to convey the title in favour of the respondent as the land was agricultural land until the exemption is granted under Section 109 of the Act of 1961 and there is no delay and latches on the part of the respondent in presenting the petition. The aforesaid finding of the learned Single Judge is based on pleading and evidence on record and the finding of the learned Single Judge is neither perverse nor contrary to the evidence on record calling for interference in the present appeal.

14. For the reasons recorded supra, there is no merit in this appeal. Accordingly, the appeal fails and is hereby dismissed.

Sd/- JUDGE

Sd/- JUDGE

BSR List No.: 1 Sl No.: 31