Bangalore District Court
Col. S.P. Anand vs Bangalore Development Authority on 9 March, 2018
C.R.P. 67) Govt. of Karnataka
Form
No.9(Civil)
Title sheet for
Judgment in
Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
(CCH.NO.12)
PRESENT : SRI R.Y. SHASHIDHARA,
B.Com.,LL.B.,
XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
DATED THIS 9TH MARCH, 2018
ORIGINAL SUIT NO. 743/2000
*****
PLAINTIFF: Col. S.P. Anand,
Aged about 68 years,
S/o D.C.Anand,
Rep. by his Power of Attorney
Holder Sri G.S. Ramesh Reddy,
S/o G.C. Shanta Reddy,
R/at Flat No.302,
Palace View Apartments,
223, Ramanamaharshi Road,
Bangalore -560 080.
(By Sri CBS/CBR, Advocates)
- Vs -
DEFENDANTS: 1. Bangalore Development Authority
Rep. by its Commissioner,
T. Chowdaiah Road,
2 OS No.743/2000
Kumara Park West,
Bangalore -560 020.
2. Defence Colony House Building
Co-operative Society Ltd.,
6th Main, Defence Colony,
Indiranagar, Bangalore.
Represented by
Sri Brig G. Shreenivas Retd)
Son of G.V.N. Acharya,
Aged 77 years,
The President.
(For D-1 by Sri B.W., Advocate)
(For D-2 by Sri MK/MRP, Advocates)
Date of institution of the suit 31-01-2000
Nature of the suit: Suit for declaration and
permanent injunction.
Date of the commencement of 12-09-2011
recording of the evidence:
Date on which the Judgment 9-03-2018
was pronounced
Total duration Year/s Month/s Day/s
08 01 18
JUDGMENT
This suit is filed by the plaintiff and prayed for passing decree declaring that resolution of the defendant No.1 dated 31-10-1998 in subject No.184/98, touching the schedule premises and cancellation of allotment 3 OS No.743/2000 communicated to the plaintiff on 10-02-1999, is in breach of contract, illegal and without any authority of law.
It is seen from the records that initially the plaintiff has also sought for decree of permanent injunction restraining the defendant from taking any action for dispossess him from the suit schedule property either under the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974 or otherwise. But during the pendency of the suit in view the memo filed by the plaintiff said relief has been and deleted.
2. The brief facts of the case of the plaintiff narrated in the plaint as follows :-
On 03-12-1975 the defendant (then CITB) was allotted site No.38 measuring 60 x 90 feet situated at Koramangala layout, 4st stage, in favour of the plaintiff.
Thereafter said allotment was cancelled. In lieu of the same, on 3-11-1976 the defendant No.1 has passed the resolution and allotted suit schedule site i.e,. site bearing No.155/B in HAL II Stage to the plaintiff. It is measuring 4 OS No.743/2000 18.29x27.43 Mtrs. The plaintiff has accepted the above said allotment. He obtained approved plan and building license from Bangalore City Corporation. As per the said approved plan and building license he has completed the construction of residential premises. Khatha of the suit property duly changed in the name of the plaintiff, he is paying tax.
3. The defendant No.2 had filed WP No.2610/1988 before Hon'ble High Court of Karnataka and sought for permanent injunction restraining the plaintiff from putting up the construction in the suit schedule property and other reliefs. The defendant No.1 is the respondent No.1 and plaintiff is the respondent No.2 in the said writ petition. Both respondent No.1 and 2 have filed statement of objections in the writ petition. The respondent No.1 in his objection stated about allotment of site in favour of the plaintiff and approved plan. He further stated that there was no reservation of area for a park and in fact distinction of civic amenity site of being park was itself made statutory w.e.f. 21-4-1984 and 5 OS No.743/2000 therefore the suit schedule site was not in any park area so as to attract the apprehension of any allotment in law for the plaintiff favour. On 19-3-1997 the respondent No.1 has filed affidavit in the said writ petition and changed previous stand and contended that now the suit schedule property located and shown as a park. On the basis of the said affidavit the Hon'ble High Court directed the respondent No.1 to take action according to the law in respect of cancellation of allotment of site of the plaintiff. On 31-10-1998 the defendant No.1 passed the resolution declaring that the allotment of site of the plaintiff was mistake. That order was communicated to the plaintiff stating that the allotment of site has been cancelled because of mistake of fact and mistake of law. It is stated that cancellation of allotment of suit schedule site is unilateral, illegal and breach of contract. It was not open to the defendant No.1 to resent it on the ground of mistake of fact which was not mutual much less on ground of mistake of law.
6 OS No.743/2000
4. On 12-01-1999 the defendant No.1 got issued notice to the plaintiff to participate in proceedings initiated under the Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974. The plaintiff is not willing to submit himself to the jurisdiction of the defendant which is without the authority of law. It is stated that intimation of the defendant No.1 that cancellation of suit schedule site to the plaintiff is illegal and breach of contract. Hence, the plaintiff entitled to the declaration that the resolution is illegal and liable to be set aside.
5. It is stated that consequently proceedings initiated by the defendant No.1 seeking the plaintiff eviction from the suit schedule premises is illegal and without the authority of law. The plaintiff had challenged the notice issued by the defendant No.1 dated 12-9-1999 under Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 in WP No.16287/2000. The defendant No.2 of this case was impleaded as respondent No.2 in the said writ petition. On 24-08-2001 the Hon'ble 7 OS No.743/2000 High Court allowed the said writ petition. As against the said writ petition, writ appeal No.6589/2001 filed by the defendant No.1 and writ appeal No.5918/2001 by the defendant No.2 were dismissed. As against the order of the writ appeal, Special Leave Petition to Appeal (Civil) No.16961/2005 preferred by the defendant No.2 before the Hon'ble Supreme Court was dismissed on 17-01- 2008. The cause of action to file this suit arose on 31-01- 1976 when the defendant No.1 allotted the site to the plaintiff, on 31-10-1998 when the defendant passed the resolution and canceling the allotment of site, the plaintiff got issued legal notice to the plaintiff under Section 64 of BDA Act. The defendant No.1 issued notice and threatening the plaintiff to evict from suit schedule property. Hence, the plaintiff filed this suit.
6. As per the records initially the plaintiff filed this suit against the defendant No.1 (BDA) only. During the pendency of the suit the plaintiff got impleaded the defendant No.2 in this case. In pursuance of suit summons both the defendant No.1 and 2 have appeared 8 OS No.743/2000 through their counsel and resisted the case of the plaintiff by way of filing written statement. The defendant No.1 in the written statement stated as follows:-
The suit of the plaintiff is not maintainable in law or on facts. Averments of para 1 to 15 of the plaint are false, incorrect and without any basis. The plaintiff was allotted a site No.155/B (suit schedule -property) at HAL II Stage, Bangalore, which was under ' park zone' under bonafide mistake. The defendant No.1 cancelled the allotment of suit schedule site and allotted alternate site to the plaintiff in No.4AC404 measuring 50 x 80 feet in Old Madras Road, Banaswadi, Bangalore. It is stated that in lieu of earlier site coming under park zone, in due compliance of the order passed in writ petition No.2610/1988 by Hon'ble High Court they have allotted the above said alternate site to the plaintiff.
7. It is stated that due to suit schedule property located under park zone they have taken appropriate action as per law. Hence, resolution passed by the defendant No.1 for cancellation of allotment of suit 9 OS No.743/2000 schedule property in favour of the plaintiff is valid and proper and it does not suffer from any legal lacuna. On 12-11-1999 the defendant No.1 authority got issued notice to the plaintiff under Section 4(1) of Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974 to vacate the suit schedule premises within 45 days. The plaintiff has not filed objections to the said notice. He has not complied the provisions of Section 64 of Bangalore Development Authority Act 1976. The suit of the plaintiff is barred by limitation. The plaintiff has not properly valued the suit property and paid Court fee. There is no cause of action arose to file this suit. The plaintiff has not approached this Court with clean hands. From the above said grounds the defendant No.1 prayed for dismissal of the suit of the plaintiff with exemplary costs.
8. In the written statement defendant No.2 stated as follows :-
It is denied that in the year 1975 the CITB allotted site situated at Koramangala to the plaintiff. It is denied 10 OS No.743/2000 that on 31-1-1976 suit schedule property allotted to the defendant in lieu of cancellation for allotment of earlier site. It is denied that the plaintiff was given possession certificate, he obtained approved plan and building license for construction of residential house. It is stated that the alleged approved plan and building license obtained by the plaintiff are illegal because the suit schedule property is formed within park area No.3 of the Defence Colony. The Bangalore City Corporation have no jurisdiction to grant building license for construction of building and make any khatha to the plaintiff. It is denied that the khatha of the suit property changed in the name of the plaintiff.
9. It is admitted that the defendant No.2 has filed writ petition. In the writ petition the defendant No.1 has filed objection and additional statement of objection and contended that site allotted to the plaintiff was in a park area and in fact they have no power to allot the site in park area and the action has been taken to cancellation of allotment. The plaintiff deliberately suppressed the 11 OS No.743/2000 fact of disposal of writ petition and statement of objections filed by the defendant No.1. It is stated that there is no cause of action to file this suit. Mere issuance of notice by the defendant No.1 will not create any cause of action to the plaintiff to file this suit. Cancellation order of site was done in accordance with law and in pursuance of direction of Hon'ble High Court of Karnataka. The plaintiff had no right to demand for withdrawal of order of cancellation of suit property. He has an opportunity to challenge the order passed by the defendant No.1 before concerned authority. In spite of resorting to the statutory remedy the plaintiff filed this suit without making the defendant No.2 as a party to the case.
10. It is denied that the order of cancellation and resolution of the defendant No.1 is illegal and breach of contract. There was no contract in between the plaintiff and the defendant No.1. The State is the authority to cancel or revoke such benefit and the beneficiary has no right to call it a breach of contract. The relief sought by 12 OS No.743/2000 the plaintiff declaring that the resolution is illegal and liable to be set aside is not tenable. Said prayer cannot be granted by the Civil Court. Only remedy to the plaintiff to exhaust his remedies available under the relevant statute. Therefore, the suit of the plaintiff is not maintainable. It is stated that the order passed by the Hon'ble High Court in writ petition No.2610/1988 has become final and conclusive and binding on the plaintiff.
11. It is denied that the proceedings initiated by the defendant No.1 seeking plaintiff eviction from the schedule premises is illegal and without authority of law. Once the allotment becomes illegal on account of illegal formation of sites and that the same has been cancelled by proper resolution. The plaintiff is squatting on the suit property which is belongs to public property is liable to be evicted under public premises act by the competent authority. In the writ petition filed by the plaintiff, Hon'ble High Court found that suit site belongs to BDA and the building constructed on the suit site is belongs to the plaintiff. In view of cancellation of suit schedule site, 13 OS No.743/2000 alternative site allotted to the plaintiff. Without disclosing the said fact the plaintiff filed this suit. The declaration sought by the plaintiff in respect of resolution passed by the defendant No.1 for cancellation of site is can not be granted, because the said prayer is contrary to the order passed in writ petition No.2610/1988. The plaintiff is not entitle for relief of permanent injunction as against the notice issued by the defendant no.1 under Karnataka Public Premises Act. The plaintiff has not properly valid the suit schedule property and paid court fee. From the above said grounds the defendant No.2 prayed for dismissal of the suit of the plaintiff with costs.
12. On the basis of the pleadings of both parties of both sides my learned Predecessor has framed the issues as follows:-
1. Whether the plaintiff proves that the Resolution passed by the defendant No.1 dated 31-10-1998 as Subject No.184/1998 relating to the extent of suit schedule premises and the letter dated 10-2-1999 communicating the cancellation of the allotment of site is in breach of the contract and therefore, is illegal and without any authority of law?14 OS No.743/2000
2. Whether the plaintiff further proves that the defendant No.1 I attempting to take action against the plaintiff for dispossessing the plaintiff from the schedule premises or evicting him under Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 or otherwise and the same is illegal ?
3. Whether the suit as brought is not maintainable for non-issuance of statutory notices as required under law ?
4. Whether the suit as brought is not maintainable for the reasons stated in para 9 of the written statement of the 2nd defendant ?
5. Whether the suit is improperly valued and the Court fee paid is insufficient ?
6. Whether the plaintiff is entitled for the reliefs as prayed ?
7. To what order or decree ?
13. In order to prove his case, plaintiff examined his power of attorney holder viz., S. Sambashivareddy as PW.1. Documents got marked as Ex.P1 to P39. The defendant No.1 has not adduced oral evidence and not got marked documents. The defendant No.2 examined his Vice-President as DW.1. Documents got marked as Ex.D1 and D2.
14. Heard the arguments.
15 OS No.743/2000
15. My answer to the above issues are as follows:-
ISSUE NO.1 : In the negative
ISSUE NO.2 : Does not arise for consideration.
ISSUE NO.3 : In the negative
ISSUE NO.4 : Does not arise for consideration
ISSUE NO.5 : In the negative
ISSUE NO.6 : In the negative
ISSUE NO.7 : As per final order for the
following :
REASONS
16. ISSUE NO.1:- It is the contention of the plaintiff that ancestor of the defendant No.1 (CITB) by its resolution No.834/31275 allotted site No.380 measuring 60 x 90 feet situated at Koramangala Layout, 4th stage, Bangalore city. PW.1 in his examination-in-chief deposed about allotment of site No.380 to the plaintiff. To prove the said fact the plaintiff has produced demand notice-cum-challan dated 05-04-1973 issued by the CITB, Bangalore and got marked as Ex.P4. It is mentioned that the CITB issued notice to the plaintiff for payment of tax in respect of site No.380 of 16 OS No.743/2000 Koramangala. The plaintiff paid tax of Rs.2279/- to the CITB through Canara Bank.
17. The plaintiff has produced allotment order dated 02-02-1976 issued by the CITB for allotment of site bearing No.155/B in HAL II stage. It is mentioned that in lieu of site No.380 of Koramangala, site No.155/B allotted to the plaintiff. In the said document it is mentioned that in lieu of site No.380 of Koramangala 4th stage, the defendant No.1 has allotted the alternative site. Ex.P28 is the statement of objection filed by the respondent No.1 (BDA) in WP No.2610/1988. In the said statement of objection it is mentioned about allotment of site to the plaintiff in Koramangala area. Ex.P31 is the certified copy of the order passed by the Hon'ble High Court of Karnataka, Bangalore in WP No.2610/1988. In the said judgment also it is mentioned about allotment of site to the plaintiff at Koramangala area. Ex.P39 is the certified copy of the resolution dated 31-10-1998 passed by the BDA, Bangalore, for cancellation of site (suit schedule 17 OS No.743/2000 property) allotted to the plaintiff. In the said resolution also mentioned about allotment of site No.380 to the plaintiff.
18. The defendant No.1 (BDA) in written statement not specifically denied that site No.380 of Koramangala 4th stage was allotted to the plaintiff. But said denial is in formal in nature. The defendant No.2 in the written statement denied that site No.380 of Koramangala 4th block allotted to the plaintiff by CITB. From the above discussion, I am of the opinion that allotment of site No.380 of Koramangala 4th stage to the plaintiff through CITB is not at all seriously disputed fact in this case. In the cross-examination of PW.1, the defendant No.1 and 2 side never denied that site No.380 was allotted to the plaintiff. In view of the above discussion, I come to the conclusion that the plaintiff has proved that CITB had allotted site No.380 in Koramangala 4th stage to him vide resolution dated 03-12-1975.
18 OS No.743/2000
19. It is further case of the plaintiff that after defendant (BDA) authority came into existence, vide resolution dated 31-1-1976 they have allotted site No.155/B in HAL II stage to him. In lieu of earlier site allotted to him at Koramangala, the suit schedule site has been allotted to him. He further contended that as per the allotment he obtained approved plan and building license from Bangalore City Corporation. He has completed construction of residential premises as per the above said approved plan and building license. Khatha of the suit schedule property was duly changed in his name in the record of Bangalore city Corporation. He is paying tax to the suit schedule property. PW.1 in his examination-in-chief reproduced the above said averments of the plaint.
20. I have perused the written statement and contention taken by the defendant No.1 and 2. I am of the opinion that they have also not denied that the suit schedule property allotted to the plaintiff in lieu of site allotted to him at Koramangala. But Defendant No.2 in 19 OS No.743/2000 the written statement formally denied that the suit schedule property allotted in favour of the plaintiff, he obtained approved plan and building license and constructed house. But in para 3 of the written statement itself the defendant No.2 has admitted that the plaintiff is in possession of the suit schedule property. It is stated that the said possession was illegal and without ownership. In the cross-examination of PW.1 it is never challenged that the suit schedule property allotted to plaintiff and he is in possession of the same.
21. Ex.P31 is certified copy of the order passed by Hon'ble High Court of Karnataka in WP No.2610/1988. In the said judgment Hon'ble Court held that as per the available records it appears that the suit schedule property has been allotted to the plaintiff as alternative site in lieu of a site allotted to him by CITB in Koramangala 4th stage. The possession certificate was issued after executing lease-cum-sale agreement. 20 OS No.743/2000
22. To prove his case the plaintiff has produced several documents. Ex.P1 is the special power of attorney dated 04-08-2010 executed by the plaintiff in favour of PW.1 for adducing evidence and prosecute the case. During the course of arguments the defendant No.2 side submitted that the plaintiff filed this suit represented by his GPA holder Sri G.S. Ramesh Reddy. That GPA executed on 14-12-1999 does not state that GPA holder is acquainted with facts of the case. Subsequently the plaintiff replaced the above said GPA and executed Special Power of Attorney in favour of PW.1. But PW.1 has no personal knowledge about the case. Therefore, on the basis of Ex.P1 of the Special power of attorney PW.1 has no power to give evidence.
23. Considering the same I am of the opinion that the plaintiff filed this suit represented through his power of attorney holder viz., G.S. Ramesh Reddy. Subsequently he has executed Ex.P1 of Special Power of attorney in favour of PW.1 for deposing evidence and prosecute the 21 OS No.743/2000 case. From perusal of evidence of PW.1, I am of the opinion that he has deposed evidence in this suit on behalf of plaintiff. As per provisions of Order 3 rule 2 of CPC the parties to the suit can adduce evidence through GPA holders. Therefore, I am not accepted the contention of the defendant No.2 that PW.1 evidence is liable to be rejected that he has no personal knowledge about the case.
24. Ex.P4 is the demand notice-cum-challan issued by the CITB, Bangalore. The plaintiff paid tax to the CITB in respect of previous site bearing No.380, 4th stage of Koramangala. Ex.P5 is the allotment letter dated 2-2- 1976 issued by the defendant No.1 (BDA), Bangalore in favour of the plaintiff. It is mentioned that in lieu of site No.380 of Koramanala 4th stage, suit schedule property allotted to the plaintiff. It is also requested the plaintiff for surrendering the original allotment document pertaining to the site No.380 of Koramangala. Ex.P6 is the notice dated 26-9-1971 issued by the CITB, Bangalore to the plaintiff for intimation of allotment of 22 OS No.743/2000 suit schedule site. Ex.P7 is the possession certificate of suit schedule property dated 14-12-1978 issued by the BDA in favour of the plaintiff. Ex.P8 to 11, 13, 15 to 17 are the tax paid receipts and demand notices issued by the defendant No.1 to the plaintiff for payment of tax to the suit schedule property.
25. Ex.P12 is the endorsement dated 30-10-1995 issued by the defendant No.1 that suit schedule property handed over to the Bangalore City Corporation for maintenance w.e.f. 1-10-1980. It is further mentioned that the plaintiff has been put up in possession of site on 4-12-1978, no tax is due to him to the defendant No.1. Ex.P14 is nill encumbrance certificate in respect of suit schedule property from 1- 10-1980 to 27-1-1986.
26. Ex.P18 and P19 are the certificates issued by the defendant No.1 dated 13-5-1986 that the khatha of the suit schedule property is in the name of the plaintiff. Ex.P20 and P21 are the tax paid receipts in the name of 23 OS No.743/2000 the plaintiff. Ex.P22 is the building license dated 24-11- 1987 issued by the Bangalore City Corporation in the name of the plaintiff in respect of suit schedule property. Ex.P23 is the approved plan issued by the Bangalore City Corporation in favour of the plaintiff for construction of house in the suit schedule property.
27. Ex.P24 and P25 are the documents relating to the KEB connection to the suit schedule property. Ex.P26 is the tax demand notice issued to the plaintiff and as per Ex.P27 he has paid the same. Ex.P33 is the endorsement issued by the defendant No.1 that as per the resolution and order of the Hon'ble High Court passed in writ petition No.2610/1988 they passed an order for cancellation of the suit schedule property of the plaintiff and decided to allotment of alternative site. Ex.P39 is the resolution of the defendant No.1 about cancellation of allotment of suit schedule property and decided to allotment of alternative site. It is also directed the plaintiff to vacate and hand over possession of the suit schedule property to the defendant No.1. 24 OS No.743/2000 Considering the above said oral and documentary evidence, I am of the opinion that the plaintiff has proved that in lieu of site No.380 of Koramangala 4th stage, the defendant No.1 allotted the suit schedule to him. As per the records it reveals that after allotment of site No.380 of Koramangala, the plaintiff himself had requested for allotment of site at Defence colony. Accordingly defendant No.1 allotted the suit schedule site to him.
28. From the above, it is clear that on 2-2-1976 defendant No.1 allotted the suit schedule property (site No.155/B) in favour of the plaintiff. In lieu of site No.380 of Koramangala 4th stage, the suit schedule site allotted him. It is further clear that as per above said allotment, khatha of the suit property change in the name of the plaintiff. He has paid tax to the suit property. It is further clear that as per Ex.P22 and P23 the plaintiff obtained building license and approved plan on 24-11-1987 from Bangalore City Corporation and 25 OS No.743/2000 constructed house. It is admitted fact that the plaintiff is in possession of the suit schedule property.
29. It is seen from the records that the defendant No.2 had filed writ petition No.2610/1988 before Hon'ble High Court of Karnataka. It was filed against the respondent No.1 (defendant No.1 in the present case), respondent No.2 (plaintiff in the present case) and respondent No.3 (Indiranagar Cultural Institute). On 8-12-1997 the Hon'ble Court disposed off the said petition. In the said writ petition the petitioner sought for directing that site No.155-B (suit schedule site), 164-A and 206-A in Defence colony, HAL II stage, Indiranagar, illegally formed by the defendant No.1 in park area. Therefore, it is prayed for quashing the allotment of sites. It is also prayed for quashing the allotment of site No.155-B (suit schedule site) has allotted in favour of the plaintiff of this case. It is also sought for direction to respondent No.1 to initiate action against the respondent No.2 and 3 and to continue to maintain the areas reserved as park.
26 OS No.743/2000
30. Ex.P.28 is certified copy of statement of objections filed by the respondent No.1 (BDA) dated 23-03-1988 in W.P. No.2610/1988. It is stated the suit schedule site is not located in area of space reserved for park.
31. Ex.P.29 is the certified copy of affidavit dated 19- 03-1997 filed by the Commissioner of the respondent No.1 in the writ petition No2610/1988. In the said affidavit it is stated that on the available file, site number 155/B (suit schedule site) does not find place in the approved layout plan. As per the layout plan furnished by the petitioner as approved by CITB vide resolution number 265 dated 12-06-1966 the suit schedule site in now located is shown as a park. The Hon'ble Court by their order quoted the above said affidavit filed by the Commissioner which reads as follows:-
I have perused the available records with respect to Site No.155/B, 164/A and 206/A,HAL ii Stage.27 OS No.743/2000
From the available records, it appears that site No.155/B has been allotted to Col.S.P. Anand, as an alternative site in lieu of a site earlier allotted to him by the erstwhile CITB in Koramangala IV Block IV Stage. The possession certificate in respect of site No.155/B was issued after executing LCS Agreement on 14-12-1978. From the notings on the available file, there are indications that site No.155/B does not find a place in the approved layout plan. As per the layout plan furnished by the petitioner, as approved by the CITB vide Resolution No.265 dated 12-10-1966, the area where Site No.155/B is now located is shown as a park. The CDP of 1984 and the revised CDP approved in 1995 also show the area as a park.
As per the available records, it is seen that an advice has also been issued by the then Commissioner, BDA on 20-2-1988 to the Superintending Engineer, BCC, with a copy to the Commissioner, BCC to withdraw the sanction plan in respect of site No.155/B as the plot is situated in the CA area of BDA.No action admittedly has been taken by the BDA to formally cancel the site allotment in respect of Site No.155/B todate. It is also understood that the said allottee Col.S.P. Anand has already constructed a house.
As per available records in BDA, Site No.164/A measuring 90' +95'/2 x 130' and 206/A measuring 60' x 100' were allotted as CA sites to Indiranagar Cultural Institute for the purpose of construction of Association building and Nursery school respectively. The said institute did not construct the building as per conditions of the lease agreement, and therefore, after issue of requisite show cause notice and consideration of replies, BDA cancelled the said allotment vide its order dated 25-4-1995.
BDA is not permitted to allot residential sites in areas reserved for parks and civic amenities. Such change if any in the layout plan are to be duly authorized by the Authority. It 28 OS No.743/2000 does appear that from the records that CA sites No.164/A and 206/A were duly authorized by the erstwhile CITB prior to allotment to Indiranagar Cultural Association. However, these allotments have since been cancelled for reasons cited in prepara.
32. Accordingly, Hon'ble High Court passed order as follows :-
Thus, it is seen from this affidavit that the allotment of sites 164A and 206A have been cancelled by the B.D.A. on 25-4-1995. So far as site No.155-B is concerned, it is submitted by Mr. Laxmi Narayana Rao appearing for the B.D.A. that the B.D.A. is going to take action in accordance with law to cancel the allotment made in favour of respondent No.2. If the B.D.A. does not take steps to cancel the allotment made in favour of respondent No.2 of site No.155-B and other necessary action within six months from today, the petitioner is at liberty to move the Court again. With this observation, the petition is disposed of.
33. After passing order in the writ petition No.2610/1988, defendant No.1 passed resolution on 31- 10-1998 in No.184/98 (Ex.P39). The operative portion of the resolution reads as follows :-
ªÉÄîÌAqÀ PÁgÀtUÀ¼À »£É߯ÉAiÀÄ°è ªÀÄvÀÄÛ ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ jmï Cfð ¸ÀASÉå 2610B88 gÀ°è ¢£ÁAPÀ B 08.12.97gÀAzÀÄ ¤ÃrgÀĪÀ DzÉñÀzÀAvÉ, GzÁå£Àª£À ÀPÁÌV «ÄøÀ°nÖzÀÝ eÁUÀzÀ°è ²æà J¸ï.¦. D£ÀAzïgÀªÀjUÉ ºÀAaPÉ ªÀiÁqÀ¯ÁVzÀÝ ¤ªÉñÀ£À ¸ÀASÉå 155B© ºÀAaPÉAiÀÄ£ÀÄß gÀzÀÄÝ¥Àr¸À¯ÁVzÀÄÝ , EzÀPÉÌ ¥ÀjºÁgÁxÀðªÁV, CªÀjUÉà 29 OS No.743/2000 EzÉà C¼ÀvÉAiÀÄ §zÀ° ¤ªÉñÀ£À ¤ÃqÀ®Ä DzÉò¹zÉ. ²æà J¸ï.¦. D£ÀAzïgÀÄ ¤ªÉñÀ£À ¸ÀASÉå 155B©, ºÉZï.J.J¯ï. 2£Éà ºÀAvÀ, EzÀ£ÀÄß PÀÆqÀ¯Éà vÉgÀªÀÅUÉƽ¹ ªÁ¸ÀÛªÀå ¨sËwPÀ ¸Áé¢üãÀª£À ÀÄß ¥Áæ¢üPÁgÀPÉÌ M¦à¸ÀĪÀAvÉ DzÉò¸À¯ÁVzÉ.
34. In Ex.P39 it is mentioned that on 2-2-1976 CITB allotted alternative site (suit schedule site) in favour of the plaintiff and on 3-11-1978 possession certificate issued to him. The defendant No.2 has made representation for cancellation of the above said allotment made in favour of the plaintiff. In view of order passed by Hon'ble High Court in W.P. No.2610/1988 they got issued show-cause notice to the plaintiff. As per the request of GPA holder of the plaintiff (A. Krishnamurthy), the opportunity given to him for giving statement. On the basis of his statement and representation, order of Hon'ble High Court they have perused the records. The concerned authorities have conducted the spot inspection. It is found that site in question is situated in the middle of the layout formed by the defendant No.2. Even though there is no 30 OS No.743/2000 opportunity to the defendant No.1 for formation of site in the middle of the private layout that too the place reserved for park, it was presumed that the said properties belongs to it and allotted the suit schedule site to the plaintiff. Hence, the said allotment is void and the question of using the said site will not arise. That site it cannot be using for residential purpose. Therefore, the defendant No.1 cancelled the allotment of suit schedule site of plaintiff.
35. Ex.P33 is the certified copy of resolution dated 31- 10-1998 passed by the defendant No.1 which reads as follows :-
¨ÉA.C.¥Áæ. ¸À¨AsÉ iÀÄ ¢£ÁAPÀ B 31-10-1998 «µÀAiÀÄ ¸ÀASÉå B 184 B 98 «µÀAiÀÄB- ºÉZï.J.J¯ï. 2£Éà ºÀAvÀz° À è GzÁå£Àª£À PÀ ÁÌV «ÄøÀ°nÖvÉ£À߯ÁzÀ ¥ÀæzÉñÀz° À è ºÀAaPÉ ªÀiÁrgÀĪÀ ¤ªÉñÀ£À ¸ÀASÉåB 155B©gÀ ºÀAaPÉAiÀÄ£ÀÄß gÀzÀÄÝ¥rÀ ¸ÀĪÀ §UÉÎ ¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ ªÀÄÄAzÉ ªÀÄAr¸À¯ÁzÀ n¥ÀàtôAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯Á¬ÄvÀÄ. ZÀZðÉ AiÀÄ £ÀAvÀgÀ ºÉZï.J.J¯ï. 2£Éà ºÀAvÀz° À è GzÁå£Àª£À PÀ ÁÌV «ÄøÀ°nÖvÉ£À߯ÁzÀ ¥ÀæzÉñÀz° À è ºÀAaPÉ ªÀiÁrgÀĪÀ ¤ªÉñÀ£À ¸ÀASÉå 155B© gÀ ºÀAaPÉAiÀÄ£ÀÄß, ªÀiÁ£Àå GZÀÒ£ÁåAiÀiÁ®AiÀĪÀÅ jmï Cfð ¸ÀASÉå B 2610B88gÀ°è ¢£ÁAPÀ B 8-12-97gÀAzÀÄ ªÀiÁrzÀ 31 OS No.743/2000 DzÉñÀz£À ÀéAiÀÄ gÀzÀÄÝ¥Àr¸À®Ä ¤tð¬Ä¸À¯Á¬ÄvÀÄ. ºÁUÀÆ EzÀPÉÌ ¥ÀjºÁgÀxðÀ ªÁV ºÀAaPÉzÁgÀjUÉ EzÉà C¼ÀvÉAiÀÄ §zÀ° ¤ªÉñÀ£ÀªÀ£ÀÄß ºÀAaPÉ ªÀiÁqÀ®Ä wêÀiÁð¤¸À¯Á¬ÄvÀÄ.
¸À»B CzÀsåPÀëgÀÄ, ¨ÉAC¥Áæ, ¨ÉAUÀ¼ÀÄÁgÀÄ.
36. In the present case the plaintiff has challenged the above said resolution passed by the defendant No.1 (Ex.P39). It is the contention of the plaintiff that alleged resolution passed by the defendant No.1 so- called discovery of unilateral mistake of the defendant does not invalidate the defendant contractual obligation with the plaintiff. The allotment of suit schedule site to the plaintiff is legal. It is not void able on the ground of mistake of law. The said resolution suffered from the suppression of vital material fact relating to the existence of more than a decade old residential building in the site. The cancellation of allotment of site is illegal and amounting to clear breach of contract. Hence, that resolution is liable to be set aside.
32 OS No.743/2000
37. During the course of arguments learned counsel for the plaintiff submitted that the BDA cannot unilaterally cancel the allotment of suit schedule site. It was not reserved for C.A. site. PW.1 in his cross- examination has stated that no documents to show that there was a existence of park in the place of suit schedule site. There is a violation of contract by the defendant No.1. She further submitted that as per the order of writ petition the defendant No.1 has to approach the Court of law for cancellation of allotment of site but not cancelled the same unilaterally. Therefore, she prayed for declaring that the resolution of the defendant No.1 (Ex.P39) is breach of contract and illegal and without authority of law. From perusal of the arguments placed by both sides, let me see about whether the suit schedule site is located in C.A. site/ area reserved for park.
38. From going through the entire pleadings of the plaintiff, I am of the opinion that it is not pleaded that the suit schedule site is not located in park area. Ex.P.2 33 OS No.743/2000 is the certified copy of order passed by Hon'ble High Court of Karanataka dated 24-08-2001. In the said petition the plaintiff of this case was challenged the notice issued by the respondent No.1 (defendant No.1) of this case under the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act. After considering the case put forth by both side, in para 5 of the judgment Hon'ble Court held that "The fact that the site in question in favour of the petitioner is in the layout formed by the respondent No.2 and the same is part and parcel of the area earmarked for a park and this is not denied by the petitioner or the BDA. As stated above in the plaint of this case also the plaintiff has not denied that the suit schedule site is in the layout formed by defendant No.2 and the same is part and parcel of park area.
39. PW-1 in his examination-in-chief stated that suit schedule site was not in any park area so as to attract the prohibition of any allotment in law in favour of the plaintiff. But I am of the opinion that the above said 34 OS No.743/2000 evidence of PW-1 is not at all supported by pleadings. To prove his case that suit schedule site is located in the layout formed by CITB, the plaintiff has not produced any documentary evidence. He has not produced layout plan pertaining the suit schedule site i.e. site number 155/B. It is noticed the plaintiff has not produced lease-cum-agreement executed by the defendant No.1 in respect of the suit schedule site. It is admitted fact that though site was allotted in the year 1976, till today the defendant No.1 has not executed regular sale deed in favour of the plaintiff.
40. Defendant No.2 in the written statement contended that suit schedule site allotted to the plaintiff is located in park area. DW-1 in his examination-in-chief also deposed that the suit schedule site is located in park area in the layout of defendant No.2. To prove the same the defendant no.2 has produced true copy of layout plan and got marked as Ex.D.2. This lay out related to Binnamangala layout, Mysore Sub Area Officers Housing Colony, Bengaluru. It was approved by 35 OS No.743/2000 City Improvement Trust Board, Bengaluru vide resolution No.265 dated 12-10-1966.
41. The defendant No.1/BDA contended that suit schedule site is located in park area of the layout. But after filing written statement the defendant No.1 has not adduced oral evidence and produced documents.
42. I have perused the cross-examination of DW.1 by the plaintiff side. The contention of the defendant No.2 that there is no availability of site No.155/B in Ex.D2 is not at all challenged by the plaintiff side. Ex.D2 also not disputed by the plaintiff. From careful perusal of Ex.D2 of approved plan it is nowhere mentioned about existence of suit schedule site No.155/B. In the plaint schedule the plaintiff furnished boundaries to the suit schedule site. It is mentioned that towards east : site No.155/A and towards west : site No.154/B are located. But in Ex.D2 not mentioned about above said site No.155/A and 155/B. To prove that existence of suit schedule site No.155/B and adjacent site No.155/A and 36 OS No.743/2000 154/B the plaintiff has not produced any documentary evidence. Without production of layout plan, I am not accepted the contention of the plaintiff that the existence of site No.154/B, 155/A and 157/B in HAL II stage layout. From careful perusal of Ex.D2 it is mentioned about site No.155. It is nowhere mentioned about site No.155/B, 155/A and 154/B. It is further mentioned that after site No.155 the road is existing towards western side and thereafter park is located. To prove the boundaries in respect of suit schedule property the plaintiff also not produced any documentary evidence. I am of the opinion that Ex.D2
- layout plan is available document in this case and in the said layout plan there is no existence of suit schedule site.
43. The plaintiff contended that in WP 2610/1988 the respondent No.1 (BDA) was filed statement of objections (ExP.28) on 23-3-1988 and admitted the existence of suit schedule site. It is contended that there was no reservation for an area of bank and in fact the 37 OS No.743/2000 distinction of civic amenity site of being park was itself made statutory w.e.f. 21-4-1984 and therefore the suit schedule site was not in any park area. It is further contended that again 19-3-1997 respondent No.1 (BDA) has filed affidavit and trying to change his previous stand and contended that the suit schedule site now located and shown as a park. Hence, the plaintiff side contended that the defendant No.1 is estopped from denying the earlier statement of objections filed in WP 26010/1988.
44. Learned counsel for the plaintiff submitted that in the present case the BDA by its declaration has caused the plaintiff to believe a thing to be true. In the statement of objection filed in W.P.2610/1988 having assailed that there was no civic amenity site nor even defined it cannot be now permitted to say that the suit schedule site is a part of the civic amenity park. The law of estoppel is a clear and total bar to the BDA to pass any resolution of Ex.P33. In support of her arguments she relied upon the decision of Hon'ble 38 OS No.743/2000 Supreme Court reported in 2002 AIR SCW 5221 (B.L. Sreedhar and others vs. K.M. Muni Reddy(dead) and others).
45. Considering the same I am of the opinion that it is true that in the statement of objections (Ex.P28) the respondent No.1 (BDA) has contended that the suit schedule site was not coming under area which was reserved for park. Subsequently on 19-3-1997 Commissioner of BDA has filed affidavit (Ex.P30) and contended that as per the available file thee are intimation that site No.155/B does not find a place in approved layout plan. As per the layout plan furnished by the petitioner (plaintiff in this case) has approved by the CITB vide resolution No.265 dated 12-10-1966 the area where site No.155/B is now located is shown as a park. He further submitted that CDP of 1984 and revised CDP approved in 1995 also shown the area as a park. I am of the opinion that the Hon'ble High Court considered the above said affidavit filed by the Commissioner, BDA and directed the said BDA to take 39 OS No.743/2000 action in accordance with law to conceal the allotment made in favour of the respondent No.2 (present plaintiff). Hon'ble High Court has not accepted Ex.P28 of statement of objections filed by the respondent No.1. Hence, I am of the opinion that the principles of doctrine of estoppel is not attracted in respect of statement of objections filed by the respondent No.1 vide Ex.P28. From looking into the facts and circumstances of the case, with great respect Hon'ble Supreme Court cited supra will not help the case of the plaintiff.
46. As per the order of Hon'ble High Court passed in WP 7610/1988 dated 8-12-1997, the defendant No.1 made an enquiry and cancelled the allotment of suit schedule site to the plaintiff vide Ex.P39 of the resolution.
47. The learned counsel for the plaintiff further submitted that cancellation of suit schedule site by the defendant No.1 vide Ex.P39 is illegal and breach of contract. Hence, it is liable to be cancelled. The 40 OS No.743/2000 defendant No.1 in the written statement contended that the plaintiff was allotted suit schedule site which was under park zone under bonafide mistake. In regard to the power of defendant No.1 to effect cancellation of the allotment on the ground of mistake of law in relation to this is covered by Section 20, 21 and 22 of Indian Contract Act. She further submitted that there is no pleadings of evidence by the defendant No.1 to show that the mistake in allotment of the site to the plaintiff was by both the parties to the agreement. Thus a unilateral mistake cannot be a ground to annul a contract. Secondly, even a mistake in any law in force in India does not make a contract voidable. It is further affirmed in law that a contract is not voidable because of a unilateral mistake by a party. Thus considered, the resolution passed by the first defendant vide Ex.P-33 is totally in breach of contract, illegal and without the authority of law. In support of her arguments learned counsel for the plaintiff relied upon decision of Hon'ble Supreme Court reported in 2008 AIR SCW 762 (Delhi 41 OS No.743/2000 Development Authority, N.D. and another vs. Joint Action Committee, allottee of SFS flats and others).
48. Considering the same I am of the opinion that to prove the alleged contract in between the plaintiff and defendant No.1, no documentary evidence placed before this Court. For best known to the plaintiff he has not produced Lease-cum-sale agreement. I am of the opinion that if the plaintiff produced lease-cum-sale agreement it is to be ascertained about alleged existence of contract. Even for the sake of arguments, if there is a contract in between the plaintiff and defendant No.1 in respect of allotment of suit schedule site, it is void and it cannot be enforced. Because the contract taken place in respect of site which is located in park area. Hence, I am of the opinion that there is a mistake on both the plaintiff and defendant No.1 in the contract in respect of site which is located in the area reserved for park. I am of the opinion that in view of the suit schedule site is located in park area, till today 42 OS No.743/2000 the defendant No.1 did not execute sale deed to the plaintiff.
49. It is true that the defendant No.1 has allotted the suit schedule site in favour of the plaintiff as per the allotment dated 2-2-1976 vide Ex.P5. After filing representation from the defendant No.2 and as per the order direction given by the Hon'ble High Court in WP 2610/1988 the defendant No.1 made an enquiry, spot inspection, perused the records and found that the suit schedule site is located in the area reserved for park and therefore it has been cancelled. Further I am of the opinion that opportunity provided to the plaintiff and the defendant No.1 made an enquiry and cancelled the allotment of site of the plaintiff. Hence, it cannot be say that above said order is illegal and breach of contract. Further I am of the opinion that Hon'ble Court judgment cited supra by the plaintiff side will not help his case.
50. The plaintiff counsel further submitted that the suit schedule site allotted to the plaintiff in the year 1976. 43 OS No.743/2000 During that time there is no concept of reserving the place in the layout for C.A. (civic amenity). The word civic amenity came to be defined for the first time by Amendment Act No.17/1984 by insertion of Section 2(bb). The said amendment came into force w.e.f. 21- 04-1984. Therefore, the defendants cannot claiming that there is a existence of C.A. site and suit schedule property is coming under area of said C.A. site. Considering the same I am of the opinion that it is true that concept of civic amenity came to be defined w.e.f. 21-04-1984 by way of amendment Act No.17/1984 by insertion of Section 2(bb). But in the Ex.D2 it is clearly mentioned about park area. The defendants specifically asserting that suit schedule site is located in the above said park area. I am of the opinion that the park area reserved as per Ex.D2 in the layout. It is not a reserved for C.A. site as alleged by the plaintiff side. Hence, the above said arguments canvassed by the plaintiff side is not sustainable.
44 OS No.743/2000
51. The learned counsel for the plaintiff further submitted that the cancellation of allotment of suit schedule site is unilateral and it is clear breach of contract. I have perused the above said arguments canvassed by the plaintiff side with case on hand. In para 5 of the plaint itself it is contended that the defendant issued notice and gave personal hearing to the plaintiff. In Ex.P39 of the resolution it is mentioned that as per the order of the Hon'ble High Court passed in WP 2610/1988, the defendant No.1 got issued show- cause notice to the plaintiff. As per the request of the GPA holder of the plaintiff viz., A. Krishnamurthy the opportunity given to him for statement, as per his statement and representation, as per order of the Hon'ble High Court they have perused the records and passed order of cancellation. In the cross-examination of DW.1, the plaintiff side did not put any suggestion that prior to cancellation of site no opportunity had given to the plaintiff and unilaterally passed said order. Therefore, I am of the opinion that before passing cancellation of suit schedule site, the defendant No.1 45 OS No.743/2000 gave opportunity to the plaintiff, considering the statement made by the GPA holder of the plaintiff and passed said order. Therefore, I am not accepted the contention of the plaintiff that the defendant No.1 passed resolution and order of cancellation is unilateral. I am of the opinion that as per the order of Hon'ble High Court in WP No.2610/1988, the defendant No.1 made an enquiry, passed the resolution and cancelled the allotment of site to the plaintiff. Further I am of the opinion that the defendant No.1 need not approach the Court of law for cancellation of site as contended by the plaintiff side. From the above discussion, I come to the conclusion that the plaintiff has failed to prove that the resolution passed by the defendant No.1 dated 31- 10-1998 (Ex.P39) in respect of suit schedule property and the letter dated 10-2-1999 communicated the cancellation of allotment of site is breach of contract, therefore, it is illegal and without any authority of law. Hence, I answer issue No.1 in the negative. 46 OS No.743/2000
52. ISSUE NO.2 :- The plaintiff contended that after passing of resolution for cancellation of suit schedule site the defendant No.1 has made an attempt for dispossess him from the suit schedule premises or evicting him under Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974. During the pendency of this suit, the plaintiff had challenged the said order before the Hon'ble High Court of Karnataka in WP No.16287/2000 (BDA). In the said writ petition the plaintiff/petitioner prayed for declaring that initiating the proceedings under the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974 is illegal and oppose of law. Quashing of notice issued by the defendant No.1 dated 25-11-2000 in respect of suit schedule premises is illegal, arbitrary and void. Considering the said writ petition the Hon'ble High Court in their order dated 24-8-2001 allowed the said writ petition and declared that initiation of proceedings under the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974 is illegal and oppose to law. Consequently it is held that notice issued by the 47 OS No.743/2000 defendant No.1 dated 25-4-2000 in respect of building constructed on site No.155/B is illegal, arbitrary and void and accordingly it is quashed. Hon'ble High Court further held that however the liberty reserved to the respondent (BDA) to take suitable action before the Civil Court with proper constitute suit. Ex.P2 is the certified copy of the order passed in WP No.16287/2000. It is noticed that the Hon'ble Court quashed the notice issued by the defendant No.1 under the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974. This order passed only in respect of building constructed by the plaintiff over the suit schedule site.
53. In view of the said order passed by the Hon'ble High Court the plaintiff has filed memo and got deleted prayer No.2. Hence, I come to the conclusion that in view of the deletion of prayer No.2, the issue No.2 cannot be considered.
48 OS No.743/2000
54. ISSUE NO.3:- The defendant No.1 contended that the plaintiff has not complied the Section 64 of Bangalore Development Act 1974 and issued statutory notice. I have perused the above said contention of the defendant No.1. Ex.P38 is the office copy of the legal notice dated 19-02-1999 got issued by the plaintiff to the defendants. As per the said notice, the plaintiff requested the withdrawal of cancellation of order passed by the defendant No.1. The plaintiff further prayed for if the defendant No.1 failed to withdraw the order of cancellation, he will approach Civil Court for remedy. I am of the opinion that prior to filing of the suit the plaintiff got issued notice to the defendants under Section 64 of BDA Act. Hence, I am not accepted the contention of the defendant No.1 that this suit is not maintainable for non-issuance of statutory notice. Therefore, I answer the issue No.3 in the negative.
55. ISUE NO.4:- In para 9 of the written statement the defendant No.2 contended that as per the plaint the cause of action arose to file this suit on 31-01-1973, 49 OS No.743/2000 31-10-1988, 10-02-1999 and 22-02-1999 all are imaginary and such a cause of action did not exist nor arose. It is further contended that when once order of Public Premises Act has become final the plaintiff cannot question the validity of the order in a Civil Court. He can exhaust the remedy available under the said Act. Therefore, the present suit filed by the plaintiff for declaring that the Public Premises Act is not applicable and seek for injunction and other reliefs.
56. I have perused the above said contention of the defendant No.2. Initially the plaintiff filed this suit for declaration in respect of resolution passed by the defendant No.1 and cancellation of allotment of suit schedule site. He also sought for relief of permanent injunction restraining the defendants from taking any action against him dispossession from suit schedule property either the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act 1974 or otherwise. As stated above in view of memo filed by the plaintiff the prayer No.2 has been deleted. In view 50 OS No.743/2000 of deletion of prayer No.2, considering of this issue is does not arise.
57. ISSUE NO.5:- In para No.11 of the written statement the defendant No.2 contended that the valuation made by the plaintiff to the suit property is not correct. He has to value the suit property on the basis of the market value. The plaintiff is seeking to enforce the alleged contractual obligation against the BDA. Valuation of the suit schedule site claimed by the plaintiff in the alleged contract is valid for more than Rs.3 crores. Therefore, he is bound to pay the Court fee on the value of the suit property.
58. In the plaint the plaintiff prayed decree that declaring the resolution passed by the defendant No.1 dated 31-10-1998 is touching the suit schedule premises and the cancellation of allotment communicated to him dated 10-02-1999 is breach of contract, is illegal without authority of law. The plaintiff has filed valuation slip along with the plaint. He has valued and calculated the Court fee in respect of relief 51 OS No.743/2000 of declaration under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, 1958. He has calculated the Court fee regarding permanent injunction under Section 26(c) of the said Act. Considering the same, I am of the opinion that in the present suit the plaintiff has not sought for declaration of title in respect of suit schedule property. He has only sought for declaration regarding resolution passed by the defendant No.1 regarding cancellation of allotment of site and issued letter in this regard. Hence, I come to the conclusion that the Court fee calculated and Court fee paid by the plaintiff is correct. Hence, I answer the issue No.5 in the negative.
59. ISSUE NO.6:- In view of the above said findings on the above said issues, the plaintiff has failed to proved that the resolution passed by the defendant No.1 dated 31-10-1998 as subject No.184/98 relating to the extent of suit schedule premises and letter dated 10-02-1999 communicating the cancellation of 52 OS No.743/2000 allotment of site is in breach of contract and therefore it is illegal and without any authority of law.
60. As discussed above to the whole case, it is clear that on 03-12-1975 the defendant No.1 (then CITB) allotted a site bearing No.380 measuring 60 x 90 feet situated at Koramangala 4th Stage to the plaintiff. Subsequently as per the request of the plaintiff, the defendant No.1 has cancelled the allotment of site No.380 of Koramangala, in lieu of the same allotted the suit schedule site i.e., site No.155/B measuring 18.28 x 27.43 meters situated at HAL II Stage to the plaintiff. It is further clear that the defendant No.1 issued possession certificate. But till today the defendant No.1 never executed sale deed in favour of the plaintiff. The plaintiff has not produced lease-cum-agreement of sale executed by the defendant No.1 before this Court. It is further clear that as per the approved plan and building license the plaintiff constructed house in the suit schedule site, he is in possession.
53 OS No.743/2000
61. It is further clear that the defendant No.2 i.e., Defence Colony House Building Co-operative Society Limited had challenged the allotment of site in favour of the plaintiff in WP No.2610/1988. Basing on the affidavit filed by the Commissioner of BDA. on 08-12- 1997 the Hon'ble Court passed an order and directing the defendant No.1 to take steps for cancellation of allotment of suit schedule site in favour of the plaintiff.
62. It is further clear that sites bearing No.164/A and 206/A has been allotted to the Indiranagar Cultural Institute has been cancelled by the defendant No.1. As per the order of Hon'ble High Court the defendant No.1 made enquiry and found that the suit schedule site is coming in the area reserved for park. Hence, as per resolution dated 31-10-1998 the defendant No.1 cancelled the allotment of suit schedule site of the plaintiff and directed him to vacate and hand over the same. It is further ordered that in lieu of cancellation of suit site, alternative site allotted to the plaintiff. It is true that the plaintiff has constructed house in the suit 54 OS No.743/2000 schedule site. Even though alternative site allotted to the plaintiff, he put a loss for construction of house. For that he has to sue against the defendant No.1 for damages.
63. It is further clear that the plaintiff has challenged the above said resolution of Ex.P39 and cancellation of site by the defendant No.1 by way of this suit. From the above said discussion, it is clear that the suit schedule site is located in the park area. The defendant No.1 by oversight allotted the said site in favour of the plaintiff. Subsequently as per the direction of the Hon'ble Court it has been cancelled and alternative site allotted to the plaintiff. As discussed above, the plaintiff has not proved that the above said resolution for cancellation of site and letter issued by the defendant No.1 is illegal, breach of contract. Hence, I come to the conclusion that the plaintiff is not entitled to any relief as prayed in this suit.
55 OS No.743/2000
64. From the above discussion, I come the conclusion that the plaintiff has not proved his case that site allotted to him is located in layout of HAL II stage. I am of the opinion that without verification the defendant No.1 had allotted suit schedule site to the plaintiff, thereafter it is found that site is located in the area reserved for park and it has been cancelled. Further I am of the opinion that in view of the said allotment the plaintiff has already constructed house in the suit schedule property. In lieu of suit schedule site the defendant No.1 allotted alternative site to the plaintiff. Hence, I am of the opinion that if this Court is not granted decree as prayed by the plaintiff, it will not causing any irreparable loss and injury to him. Further I am of the opinion that when the suit schedule site is located in park area, it cannot be used for residential purpose. Hence, I come to the conclusion that the suit of the plaintiff is liable to be dismissed. From looking into the facts and circumstances of the case parties are directed to bear their own costs. Therefore, I answer the issue No.6 in the negative.
56 OS No.743/2000
65. ISSUE NO. 7:- In view of the findings on issue No.1 to 6, I proceed to pass the following order:-
ORDER The suit of the plaintiff is dismissed.
No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript corrected by me, signed and then pronounced by me in open Court on this the 9th day of March, 2018).
(R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.57 OS No.743/2000
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 L. Sambashiva Reddy LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P-1 Special Power of attorney dt: 4-8-2010 Ex.P-2 Cc of order passed in WP 16287/2000 dt: 24-8-
2001
Ex.P-3 Cc of order in WA No.6589/2001 c/w WA
5918/2001 dt: 14-3-2005
Ex.P-4 Notice dt: 25-4-1973
Exs.P-5 Notice dt: 2-2-1976
Ex.P-6 Notice dt: 26-9-1972
Ex.P-7 Possession certificate dt: 14-12-1978
Ex.P-8 Tax paid receipt dta; 15-3-1979
Ex.P-9 to 11 Notices dt: 16-5-1980, 12-8-1985 & 12-8-1985 Ex.P-12 Endorsement dt: 30-10-1985 Ex.P-13 Tax paid receipt dt: 27-1-86 Ex.P-14 Encumbrance certificate Ex.P-15 Notice dt: 7-3-1986 Ex.P-16 & 17 Notices dt: 7-5-1986 & 24-4-1986 Ex.P-18 & 19 Certificates dt: 12-5-1986 & 30-10-1987 Ex.P-20 Cess paid receipt dt: 24-11-1987 Ex.P-21 Tax paid receipt dt: 28-10-1987 Ex.P-22 Notice dt: 24-11-1987 Ex.P-23 Sanction plan Ex.P-24 Electricity bill dt: 16-3-1988 Ex.P-25 Letter dt: 5-9-1996 Ex.P-26 Show-cause notice dt: 10-11-1999 Ex.P-27 Acknowledgment dt: 19-11-1999 Ex.P-28 Cc of WP 2610/98 Ex.P-29 Cc of affidavit Ex.P-30 Copy of affidavit Ex.P-31 Cc of orders in WP 2610/98 dt: 8-12-1997 Ex.P-32 & 33 Letters dt: 25-1-2000 & 31-10-1998 Ex.P-34 & 35 Acknowledgments Ex.P-36 General Power of attorney dt: 14-12-1999 Ex.P-37 Form-B Ex.P-38 Copy of legal notice dt: 19-2-1999 Ex.P-39 Copy of order passed by BDA dt: 21-1-1999 58 OS No.743/2000 LIST OF WITNESSES EXAMINED FOR DEFENDANTS:-
DW.1 Kelapanda Dechama Achappa LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
Ex.D-1 Resolution passed by the board of directors dt:
10-10-2013 Ex.D-2 Cc of Layout plan of Binnamangala Layout (R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.
59 OS No.743/2000
ORDER
The suit of the plaintiff is
dismissed.
No costs.
Draw decree accordingly.
(Vide separate Judgment)
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.