Sri S Venkoji Rao vs The Bangalore Development Authority on 28 September, 2010

[Cites 6, Cited by 4]

Karnataka High Court

Sri S Venkoji Rao vs The Bangalore Development Authority on 28 September, 2010

Equivalent citations: 2011 (1) AIR KAR R 356

Bench: Ram Mohan Reddy

 

-1-

IN THE HIGH COURT OF KARNATAKA, 

DATED THIS THE 23TH DAY OF sEPTE1\)IEEE;: 2O.1}OG E. I I %

THE HON'BLE MR.JUsTzCE  Mom; I" »
WRIT PETITION No. iG';"i,VQG3 0lI"'2(I)G1I)(I-IIDA)

BETWEEN: A I I I I

SVENKOJI RAQ    I  

S /O. LATE G H.  NARAYPINA "RAD

AGE 64 YEARS ::::>'_,'. V     -- 

R/AT    

2ND STACE,_wE'ST OE CH~ORO-ROAD

  ~ 

I3ACNALOREI+_.S§.':._   % _T  PETITIONER
(BY SRI';  

AND"; 'I

 V'  . TITE'B;qINGALORE' DEVELOPMENT AUTHORITY
._ . {1"«C_IIOw<I)AIAI.~I_ ROAD
  E;UNmj<A PARK_','.NEST

BANCALO_RE~_+'20
REEEY.1TS;_COMI\/IISSIONER. . . . RESPONDENT

 (BY DIM N RAMANJANEYA GOV/VDA, ADV)

S" THIS WRIT PETITION IS FILED UNDER ARTICLE 226

 'THE CONSTITUTION OF INDIA PRAYING TO QUASH

THE IMPUGNED ORDER DATED 28.4.2010 VIDE ANN~N

   ISSUED BY THE RESPONDENT AS ILLEGAL AND WITHOUT

AUTHORITY OF LAW; AND ETC.

THIS PETITION COMING ON FOR PRLHEARING IN 'B'
GROUP THIS DAY. THE COURT MADE THE FOLLOWING:

iv';



ORDER

Industrial Site No.80/E, Industrial 11

Stage in the layout formed by the Development Authority (for shorts' all'ot_ted:_to' ' _ one Kulle Gowda, S/o.

possession under Possession 9' V__Ce1ftificate' 'ldated 25.02.1981 AnﬂeXu1'~¢'~"A";"011::6.16186 fao'r'"~10"Eyears. It appears that the respo:ider;t:?;B.1');I3lfekeeuted and lodged for registration ooriditionalndeled vofipfsale dated 6.2.1987' the property in question to the allotteelfyor _aVvalnablyeiconsideration including the lease uforVl"'th,e ____ __period 12.01.1981 to 11.01.1991, allottee to exercise absolute and full 0' .ovvnerslii'p..rrights over the property conveyed, however, withﬂa condition to put up construction within the , period speciﬁed under the 1ease~cum--sale agreement or such further period as may be allowed by the BDA in terms of the 1ease--cum-sale agreement dated 12.01.1981. Thereafterwards, one K.T. Gowda, claiming is ax 'K to be the son of the allottee, executed a sale d4e.ed._da_ted 12.02.1987 conveying the property in petitioner for a Valuable considerati_0n. _--h'e » accepted the sale deed conveying 'property of the petitioner, issued._v"a_ Katha .celrvtific_:a'te. "datedtt 16.03.1991 Annexure~"D"Vcertifying that-thVe:§ katha of the property was of the petitioner and thereafteri§ira.rdsjilssued challans in the name of who_ the taxes. The site having 'territorial jurisdiction of the BBMP, tiietpetiﬁoner taxes as acknowledged by the Years"-rollepd by but the industrial building was ' not' e-ijected""though a condition in the allotment of the by show cause notice dated 7.1.2010 Anne:§u_re--"M", proposed cancellation of the site for A A03/ioiation of the condition in not erecting the building Vlwithin the time stipulated in the lease--cum--sale agreement and sought an explanation within seven days which was promptly responded to by reply dated 1% 11.01.2010 Annexure--"1\/ll" of the petitioner interalia contending that though the plan was for construction of the building, neverthel-e:ss'.4"' inadequate ﬁnancial support heait,h,"» the petitioner again made an "'unsuccessful_.atteinpltiin the year 2001 since the,:vrf'ev..V'pwas" .recess_io'n""'an'd his children were unable tot-------as'sist-._hirnt'as they were pursuing studies, 0' put up the constructio_n.«':.e:In. stated that a borewell was 'instaﬂedfand ,gga'iv._co-m'pound wall erected and that Kulle Gewda to the notice was addressed, was also stated that the petitioner's son ' after having studied abroad and intends to "start Va'.V-"design and consultancy business and that a portion of that site is intended to be gifted to a charitable institution for construction of a Prarthana Mandir as the petitioner has promised his Guru and therefore, there is no violation of the conditions of allotment. Lastly it is stated that he has ﬁled an 13% -5- application for change of land use by will be put to use for public purpose for construction of an officeﬂia it kindly to the explanation -offeredyland dated» 28.04.2010, Annexure-"N5,,V/cancelled the 'iallotment.

Hence, this writ petition,    " i

2.   Statement of

objections fact of allotment of the sale T' ,ovii§ina1'.."Vallottee Kulle Gowda having violatedthel allotment, the notices issued on and'vi..'0.06.2000 whence no reply was i' «.pr'ece'i'ifedd' therefore, the Commissioner, by order directed issue of yet another show l'caus'e' notice to the petitioner on 7.1.2010 for violating hi it .e,1;l'1eV"condition of allotment. The failure to put up construction of an industrial building in the industrial suburb is the cause for the cancellation. iri -6-

3. Having heard the learned counsel and perused the pleadings, the followin.g,ltytro' arise for decision making:

{i) Whether in therfactslh andgc._{rc"{14rh~g/3tances;l respondent ---- corn'p1.iedv,:§with sub-

rule the Bangalore D€V'€l0pIl'leI1Ht~.V ' {Allotment of Sites) 1:984 l-rilaltterv of cancellation of V

(ii)" pojitrelrl to cancel the conditional l V d.eedLlyAniI;t.eirure--"B" vests with the Court .. or lwitl1_vtl1e..'i'BDA?

V ;,.f{iii} Whletlier the initiation of suo--moto power to V 'cancel the allotment is within reasonable Vpyftivme?

Reg¥E'oint No.1:

i In the admitted facts the allotment of an industrial site in an industrial suburb, a layout formed by the respondent ---- BDA, cannot but be for establishing an industry, by industrious entrepreneurs in the State of M Karnataka. There can be no dispute that the aliotment was on the condition that the allottee construction of an industrial building x two years, in terms of the leasVe'+eu_1n--saleV'agreeimentCi' 8' dated 12.01.1981. 80 also, it allotment was subjected . the V'"r:8angaJoreV Improvement (Restrictiongé,"Conditions 1.imitations as sales of sites) 1__'.set out in the convenantsf' ingcthe :con.d'i'tio'naI 'deed: of sale Annexure-- 1 the date of Annexure--"B"

conditional saie there was in force the BDA o1f"Si~te_s_],» Rules, 1984 repealing the Bangalore 1 .'Vi3evfeci.opmentAuthority (Allotment of Sites} Rules, 1982. rule under the City of Bangalore Improvement (Restrictions, Conditions and Limitations xas"_«SaJes of Sites} Rules, 1968 is not made available to the Court nor is it relied upon by the respondent in the matter of cancellation of the allotment except to contend that the conditional sale deed imposed a condition 0 2 5 M -3- construction of the building within the time stipulated under the 1ease--cum«sa1e agreement dated

4. In the light of the admitted taetep;5thtefe11ettee=.p having not put up the construction-'_"

during the period of 10 yearsthe action at the earliest it trioiaitionfhreadch of condition of aliotrnent oretitte1'rr1s xof__the'«1e'ase§cum--sa1e agreement. in additiorii.'thotigh a specific bar not to site during the lease period; the not known, executed a c01:3\:i.itiQna1 e3¢,5*1E."'de.ed'.on 6.2.1987 Annexure--"B", much ..eA'.expi1V"§Méof the period during which the Vljtiilding had to be constructed. There is no eiiplariation of the BDA as to why such a course of it action' "was taken and why the allotment was not ﬂctancelled for violation/breach of the terms of the lease- "curr1--sale agreement. After the execution of the conditional sale deed, the allottee did not put up N construction and the EDA, did not take action against the allottee. Significantly, the BDA acce.ptedi~.t_the conveyance of the site under the 12.02.1987 Annexure ---- 'C' in fatrour of_Vthe" . the person claiming to be the ;"sori'_'_'ofiVthe_ a1iottee:;\.,Aasi.:is animated from the Kathadﬁertiﬁcate Annexure--"D". Yet again.Vcthc."yBDA faiiedvvto .take action against either the" 'A :i;1iot.te:e:f' petitioner for violation/breac}i_ conditions of the leaseecurri--.saIef-agi"eenient' as well as the conditional sale deed. The "far:t4 acquiesced in the right of the péiitioiier receiving from him the taxes on the things stood thus, the BDA, without an explanation, issued the show cause notice in the year alieging Violation of terms and conditions of the lease»~cum--sa1e agreement and the condition of sale deed followed by the cancellation of the site by the order it/\ «.10.

impugned. Apparently, as can be gathered.'44'_irorﬁ; arguments advanced by the learned BDA, what was invoked fort!'theiydgcancellationi'poi it allotment was sub--ru1e,.c'{7T)_ of [Allotment of Sites] Rules, which" reads "13[7) The .e.aiio:{e¢ _shaA1_ljconstruct a building: ' _ of 7 years from the agreement or such' as'; the Authority may case loyytrritten order permit.

.,If"t'_l1e Inothconstructed within the said " allotment may after ereasonalble notice to the allottee be ' i,.,"'¢af1ce11ed,v"lithe agreement revoked, the lease 3 1 and the allottee evicted from the the authority and after forfeiting a 'twelve and half per cent of the Value of the ""'site paid by the allottee the authority shall refund the balance to the allottee."

6. The rule is para materia with sub--rule (6) of Rule 13 as it existed prior to the amendment to the 1% .12 deposited after deduction of the 12 and has to be refunded by the authority allottee, then and then only the could be said to have bee:nNefieeti\'fely«done.i' '

7. In my opinion, app'iyJ;ng the saidiviobsemation the facts of this case. thye..:uproc'e_dure " by the respondent - BDAV with the View taken by 28.04.2010 Annexur'e";"?jf{.?f point is answered 9 Reg. Paint it it The to cancel the conditional sale deed ' undoubtedly vests with the Court and " .Acilnnlotit-'beVp'9eil;ercised by the BDA in the light of Section 3%: ..ef.:_t.1ie Specific Relief Act. This Court, elaborately nlconsidered the applicability of Sec.31, in BINNY MILL LABOUR WELFARE HOUSE BUILDING co- j/vi .;\

-13 OPERATIVE SOCIETY LIMITED _ yrs.' MRUTHYUNJAYA ARADHYA2, and obs_er'»'eC?i.thu:s K "37. A reading fthiﬁ f provision makes it clear th'at'both and':

voidable instruments be cance-lleeytl the Court. The pcausepof -..a;ction for'*si.1c.li an action is an such an instrument is A ay cause serious to' L the "'p:erson._}3§gainst whom the is void or voidable.

.~'Such'g.hlagﬁpersloiivl «'has..._~'the discretion to Zipapproacltiujavpp"competent Civil Court for laezljfudging "said instrument to be . _ deléiveyredj-,ipA"andVcancelled. Even though in ,_elav.v a void....i.nstrument is unenforceable, has 'novvalue in the eye of law, void ab initio, the A VfV.pl'iysical existence of such a document 'cause a cloud on the title of the party or " [cause injury or one can play mischief.

"Therefore, the law provides for cancellation of such instruments which are also non est, but which are in existence as a fact physically to get over the effect of such '-' ILR 2003 KAR 2245 } KL instrument. Once such an instrument registered, the said registration has the effect'-V.' of informing and giving notice to at large that such a document_.Vha's...Vbe:en_ executed. Registration c;i"a"'docum;ent" l«i1sva~7 ' notice to all the encumbrances of the ' ~ - ..pirope1't)'f.lvV.i._' v ~'.Fhe3 doctrine of constmctite. is iattrairlgted. Therefore, the 'effectnuof of an instrument notkonly of the parties to also affects tpart.i_e's, "urnay "'cla1"rn under them. l'=Thei'efore.'f-.._once,_"such an instrument is orderedltollbe' d4e'li\fered up and cancelled an

-,0bligati:or1-is castilupon the Court to send a c__:.op3.I_ of its"---decree to the officer in whose ovffic'e_ft'h.e instrument was registered, so that ar1"Vofficer shall note on the copy of the instrument contained in his books the fact of " cancellation. Once such an entry is made if in the books of the Sub--Registrar about the A cancellation of the registered instrument, it also acts as a notice of cancellation to the whole World and it is also a constructive notice of cancellation of the said instrument. M:

.15.

38. Part X of the Indian Registration Act, 1908 deals with effect of registrationh. and non--registration of an instrument_._ combined reading of Sections 47, makes it clear that an ..ir1st.rument" e~»;x;hichtr,, purports to transfer title to requires to be registered, thhehtitle not'; 3 pass until registratio'n:"has been» The registrationghby notereate a new title. It has been created by complete :'i'and'eAtl1e etfIect"of- registration is to make it absolute. Section 47 of the__ V clear that a registered documentlshall "operate from the time from

5.-which it have commenced to operate if _ ,re,gistration thereof had been required or not from the time of its "---'registration. The Section however does not 'say when a sale would be deemed to be complete. However, Section 47 of the Registration Act makes it clear that, though a document is registered on a particular date, the effective date would be the date on which the said document was executed and M J 6.

not from the date of registration. If the document is not registered but compulsorily registerable, though;~~--.'th.e_i"'.j' document is duly executed, it has legal effect and it does not af:fect'--the property comprised in the. sa.i_"d~docume11t' View of Section /L9'4.__uof the Actfd' it registration of such' _ du1y"*cxe.cuted document comes_ into" the V rnornent it is duly register'ed',e..,not 'the date of registration but"'fron'i theidate eiwrecution of :"the"T.saiddwdiiifidocurnentl""*"Section 54 of the 7-Transfer'do-£p::}'roperty Act, 1882, which deals Withiisales iinmovable property mandates emphati_ca;iIy the transfer of tangible ijiminovable' "" "property of the Value of one _ rupees and upwards, can be made Voniy a registered instrument. Thus, v--.."Wit1*iout registration there is no transfer of it uxtiwnership of the property. Therefore, it is clear that the act of registration in the scheme of things is not a mere instance of the State collecting some registration fee and providing authenticity to a written instrument. It is by the act of registration, 38% » 'ownership .37.

the title in the property passe_sf_""'to..'_' _ transferor, from the date of exec1itior1' deed of transfer. Orxce place, transfer is complete,1'_t11e property ceases to-..__be the' own;e1"»..i.'o.f Nthel property. Thereafteri'r»i.f'i1e_ exelcu.tVeisV':on:e more sale deed in' 1'espect'"of lti41evl"'same property or a cancellatiori' 1' the property already .sold,:ir';"l.a.y;f it and it in no deed already 'll-t and r1on--est."

8,' 'l to the covenants in the conditi'o;_;al,ysale'l4lde'ed}*Annexure~"B" that Kulle Gowda. lallottee "is,V___e_r1titied to exercise absolute and full rights in the property conveyed, the H - pi-espl§nde;1f:i; BDA the cancellation of the conditional sale without taking recourse to the provisions of if Specific Relief Act, is illegal. The second point is if §8.I1SWCf€d accordingly.

_l8.

9. All that can be said in this case is instead of initiating action at the earliiei-if"Q13portun'ityu9 against the allottee Kulle Gowda in l allotment rules as in force on thedate was committed, for_whatso'el\'?-er --reaso'ns.._lassisted Kulle Gowda by executingla cori.ditionalV;sale,y deed covenanting that he was entitled"to' rights over the property:-."' the BDA to ensure strict' of the allotment to put up the the time stipulated, is inactionionv the BDA, for Various reasons. Board ol'the~BDA is instrumental in assisting the V l lyvhvo-pphad committed breach of the terms of the are guilty of rnal--administration. The non- ' exercise of statutory duty invested in the respondent -- it * has resulted in the petitioner not otherwise entitled E to the public property in question by purchasing the same within the period of non~alienation did ﬂout rule of law. There is an imminent need to take action N W19"

against the officers concerned after holding'4¢"ati_'_ and ensure that such conduct by eitheyf---the.A_l.ofificers the Board of the BDA is not 'in X, Reg. Point No.3: .

10. In the bachdfop» of"

allotment in the year delivery of possession and the lease-cum-sale and the sale of the site by in by the BDA, the action of cancellation of the aliotmeiit, 29 years, smacks of abuse of power. dAV-Divisioil hench of this Court in the case of " i$i«:VELoPMENT AUTHORITY REP. BY "-'ITS':v4(3_£:)1i£xiyﬁ£SSI0NER vs. SMT. SUMITRADEVI3 while "'invalic1at'ing an action of cancellation of allotment ~ : initiated after a long gap of 18 years held thus:

"There can be no doubt that where no power of limitation is prescribed by an Act or the Rules made thereunder for the exercise 3 KR 2004 KAR 1386 of suo rnoto statutory power, the exercise of that power cannot be impugned on tlielb ground that it is barred by liInitationi,.__'l'* period of limitation can be otherwise than by statute__or_the ji*u'les-:ij11ade'_' thereunder. But, nonethelerssfiv vested in an authorityto revise the yor.de'rs of: the subordinate authorities or--- adverse aCtior1,agains*t-iﬁyperson sun rrloto, has to be exercised 'within reasonable time. In our view, in period of ti«liini.tation:'is.prescribed..1_1:ider the Statute or ':_the ' Ru'iesV-_.n1a€i~e:'thereunder for exercise of powers' stro S the question for

-- .. consid_€51'ation"'.isl'not Whether the exercise of powervis-«ebarred by limitation for in the of a period of limitation prescribed A"'iu'n_d_er:;"the Act, the question of bar of Vliinitiation cannot arise, butit is a question of " reasonable period within which that power should be exercised. What is reasonable period within which the statutory suo rnoto power could be exercised would undoubtedly be dependent upon the facts and circumstances of each case."

M .21.

11. In the light of the observationsyland.i't:the'...fact that a long period of 29 years _havln'g""'rolled'~ this needless to state that the initiation BDA was unreasonable;%i.e's-st, urifa.itrnesl's,a21cl~~a1'loitrary. and hence unsustainable. f'*v..Point N'o--.3. is; answered accordingly.

12. In 'result; 'the.ii»vr'it'l.pc--tition is allowed. The show llL§2lO1O A.nnexure~"M" and the olfdder l_28.04;,_?:0l10:v.l5ln_nexure--"N" are quashed. The Commissioner, to hold an enquiry into the t=mal--administration noticed supra and to take l'"actti"ot1,:" in _accordance with law and submit a report to A within six months.

Sd/--

Judge KS

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