Karnataka High Court
Bhavani Housing Co-Operative Society ... vs Bangalore Development Authority And ... on 30 August, 2006
Equivalent citations: 2006 (6) AIR KAR R 36, (2006) 5 KANT LJ 630
Author: A.S. Bopanna
Bench: H.L. Dattu, A.S. Bopanna
JUDGMENT A.S. Bopanna, J.
1. In these intra-Court appeals, the appellant in WA No. 3697/2005 (hereinafter referred to as 'the society' for the sake of convenience), who was the petitioner in Writ Petition No. 35078/03 has challenged the order dated 4.10.2005 passed by the learned single Judge in its entirety. The appellant in WA No. 3759/05 (hereinafter referred to as the 'Trust' for the sake of convenience) was arrayed as the second respondent in the said writ petition. The Trust has challenged the order passed in W.P.No. 35078/2003 only to the extent of the learned single Judge quashing the decision of the Bangalore Development Authority dated 3.10.2002 to execute the lease deed in favour of the Trust.
2. The Society was before the learned Single Judge in the said writ petition calling in question the decision dated 3.10.2002 by which the BDA decided to execute a lease agreement in favour of the Trust in respect of the civic amenity site situate in the Housing Layout formed by the society. In this regard, the society also sought for quashing of the lease agreement dated 27.2.2003 executed by the BDA in favour of the Trust. The society had therefore sought for issue of writ of certiorari to quash the decision dated 3.10.2002 based on the pleadings in the writ petition. The said prayers were opposed by the respondents by detailed objection statement.
3. On the rival contentions advanced by the petitioner and respondents, the learned Single Judge considered the relevant provisions of the Bangalore Development Authority Act (hereinafter referred to as 'the Act') viz., Section 32 more particularly Section 32(1)(2)(5) and (7) of the Act since it was argued on behalf of the society that even though it could be considered that Section 32(5) of the Act would make it mandatory for the society to vest the different reserved areas to the BDA, the said provision only speaks about the roads, drains, water supply mains, open spaces, but does not include civic amenity and therefore even this mandatory provision for approval of the layout plan does not envisage the handing over of the civic amenity site to the BDA. Since the open space has not been defined under the Act, it became necessary to refer to the definition of 'open space' which is defined at Section 2(f) of the Karnataka Parks, Play Fields and open spaces (preservation and regulation) Act, 1985 (hereinafter referred to as the 'Open Spaces Act). The learned Single Judge after referring to the same has come to the conclusion that the definition of open space in the Open spaces Act could be considered for the purpose of deciding whether the civic amenity site also forms a part of the mandatory provision under Section 32(5) of the Act and by coming to such conclusion, the learned single Judge has decided that the same can also be considered as an open space and therefore the same is to be relinquished by the society to the BDA as contemplated under the Act The next question which was considered by the learned Single Judge was with regard to the nature by which the BDA could claim the civic amenity site. In this regard the learned Single Judge has disapproved the manner in which the BDA has claimed to have taken possession of the site and has further held that the BDA can come in possession of the Civic amenity site only by way of relinquishment deed to be executed by the society and in this context, the learned Single Judge has quashed the decision taken by the BDA dated 3.10.2002 to execute the lease deed in favour of the Trust. Consequently however, the learned single Judge has directed the society to relinquish the civic amenity site in favour of the BDA and has directed the BDA to thereafter lease the civic amenity site in favour of the Trust.
4. Sri S. Vijayashankar, learned senior counsel appearing for Sri G. Krishna Murthy, learned Counsel for the society while assailing the order passed by the learned single Judge would contend that the learned single Judge could not have adapted the definition of open space provided in the open spaces Act since according to the learned senior counsel the open space Act is a later enactment and cannot be an aid for interpreting the provisions of the earlier enactment Further it was contended that the said two acts viz., the BDA Act and the open spaces Act are not in parimateria inasmuch as the BDA Act provides for development whereas the open spaces Act provides for preservation and regularisation. The preamble of the said two Acts would indicate that the objects of the said Acts are different According to the learned senior counsel, when the two Acts are enacted to achieve different objects, the definitions and meanings provided for in one Act cannot be adapted as an aid for interpreting the other Act nor could the definition in one Act be super-imposed into the other Act which if done would amount to legislating instead of merely interpreting. By contending so, the learned senior counsel would emphasise that it is nodoubt true mat an area measuring 20 acres had been conveyed to the society under registered sale deeds with certain conditions attached to it Even though there is a covenant in the sale deed to relinquish the civic amenity site, the same would have to be considered with reference to the provisions as contained in Section 32(5) of the BDA Act since the same does not include a civic amenity site but only an open space and further since Section 2(bb) of the BDA Act defines what is civic amenity and the said definition also does not include open space. Further the BDA Act does not define 'open space'. By this, according to the learned senior counsel, the legislature has consciously not included civic amenity in Section 32(5) of the BDA Act and further has not included it by defining it as an open space under the said Act Therefore, even though Section 32(5) of the BDA Act makes it mandatory for a person seeking for sanction/approval of layout to relinquish the roads, drains, water supply mains and open spaces, it is not mandatory to relinquish the civic amenity site and therefore the civic amenity site does not vest automatically with the Bangalore Development Authority. The learned senior counsel would thereafter contend that since the society had covenated with the Bangalore Development Authority in the sale deed under which the land was allotted and conveyed to the society to relinquish the civic amenity site, at best the same is only a non-statutory contract between the Society and the Bangalore Development Authority. Hence until the society relinquishes the site in favour of the BDA, the BDA does not get the right to allot or lease the civic amenity site to any third party under the Rules of 1989. The learned senior counsel would further contend that if for any reason the society does not execute the relinqushment deed the only option open to the BDA is to enforce the contract in the appropriate forum and when it is a non-statutory contract, the same cannot be done by way of direction in writ petition. It is therefore contended that the learned Single Judge after rightly quashing the decision of the BDA to lease the civic amenity site in favour of the Trust ought not to have proceeded further to direct the petitioner to execute the relinquishment deed in favour of the BDA. According to the learned Counsel, apart from the same not being permissible in law, it was also beyond the scope of the prayer made in the writ petition since the society who was the petitioner had merely questioned the decision of the BDA to lease the civic amenity site in favour of the Trust since the society continued to remain the owner of the site and ownership had not been transferred to the BDA. Such ownership enjoyed by the society cannot be divested without the authority of law since the same would amount to contravening the provisions of Article 300A of the Constitution of India. The decisions cited in support of the said argument would be referred by us at the appropriate stage.
5. Sri Abdul Khader, learned Counsel appearing for the BDA sought to justify the action of the BDA by contending that the formation of the layout by any person in an area to which the BDA Act applies would be subject to the scheme of the BDA Act. Learned Counsel would further contend that the land which had been purchased by the society had been notified for acquisition and the award had been passed on 16.8.1976 and thereafter the entire lands had vested with the BDA, it is only pursuant to the Government Orders permitting the formation of layout with conditions and further being subject to the Bulk Allotment Rules 1995 the property in question had been transferred to the society with conditions as contemplated under Section 38 and 38B of the Act after collecting the layout formation charges. This would only indicate that the society had not become the absolute owner of the entire property as in a normal transaction of sale since under the very sale deed itself, specific details were mentioned vide Annexure-I to the sale deed Therefore, while executing the sale deed in favour of the society, the BDA had retained the right over 4,71,677.26 square feet in the land which was transferred to the society under the sale deed. Simultaneously since the layout plan had been approved in terms of Section 32(5) of the BDA Act, the said area was to be earmarked as indicated in the layout plan and as such even at the time of executing the sale deed and the approval of the plan itself, the BDA continued to remain as the owner in respect of the area mentioned in Annexure-I to the sale deed and the relinquishment contemplated in the sale deed was only a formality for having the revenue entries etc in the name of the BDA after completion of the formation of the layout. Therefore the mere non-execution of the relinquishment deed in favour of the BDA would not create any right in favour of the society in respect of the lands indicated in Annexure-I to the sale deed more particularly the block 'U' wherein civic amenity site is situate and is the subject matter of this proceedings. Learned Counsel would contend that it is not open for the society to contend that if the relinquishment deed is not executed, the course open to the BDA is only to file a civil suit The learned Counsel would contend that since the entire scheme of allotment is under the provisions of the Act and the Bulk Allotment Rules, the execution of the sale deed subject thereto would indicate that it is a conditional transfer and it is not necessary for the BDA to approach the civil forum. Even though no appeal has been filed by the BDA the learned Counsel would contend that the learned single Judge, after having come to the conclusion that the civic amenity site is also an open space, ought to have held that the BDA had right to deal with the same and the learned Single Judge ought not to have set aside the decision dated 3.10.2002 taken by the BDA.
6. Sri Anant Mandgi, learned Counsel appearing for the Trust/appellant in appeal No 3759/05 and respondent No. 2 in Appeal No. 3697/05 apart from supporting the contention of the learned Counsel for the BDA would also contend that Section 2(bb) of the BDA Act would define what is civic amenity and the same includes a school and therefore the civic amenity site formed in block 'U' of the layout formed by the society can be allotted for setting up of a school and the Trust being an educational Trust sought for allotment of civic amenity site to start a school and the BDA after being satisfied about the eligibility of the Trust has allotted the civic amenity site and the Trust has been put in possession of the property and the construction activity has already commenced. Even though the BDA had decided to lease the civic amenity site in favour of the Trust on 3.10.2002 and the lease deed dated 27.2.2003 had been executed in favour of the Trust, the society sought to challenge the same after lapse of time and by then, the Trust had altered its position. Further the case made out by the society while filing the writ petition and challenging the lease made in favour of the Trust is not bonafide but the society has approached this Court admitting the position that there is a term in the sale deed to relinquish the property in favour of the BDA and all that the society is contending is that since they have not yet relinquished the site in favour of the BDA, the BDA did not have right to lease the property. According to the learned Counsel, this conduct of the petitioner itself would be sufficient to non-suit the society since the society has not approached this Court with clean hands and clear conscience but has attempted to take advantage of its own default and therefore this Court which is a Court of justice as well as equity cannot grant any relief to the society.
7. Having heard the learned senior counsel and the respective learned Counsel appearing for the parties, the facts which are not in dispute are mat the property had been acquired by the CITB i.e., the predecessors in interest of BDA and award had been passed on 16.8.1976, and as such the property had vested with the BDA. Subsequently, the society had approached the BDA under the Bulk Allotment scheme and accordingly pursuant to a direction issued by this Court the BDA conveyed an area measuring 20 acres under two sale deeds i.e., an area measuring 10 acres and 29 1/4 guntas under sale deed dated 2.8.1996 and an area measuring 9 acres and 10 3/4 guntas under the sale deed dated 24.10.1998. The sale deed dated 24.10.1998 whereunder the balance of the extent was conveyed to complete the said 20 acres, contained Annexure-I according to which certain areas were specified for the purpose of park, civic amenity and roads and as per one of the covenants in the sale deed the game was to be relinquished by the society in favour of BDA. In respect of the said 20 acres of land the society had also obtained sanction of the plan as contemplated under Section 32 of the BDA Act. However, the grievance which was put forth by the petitioners in the writ petition before the learned Single Judge was that even though the society had paid consideration to different land owners for 32 acres and 6 guntas of land in the survey number in question, the BDA had granted/sold only 20 acres of land in favour of the society. The society sought to contend that since the said 20 acres of land had been sold by the BDA to the society and since the civic amenity sites were not relinquished in favour of the BDA, the BDA has no right to dispose of the property which According to the society belongs to them. Therefore essentially the case of the society is mat even though under the sale deed there is a clause for relinquishment unless the relinquishment takes place the BDA does not become the owner and cannot deal with the civic amenity site in the manner it has been done. Further the society has contended before us that if the BDA resorts to mis procedure, it would amount to divesting the society of its property without authority of law or without compensating the society to that extent.
8. In support of the contentions noticed above, the learned senior counsel has placed reliance on the decision in the case of Yogendra Pal v. Municipality, Bhatinda , Pt. Chet Ram Vashist v. Municipal Corporation Of Delhi And Mohd. Yasin v. Town Area Committee Jalalabad . By placing reliance on the said decision, learned senior counsel sought to contend mat the Hon'ble Supreme Court has held that the provision in the said Acts providing for transfer of land to Municipality without compensation is held to be bad. What is to be noticed is that in the said 'decision, the vires of the provision in the said Act had been called in question and also vesting on notification, and in the second case the absence of provision, whereas in the present case, the said question does not arise and all that is required to be seen is whether the provision provides for imposing condition of relinquishment and despite that whether the Society can avoid transfer of the land to the BDA. Further in the instant case, it is under bulk allotment scheme which is subject to terms and conditions which we would refer to in detail in the paragraphs following this. The society or such body which is receiving the land under the bulk allotment scheme would have the option either to agree to the said conditions and carry out the development since the conditions would be known and having opted to agree cannot turn back. Therefore, the said decisions would be of no assistance to the society. Next the learned senior counsel has placed reliance on the decision in Union Of India v. R.C. Jain , S. Gopal Reddy v. State Of A.P , State Of Andhra Pradesh v. Mohd Ashrafuddin , Maheshwari Fish Seed Farm v. T.N. Electricity BDARD and Peddinti Venkata Muralj Ranganatha Desika Itengar v. Govt Of A.P. to contend that the definition from one Act cannot be merged into another and further to contend that the definition in the later enactment cannot be made use of for understanding the definition in the earlier enactment. In Union Of India v. R.C. Jain (cited supra) the decision was rendered by the Hon'ble Supreme Court in the context where the High Court had imported the definition of 'local authority' from the Cattle Trespass Act, 1871 to consider the applicability or otherwise of the Payment of Bonus Act to the employees of the Delhi Development Authority. Since the definitions of the Acts which are not in parimateria had been relied upon, the same was disapproved and the Supreme Court while rendering the said decision does not indicate that the definitions which are parimateria also cannot be relied upon. In the decision in GOPAL REDDY's case, the same has been rendered in the context when the definition in the Act was sought to be narrowed down by using dictionary meaning and therefore the Hon'ble Supreme Court held mat it is not permissible. In fact on the other hand it is held that the Court should adapt purposive approach while interpreting to achieve the object of the Act. In fact this decision would advance the case of the respondents rather than the appellant. In the case of State of Andhra Pradesh v. Mohd Ashrafuddin, all that the Hon'ble Supreme Court has said is that if the definition of a term is unambiguous, the Court has to accept it, as it stands without recourse to the external aids. In the instant case, the meaning has to be ascertained keeping in view the scheme of the Act, and as such, external aid has to be resorted to dislodge the ambiguity. In the case of MAHESHWARI FISH SEED FARM'S case though the Hon'ble Supreme Court has indicated that the definition of the term in one statute does not afford the construction of the some term in another statute. The Hon'ble Supreme Court had to say this since in that case, the Acts which were not in parimateria were referred to while interpreting. But, it also indicates that referring to cognate subjects and parimateria Acts is permitted. Further in the case of PEDDINTI VENKATA MURALI RANGANATHA DESIKA IYENGAR 's case though the Hon'ble Supreme Court has said that the later statute should normally not be used as an aid to construction of an earlier one, the same was said in the context where a vested right under an earlier enactment was sought to be nullified by using a non-obstante clause in a subsequent enactment.
9. Yet another decision referred to by the learned senior counsel in the case of Nalinikant Ambalal Mody v. S.A.L. Narayan Row, Commissioner Of Income Tax, Bombay City on this aspect to support his argument that the later Act cannot be used as an aid to construction may also not be of assistance to the case of the society since even in this decision, the Hon'ble Supreme Court has not laid down as a ratio but the Hon'ble Court had referred to a passage in Craies on Statute law to decide that case, which is as follows:
Except as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts. A later statute may not be referred to interpret the clear terms of an earlier Act which the later Act does not amend, even though both Acts are to be construed as one, unless the later Act expressly interprets the earlier Act; but if the earlier Act is ambiguous, the later Act may throw light on it, as where a particular construction of the earlier Act will render the later incorporated Act ineffectual.
10. A reading of the passage would indicate that author had indicated that a later Act can throw light for interpretation if the earlier Act is ambiguous. Having noted the said passage, the Hon'ble Supreme Court in the facts of that case felt that mere is no ambiguity and later Act was not necessary to be used for the purpose of construction.
11. Therefore, in our view, the reasoning adapted by the learned Single Judge that the definition of open space in the open spaces Act can be taken note of for considering as to whether the civic amenity site is also an open space cannot be held to be erroneous for the reason that the said Acts are Parimateria to each other. Even though it is the contention of the learned senior counsel that the BDA Act is for development and the open spaces Act is for preservation, the scope of both these Acts, the authority defined under both the Acts and the purpose for which both the Acts have been enacted are complimentary to each other inasmuch as the BDA would regulate the development of the area which falls within its jurisdiction in accordance with the provisions of the BDA Act and simultaneous on approval for such development, the open spaces Act would apply to the very same area for preservation of such development. Therefore, the definition provided for in each of the given Acts are interchangeable depending on the purpose for which it is to be interpreted.
12. Further what is required to be noticed by us in the facto of this case is the nature of transaction entered into between the BDA and the society at the first instance. The sale transaction dated 2.8.1996 and 24.10.1998 indicates that it is not in the nature of absolute sale transaction between a vendor and a purchaser. The BDA which is bound by the provisions of the BDA Act with regard to the development of the area falling within its jurisdiction is to undertake the development after acquiring the property. Accordingly, the property in question also came to be acquired initially under this process. Thereafter the Government in its wisdom thought it fit to formulate the policy of bulk allotment to Housing Co-operative Societies and such other agencies to form layouts in accordance with the provisions of the BDA Act and subject to the conditions to be imposed and the layout to be sanctioned by the BDA. In this background, the recital to the said sale deed under which 20 acres of land has been sold to the society would indicate that the said sale has been made by waiving of land cost and subject to the Government Order dated 23.11.1995 and also subject to the rules 1995. In this regard, Section 38 of Act provides for sale or lease of property acquired and vested with BDA and the rules 1995 would provide that the categories falling under Clauses (i) to (vi) of Section 38B could be considered for bulk allotment.
13. Section 38B of the Act provides mat the authority may subject to restriction, condition and limitation as may be prescribed make bulk allotment by way of sale, lease or otherwise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme. If the sale deed in question is perused with reference to the same, it would be clear that the allotment has been made and the land has been conveyed to the society by imposing conditions and in this regard one of the conditions is that the society shall execute relinquishment deed as per Annexure-I, The details of Civic amenity sites, park and roads have been specified and more particularly with regard to the civic amenity and park, the size of such area to be retained and the block in which it is to be retained is also specified. Further, the layout plan has also been approved indicating these areas in the layout Therefore, on (his aspect itself, the contention of the society that since it has not executed a relinquishment deed, the same can only be enforced in an appropriate civil Court having jurisdiction cannot be accepted. Further the nature of transaction itself is that when the details is indicated in the sale deed vide Annexure-I to the sale deed and layout has been approved as per Section 32 of the BDA Act, the BDA has retained right over the said area mentioned in Annexure-I to the sale deed. Therefore, the condition of relinquishment to be executed alter the sale deed and not after formation of layout is only a procedural aspect to be made for the purpose of revenue entries. Therefore when the document itself indicates that the society has undertaken to relinquish the civic amenity site measuring 1,77,885 square feet in block 'U' of the layout, after the sale deed and when such transaction is entered into with authority of law, the society cannot contend that such relinquishment can be made only subject to payment of consideration and divesting the same would be contrary to Article 300A of the Constitution of India. The decisions cited in the case of Hindustan Times and Ors. v. State Of U.P. and Anr. and Dlf Qutab Enclave Complex Educational Trust v. State Of Haryana and Ors. aw the cases where divesting was sought to be done under the executive orders under Article 162 and in the second case by way of resolution in the meeting chaired by Chief Minister and therefore without authority of law. Since in the instant case the sale deed itself had restricted the right of ownership, to that extent, in view of the provisions contained in the BDA Act and Rules, the restriction placed was with authority of law and as such the cited decisions are not of assistance.
14. Thus having come to the conclusion that the sale deed is a conditional one, for the reason indicated above and further since the civic amenity site in question is specifically indicated as a subject matter for relinquishment in the Annexure to the sale deed, the question to be considered is with regard to the nature of relinquishment to be done by the society in favour of BDA. It is no doubt true in view of the provisions contained in Section 32(5) of the Act that the amenities mentioned therein should be agreed to be transferred by the applicant for sanction of the plan and further Section 2(b) of the 1989 Rules would indicate that the civic amenity site is a site which is earmarked for civic amenity in a layout formed by the authority or a site earmarked for civic amenity in a layout approved by an authority and relinquished to it. In this regard, the learned single Judge has relied on a Division Bench decision of this Court to come to the conclusion that the BDA would become the owner only after the same is relinquished in favour of the BDA by the owner. In this regard we are of the view the nature of relinquishment should depend on the fact situation of each case. In the case of Residents of Mico Layout v. Jss Mahavidyapeetha and Ors. (WA No. 6869/1996) it is not a case of bulk allotment as noticed by us in the present case. That was a case where the Mico House Building Co-operative Society ('Mico society' for short) had formed its layout in its own land after obtaining approval from the BDA as contemplated under Section 32(5) of the Act subject to the terms agreed in the agreement between the BDA and the Mico society wherein it was agreed that the relinquishment would be made in favour of the BDA for the civic amenity site after the layout is formed. This Court in that case had taken note of the subsequent correspondence between the parties regarding relinquishment.
15. On the contention that even assuming that there is a covenant for relinquishment, the BDA cannot forcibly dispossess the society. The learned senior counsel has referred to the decision in John B. James and Ors. v. Bangalore Development Authority to contend that the BDA does not have the right to forcibly dispossess. The facts therein are not analogous to the present case where the issue is under a development scheme which are subject to the provisions of the Act and the rules and also the terms and conditions agreed to between the parties and therefore the said decision cannot be of any assistance.
16. In the instant case, as already noted by us, this is a case of bulk allotment from the BDA itself which was subject to terms and conditions and the sale deed itself makes it clear that the said area is to be relinquished after the sale deed and not after formation of layout and therefore a similar right cannot be claimed by the society in the present case since the sale deed itself indicated the area which would be lost by the society after the sale deed itself. Therefore, even though the sale deed contained that the relinquishment deed is to be executed, the same cannot be understood in the nature of relinquishing and reconveying the said property to the BDA, it is only in the nature of handing over the property to the BDA to the extent mentioned in the sale deed and therefore relinquishment deed in terms of the transfer of property and by way of divesting the interest in the property is not what is contemplated but a mere communication to the BDA handing over the said area to be formed in the layout. The Act itself provides that the said area is to be made over to the BDA without claiming any compensation and therefore it is a mere formality to be completed and as such it is not necessary for the BDA to approach the Civil Court seeking specific performance of the terms in the sale deed in the facts and circumstances of this case. This Court even by issuing a mandamus could direct the society to execute the relinquishment document. Therefore the direction issued in this regard by the learned Single Judge cannot be found fault with.
17. The next question therefore is as to whether such a direction was beyond the scope of this writ petition as contended by the learned senior counsel appearing for the society. On this contention the learned senior counsel sought to rely on the decision in Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd . No doubt that was a case where more than the relief sought for had been granted. But, in the instant case considering the question based on the pleading of all the parties, and while answering the same, appropriate directions has been issued. Such power would have to be exercised depending on the facts and circumstances of each case and therefore the decision cited would not be applicable to the present facts. This issue may not detain us for long since even on the facts of this case, comprehensive decision was to be taken by the learned Single Judge considering the prayer made in the writ petition and the defence taken by the respondent viz., the BDA and Trust. While considering the same, the right of the BDA over the civic amenity site, the reliquishment required to be made by the petitioner and also the validity of the decision taken by the BDA to lease the land in favour of the Trust emerge as the core issues and after having decided the said issues, it was quite natural that the relief granted in the writ petition had to be made in that manner even though the prayer in the writ petition was only to quash the decision taken by the BDA to lease the land in favour of the Trust, it cannot be said, in the facts and circumstances involved in the present case, the learned Single Judge had travelled beyond the scope of the writ petition. That apart, this Court, while exercising its power under Articles 226 and 227 of the Constitution of India, is exercising the power of both justice and equity and such power should be exercised in attaining the objective. In fact the Hon'ble Supreme Court in the case of Gujarat Steel Tubes Limited v. Mazdoor Sab has explained the wide powers of this Court while issuing a writ under Article 226 of the Constitution of India and therefore, even on law we do not find that the learned single Judge has erred in this respect.
18. Since we have come to the conclusion that in the facts and circumstances of this case wherein the land was conveyed to the society under a bulk allotment scheme subject to the terms and conditions contained in the sale deed, what would emerge is mat the properties detailed in Annexure-I to the sale deed had never passed to the society and the covenant in the sale deed that after execution of the sale deed, the society was required to execute relinquishment deed, would indicate mat the intention of the parties was not passing on the entire property to the society and thereafter reconveying the properties mentioned in Annexure-I to the BDA. But, immediately after execution of the sale deed, the relinquishment deed was required to be executed. Therefore the same were only the documents for the purpose of records and as such even though the relinquishment deed had not been executed by the society, the extent of land mentioned in Annexure-I to the sale deed between the BDA and the society had remained with BDA since it was the property of BDA on its original acquisition and vesting and this portion was earmarked as civic amenity site in the approved plan. Therefore the BDA being the owner of the said civic amenity site was entitled to deal with the same in the manner provided under the BDA (Allotment of Civic Amenity Sites) Rules, 1989. Therefore, the decision taken by the BDA to lease the same cannot be held to be bad. The learned single Judge has erred in quashing the decision dated 3.10.2002 and the same is set aside to that extent. It is clarified that the transaction between the BDA and the Trust shall remain valid and ratification is sufficient after the society executes the relinquishment document in favour of the BDA.
19. For the foregoing reasons, we pass the following:
ORDER
i) WA No. 3697/2005 is dismissed.
ii) WANo. 3759/05 is allowed in part.
iii) The appellant in WA No. 3697/05 M/s Bhavani Housing Co-operative society Ltd shall execute a document of relinquishment in favour of BDA in respect of the properties indicated in Annexure-I to the sale deed dated 24.10.1998 within 15 days from the date of receipt of a copy of this order.
iv) The Bangalore Development Authority shall thereafter issue a ratification letter in favour of the M/s. Appalo Educational Trust ratifying the lease deed dated 27.2.2003.
v) In the peculiar facts and circumstances of the case, parties to bear their own costs.