Bangalore District Court
The Bangalore Development Authority vs Sri. B.M. Mayappa on 15 December, 2022
KABC010006432020
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT:
SRI. D.P. Kumara Swamy, B.Com., LL.M.,
VI Addl. City Civil & Sessions Judge
C/c of XLI Addl. City Civil & Sessions Judge
Bengaluru.
Dated this the 15th day of December 2022
ORIGINAL SUIT NO.177/2020
PLAINTIFF : The Bangalore Development Authority,
Represented by its Commissioner,
T.Chowdaiah Road,
Kumara Park West,
Bengaluru-560 020.
(By Pleader Sri Nagaraja M.,)
V/s.
DEFENDANT : Sri. B.M. Mayappa
S/o Late. Mayappa,
Aged about 63 years,
Member, M/s. Trinity & Sri Village Site
Owners Association,
R/o Banasamudra,
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Thorekadanahalli,
Kasaba hobli-2,
Malavalli Taluk,
Mandya Dist - 561 421.
(By Pleader Sri Vikar Ahmed. B)
Date of Institution of the suit : 06.01.2020
Nature of the Suit : Declaration
Date of commencement of
recording of evidence : 26.10.2021
Date on which the Judgment was
pronounced : 15.12.2022
Year/s Month/s Day/s
Total Duration : 02 11 09
(D.P. KUMARASWAMY)
VI Addl. City Civil & Sessions Judge
C/c XLI Addl. City Civil & Sessions Judge,
Bengaluru.
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O.S. No.177/2020
JUDGMENT
This is a suit for -
(i) cancellation of a registered sale deed bearing document No. BDA-1-09304-2018-19, Book-1, stored in CD No.BDAD 295, dated 21-03-2019 of the office of the Additional District Registrar, Bengaluru Urban District, Bengaluru, (for short, "the impugned sale deed") ;
(ii) direction to the defendant to hand over the original of the impugned sale deed to the plaintiff - Bengaluru Development Authority (for short, "the BDA") ;
(iii) direction to the defendant to hand over possession of the alternate site (covered under the impugned sale deed) to the BDA (for short, "the suit property") ;
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(iv) direction to the Additional District Registrar, Bengaluru Urban District, Bengaluru, to make an entry in the concerned register/s maintained in the said office regarding cancellation of the impugned sale deed ; and
(v) such other and further relief in the fitness of facts and circumstances of the case on hand.
2. The pleaded facts of the case of the BDA may be stated to the following effect:
PLEADINGS:
2.1 The BDA is a Public Authority created under the Bangalore Development Authority Act, 1976, (Karnataka Act No.12/1976), (for short, "the BDA Act, 1976"). The principal object of the BDA is to have a co-ordinated development of the city of Bengaluru and its adjacent areas so as to prevent the haphazard and irregular growth of the 5 O.S. No.177/2020 Bengaluru City. Section 3(2) of the BDA Act, 1976, declares that the BDA is a body corporate with perpetual succession and a common seal, and also with a power to acquire, hold and dispose off movable and immovable properties in its own name. The BDA can sue and be sued in its own name.
2.2 In furtherance of its object, the BDA has acquired the lands (which include, lands in Sy.Nos.26/1, 27/2, 27/5, 36/1, and 36/2, and other Sy.Nos.) in K. Narayanapura Village, K.R. Puram Hobli, Bengaluru East Taluk. The BDA has formed a residential layout in the said lands for the purpose of distributing sites to site less/house less persons at reasonable/concessional rate. The BDA has named the said layout as ARKAVATHI LAYOUT.6
O.S. No.177/2020 2.3 One M/s. Trinity and Sri Village Site Owners Association (for short, "the Association") claiming itself to be a group of persons, who are the purchasers of the revenue sites (situated in the said lands acquired by the BDA for formation of Arkavathi Layout) submitted a representation on behalf of its members before the BDA for allotment of alternate sites to its members. Within a short period, the Deputy Secretary IV of the BDA (for short, "the DS-IV") has decided to allot sites measuring 12.00 x 18.00 Meters (60 ft. x 40 ft.) in the 17th Block of Arkavathi Layout to 35 revenue site owners/beneficiaries. Accordingly, the DS-IV has executed registered sale deeds separately in favour of 34 revenue site owners/beneficiaries within a short period from 18-03-2019 to 29-03- 2019. The BDA has filed separate suits against each purchaser/s under the said 34 sale deeds. 7
O.S. No.177/2020 2.4 The defendant claims to be one of the members of the association. Vide allotment letter bearing No. BDA/DS-4/Arkavathi-17/KNP-219/2018- 19, dated 07-03-2019, a site bearing No.KNP-219 measuring 12.00 Meters x 18.00 Meters (60 feet x 40 feet) in 17th Block of Arkavathi Layout was allotted to the defendant. The said site is fully described in the plaint. The said site is the suit property. The said allotment was followed by execution of the impugned sale deed on 21-03- 2019, for a consideration amount of Rs.1,37,176/-. 2.5 The said allotment was made subject to the conditions contained in the Bangalore Development Authority (Allotment of Sites) Rules, 1984, (for short, "the 1984 Rules"). 2.6 The said allotments and sales were done by DS-IV and his assistants based on the 8 O.S. No.177/2020 misrepresentations of the Association and its members. The members of the Association claim to be the purchasers of revenue sites. Their claim for re-conveyance of their respective revenue sites or for allotment of alternative sites shall have to be processed and considered according to the procedure established under the BDA Act, 1976, and the Rules framed thereunder.
2.7 Formation of the scheme of re-conveyance in respect of Arkavathi Layout is still under process. The State Government has not yet finalised the said scheme.
2.8 The re-conveyance schemes implemented by the BDA in respect of earlier layouts prescribe the measurements of the sites to be re-conveyed as 30 feet x 40 feet only. But, not more than that. In addition to the said condition, the claimant must 9 O.S. No.177/2020 fulfill the conditions prescribed under the Rules framed under the BDA Act, 1976.
2.9 In spite of the above noted scenario, the DS-IV has unilaterally decided to allot the sites measuring 60 feet x 40 feet to the 35 members of the Association.
2.10 The then Commissioner of the BDA has noticed the above said irregularities and lapses. Immediately, he issued an Order/Office Memorandum on 11th /12th of April 2019 for cancellation of registration of 35 sites, and for stopping issuance of possession certificates and change of khatha based on said sale deeds. In the said order, the then Commissioner of the BDA has also concluded that when the proposal for fixation of the rate was sent by the BDA to the State Government and the same is pending for 10 O.S. No.177/2020 consideration before the State Government, issue of collection of betterment charges in respect of 66 sites claimed by the association and its members at Rs.59/- is unwarranted.
2.11 The unilateral decision of the DS-IV to collect betterment charges at Rs.59/- has caused huge loss to the BDA.
2.12 In the said order of the then Commissioner of the BDA, it is also observed that the process of allotment of alternate sites has not yet been initiated, so far, and that in the absence of the scheme undue preference has been given to the defendant and other members of the Association.
2.13 A claimant for re-conveyance/allotment of alternate site must satisfy twin requirements 11 O.S. No.177/2020 under the 1984 Rules. They are : (i) The claimant must be resident of Bengaluru (10 years domicile). And (ii) The claimant must not own any residential property in Bengaluru.
2.14 A person who has lost his/her revenue site in the land acquisition by the BDA is entitled to only a site measuring 30 feet x 40 feet. The claimant must have re-conveyed the cost of the site. In addition, the claimant must have fulfilled the said twin criteria.
2.15 The procedure prescribed for allotment of alternate site are : (i) Inviting applications from the persons who have lost their revenue sites in the land acquisition proceedings.
(ii) Processing of such applications to determine the eligibility. (iii) Preparation of seniority list of such applicants. (iv) Obtainment of approval of 12 O.S. No.177/2020 the Government. And (v) Allotment of alternative sites to such applicants as per the seniority list depending on the availability of sites. 2.16 In the above said official Memorandum, the then Commissioner of the BDA has made categorical observations in the following words :
"There seems to be undue haste in allotting and registering these 35 sites. After the rate fixation of Rs.59 per Sq.ft., was cleared by the Finance Wing on 06-03-2019, all the allotment letters were issued on 07-03-2019 and the sites were registered between 18-03-2019 and 29-03-2019. There was no evidence of performing due diligence as (i) the allotment/registration of the sites were not supported by copies of sale deeds in respect of revenue sites claimed to have been lost and (ii) domicile certificates and affidavits to the effect that the claimants did not own any residential property in Bangalore were not available in the file.13
O.S. No.177/2020 On the basis of the inputs provided by SP/STF, the undersigned has already taken action to stop further registration of sites in the above case, issue of katha for the sites already registered has also been put on hold and DS-4 has been orally directed to take immediate necessary action in the matter".
2.17 In furtherance of its principal objects (viz., to provide site to the site less needy person), the BDA has prescribed detailed application form for allotment of site. Among other details, an applicant is expected to provide details regarding the applicants property/site holding/ownership standing either in the name of the applicant, or in the name of the spouse of the applicant, or in the name of dependent of the applicant (viz., dependent children, dependent parents, dependent brothers, or dependent sisters). Rule 10(3) of the 1984 Rules imposes a bar on a person (who already owns a site) from claiming allotment of site from the BDA or from a House Building Co- 14
O.S. No.177/2020 operative Societies. The avowed object is to see that a person would not get double/multiple benefits.
2.18 The BDA is the custodian of the public properties. The BDA is not free (like an individual) to pick and choose the persons amongst applicants to distribute largess/concessions. A transparent and objective criteria/procedure has to be evolved based on reason, fair play, and non- arbitrariness, for allotment of sites. Public interest ought to be the pivotal guiding consideration for allotment of sites.
2.19 The defendant has committed clear violations of the provisions of the BDA Act, 1976, and Rules framed thereunder. The fraudulent and malicious intention of the defendant and that of the Association itself in obtainment of allotment 15 O.S. No.177/2020 and impugned sale deed in respect of the suit property in favour of the defendant by misrepresenting the DS-IV officials by not disclosing the true facts would go to the root of the matter and would cut at the base of impugned allotment and impugned sale deed. The impugned allotment and impugned sale deed are void ab initio. They do not confer any right, title or interest over the suit property in favour of the defendant.
2.20 If an allotment of a site and consequent execution and registration of a sale deed in respect of such a site in favour of the concerned allottee is vitiated by fraud, misrepresentation etc., it is open to the BDA to cancel the same.
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O.S. No.177/2020 2.21 The above are the facts and circumstances constituting cause of action for the suit. Hence, this suit for the above noted relief.
3. The pleaded facts of the case of the defendant may be stated to the following effect :
3.1 The defendant has admitted/not disputed the pleaded facts of the case of the plaintiff which are notes at paras 2.1 to 2.5, 2.17, and 2.18 (supra).
3.2 The defendant has categorically denied the rest of the facts of the case of the plaintiff allegedly constituting cause of action for the suit, which are noted at paras 2.6 to 2.16, and 2.19 to 2.21 (supra).
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O.S. No.177/2020 3.3 The BDA has executed the impugned sale deed in favour of the defendant for a valuable consideration. The BDA has filed this suit for cancellation of the impugned sale deed on an untenable ground. The suit is bereft of merits and is liable to be dismissed with exemplary costs. There is no cause of action for the suit and the ones alleged in the plaint are fictitious. The BDA is guilty of suppressio very suggestio falsi. 3.4 Under Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958, the BDA ought to have paid court fee on the actual market value of the alternative site, but, not on the value of the alternative site as mentioned in the impugned sale deed. Court fee paid by the BDA is insufficient. 3.5 The facts asserted by the defendant on merits regarding the title, right and interest over 18 O.S. No.177/2020 the suit property acquired by the defendant under the impugned sale deed may be summed up in the following words.
3.6 There is no haste in executing the impugned sale deed by the DS-IV. The defendant has elaborated the said defence plea by stating the antecedent events date-wise chronologically in tabular form which is noted below :
Sl. Date Description
No.
1. 03-02-2003 Preliminary Notification for acquisition of
land for Arkavathy Layout.
2. March 2003 Objection filed by defendant for Preliminary
Notification through Sree Village Plot Owner Association.
3. 27-05-2004 Objection filed by defendant to delete land/sites from acquisition through Sree Village Plot Owner Association.
4. 2004 The Association/land owners/site owners had filed a writ petitions in WP Nos.26601 to 26604 of 2004 before the Hon'ble High Court of Karnataka.
5. 2005 In the said WP Nos.26001 to 26004 of 2004, the Hon'ble High Court of Karnataka has quashed the Preliminary Notification and Final Notification in respect of lands/sites of the Writ petitioners.
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6. 2005 The BDA has challenged the order in said WP Nos.16601 to 26604 before the Hon'ble Division Bench of the Hon'ble High Court of Karnataka, in Writ appeals. The Hon'ble Division Bench has set aside the order impugned therein.
7. 2005-06 The writ petitioners have challenged the said order of the Hon'ble Division Bench before the Hon'ble Supreme Court in SLPs.
8. 05-05-2010 Vide judgment reported in (2010) 7 SCC 129 Bondu Rameswamy and Ors - vs -
Bangalore Development Authority, the Hon'ble Supreme Court has upheld the said orders of the Hon'ble Division Bench.
9. 12-02-2014 Sree Village Plot Owner's Association submitted the representation to Commissioner, BDA to delete lands in Sy.No.26/1 to 26/5, 27/1, 36/1 & 36/2 of K. Narayanapura Village as per the High Court Order dated 24-01-2014 in W.P. No.32120- 32121/2013.
10. 19-02-2014 Representation was submitted by the Association to Commissioner, BDA to delete the lands and 44 sites formed in Survey No.26/1 to 26/5, 27/1, 36/1 & 36/2 of K. Narayanapura Village as per the High Court order.
11. 12-03-2014 As per the request made in representation dated 12-02-2014 & 19-02-2014 and as per orders of the Hon'ble High Court order dated 24-01-2014 Land Acquisition Officer, BDA has issued notice to appear for enquiry on 23-03-2014.
12. 20-03-2014 President/Secretary of Trinity Village Plot Owner's Association appeared for hearing and informed Sites have been purchased earlier to preliminary notification i.e., 03-02- 2003 and submitted the sale deeds of 44 sites.
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13. May-June Trinity Association submitted a 2014 representation to Commissioner, BDA to collect the betterment charges and allot sites as per resolution.
14. 16-06-2014 Commissioner has ordered to place before the Board to considered the matter as done in respect of Akashavani House Building Co- operative Society.
15. 16-08-2014 At para (24) of note sheet of land acquisition file it has been observed that BDA has acquired 10 acres 33 guntas in the above said Sy.Nos. For allotment of alternative sites to 66 persons an extent of 4 acre 2 guntas is required. It is suggested that after the alternative sites to 66 sites owners BDA can utilize 6 acres 31 guntas and it is beneficial to BDA.
16. 27-09-2014 Considering the above facts the Authority has passed a resolution on 27-09-2014 vide resolution number 141/2014 to reconvey 66 sites as per resolution No.43/2004 dated 03-02-2004 and resolution No.377/2011 dated 20-12-2011.
17. 07-11-2014 Commissioner has ordered to take necessary action for allotment of sites as per resolution 43/04 & 377/2011.
18. 01-12-2014 File has been transmitted from land acquisition department to Secretary, BDA to take necessary action for allotment of sites.
19. 16-03-2015 Commissioner has ordered to calculate and submit extent of sites to be allotted as per resolution 377/2011.
20. 01-07-2015 Commissioner has ordered to take necessary action for allotment of sites as per decision of the Authority.
21. 28-09-2015 Correspondence between Tahsildar, Land to Acquisition, Land Acquisition Office, Deputy 06-12-2016 Commissioner, Land Acquisition, Law 21 O.S. No.177/2020 Officer, Finance Department and Commissioner BDA regarding quantifying the betterment charges to be collected.
22. 07-12-2016 Endorsement issued to one of the site holders (member of the Association Smt. Vijayalakshmi) calling upon her to pay Rs.59/- sq. towards betterment charges.
23. 14-12-2016 Smt. Vijayalakshmi has paid the betterment charges to the BDA.
24. 07-02-2017 BDA has issued khata in favour of Smt. Vijayalakshmi.
25. 20-02-2019 Trinity association has filed application to collect the betterment charges as done in the case of Smt. Vijayalakshmi and register the site in their name.
26. 06-03-2019 The Finance Member of BDA has fixed the betterment charges for 35 sites.
27. 18-03-2019 Sale deed have been registered in favour of to 34 site holders including the defendant. 29-03-2019 3.7 Mr. Srinivas was the absolute owner of 36 guntas of land in Sy.No.36/2 situated at K. Narayanapura Village, K.R. Puram Hobli, Bengaluru East Taluk (which is more fully described in the "A" Schedule of the written statement). The said 36 guntas of land would be referred to as "the written statement "A" schedule land". Mr. Srinivas had purchased the written statement 'A' 22 O.S. No.177/2020 schedule property from one Smt. Nagamma under a registered sale deed dated 27-05-1996 bearing document No.862/1996-97, Vol. 1324, Book-I, Pages 162-165 dated 24-05-1997. Based on the said sale deed, the revenue records of the written statement 'A' schedule property was transferred to the name of Mr. Srinivas. He was paying taxes in respect of the said property. Said Sri Srinivas could not manage the affairs of the written statement 'A' schedule property. As such he appointed the defendant to manage the said property.
3.8 The BDA has issued a Preliminary Notification bearing No. BDA/ Commr/ ALAO/ LA9/ 104/2002-03 dated 02-02-2003 for formation of Arkavathi Layout. The same was published in the Karnataka Gazette dated 03-02-2003. The written 23 O.S. No.177/2020 statement "A" schedule property is also included in the said notification.
3.9 Through the Association, the defendant has filed his objection to the said Preliminary Notification before the BDA. The defendant also appeared at the time of hearing at the spot. The BDA was appraised of the fact that sites have been formed in the lands in Sy.Nos.26/1 to 26/ , 27/1, 27/5, 36/1 and 36/2 of K. Narayanapura Village, K.R. Puram Hobli, Bengaluru East Taluk and as such the said lands are not suitable for acquisition and hence, the said lands may be dropped from acquisition.
3.10 Subsequently, the BDA has issued final notification No.UDD 193 MNX 2004 dated 23-02- 2004. The same was published in the Karnataka Gazette dated 23-02-2004.
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O.S. No.177/2020 3.11 The defendant and others have filed a representation dated 27-05-2004 before the BDA requesting for dropping further proceedings of acquisition of the above said lands covered under the said preliminary notification and final notification. But, however, the BDA refused to drop the said further proceedings. 3.12 Hence, the Association was constrained to file writ petitions in WP Nos.26601 to 26604 of 2004 before the Hon'ble High Court of Karnataka, to challenge the said land acquisition proceedings. The said writ petitions came to be allowed. The Hon'ble High Court of Karnataka was pleased to quash the said preliminary notification and final notification, vide its order dated 15-04- 2005.
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O.S. No.177/2020 3.13 Aggrieved by the said order dated 15- 04-2005 in W.P. Nos.26601 to 26604 of 2004, the BDA had preferred an appeal in W.A. No.2778/2005 before the Hon'ble Division Bench of the Hon'ble High Court of Karnataka. The Hon'ble Division Bench reversed the said impugned order dated 15- 04-2005 and upheld the said preliminary notification and final notification. At para 48 of the judgment, the Hon'ble Division Bench had issued certain guidelines to the BDA.
3.14 Aggrieved by the said order of the Hon'ble Division Bench, the defendant and others had preferred an appeal by way of Special Leave Petition (SLP) before the Hon'ble Supreme Court against the said order. The Hon'ble Supreme Court had upheld the said order of the Hon'ble Division Bench. But, however, the Hon'ble Supreme Court was pleased to issue further guidelines to the BDA. 26
O.S. No.177/2020 3.15 The BDA has passed a resolution No.43/2004 dated 03-02-2004, resolving to give effect to the order of the Hon'ble High Court of Karnataka in W.P. Nos.20875-938 of 2001 dated 20-07-2001.
3.16 The BDA had published an advertisement calling for site owners to submit their applications for allotment of alternative sites. In spite of it, the BDA has pleaded in this case to the effect that no application is called for by the BDA for allotment of an alternative site. 3.17 The defendant and other revenue land/site owners (who lost their such lands/sites in the said land acquisition proceedings) had formed an Association called M/s Trinity and Sree Village Site Owners Association (for short, "the 27 O.S. No.177/2020 Association") much earlier to 23-09-2013. However, the Association was registered on 23-09- 2013.
3.18 As the BDA failed to allot the alternative sites to the defendant (and other similarly placed persons) as per the guidelines issued by the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court, the defendant and others were constrained to issue legal notice dated 02-04-2013 and 18-04-2013 through the Association against the BDA.
3.19 The BDA did not respond to the said two legal notices dated 02-04-2013 and 18-04- 2013. Hence, the Association had filed writ petitions in W.P. Nos.32120-32121/2013, W.P. Nos.32371-32373/2013, and W.P. Nos.3481- 3558/2014 against the BDA. Vide order dated 24- 28 O.S. No.177/2020 01-2014 in the said writ petitions, the Hon'ble High Court directed the BDA to consider the said two representations (legal notices). 3.20 On 12-02-2014, the Association had made one more representation before the BDA for allotment of alternative sites to its members (including the defendant). In response to the said representation dated 12-02-2014, the BDA had issued a notice to the defendant on 12-03-2014. 3.21 On the basis of the above guidelines, the BDA had issued re-modified final notification No.UDD 426 MNJ 2011 dated 23-02-2014. The said re-modified final notification was published in the Karnataka Gazette on 18-06-2014. Under the said re-modified final notification, 984 acres (out of 2750 acres) of land was denotified (deleted) and 29 O.S. No.177/2020 resultantly the extent of the acquired land was reduced from 2750 acres to 1766 acres. 3.22 On 27-09-2014, the BDA had passed a resolution No.141/2014 resolving to allot alternative sites to the owners of the lands in Sy.Nos. 26/1 to 26/5, 27/1, 27/5 and 36/2 of K. Narayanapura Village, K.R. Puram Hobli, Bengaluru, in terms of its earlier resolution No.43/2004 dated 03-02-2004.
3.23 On behalf of the defendant and others, the Association had issued letters dated 27-01- 2018, 30-01-2018, and 03-04-2018 to the BDA. 3.24 After a long gap of 17 years, ultimately, the BDA agreed to comply with the orders of the Hon'ble High Court of Karnataka and that of the Hon'ble Supreme Court. 30
O.S. No.177/2020 3.25 On the directions of the BDA, the defendant had surrendered the said sale deed dated 27-05-1996 (in respect of the written statement 'A' schedule property) to the BDA. 3.26 Through Allotment Letter No.BDA/DS- 4/Arkavathi-17/KNP-219/2018-19 dated 07-03- 2019, the BDA has allotted the suit property to the defendant.
3.27 The BDA has received the consideration amount and executed the impugned sale deed in respect of the suit property in favour of the defendant on 21-03-2019.
3.28 Almost a year after the registration of the impugned sale deed, the BDA has filed this 31 O.S. No.177/2020 frivolous suit. The defendant and his vendor have been pursuing the matter for past 17 years. 3.29 The plea of the BDA that the defendant is not entitled to the alternative site is contrary to the judgments of the Hon'ble Division Bench and also the Hon'ble Supreme Court in Bondu Ramaswamy case.
3.30 The BDA has pleaded regarding misrepresentation by the defendant. But, however, the plaint is silent regarding the details/particulars of misrepresentation. 3.31 The plea in the plaint to the effect that the DS-IV has taken unilateral decision in the matter of allotment of the alternative site is contrary to the Resolution No.377/2011 dated 20-12-2011 of the BDA.
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O.S. No.177/2020 3.32 Collection of betterment charges of Rs.59/- is not whimsical and arbitrary, but, it is based on the Resolution of the BDA. In its Resolution No.138/2011 dated 28-04-2011, the BDA has resolved to collect betterment charges from the persons who have lost sites/lands in 21 layouts formed by the BDA. Betterment charges fixed for such sites/lands in Arkavathi layout is Rs.59/-.
3.33 For the revenue sites formed in Sy.Nos.98/1, 98/2, and 98/3 of Jakkur Village, Yelahanka Hobli, Bengaluru North Taluk, (erstwhile Kempegowda Private Layout) which have been notified for formation of Arkavathi layout, sites have been re-conveyed and registered in favour of revenue site holders vide Resolution No.364/2011 dated 20-12-2011 by collecting Rs.100/- only as a 33 O.S. No.177/2020 cost for the purpose of registration. In other words, the said sites have been allotted at free of cost by the BDA.
3.34 In a judgment reported in ILR 2005 KAR 2808 Gruha Krupa Co-operative Housing Society Ltd., the Hon'ble High Court of Karnataka had ruled that in the case of re-conveyance of the site to the original owner, all that the BDA is entitled to is the development charges and the charges for the amenities which are given to such re-conveyed sites.
3.35 Vide its Resolution No.214/2012 dated 02-11-2012, the BDA has resolved to allot 103 sites of different dimensions (i.e., 30 feet x 40 feet to 40 feet x 60 feet) formed by The Akashavani Housing Co-operative Society Ltd., in Sy.Nos.87/2 and 87/3 of Thanisandra village, K.R. Puram Hobli, 34 O.S. No.177/2020 Bengaluru East Taluk, which have been notified for formation of Arkavathi Layout, an amount of Rs.1,10,00,000/- was collected for Rs.1,54,408 sq.ft., which amounts to Rs.71.24 per sq.ft. After collection of Rs.71.24 per sq.ft., from the members of the said Society, the BDA had issued an endorsement dated 02-11-2012, stating that the amounts have been received by the BDA and that the members of the said Society were eligible for transfer of khatha in respect of the concerned site allotted to each one of them.
3.36 The sites formed by the Defence Enclave Association in Phase 1 and 2 in Sy.Nos.38/1 to 38/4, 39/1, 39/3, 41/1B, 41/2A, 41/2B and 41/3 of Rachenahalli village, K.R. Puram Hobli, Bengaluru, were notified for formation of Arkavathi Layout. The sites have been re- conveyed to the revenue site holders, vide 35 O.S. No.177/2020 Resolution No.110/12 dated 16-05-2012 of the BDA by collecting Rs.159/- per sq.ft. 3.37 In the similar manner, the BDA has allotted the alternative site to the defendant by following the prescribed procedure. In fact, the BDA had issued an endorsement dated 08-02-2018 to the defendant through the Association stating that steps would be taken to allot alternative sites to the members of the Association in the layout formed by the BDA in the lands in Sy.Nos.26/1 to 26/5 of K. Narayanapura village, Bengaluru East Taluk.
3.38 Having executed the impugned registered sale deed in respect of the suit property in favour of the defendant, the BDA is estopped from taking "U" turn and raise contentions to the contrary.
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O.S. No.177/2020 3.39 This case demonstrates gross abuse of powers by the BDA. The defendant has lost the written statement "A' schedule property to the BDA. 17 years thereafter, the BDA has allotted the suit property to the defendant by collecting money. Now, the BDA intends to deny the legitimate right of the defendant over the suit property. There is no contravention of any provisions of the BDA Act, 1976, and the Rules framed thereunder as alleged by the BDA. 3.40 The suit is bad for non-joinder of the Addl. District Registrar, Bengaluru, as a necessary party to this suit.
3.41 The suit is merit less. The suit may be dismissed.
37
O.S. No.177/2020 ISSUES:
4. Based on the pleadings and other materials on record, this Court has framed the following issues :
1. Whether the plaintiff proves that the defendant being the member of M/s.
Trinity & Sri. Village Site Owners Association has procured the allotment and execution of Sale Deed dated 21.03.2019 in respect of suit property by mis representation and fraud?
2. Whether the plaintiff is entitle for vacant possession of suit property from the defendant?
3. Whether the defendant proves that the Court fee paid by the plaintiff is inadequate?
4. Whether the plaintiff is entitle for the reliefs as sought for?
5. What order or decree?
5. On behalf of the BDA, one Sri Lohit Gowda, SDA, DS-IV, is examined as PW.1. Through PW.1, Ex.P-1 to Ex.P-15 are marked. By way of confrontation to the PW.1, Ex.D-1 to Ex.D-4 are 38 O.S. No.177/2020 marked. On behalf of the defendant, the GPA holder of the defendant is examined as DW.1. Through the DW.1, Ex.D-5 to Ex.D-27 are marked. With the above, the parties to the suit have concluded trial.
6. Heard arguments of the learned Advocate for the BDA and that of the learned Advocate for the defendant.
FINDINGS :
7. My findings on the above Issues are as follows:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Negative.
Issue No.4 : In the Affirmative.
Issue No.5 : As per final Order for the following :39
O.S. No.177/2020 REASONS
8. Issue No.1 : The BDA has filed this suit for a relief under Section 31 of the Specific Relief Act, 1963, for cancellation of the impugned sale deed (namely, a registered sale deed bearing Document No.BDA-1-09304-2018-19 stored in C.D.No. BDAD295 dated 21-03-2019 executed by the DS-IV in respect of suit property in favour of the defendant. This issue No.1 deals with the following questions of facts :
(i) Whether the defendant, being a member of the Association, has committed misrepresentation to the DS-
IV ?
(ii) Whether the defendant, being a
member of the Association, has
committed fraud on the BDA ?
40
O.S. No.177/2020
(iii) Whether the allotment of the suit property under the allotment letter No.BDA/DS-4/Arkavathi-17/KNP-219/ 2018-19, dated 07-03-2019 issued by the DS-IV in favour of the defendant in respect of suit property is the result of the alleged misrepresentation and the alleged fraud ? And
(iv) Whether the impugned sale deed dated 21-03-2019 is the result of the alleged misrepresentation and fraud ?
9. The relief claimed by the BDA which is relevant for considering the issue No.1 may be stated to the following effect :
(i) To cancel the impugned sale deed.
(ii) To direct the defendant to hand over the original of the impugned sale deed to the BDA.
(iii) To direct the defendant to hand over the vacant possession of the suit property to the BDA. And 41 O.S. No.177/2020
(iv) To direct the Additional District Registrar, Bengaluru Urban District, to make a note about the cancellation of the impugned sale deed on the copy of the instrument contained in the books maintained by the said office.
10. After having noted what are the question of facts covered under issue No.1 and what are the relief claimed by the BDA (which would be necessary for considering and recording a finding on issue No.1) it would be relevant to note the fact which constitutes immediate cause of action for filing the present suit. The Commissioner of the BDA has passed an Office Memorandum dated 11- 04-2019/12-04-2019. The operative portion, to the extent relevant to the present case on hand, reads thus:
ORDER
(i) The registration of all the 35 sites shall be cancelled by DS IV immediately;42
O.S. No.177/2020 action shall also be taken to file a caveat in the court;
(ii) xxxxxxxxxxxxxx
(iii) xxxxxxxxxxxxx
(iv) xxxxxxxxxxxxx
(v) Further registration of sites including issue of possession certificates and issue of kathas to the sites already registered shall be put on hold by the jurisdictional Ros until further directions;
(vi) xxxxxxxxxxxxx
(vii) xxxxxxxxxxxxx
11. A copy of the said Office Memorandum is produced by the BDA and the same is marked as Ex.P-14. On perusal of the Ex.P-14, the following information may be gathered.
11.1 The Hon'ble High Court of Karnataka has issued directions to the BDA to consider the representations of the petitioners (in the concerned case before the Hon'ble High Court) by 43 O.S. No.177/2020 keeping in mind the view expressed by the Hon'ble Supreme Court in Bondu Ramaswamy case and also a Resolution of the BDA dated 23-11-2010 pertaining to revenue sites.
11.2 In Bondu Ramaswamy case, the Hon'ble Supreme Court has ruled that wherever land notified for acquisition fulfills the criteria laid down in the said judgment, it should be left out from the acquisition and the land to be restored to the owners of the revenue sites.
11.3 Even where the notified land meets the six criteria, the denotification needs to be approved by the Government.
11.4 In the case of the Association, no proposal has been sent to the Government for deleting the sites of the members of the 44 O.S. No.177/2020 Association (most of the sites measure 60 x 40 feet) from the purview of land acquisition. No approval has been sought from the Government for deleting the said sites.
11.5 However, the case has been processed for allotting a site measuring 40 x 60 feet to each member of the Association, who are 66 persons, who have lost their sites.
11.6 35 sites of 40 x 60 feet measurement have been registered in favour of 35 persons out of said 66 persons.
11.7 The sites lost by the members of the Association are revenue sites. Allotment of alternative sites for the revenue sites needs to be made only after following the prescribed procedure. The prescribed procedure for allotment 45 O.S. No.177/2020 of alternative sites to the revenue sites are as follows :
(i) Inviting applications from the revenue site holder.
(ii) Processing these applications to determine the eligibility.
(iii) Preparation of a seniority list of revenue site losers.
(iv) Obtaining approval of the
Government and
(v) Allotment of alternative sites as
per the seniority list depending on the availability of sites.
11.8 In the case of Arkavathi layout, the BDA has not invited any applications from the revenue site holders.
11.9 The BDA has not taken any decision to allot alternative sites to the revenue site holders. 46
O.S. No.177/2020 11.10 For the above noted reasons the claim of the members of the Association for allotment of alternative sites is not tenable. 11.11 In the order in Bondu Ramaswamy case, the Hon'ble Division Bench of the Hon'ble High Court of Karnataka had ruled that in the case of revenue site holders who lost their sites for Arkavathi Layout, " BDA will ....... allot each of them a site measuring 30'x40' in Arkavathy Layout or in any other nearby layouts in Bangalore at the prevailing allotment prices subject to the petitioners satisfying the twin requirements for allotment under the BDA (Allotment of Sites) Rules 1984 that they must be the residents of Bangalore (ten year domicile) and should not be owning any residential property in Bangalore .......... BDA shall calculate the compensation payable to the 47 O.S. No.177/2020 petitioners and give credit to the same by adjusting the same towards the allotment price for the site to be allotted and call upon the petitioners to pay the balance. The petitioners shall be given six months time for making payment." 11.12 According to the said observations, the revenue site holders are entitled only for a site measuring 30'x40', subject to recovery of the cost of the site. However, no alternative site for revenue site can be allotted in Arkavathi Layout as the process for allotment for alternative sites has not yet been initiated. The members of the Association (being the owners of revenue sites who lost their revenue sites in the land acquisition proceedings) are entitled for alternative sites in terms of the judgments of the Hon'ble High Court of Karnataka in the said Writ Appeals. Hence, the claims of 66 members of the Association either for 48 O.S. No.177/2020 re-allotment of their revenue sites or for allotment of alternative sites are not tenable and need to be rejected.
11.13 The preliminary scrutiny of the allotment files related to the cases of 66 claimants of the Association reveals the following information:
(i) Out of 66 members of the Association, 35 members have been allotted the 35 sites of 40 x 60 feet size each in K. Narayanapura village.
(ii) The DS-IV has executed registered sale deeds in respect of said 35 sites in favour of said 35 persons in between 18-3-2019 and 19-3-2019 when the file being submitted to the Secretary.
(iii) The sale deeds are executed by collecting betterment charges at the rate of Rs.59/- per sq.ft., which was approved by the BDA on 20-12- 49 O.S. No.177/2020 2011. The proposal for enhancing betterment charges in respect of 66 cases is made to the Government as per the resolution of the BDA dated 27-3-2018. But, before receiving any communication from the Government regarding enhancement of betterment charges the said registered sale deeds have been executed. 11.14 The list of original allottees has not yet been prepared by the DS-IV by verifying the registered sale deeds in respect of revenue sites claimed to have been acquired by the BDA. The names of the persons in whose favour the sites have been registered are not figuring in the unverified list of allottees available on the file. 11.15 There seems to be an undue haste in allotting and registering the said 35 sites. After the rate fixation of Rs.59/- per sq.ft., was cleared 50 O.S. No.177/2020 by the Finance Wing on 06-03-2019, all the allotment letters were issued on 07-03-2019 and the sites were registered between 18-03-2019 and 29-03-2019. There was no trace of due diligence as the allotment/registration of sites were not supported by the copies of the sale deeds in respect of revenue sites claimed to have been lost by the said 35 allottees ; and domicile certificates and affidavits to the effect that said 35 persons did not own any residential property in Bengaluru were not available in the file.
11.16 Before passing operative portion order, the Commissioner of the BDA has directed for stoppage of registration of other sites to the members of the Association and directed for stoppage of issuance of katha in respect of 35 sites which are allotted and sold to said 35 persons and held that the D-IV and his staff have bypassed 51 O.S. No.177/2020 the prescribed procedure for regularization of allotment of alternative sites and thereby caused huge financial loss to the BDA.
11.17 The above are the observations made by the Commissioner of the BDA for arriving at the conclusion that the sale deeds are required to be cancelled.
12. The questions which loom large in this judgment are : (i) Whether the above noted facts borne out from the Ex.P-14 are established ? (ii) Whether the pleadings in the plaint are established ? And (iii) What are the oral and documentary evidence adduced by the BDA to substantiate the said facts mentioned in Ex.P- 14 and also the pleaded facts in the plaint ?
52
O.S. No.177/2020 ORAL EVIDENCE :
(I) ORAL EVIDENCE OF THE BDA:
13. In order to establish its case, the BDA has got examined one Sri Lohith Gowda V., S/o Late H. Varadegowda as PW.1, on its behalf. The PW.1 is a Second Division Assistant working in DS- IV, BDA, Kumarakrupa West, Bengaluru. The PW.1 has entered into witness box on 29-09-2021 and, on oath, he has submitted his examination-in-chief by way of his affidavit. A perusal of the examination-in-chief of the PW.1 by way of his affidavit would clearly show that the pleaded facts of the case of the BDA has been restated by the PW.1. During the course of cross-examination the PW.1 has stated to the following effect. 13.1 PW.1 is working in BDA since November, 2019. The PW.1 received files 53 O.S. No.177/2020 pertaining to this case in the month of February 2021 in the office of DS-IV.
13.2 The DS-IV has issued authorization letter in favour of the PW.1 as per Ex.P-1. The Commissioner of the BDA has not issued any such authorization letter or GPA in favour of the PW.1. The PW.1 has to verify from the records as to whether the Commissioner of BDA has given authorization to DS-IV. It is true that in Ex.P-1 - Authorization letter, authorization is given to the PW.1 to give evidence on behalf of the DS-IV, but, not on behalf of the Commissioner of the BDA. 13.3 The Association is the defendant in this case. When the cause title of the plaint is shown to the PW.1 and it is asked that the defendant is an individual member, but, not the 54 O.S. No.177/2020 Association, the reply of the PW.1 is that the individual is claiming through the Association. 13.4 By referring to the statement of the PW.1 in para 3 of his examination-in-chief by way of his affidavit it is asked whether the PW.1 can say as to when the Association had submitted its representation on behalf of its members before the DS-IV for allotment of sites. The reply of the PW.1 is that he has to refer to the file to give reply to the said question.
13.5 The "short period" referred to in the examination-in-chief means 10-12 days. (note: this question pertains to the allegation that the allotment and execution of sale deeds have been done in haste.) 55 O.S. No.177/2020 13.6 It is true that preliminary notification as per Ex.P-2 was published on 03-02-2003 for acquisition of lands for Arakavathi Layout. 13.7 The PW.1 has admitted that as per Ex.D-1, the Association had filed objections to the Ex.P-2 preliminary notification on 27-05-2004. 13.8 It is true that as per Ex.P-5, the BDA has resolved to allot the sites to the persons who have lost land in the land acquisition proceedings. The PW.1 has voluntarily stated that it was for revenue sites.
13.9 When it is asked to the PW.1 as to whether he can say as to what is
misrepresentation made by the Association, the answer of the PW.1 is that the PW.1 has not seen the file and that he can answer the said question 56 O.S. No.177/2020 only by going through the file. The PW.1 cannot say ( at the point of time standing in the witness box) in respect of any misrepresentation made by the Association or its members.
13.10 Prevailing the re-conveyance price means, prevailing guidance value. To a question as to what is the scheme of re-conveyance as stated by the PW.1 in para 5 of the deposition (in examination-in-chief by way of affidavit), the answer of the PW.1 is that the PW.1 has to see the file to answer the said question.
13.11 To a question as to what is the due procedure and law which is not followed as stated in para 5 of examination-in-chief of PW.1 and also as to what is the illegality committed, the reply of the PW.1 is that without properly getting the betterment fees remitted, the sale deeds (which 57 O.S. No.177/2020 includes the impugned sale deed in this suit) were made.
13.12 DS-IV will not fix betterment charges. 13.13 It is true that as per Ex.P-8, the betterment charges are fixed by the BDA for 21 layouts. It is true that in Ex.P-8, at Sl.No.6, betterment fees is fixed for Arakavathi Layout at Rs.59/- per sq.ft. It is true that the BDA has collected Rs.59/- per sq.ft., from the defendant for execution of the impugned sale deed. After having stated as per the previous sentence, the PW.1 has voluntarily stated that the BDA has sent the proposal to the Government for fixing betterment fees for Arakavathi layout. The PW.1 cannot say as to when such proposal was sent to the Government. The PW.1 can say as to when such 58 O.S. No.177/2020 proposal was sent to the Government, only after going through the records.
13.14 The PW.1 does not know whether or not the BDA has withdrawn the Ex.P-8 - Resolution of the BDA dated 28-04-2011. It is not true to suggest that Ex.P-8 - Resolution of the BDA dated 28-4-2011 is still in force. BDA has no impediment to produce withdrawal/cancellation of Ex.P-8, if any, or any other document where betterment fees has been revised by the BDA.
13.15 It is true that as per Ex.P-8 - Resolution, if a land is acquired by the BDA, the site up to 50'x80' can be allotted to the land looser.
13.16 Regarding Ex.P-14, the PW.1 has stated to the following effect. Ex.P-14 (Official 59 O.S. No.177/2020 Memorandum dated 12-04-2019 bearing No.BDA/COMMR/07/2019-20) (for short, "the O M") was drafted by the then Commissioner of the BDA. It is issued by the then Commissioner of the BDA. To a question as to whether the PW.1 has come across a copy of such notice issued by the Commissioner of the BDA to the DS-IV in the concerned file, the reply of the PW.1 is that he has not yet received the concerned file and that the PW.1 is not given the charge of the said file and that the said file was with STF of the BDA to answer the queries of the Hon'ble Lokayuktha. 13.17 A notice has been issued to the defendant. If such notice is issued, normally, a copy of the same would be retained in the file of the office of the BDA. There is no impediment for the PW.1 to produce a copy of such notice. The PW.1 does not know if or not any enquiry or 60 O.S. No.177/2020 hearing was done by the then Commissioner of the BDA before passing the O M. The PW.1 has voluntarily stated that the enquiry and hearing was done by SP/STF of the BDA. There is no impediment for the PW.1 to produce a copy of the report of the SP/STF of the BDA, in this case. Such enquiry was held in 2018-19. The duration of the enquiry may range from six months to one year. The PW.1 has to verify the file to answer the question as to whether or not the then Commissioner of the BDA had obtained legal opinion from the Law Department before passing the O M. The PW.1 has to verify the file to answer the question as to whether or not the file was sent to the Finance Department before passing the O M. 13.18 It is not true to suggest that from the date of registration of the impugned sale deed in 61 O.S. No.177/2020 respect of suit property in favour of the defendant till passing of the O M, the then Commissioner of the BDA did not send file either to the Law Department or to the Finance Department. There is no impediment for the PW.1 to produce office notice of the BDA for the period from the date of registration of the impugned sale deed till passing of the O M. 13.19 To a question to the effect that a paper publication was given by the BDA on 09-07-2004 calling for objections from the owners of the acquired lands, the reply of the PW.1 is that he cannot answer the said question without going through the original and that he can answer only after going through the records.
13.20 The attention of the PW.1 is drawn to his statement at para No.6 of his examination-in- 62
O.S. No.177/2020 chief by way of affidavit, wherein he has stated to the effect that process of allotment of alternative sites has not yet been initiated. Thereafter, a question is asked to PW.1 as to whether the BDA has not allotted any sites to land looser in Arkavathi Layout, the PW.1 has stated that indeed the BDA has allotted alternative sites to the land looser in Arkavathi Layout. The BDA would not take any approval of the Government for allotting any alternative sites. 13.21 The endorsement dated 03-02-2018 issued by the BDA is confronted to PW.1, where upon the PW.1 has admitted that the Survey number mentioned therein is with regard to the suit property of this case. On confrontation and admission by the PW.1, the said endorsement dated 03-02-2018 is marked as Ex.D-2. 63
O.S. No.177/2020 13.22 It is not true to suggest that in respect of Arkavathi layout, the BDA has invited applications and allotted revenue sites. To a question as to what is the illegality committed and what is the misrepresentation made by the Association or its members, the reply of the PW.1 is that he has to go through the file and he needs some time to give reply. The PW.1 cannot say instantaneously, standing in the witness box, as to what is the misrepresentation made by the Association.
13.23 The certified copies of two sale deeds dated 21-01-2014 and 15-02-2016 are confronted to PW.1 and it is asked to PW.1 that both the said sale deeds were executed by the BDA in favour of the loser of the site holders in the land acquisition proceedings by the BDA, the PW.1 has admitted 64 O.S. No.177/2020 the said suggestion. On his admission the said documents are marked as Ex.D-3 and Ex.D-4. 13.24 In the O M, it is observed that the SP/STF has to submit report within a week. Accordingly the SP/STF has submitted its report. The PW.1 has no impediment to produce the said report.
13.25 To a question as to whether SP/STF had submitted its report prior to passing of the O M, the reply of the PW.1 is that he has to verify the file.
13.26 The PW.1 has admitted that in the O M, a direction was issued to the Secretary to register FIR. So far, no FIR is registered against the DS-IV and its officials.
65
O.S. No.177/2020 13.27 To a question as to whether or not any disciplinary action is taken against DS-IV, the reply is that the PW.1 has to verify the file to answer the said question. The PW.1 does not know as to what is the action taken against the officials of DS-IV. 13.28 The finance member has given explanation. The PW.1 has no impediment to produce the said report.
13.29 The PW.1 has admitted that the OM is passed for the benefit of this case. 13.30 It is not true to suggest that the Commissioner of BDA had not issued any notice either to DS-IV or to the finance member and SP/STF or to the defendant before passing the O M, and that the Commissioner of BDA has passed the O M, unilaterally.
66
O.S. No.177/2020 13.31 To a question as to what is the name of the officials of the DS-IV who acted detrimental to the interest of the BDA in executing the impugned sale deed, the reply of the PW.1 is that it is the concerned case worker, but, PW.1 does not remember the name of the case worker. The DS-IV Sri Sathish Babu, the Superintendent and the case worker are the officials of the DS-IV who have acted detrimental to the interest of the BDA. The PW.1 can produce the said proceedings. 13.32 The fraud mentioned by the PW.1 at para 10 is the act of executing sale deeds (34 in number, which includes the impugned sale deed) were executed without collecting guidance value. To a question as to what is the guidance value of the lands in K. Narayanapura village as fixed by 67 O.S. No.177/2020 the Government, the reply is that the PW.1 is not from Finance Department of the BDA. 13.33 It is true that the BDA would take affidavit from the proposed allottee regarding of the fact that the proposed allottee does not own any site in Bengaluru City. It is also true that the BDA would take domicile certificate from the proposed allottee before allotting any site. 13.34 In this case no such affidavit and no such domicile certificate are taken from the defendant. The PW.1 has not personally asked the defendant to produce such affidavit and domicile certificate. Some notice might have been issued against the defendant from DS-IV, calling upon the defendant to produce such affidavit and domicile certificate. The PW.1 can produce such notice. The Commissioner of BDA has not issued any notice to 68 O.S. No.177/2020 the defendant to produce such affidavit and domicile certificate. Normally if affidavit or domicile certificate is missing, the BDA would issue notice and receive such affidavit and domicile certificate and regularize the allotment. The PW.1 has admitted that in this case also there is no impediment for the BDA to adopt the said procedure to issue notice to the defendant and to receive such affidavit and domicile certificate and regularize the allotment and sale of suit property in favour of the defendant.
13.35 The statement of the PW.1 at para 10 of his examination-in-chief by way of his affidavit to the effect that the defendant has not disclosed true facts pertaining to non-payment of betterment charges. The PW.1 has admitted that if the correct betterment charge is paid to the BDA, there is no illegality in the impugned sale deed. 69
O.S. No.177/2020 There afterwards, the PW.1 has added that nonpayment of guidance value is also illegality in execution of the impugned sale deed in respect of suit property in favour of the defendant. 13.36 It is true that the defendant is entitled for alternative site as he has lost his revenue site in the land acquisition proceedings, held by the BDA. The defendant is entitled to a site ad-measuring 30'x40, but, the DS-IV has allotted a site measuring 40'x60'. The PW.1 has admitted that it is true that in the resolution of the BDA as per Ex.P-6, the BDA can allot site up to 50'x80'. 13.37 The PW.1 has denied the suggestion to the effect that there is no illegality committed in executing the impugned sale deed in respect of suit property in favour of the defendant. It is not true to suggest that PW.1 is deposing falsely. 70
O.S. No.177/2020 (II) ORAL EVIDENCE OF THE DEFENDANT:
14. The General Power of Attorney Holder of the defendant by name Sri Arun Prasad M., is examined as DW.1. The DW.1 has entered into witness box and on oath submitted his examination-in-chief by way of his affidavit. Therein, he has reiterated the pleaded facts of the case of the defendant. In addition, he has also stated about the contents of Ex.D-21 - Office proceeding of the BDA. During the course of cross- examination the DW.1 has stated to the following effect.
14.1 On perusal of the cross-examination of DW.1, it is noticed that in general, suggestions are made to the effect that the facts pleaded by the defendant, which is reiterated by the DW.1 in his examination-in-chief, are false and the DW.1 has denied the said suggestions.
71
O.S. No.177/2020 14.2 In addition to the above, the following aspects are noticed from the cross-examination of DW.1. It is not the DW.1 who give instructions to the learned Advocate of the defendant to prepare the written statement in this case. But, however, the DW.1 is very much aware of the facts pleaded in the written statement. DW.1 was personally present before the learned Advocate of the defendant at the time of preparation of the written statement. It is not true to suggest that the DW.1 has no personal knowledge about the facts of this case. It is not true to suggest that the DW.1 has given false instruction to the learned Advocate of the defendant to prepare the examination-in-chief by way of affidavit of the DW.1. It is not true to suggest that the DW.1 is not competent to depose as GPA holder of the defendant.
72
O.S. No.177/2020 14.3 A portion of the land wherein the revenue sites of the members of the Association are situated is converted from agricultural to non- agricultural purpose and the remaining portion is not so converted. The defendant has not produced such conversion order and a map showing the converted land. It is not true to suggest that the entire land wherein the revenue sites of the members of the Association are situated is not yet converted. To a suggestion to the effect that purchase of a revenue site is opposed to law, the DW.1 has replied by stating that the transactions of purchase of revenue sites by the members of the Association are more than 25 years old and that at that point of time the people were not aware of the said fact. It is not true to suggest that the defendant has taken a risk in purchasing the written statement 'A' schedule property. It is not true to suggest that by colluding 73 O.S. No.177/2020 with the Panchayath Authorities and the Revenue Authorities, the defendant has got created katha in respect of written statement 'A' schedule property. 14.4 It is true that the Association has not formed layout of the revenue sites formerly held by the members of the Association. In fact, the Association is formed by the purchasers of the revenue sites.
14.5 It is not true to suggest that the BDA has not given any assurance to the Association to the effect that the revenue sites of the members of the Association would be left out from land acquisition.
14.6 When a question is asked to the effect that the lands in various survey numbers of K. Narayanapura village were acquired by the BDA, 74 O.S. No.177/2020 the DW.1 has replied by stating that after purchase of revenue sites by various persons (including members of the Association) the said land acquisition proceedings were started. It is true that the preliminary notification of land acquisition was issued in the year 2003. It is true that the land acquisition was upheld by the Hon'ble High Court of Karnataka as well as by the Hon'ble Supreme Court.
14.7 The members of the Association have satisfied all the requirements for getting the benefit of orders of the Hon'ble High Court of Karnataka which was affirmed by the Hon'ble Supreme Court in Bondu Ramaswamy case. It is not true to suggest that the defendant has not satisfied the requirements for getting the said benefit.
75
O.S. No.177/2020 14.8 It is true that in Ex.D-8 Resolution dated 03-02-2004, the BDA had resolved to collect the prevailing market price of the site from the concerned revenue site holders while allotting the BDA sites to such holders.
14.9 It is not true to suggest that the Association is formed only to get sites from BDA and to do real estate business in the said sites. 14.10 It is not true to suggest that the defendant has not produced a copy of a notice dated 02-04-2013 issued by the Association against the BDA calling upon the BDA to consider the representations of the members of the Association in accordance with Bondu Ramaswamy case.
76
O.S. No.177/2020 14.11 The defendant and other members of the Association have, in fact, furnished the additional information to the BDA as per the direction of the Hon'ble High Court of Karnataka as per Ex.D-10. A copy of the additional information is not produced in this case. It is not true to suggest that no such additional information were furnished by the members of the Association to the BDA.
14.12 To a suggestion to the effect that Ex.D- 12 is only in respect of three revenue sites where the buildings were in existence, the DW.1 has replied stating that it applies to all the revenue sites. It is not true to suggest that the DW.1 is deposing falsely that Ex.D-12 covers all the revenue site holders to whom the BDA has resolved to provide alternative sites. 77
O.S. No.177/2020 14.13 The DW.1 has admitted that the condition No.2 of Ex.D-13 Resolution No.377/2011 dated 20-12-2011 wherein it is mentioned that subject to upper limit of 50'x80' site, and also subject to collection of guidance value in respect of that portion of site which exceeds 30'x40', site could be allotted by the BDA. To a suggestion to the effect that under the impugned sale deed, guidance value in respect of extent of site exceeding 30'x40' was not collected, the reply of the DW.1 is that the defendant has paid guidance value as per the direction of the BDA in the allotment letter.
14.14 The suit property which is allotted and sold to the defendant under impugned sale deed ad-measures 40'x60'. It is not true to suggest that under the impugned sale deed, the guidance value is not paid in accordance with the terms and 78 O.S. No.177/2020 conditions under Ex.D-13. It is not true to suggest that the DS-IV has colluded with the defendant and evaded the payment of guidance value while executing the impugned sale deed. It is not true to suggest that the defendant has played fraud on the BDA by not paying guidance value to the BDA under the impugned sale deed as per the said condition No.2 in Ex.D-13. It is not true to suggest that the defendant has caused financial loss to the BDA.
14.15 The DW.1 has denied the suggestions to the effect that even though the BDA had resolved to submit to the Government for fixing betterment charges, yet the defendant has managed to pay betterment charges at Rs.59/- per sq.ft., without waiting for approval of the Government. The DS-IV has collected pittance 79 O.S. No.177/2020 amount of Rs.59/- per sq.ft., from the defendant towards betterment charges.
14.16 It is not true to suggest that the defendant has not submitted to the BDA, Ex.D-24 to Ex.D-26 which are the representations made by the Association on 27-01-2018, 30-01-2018 and 03-04-2018.
14.17 It is not true to suggest that Ex.D-22 to Ex.D-26 do not bear the information as to who issued the said copies and it does not bear the seal of the BDA.
14.18 To a question as to whether the defendant has produced any piece of paper in this case to show that the defendant had surrendered title deed in respect of written statement 'A' schedule property (revenue site held by the 80 O.S. No.177/2020 defendant before land acquisition) to the BDA before allotment of the suit property, the reply of the DW.1 is that such a copy is not produced in this case, but, however, only after surrender of the original sale deed in respect of written statement 'A' schedule property to the BDA, the BDA has allotted and sold the suit property. 14.19 It is not true to suggest that the allotment and sale of the suit property is the result of collusion between the defendant and the DS-IV. 14.20 It is not true to suggest that since the defendant did not surrender the title deed of the written statement 'A' schedule property, the defendant is not able to produce a copy regarding such surrender in this case. It is not true to suggest that DW.1 is deposing falsely to the effect that the defendant had surrendered the title deed 81 O.S. No.177/2020 in respect of written statement 'A' schedule property.
14.21 It is not true to suggest that by colluding with DS-IV, the defendant has managed to obtain a false calculation of consideration amount and paid insufficient consideration amount. It is not true to suggest that said calculation is against the condition laid down by the BDA in its resolution as per Ex.D-13. It is not true to suggest that the deposition of DW.1 is contrary to Ex.D-12 and Ex.D-13. It is not true to suggest that the deposition of DW.1 at para 36(a) and (d) of his examination-in-chief by way of his affidavit is false. It is not true to suggest that the Commissioner of the BDA has not given any approval as stated by the DW.1 at said para 36(d). 82
O.S. No.177/2020 14.22 To a question to the effect that in Ex.D-21 at para No.61, the signature of the Commissioner of BDA is found, but, however, the word "approved" is not found therein, the reply of the DW.1 is that the earlier part of the page where said para 61 is found contains the information and thereafter the seal of the Commissioner of BDA is put, over which the Commissioner of BDA has put his signature and as such it means that the Commissioner of BDA has approved the facts so mentioned in the said page. It is not true to suggest that the said presumption made by the DW.1 regarding said signature is not correct. 14.23 To a question to the effect that the amount calculated and paid by the defendant to the BDA towards guidance value of the suit property is not in accordance with Ex.D-13 ( which contains the conditions for allotment of site) read 83 O.S. No.177/2020 with paras No.45 and 54 of Ex.D-21 at page Nos.13 and 16 thereof, the reply of the DW.1 is that the DW.1 does not know the entire process noted in Ex.D-21 which is internal workings of the BDA, but, however, the said payment is made as per the terms of the allotment letter.
14.24 It is not true to suggest that the DS-IV has done calculation contrary to Ex.D-13 and they have not brought the said calculation to the notice of their superiors or to the Commissioner of BDA and as such at page No.18, para No.16 in Ex.D-21 observations are made.
14.25 It is not true to suggest that the defendant and the DS-IV have caused financial loss to the BDA.
14.26 The defendant has not produced a copy of the Resolution No.364/2011 in this case. 84
O.S. No.177/2020 14.27 The defendant has not produced a copy of the Resolution No.110/2012 in this case. 14.28 It is not true to suggest that Ex.D-15 pertains to Akshavani Housing Co-operative Society Limited and as such the same is not applicable to the case on hand.
14.29 It is not true to suggest that the defendant has offered something to DS-IV and that the DS-IV has yielded to the said offer and colluded with the defendant and executed the impugned sale deed in respect of suit property. It is not true to suggest that the impugned sale deed is contrary to Ex.D-13 and Ex.P-9. 14.30 It is not true to suggest that the defendant has not followed the guidelines of the 85 O.S. No.177/2020 Hon'ble High Court of Karnataka and the Hon'ble Supreme Court in Bondu Ramaswamy case. 14.31 It is not true to suggest that due to corrupt practice of DS-IV, the impugned sale deed is executed by the DS-IV in respect of suit property in favour of the defendant. It is not true to suggest that since the defendant has not paid proper guidance value in respect of that portion of the suit property which exceeds 30'x40' to the BDA and since the defendant has played fraud upon the BDA, the BDA is entitled to recover possession of the suit property from the defendant.
DOCUMENTARY EVIDENCE:
(I) DOCUMENTS PRODUCED BY THE BDA:
15. Ex.P-1 : It is a letter of authority issued by the DS-IV in the name of the PW.1. It 86 O.S. No.177/2020 authorizes the PW.1 to produce the documents and to adduce evidence oral and documentary. 15.1 Ex.P-2 and Ex.P-3 : Ex.P-2 is a preliminary notification dated 03-02-2013 and Ex.P-3 is final notification dated 23-02-2004. These two documents are not in dispute and, in fact, in Bondu Ramaswamy case the said acquisition proceedings have been upheld.
15.2 Ex.P-4 : It is a final notification dated 18-06-2014. This is also not in dispute in this case.
15.3 Ex.P-5 : It is a copy of Resolution No.43/2004. The matter which is relevant for this case may be stated to the following effect. As per the order of the Hon'ble High Court of Karnataka in W.P. No.20875-938/2001 DD on 20-07-2011 has 87 O.S. No.177/2020 to be applied to the revenue site holders in Arkavathi Layout by applying the existing rate and it should be done on priority basis. The rest of the information is not applicable to the facts of the case on hand.
15.4 Ex.P-6 : It is a copy of Resolution No.377/2011. It says to the following effect. It is in respect of revenue sites where residential buildings are constructed.
(i) If the revenue site measures 30'x40', as far as possible the same site may be re- conveyed to the revenue site holder by collecting betterment charges.
(ii) If such a revenue site measures more than 30'x40', in such cases betterment charges may be collected to the extent of 30'x40' measurement and in respect of the site in excess of 30'x40', guidance value has to be collected.
(iii) The upper limit of measurement of a site that may be re-conveyed is fixed as 50'x80'.
(iv) If a revenue site or the building is situated at the place which is reserved for 88 O.S. No.177/2020 civic amenities, in such cases alternative site may be allotted to the revenue site holder or the owner of the building. The maximum extent of the alternative site is 50'x80'.
(v) The BDA has issued katha in respect of such sites allotted.
(vi) The decision of the Commissioner of BDA is final.
15.5 Ex.P-7 : It is a copy of Resolution No.141/2014. According to this Resolution in respect of three sites where RCC buildings exist, the said 3 sites shall be re-conveyed to the holders of such sites by collecting the betterment charges. So far as other revenue sites are concerned, the same shall be dealt with according to Ex.P-5 and Ex.P-6.
15.6 Ex.P-8 : It is a copy of Resolution No.138/2011, wherein different betterment charges are fixed in respect of different layouts. Item No.6 in the list in Ex.P-8 deals with Arkavathi 89 O.S. No.177/2020 layout for which the betterment charges is fixed as Rs.59/- per sq.ft.
15.7 Ex.P-10 : It is a copy of representation dated 20-02-2019 submitted by the Association before the DS-IV. In this letter, the Association has requested the BDA to allot sites by collecting betterment charges at Rs.59/- per sq.ft., as the BDA has done while re-conveying the site to Smt. Vijayalakshmi.
15.8 Ex.P-11 : It is an allotment letter issued by the BDA on 07-03-2019 in respect of suit property in favour of the defendant by collecting Rs.1,42,576/- as balance value of the site. In Ex.P- 11, it may be noticed that the allotment letter dated 07-03-2019 is issued as per the order of the Commissioner of BDA bearing Order No.524 dated 26-05-2018.
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O.S. No.177/2020 15.9 Ex.P-12 : It is a letter written by the BDA to the Addl. District Registrar on 25-03-2019, wherein the Addl. District Registrar is requested to register absolute sale deed in respect of suit property executed by the BDA in favour of the defendant.
15.10 Ex.P-13 : It is a certified copy of the impugned sale deed. In Ex.P-13 also there is a reference to the Resolution of the BDA bearing Nos.138/2011 and 141/2014 and also said order No.524 dated 26-5-2018 issued by the Commissioner of BDA.
15.11 Ex.P-14 : It is the basic document for the BDA to file this suit. It is a copy of the O M. It is dated 11th/12th of April 2019. It is bearing 91 O.S. No.177/2020 No.BDA/COMMR/07/2019-20. This document has been discussed at length supra.
(II) THE DOCUMENTS RELIED ON BY THE DEFENDANT:
16. Ex.D-1: It is a requisition dated 27-05- 2004 submitted by the Association to the BDA for dropping the acquisition proceedings in respect of the land which comprises the revenue sites held by the members of the Association. 16.1 Ex.D-2: It is a copy of an endorsement issued by the BDA dated 08-02- 2018. It is issued in response to a representation of the Association to the BDA submitted on 27-01- 2018. In Ex.D-2, the Resolution of the BDA as per Ex.P-7 (discussed supra) has been intimated to the Association.
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O.S. No.177/2020 16.2 Ex.D-3: It is a copy of a registered sale deed dated 20-01-2014. It is executed by the BDA in favour of one Sri H.K. Anantha Swami. Site No.3224 in Sy.No.98/3 of Jakkuru village in Arkavathi Layout, 7th Block is sold. It is stated therein to the effect that a revenue site of the said purchaser in the said Sy.No.98/3 was acquired for formation of road in the said layout. It is also stated therein to the effect that site No.3224 was sold under Ex.D-3 as an alternative site. The measurement of the site sold under Ex.D-3 is 30'x40'. It was sold free of cost. Not even betterment charges are collected by the BDA under Ex.D-3.
16.3 Ex.D-4: It is a copy of a registered sale deed dated 15-02-2016 executed by the BDA in favour of one Sri Ramesh Gollarahalli in respect of site No.19 and 20 in Arkavathi Defence Enclave 93 O.S. No.177/2020 Phase-2 Layout. The sale consideration amount is Rs.7,63,200/-. The measurement of sites, in all, is 60'x80' feet. The value of the site sold is Rs.159/- per square feet. The said sites No.19 and 20 are situated in Rachenahalli.
16.4 Ex.D-5: It is a power of attorney executed by the defendant in favour of the DW.1 to depose on behalf of the defendant in this case. 16.5 Ex.D-6 to Ex.D-8: They are same as Ex.P-2, Ex.P-3 and Ex.P-5 respectively which are discussed supra.
16.6 Ex.D-9: It is a copy of the Writ Petition filed in W.P.No.32120/2013 filed by the Association against the BDA. Ex.D-10: It is a copy of the order dated 24-01-2014 passed by the Hon'ble High Court of Karnataka in W.P.Nos.32120- 94 O.S. No.177/2020 32121 AND 32371-32376 of 2013 AND 3481-3558 OF 2014 (LA-BDA) in the matter of M/s Trinity Village Plot Owners Association and Anr vs. The State of Karnataka and Ors. At para 4 of the judgment, the Hon'ble High Court of Karnataka had ruled thus:
"4. Having regard to these circumstances, the petitioners would do well to submit the additional information now called for by the respondents and the respondents shall thereupon consider the representation of the petitioners, after affording a hearing, if necessary and pass appropriate orders expeditiously. It is also necessary to keep in view that the respondent - BDA is required to consider the case of the petitioners in the light of the view expressed in a celebrated case, popularly known as 'Bondu Ramaswamy's case'(Bondu Ramaswamy and others vs. The Bangalore Development Authority, (2010) 7 SCC
129) and the BDA shall also keep in view an earlier resolution dated 23.11.2010, passed in similar circumstances pertaining to revenue sites."
16.7 Ex.D-11 to Ex.D-14: They are same as Ex.P-4, Ex.P-7, Ex.P-6, and Ex.P-8 which are discussed supra.
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O.S. No.177/2020 16.8 Ex.D-15: It is a copy of Resolution No.214/2012 dated 02-11-2012 passed by the BDA. Therein, it was resolved to reconvey 103 sites to those who already held them. The said sites are also situated in Arkavathi Layout. The holders of the said 103 sites are members of Akashavani Housing Co-operative Society. It is mentioned therein to the effect that the said Resolution was based on the order of the Hon'ble High Court of Karnataka in Writ Appeal No.2624- 25/2005 (Bondu Ramaswamy case decided by the Hon'ble Division Bench of the Hon'ble High Court of Karnataka).
16.9 Ex.D-16: It is a copy of a registered sale deed dated 27-05-1996 executed by one Smt. Nagamma in favour of one Sri M. Srinivasa in respect of 36 guntas of land in Sy.No.36/2 of K. Narayanapura village.
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O.S. No.177/2020 16.10 Ex.D-17: It is a copy of registration certificate pertaining to registration of the Association on 23-09-2013. Ex.D-18: It is a copy of a receipt dated 15-04-2019 pertaining to said registration.
16.11 Ex.D-19: It is a copy of RTI application filed by one Sri Anne Sheela Peter before the Land Acquisition Officer, BDA. Ex.D-20: It is an endorsement dated 24-01-2022 for furnishing note sheet. Ex.D-21: It is a copy furnished by the said LAO in response to Ex.D-19 - RTI application.
17. It would be useful to bring on record some of the aspects found in Ex.D-21. They are as follows:
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O.S. No.177/2020 17.1 The office notes and orders is in respect of proceedings concerning Sy.No.26/1.2, 26/2 etc., of K. Narayanapura village. The file is opened by BDA on 28-09-2005. The introductory office notes show that the file was put up for orders regarding allotment of alternative sites to the revenue sites holders (members of the Association) who have lost their revenue sites.
17.2 There afterwards, in Ex.D-21, proceedings continued in respect of revenue site No.10. The spot inspections were held and it was noted that the measurement of site NO.10 was 65'x69' and that therein, in an extent of 15'x25' a house was built much prior to preliminary notification. It shows that the file has passed through various tables. It is not necessary to record the complete details of the proceedings.98
O.S. No.177/2020 17.3 At para 43 in Ex.D-21, the following office notes were put up :
(i) On perusal of para 40 (in Ex.D-21), it is found that there is no clarity in it.
(ii) As per Ex.P-6 (=Ex.D-13) Resolution No.377/2011 dated 20-12-2011, up to an extent of 30'x 40', site can be allotted by collecting only betterment charges (but, not guidance value of the site). If the measurement of the site is more than 30'x40', then up to the extent of 30'x40' only betterment charges need be collected and in respect of remaining extent (over and above the said extent 30'x40') guidance value has to be collected.
(iii) But, however, the said site No.10 to be allotted to Smt. Vijayalakshmi ad-measures 60'x65'.
(iv) At paras 35 to 37 (in Ex.D-21), the directions are to the effect that said site No.10 may be re-conveyed to said Smt. Vijayalakshmi by collecting betterment charges only.99
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(v) As per Ex.P-7 (= Ex.D-12) Resolution No.141/2014, three RCC buildings have to be re-conveyed to the concerned revenue site holders by collecting betterment charges only.
(vi) There is conflict between Ex.P-6 (- Ex.D-
13) Resolution No.377/2011 dated 20-12-2011 and Ex.P-7 (=Ex.D-12) Resolution No.141/2014 dated 27-09-2014. There is no clarity as to which one among the said two Resolutions must be taken into consideration while allotting said site No.10 to said Smt. Vijayalakshmi.
(vii) Hence, the matter was referred to Finance Department of the BDA for clarification. 17.4 At para 45 in Ex.D-21, the Finance Department has clarified to the effect that in Ex.P- 7 (= Ex.D-12) Resolution No.141/2014, it is stated that three sites where RCC buildings are situated, the revenue sites may be re-conveyed to the concerned revenue site holders by collecting 100 O.S. No.177/2020 betterment charges only. It is further clarified by the Finance Department of the BDA that in view of the Ex.P-7 (= Ex.D-12) Resolution No.141/2014, the Ex.P-6 (= Ex.D-13) Resolution No.377/2011 is not applicable to the case of allotment of said site No.10 to said Smt. Vijayalakshmi. Accordingly, the Finance Department of the BDA has indicated that said site No.10 may be re-conveyed to said Smt. Vijayalakshmi by collecting betterment charges only.
17.5 Further proceedings were held in Ex.D- 21, based on the said opinion of the Finance Department of the BDA. Ultimately, at para 60 in Ex.D-21, the file was put up before the Commissioner of the BDA for approval with a note to the effect that to the case of allotment of said site No.10 to Smt. Vijayalakshmi Ex.P-7 (= Ex.D-
12) Resolution No.141/2014 is made applicable 101 O.S. No.177/2020 and that Ex.P-6 (=Ex.D-13) Resolution No.377/2011 is not made applicable. Just below the said office note, at para 61 thereof, the Commissioner of the BDA as well as the Finance Member of the BDA have affixed their signatures.
18. Ex.D-22 : It is a copy of the representation given by the Association before the BDA on 12-02-2014. Therein, a request was made for suitable order in respect of 44 site holders (members of the Association) who have constructed houses in their respective sites. Such order was sought, based on judgment of the Hon'ble Supreme Court in Bondu Ramaswamy case, BDA Resolution, and order of the Hon'ble High Court of Karnataka in W.P. Nos.32120- 32121/2013 dated 24-01-2014.
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O.S. No.177/2020 18.1 Ex.D-23: It is a notice of the BDA dated 12-03-2014. In Ex.D-23, an intimation was given to the 44 members of the Association to appear before the designated officer on 20-03- 2014 at 3.00 PM along with original documents, for taking further action as per the direction of the Hon'ble High Court of Karnataka in its order in W.P. Nos.32120-32121/2013 dated 24-01-2014. 18.2 Ex.D-24: It is a copy of the representation dated 27-01-2018 submitted by the Association to the BDA for allotment of alternative sites to 66 members of the Association. Ex.D-25:
It is another such representation dated 30-01- 2018. Ex.D-26: It is another such representation dated 03-04-2018.
18.3 Ex.D-27: It is a copy of an endorsement dated 08-01-2016 issued by the BDA.103
O.S. No.177/2020 It is in respect of re-conveyance of 103 sites to the members of the Akashavani Housing Co-operative Society. The said sites are situated in Arkavathi Layout. Further details in Ex.D-27 are same as details in Ex.D-15 which are noted supra.
ARGUMENTS :
19. The learned Advocate for the BDA Sri M. Nagaraj, has submitted his arguments to the following effect :
19.1 The defendant has not produced any materials in this case regarding furnishing of additional information to the BDA as per direction of the Hon'ble High Court in its order as per Ex.D.10.
19.2 The DW -1 has admitted the condition No.2 in Ex.P-6 (= Ex.D-13) Resolution No.377/2011. The said condition says if any site measuring more than 104 O.S. No.177/2020 30'x40', the allottee shall pay prevailing guidance value on such excess portion of the site allotted.
Perusal of the impugned sale deed (Ex.P.13) would show that no such prevailing guidance value is paid by the defendant. Likewise, Ex.P.11 allotment letter also indicates that no such prevailing guidance value is paid by the defendant. Ex.P. 11 and Ex.P.13 would show that the case of the BDA regarding collusion of its DS-IV officials with the defendant in allotting and selling the alternate site to the defendant is true and correct. 19.3 Ex.P.9 is a resolution of the BDA to refer the matter to the Government for approval of the rate of betterment charges. Before the said process could be completed, in a hasty manner, the allotment and sale of the suit property to the defendant was completed by DS-IV officials. 105
O.S. No.177/2020 19.4 The defendant has not produced any materials to show that before allotment and sale of alternate site, the defendant has surrendered the title deeds of the written statement 'A' schedule property. This instance also indicates violation made in allotting the suit property without surrendering of title deeds of the written statement 'A' schedule property by the defendant to the BDA.
19.5 To a suggestion to the DW-1 that guidance value in respect of that portion of the site (allotted to the defendant) which is in excess of 30'x40' is not paid, the reply of the DW-1 is that whatever was indicated in the allotment letter was paid. This also shows the collusion between the defendant and the DS-IV officials of the BDA. 106
O.S. No.177/2020 19.6 Ex. D.21, page No. 13 para No. 45 deals with allotment of the very same site held by the allottee (Smt. Viajayalakshmi). The defendant has produced only one instance of 3 RCC buildings which were standing on the sites held by 3 allottees. It shows that even for allotting the said 3 sites to the holder themselves, prior approval of the Commissioner of the BDA was mandated. In this case also, before allotment of the alternate site to the defendant no such prior approval of the Commissioner of BDA was taken. In the O M, the Commissioner of BDA, who issued it, has expressed about the said fact.
19.7 He has drawn the Attention of the court to Sec.38 (c), 20, 35, 32, 38, and 21 of the BDA Act, 1976.
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O.S. No.177/2020 19.8 Sec.13 of the BDA Act, 1976 deals with powers and duties of the commissioner of BDA. Sec.13(2)(a) of the BDA Act, 1976, says that one of the duties is to carry into effect the Resolutions of the BDA.
19.9 DS-IV officials have contravened the resolution of the Board/Authority in subject number 80/18, a copy of which is produced and marked at Ex.P.9. Hence under Sec.13(2)(a) proviso, the commissioner of BDA is empowered to pass an order like the O M. The contention of the defendant that the commissioner of BDA has no such power is not acceptable.
19.10 In the Ex.P.9 the Resolution No.80/2018, the Board/Authority had taken decision to refer the matter regarding collection of betterment charges, which was previously decided 108 O.S. No.177/2020 as per Ex.P.8 (= Ex.D-14) Resolution No.138/2011 in 2011 and seeking for further guidance as to whether the same charges should be collected or there should be any modification. 19.11 The words "in matters executive administration" in Section 13(2)(f) of the BDA Act, 1976 includes the powers of the commissioner of BDA to deal with matters covered under the O M. 19.12 The commissioner of BDA is empowered under Section 65-B of the BDA Act, 1976 to submit a copy of the resolution as per Ex.P.9 the Resolution No.80/2018 to the Government for its order. After having submitted Ex.P.9 by the commissioner of BDA to the Government, the DS-IV ought to have waited for the orders of the Government before proceeding to allot the alternate site to the defendant and before 109 O.S. No.177/2020 executing the impugned sale deed in respect of the suit property in favour of the defendant. 19.13 Rule 6 of BDA Rules 1975 deals with maintaining of Minute book.
19.14 Violations are there in the allotment of the alternate site to the defendants as contemplated under Rule 10(2) and (3) of the 1984 Rules. This twin requirements are also declared by the Hon'ble Apex Court in Bondu Ramaswamy case.
19.15 The 1984 Rules deals with allotment of alternative site. Clause (vi) deals with eligibility of the applicant under the 1984 Rules. 110
O.S. No.177/2020 19.16 Rule 13(10) of the 1984 Rules, provides for forfeiture of the site value deposited and for resumption of the allotted site by the authority. 19.17 In Bondu Ramaswamy case, the Hon'ble Apex Court has affirmed the guidelines issued by the Hon'ble Division Bench of the Hon'ble High Court of Karnataka and, in addition, it has also issued certain guidelines. The Hon'ble Supreme Court has emphasized regarding twin requirements at para No.10. The Hon'ble High Court had issued guidelines to the site owners at para No. 10( C) (a) (i) to (vii). Guideline No.(iii) is important.
19.18 The estimated market value with effect from 01.01.2019 produced at serial No.1 in the list of citations and reference book filed today. At page 602 at serial No.2, the guidance value fixed in 111 O.S. No.177/2020 respect of site situated at Arkavathi layout Amani Bhairathi Kane is Rs.36,990/- per square meter. At page No. 608, at serial No. 71, the market value (the guidance value) of site at Arkavathi Layout Amani Bhairathi Kane is Rs. 38,750/-. At page No. 610, at serial No. 82, the market value of site at Arkavathi Layout Challakere is Rs. 44,440/-. The learned Advocate has highlighted the portions which are relevant according to him in the said book. He further submits that according to him the most relevant portion is at page No. 627, at serial No. 309, (on page No. 628, I.e, site at K.Narayanapura village, Arkavathi Layout). There the value of site is Rs. 37,000/-.
19.19 The impugned sale deed is of March 2019. The above noted guidelines value at serial No.309, at page 628, is applicable to the impugned sale deed. The impugned sale deed is 112 O.S. No.177/2020 also in violation of Ex.P-6 (= Ex.D-13) Resolution No.377/2011.
19.20 In 1999(2) Kar. L.J. 684, Felicia Fali Variava and Anr. vs. The Bangalore Development Authority, Bangalore, the Hon'ble High Court was considering the case of allottee who was a minor. Though the present case is not the case of the allottee being a minor, violation under Rule 10 of the 1984 Rules is violation and the said judgment would be applicable in respect other violations under the said provision.
19.21 1998(4) Kar. L.J. 504, Miss T.S. Vedavalli vs. The Commissioner, Bangalore Development Authority, Bangalore, the Hon'ble High Court had considered Rule 13(9) of the 1984 Rules and held that allotment obtained by fraud, willful misrepresentation or concealment of fact 113 O.S. No.177/2020 can be cancelled and that merely because cancellation was done after 10 years from the date of allotment, the cancellation cannot be held to be illegal.
19.22 The defendant has not produced any material to establish that the defendant has furnished information as directed by the Hon'ble Division Bench, regarding fulfillment of twin requirements and other yardsticks under Rule 10 of 1984 Rules and also regarding the directions the Hon'ble High Court in Ex.D.10. Hence, the case of the BDA that the allotment and execution of sale deed in respect of the suit property in favour of the defendant is not in accordance with law and the same is liable to be cancelled has to be accepted. 19.23 Sections 31 and 34 of the Specific relief Act, 1963, are applicable to the facts of this case. 114
O.S. No.177/2020 For this, he relies upon a judgments of the Hon'ble High court of Madras in AIR 1939 MAADRAS 894 Vellayya Konar and Anr., vs. Ramaswami Konar and Anr., and in AIR 1960 MADRAS 1 Muppudathi Pillai vs. Krishnaswami Pillai and Ors.
19.24 When there is no direct materials on record to establish fraud or misrepresentation, the court can gather from other materials on record on the touch stone of preponderance of probabilities. For this he relies upon head note (A) in AIR 1949 FEDERAL COURT 88 Gangadara Ayyar and Ors., vs. Subramania Sastrigal and Ors., 19.25 While considering the guidance value, Sections 37, 56, 57, 74, 78 and 81 of the Evidence Act, 1872, may be considered. In this regard he also relies upon a judgment of the 115 O.S. No.177/2020 Hon'ble Supreme Court in AIR 1987 SC 1713 Union of India vs. Nihar Kanta Sen and Ors. 19.26 The BDA has paid Court fee on the value fixed in the impugned sale deed under Section 38 of the Karnataka Court Fees and suit valuation Act 1958, in this regard he has relied upon : [i] 2011(1) KCCR 52 Smt. Anandamma and Ors vs. Sharada @ Munithayamma, [ii] 2013(3) KCCR 2237 Smt. Suguna and Ors vs. V. Sunil Kumar Holla and Ors., and [iii] ILR 2017 Kar 2657 Asuntha D'Souza vs. Joyce Paskina D'Souza Nee D'Mello and Anr.,
20. The learned Advocate for the defendant Sri Vikar Ahmed. B., has submitted his arguments to the following effect :
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O.S. No.177/2020 20.1 Section 31 of the Specific Relief Act, 1963, would be attracted to a situation where questioned document is either void or voidable. In the case on hand, the BDA has challenged the impugned sale deed on the grounds of fraud and misrepresentation. Whether on the said grounds, the impugned sale deed is voidable is the basic question which falls for consideration of this court in this case. The burden of proof to prove that the impugned sale deed is vitiated by fraud or misrepresentation is on the BDA. The presumption is in favor of validity of such sale deed. The burden of proving otherwise is on the party who assails it.
The standard of proof to establish fraud is higher. The burden is very heavy on the BDA to prove the fraud and misrepresentation. The burden of proof does not shift to the defendant. What are requirements of pleading under Order VI Rule 4 of the Code of Civil Procedure, 1908, regarding fraud 117 O.S. No.177/2020 and misrepresentation has to be considered. It is not sufficient to simply plead fraud and misrepresentation. Necessary facts and particulars which constitute fraud and misrepresentation have to be pleaded and proved. For these propositions of law, he relies upon judgments of the Hon'ble Supreme Court and the Hon'ble High Court of Karnataka in : (i) (2006) 5 SCC 353, Prem Singh and Others vs. Birbal and Others, (ii) (2018) 4 Supreme Court Cases 481, Krishna Devi vs. Keshri Nandan, (iii) (2005) 5 SCC 527, Gayatri Devi and Others vs. Shashi Pal Singh, (iv) (2004) 8 SCC 588, A.C. Ananthaswamy and Others vs. Boraiah (Dead) by L.Rs., and (v) (2011) 1 SCC 167, Alva Aluminium Limited, Bangkok vs. Gabriel India Limited.
20.2 From the careful reading of the entire plaint, it may be noticed that the BDA has not 118 O.S. No.177/2020 whispered the details of the facts, particulars and circumstances which would constitute the alleged misrepresentation made by the Association. The material facts and material particulars of the alleged misrepresentation and the alleged fraud are not pleaded in the plaint to the satisfaction of the provisions contained in Order VI Rule 4 of the CPC. Stray statement of fraud and misrepresentation would not satisfy the requirements of the said provisions. For this argument he relies upon a judgment of the Hon'ble Supreme Court reported in (2022) 2 SCC 573 Electrosteel Castings Ltd., vs. UV Asset Reconstruction Co., Ltd., and Ors., The word misrepresentation is found in paras 7 and 13 and the word fraud is found in para 13 of the plaint. 20.3 The long and short of the story of the BDA may be stated to the following effect: (i) The 119 O.S. No.177/2020 Association has given representation to the BDA for allotment of sites in favour of its members on 20.02.2019. (ii) In a short span of time, hurriedly and unilaterally (without following due procedure) the DS-IV has taken decision to allot the suit property to the defendant. (iii) Though the defendant is entitled for 30'x40' site, under the impugned sale deed for 60'x40' site is allotted and sold. (iv) The DS-IV has unilaterally decided to collect Rs.59/- per sq. feet from the defendant. 20.4 The defendant has demonstrated in the pleadings, oral evidence and also documentary evidence that the alleged short span of time between representation and allotment is false. The table in the written statement may be considered. 20.5 The claim of the defendant is based on the guidelines and additional guidelines issued 120 O.S. No.177/2020 by the Hon'ble Division Bench of the Hon'ble High Court of Karnataka and by the Hon'ble Supreme Court in Bondu Ramaswamy case in the very same set of facts. The other foundation for the claim of the defendant for allotment of alternate site is the Resolutions passed by the BDA (Ex.D.8, 12, 13, and 14).
20.6 The defendant has produced materials to show that the case of the BDA that the BDA has not yet started the allotment process for allotment of alternate sites is false. For example, the defendant has produced Ex.D.3 and 4 which are sale deeds and Ex.D. 15 which is a Resolution. 20.7 The suit is filed by the Commissioner of the BDA. But he has not authorized the PW -1 to appear as a witness to depose in this case. On the other hand, such authorization is issued by 121 O.S. No.177/2020 DS-IV. (At this stage the learned Advocate for the BDA submits that though the suit is filed in the name of the Commissioner of BDA, the plaint is signed and verified by DS-IV.) The DS-IV being delegatee himself, cannot sub delegate his powers to the PW -1. The PW -1 has deposed that he has no information as to whether or not the Commissioner of the BDA has authorized the DS-IV to file this case and to appear before this court in this case. He has also deposed that he is deposing on behalf of DS -IV but not on behalf of the Commissioner of the BDA. He also deposes that the defendant is the Association which shows that he is not aware of the parties to the suit. 20.8 Adverse inference has to be drawn for non production of documents which are mentioned in cross examination of PW-1. For this proposition, he relies upon a judgment of the Hon'ble Supreme 122 O.S. No.177/2020 Court in (2016) 12 SCC 566 Ajay Kumar D. Amin vs. AIR France.
20.9 The O M is passed by the Commissioner of BDA who is the plaintiff in this case. The PW-1 has admitted that the OM is prepared for the benefit of this case.
20.10 The details of the misrepresentation is absent in the plaint. The PW-1 is also silent about the said details. Going a step forward it may be noticed that except the oral testimony of PW-1, there is no other evidence. The PW-1 has stated categorically that he is not able to say as to what is the misrepresentation committed by the Association.
20.11 If the non payment or inadequate payment of sale consideration amount is the basis 123 O.S. No.177/2020 for seeking cancellation of sale deed, then the said ground is not available for cancellation and, at the most, the remedy for the seller is to seek for the sale consideration amount or the balance sale consideration amount as the case may be. For this proposition of law, he relies upon judgments of the Hon'ble Supreme Court in (2020) 7 SCC 366 Dahiben vs. Arvindbhai Kalyani Bhanusali and (1999) 3 SCC 573 Vidhyadhar vs. Manirao and Anr., The PW-1 has stated that the non-payment of adequate betterment charges and guidance value is the only illegality and no other illegality is there regarding challenge to the impugned sale deed. The said grounds stated by the PW-1 do not satisfy the requirement of law laid down by the Hon'ble Supreme Court.
20.12 In the case on hand, apart from want of pleadings, there is no dearth of materials in the 124 O.S. No.177/2020 form of oral evidence and also documentary evidence regarding the fraud and misrepresentation. Regarding requirement of supporting evidence to prove the the fraud and misrepresentation, he relies upon (2018) 4 SCC 481 Krishna Devi vs. Keshri Nandan where the allegation of fraud was made on the ground that the person who purported to have executed the disputed document therein was suffering from mental incapacity and as such at the time of execution of the said document the contents were not read over to him. The Hon'ble Supreme Court found that no medical records were produced to prove the said said allegations.
20.13 So far as the twin requirement of law that the applicant for allotment of site must reside in Bengaluru for 10 years and that he must not possess any site in the name of the defendant or 125 O.S. No.177/2020 in the name of dependents of the defendant is concerned, the case of the defendant is that the same is complied. In the alternative the defendant says that if the BDA insists for complying with the said requirements once again, the defendant is ready to do the same. The defect, if any, in respect of the said requirement is curable ( but not incurable). Para 61 of the written statement may be considered.
20.14 In (2006) 4 SCC 476 Saheb Khan vs. Mohd. Yousufuddin, while dealing with Order 21 Rule 90 of CPC, the Hon'ble Supreme Court had ruled that mere establishment of material irregularity or fraud would not suffice and that the person challenging the sale must establish that such irregularity or fraud has resulted in substantial injury to such person. By referring to the said proposition of law, by way of analogy, he submits 126 O.S. No.177/2020 that the irregularities, if any, regarding fulfillment of said twin requirements cannot be treated as fatal to the case of the defendant and that the same is curable one. He also relies upon the oral evidence of PW-1 wherein, he has stated that such irregularities were cured in the past and sale transactions were regularized.
20.15 Every wrong action is not a fraudulent action. Hence the fraud must be proved and established. For this proposition, he relies upon (2017) 9 SCC 469.
20.16 In the O M there is a reference to the effect that the STF shall hold investigation and submit its report to the Commissioner of BDA. Such report is not produced by the BDA in spite of the suggestion made to PW -1 during the course of cross examination. Likewise, the PW -1 is asked 127 O.S. No.177/2020 about other documents. Even those documents are not produced by the BDA. Hence, adverse inference may be drawn against the BDA for such non production.
20.17 The O M shows that the Commissioner of the BDA has directed to file FIR against the concerned DS-IV and his officials. But, during cross examination, the PW -1 has stated that no such FIR is lodged, so far.
20.18 The O M shows that the Commissioner of the BDA has directed that disciplinary action has to be taken against the concerned DS-IV and its officials. But, during cross examination, the PW -1 has stated that he does not know if or not any such action is taken and that it has to be verified from the records.
128
O.S. No.177/2020 20.19 The PW -1 has stated to the effect that the fraud stated by him is only in respect of not collecting the guidance value from the defendant while executing the impugned sale deed. 20.20 The PW-1 has given a categorical admission to the effect that the defendant was holder of revenue site which is acquired by the BDA and that the defendant is entitled for allotment of alternate site.
20.21 In (2005) 5 SCC 527 Gayatri Devi vs. Shashi Pal Singh the Hon'ble Supreme Court has ruled that fraud must be necessarily pleaded and proved and that the plea of fraud without any basis cannot be countenanced.
20.22 In the case on hand, the defendant has lost his revenue site to the BDA in the land 129 O.S. No.177/2020 acquisition proceedings. In view of Bondu Ramaswamy case, the BDA has to allot alternate site to the defendant. In that view of the matter, the defendant is having a pre-existing right for allotment of alternate site. Hence the propositions of law declared by the Hon'ble High Court of Karnataka in ILR 2005 KAR 2808 Gurukrupa Co- operative Housing Society Ltd., vs. B.D.A. at paras 13 to 15 may be applied to the facts of the case on hand and it may be held that the BDA is entitled only for betterment charges but not guidance value from the defendant for allotment of alternate site.
20.23 In W.P. No.29437/2019 (BDA), in the matter of Mr.Gollarahalli Vijay Vs The state of Karnataka and another, DD on 05.07.2022, the observations made at para No.7 by the Hon'ble 130 O.S. No.177/2020 High court of Karnataka is relevant and applicable to the facts of the case on hand.
20.24 In (2007) 7 SCC 363 Chacko and Anr., vs. Mahadevan the person challenging the sale deed was able to prove the unsoundness of mind of the executant, under which circumstances the Hon'ble Supreme Court had applied Section 31 of the Specific Relief Act, 1963, to set aside the sale deed on the ground of fraud. No such fact is pleaded or proved in the present case. The said case is cited to illustrate as to when the provisions is applicable.
20.25 He submits that the judgment of the Hon'ble Supreme Court in 2020 13 SCC 234 Municipal Corporation of Greater Mumbai vs. Abhilash Lal and Ors., as well as a judgment of the Hon'ble Privy Council referred to by the court 131 O.S. No.177/2020 while hearing the arguments are not applicable to the facts of the case. There is no any deviation from any procedure prescribed under the BDA Act and rules while allotting and selling the suit property to the defendant. He submits that he is clarifying the court question and that he is not voluntarily referring to the said judgment. 20.26 As per the plaint averments, Ex.P.10 dated 20.02.2019 is the first cause of action date for filing this suit. The BDA claims that within short period 18.03.2019 to 29.03.2019, the DS -IV has completed the process of allotment and sale of 34 sites. Ex. D-1 shows that as early as on 27.05.2004, the Association had submitted letter to the BDA to drop the acquisition proceedings in respect of the sites owned by its members including the defendant. Ex. D-2 is a letter of BDA dated 08.02.2018 stating that as per Ex.P-5 132 O.S. No.177/2020 (=Ex.D-8) Resolution No.43/2004, and Ex.P-6 (= Ex.D-13) Resolution No.377/2011, the BDA has decided to allot sites. It was addressed to one Sri. Arun Prasad who has been the President of the Association.
20.27 Ex.D-3 is a certified copy of a registered sale deed dated 20.01.2014. This is an instance where the BDA received Rs.100/- from the allottee and executed sale deed as alternate site for the site lost by the allottee in land acquisition proceedings held by the BDA. It is in respect of 7th block of Arkavathi Layout. 20.28 Ex.D-4 is another instance of allotment of alternate site by BDA by collecting betterment charges, but, not the guidance value. It was a case of allotment of 60 X 80 feet site. 133
O.S. No.177/2020 20.29 Ex.D.1 to 4 are the documents marked through PW -1 by way of confrontation. 20.30 Ex.D-9 is the writ petition filed by the Association in W.P. No.32120/2013 and Ex.D.10 is the order of the Hon'ble High Court in the said writ petition and other petitions. The said judgment is dated 24.01.2014. This judgment is an instance to demonstrate that the transactions impugned in this suit did not commence on 20.02.2019 as claimed by the BDA but the process started much earlier to the said date and to be specific on 27.05.2004.
20.31 Ex.D. 21 illustrates as to what transpired in the office of the BDA at various levels before the site of one Smt. Vijaya Lakshmi was re conveyed to her way back in the year 2016 and 2017 but not certainly in the year 2019 as 134 O.S. No.177/2020 claimed by the BDA. According to the BDA the process of calling for application has not yet started. Ex.D.21 disproves the said contentions. It also demonstrates that the contention of the BDA that the DS-IV has taken unilateral decision is false.
20.32 In the case on hand, the suggestion made by the learned Advocate for the BDA to DW-1 in cross examination at page 15 at the top of the page shows that according to the BDA, Ex.D.21 contains signature of the Commissioner of BDA at para No. 61 and that the word approved is found missing. This shows that the BDA does not dispute the signature of the Commissioner of BDA. The answer given by the DW-1 would clarify the dispute in this case. The presence or absence of the word approved at that place makes no 135 O.S. No.177/2020 difference and the entire sequence in Ex.D. 21 would indicate as to what the signature means. 20.33 Subsequent to ExD.10 order, the Association has given representation to the BDA as per Ex.D.22 on 12.02.2014. Ex.D. 23 shows that on 12.03.2014 the land acquisition officer of the BDA has issued cause notice to 4 persons and serial no. 4 refers to the Association. In Ex.D. 23, the land acquisition officer called upon the Association to produce the relevant documents for the purpose of considering direction of the Hon'ble High Court in Ex.D. 10.
20.34 Ex.D.24 is the representation of the Association dated 27.01.2018 before the LAO of BDA. Ex.D. 25 is the representation of the Association dated 30.01.2018 before the Commissioner of BDA. Ex.D. 26 is the 136 O.S. No.177/2020 representation of the Association dated 03.04.2018 before the Commissioner of BDA. 20.35 Ex.D.27 is in respect of Akashavani Housing Society. The entire layout of the said society was re conveyed to the owners and betterment charges of Rs.1 Crore 10 Lakhs was collected in respect of 103 sites. 20.36 Even though the Association has made multiple representations before the BDA prior to Ex.P.10 representation, the BDA has chosen to demonstrate before the court that the Ex.P.10 is the very first representation made by the Association and that within short span of time the impugned sale deed has been executed.
21. The learned Advocate for the plaintiff Sri M. Nagaraj submitted reply to the following effect : 137
O.S. No.177/2020 21.1 Compliance of twin requirements under Rule 10 of the 1984 is mandatory. Having not complied the same and having obtained allotment and sale in respect of the suit property in the absence of such compliance, it is not available to the defendant to turn around and say that may be that the same is not complied and that the same is curable and it would be cured in future and that the said transactions should not disturbed and it should be kept intact till the said defect is cured and thereafter the said transactions may be regularized.
21.2 In the O M, the Commissioner of BDA has stated that undue preference is given to the 35 allottees in contravention of the law and procedures. The same is extracted in the plaint.
Hence, the arguments to the effect that details of 138 O.S. No.177/2020 the fraud and misrepresentation are not given in the plaint holds no water.
21.3 The learned Advocate for defendant heavily relied upon Ex.D. 22 to 27. But, however, the defendant has not made clear as to whether the defendant has complied with Ex.D. 23 notice or not. For example, the LAO had called for productions of documents mentioned in Ex.D.23. Whether the defendant has produced such documents before LAO is not explained by the defendant.
21.4 Ex.D.24 is a letter dated 27.01.2018 submitted by the Association before the SLAO -II stating that necessary direction may be issued to the Executive Engineer of the BDA to prepare and submit correct dimension (CD) report mentioning 66 sites to be given to the members of the 139 O.S. No.177/2020 Association in a single place. They have also requested the SLAO to direct the Executive Engineer of the BDA not to prepare CD for allotment of sites to others before allotting sites to the members of the Association. Ex.D.24 is suitably replied as per document at Ex.D.2. The process stopped with Ex.D.2.
21.5 The defendant and other members of the Association have tried with various departments of the BDA by not disclosing about the approach made by them with other departments. Ultimately, they could succeed before DS-IV.
21.6 The judgment cited by the learned Advocate for the defendant pertain to sale transactions between two individuals but not between an authority like BDA and an individual 140 O.S. No.177/2020 like the defendant. In this case the transactions have taken place in violation of the law governing allotment and sale of sites by the BDA. Hence, the cited judgments are not applicable to the facts of this case in connection with arguments to the effect that inadequacy of sale consideration amount cannot be a ground to set aside the impugned sale deed under Section 31 of the Specific Relief Act, 1963.
21.7 The law declared by the Hon'ble Supreme Court in (2020) 13 SCC 234 Municipal Corporation of Greater Mumbai vs. Abhilash Lal and Ors., and by the Hon'ble Privy Council in the in the judgment cited in the above cited judgment to the effect that if the law prescribes any procedure, the things should be done in accordance with the prescribed procedure or not at all, applies to the facts of this case. Violations of the conditions 141 O.S. No.177/2020 stipulated in the Bondu Ramaswamy case by the Hon'ble Division Bench of the Hon'ble High Court of Karnataka and also by the Hon'ble Supreme Court and the procedures established under the law would go to the roots of the matter and makes the impugned sale deed void-ab- intio. Under these circumstances, the arguments regarding adequacy of sale consideration amount becomes inconsequential.
21.8 The defendant has not established regarding fulfillment of twin criteria. For example, the defendant says that if the twin criteria is not fulfilled, the defendant would fulfill the same in future.
21.9 In Bondu Ramaswamy case, it is laid down that the BDA may consider to grant a site of 30'x40' each to the persons who lost their 142 O.S. No.177/2020 sites in the land acquisition. Para No. 10 in Bondu Ramaswamy case may be considered. At
(vi) in the said para, the Hon'ble Division Bench of the Hon'ble High Court of Karnataka has stated regarding allotment of 20'x30' sites in the circumstances mentioned therein, which is approved by the Hon'ble Supreme Court. 21.10 In the alternative, if the defendant intends to rely upon the resolution of the BDA, the defendant has to abide by all the terms of the resolution like collection of guidance value from the allottee in respect of the site in excess of 30'x40'. It is not available for the defendant to accept the resolution partly and reject it partly. 21.11 If the allotment was done by granting sites of measurement of 30'x40' as per the law laid down in Bondu Ramaswamy case, the BDA could 143 O.S. No.177/2020 have satisfied many other applicants like the defendant in the areas allotted to the defendant and 33 others. If sites of 20'x30' were to be allotted, the BDA could have satisfied much more people. Hence, un due preference given by the DS-IV officials has caused loss to the public property of the BDA. It also caused financial loss to the BDA.
21.12 Sections 91 and onwards of the Evidence Act, 1872, regarding the oral evidence contrary to the documentary evidence is argued.
CITED JUDGMENTS:
22. The learned Advocate for the BDA has relied on the following citations and reference book :
22.1 (2010) 7 SCC 129, Bondu Ramaswamy and Ors vs. Bangalore Development Authority and Ors., Para 10(c) of the judgment reads as under :144
O.S. No.177/2020
10. The Division Bench therefore set aside the order of the learned Single Judge. It also allowed a writ appeal filed by a former Chief Minister and expunged certain unwarranted remarks against the former Chief Minister in para 30 of the learned Single Judge's order and further held as follows :
(C). The acquisition of the lands for the formation of Akravathi Layout is upheld subject to the following conditions :
(a) In so far as the site owners are concerned they are entitled to the following reliefs :
(i) These site owners/writ petitioners shall register themselves as applicants for allotment under the Bangalore Development Authority (Allotment of Site) Rules 1984 within a period of two months from today (extendable by another one month by BDA, if sufficient cause is shown). Petitioners will have to pay the registration fee. They need not pay initial deposit as their sites have been acquired and they have agree not to receive compensation in regard to the sites under this arrangement.
(ii) The petitioners shall file applications for allotment of sites to BDA within three months from today in the prescribed form stating that they are applicants who were the petitioners in these writ petitions. Petitioners shall file their documents with BDA within a period of two months to enable BDA to verify the same.
(iii) BDA will treat them as applicants entitled to priority in allotment and allot 145 O.S. No.177/2020 each of them a site measuring 30 x 40 in Arkavathi layout or in any other nearby layouts in Bangalore at the prevailing allotment prices subject to petitioners satisfying the twin requirements for allotment under the BDA (Allotment of sites) Rules 1984, that they must be the residents of Bangalore (ten year domicile) and should not be owning any residential property in Bangalore.
(iv) If there are no rival claimants for compensation in regard to the plots claimed by petitioners, and if the ownership of the petitioners in regard to their respective sites which have been acquired is not disputed, BDA shall calculate the compensation payable to the petitioners and give credit to the same by adjusting the same towards the allotment price for the site to be allotted and call upon the petitioners to pay the balance. Petitioners shall be given six months time for making payment. [To enable petitioners to know the amount of compensation which they will be entitled and to ascertain how much balance they should pay].
(v) If there are rival claimants in regard to the survey numbers or the sites or if any petitioners title in regard to the sites are challenged, BDA shall make a reference in regard to the compensation in regard to such site/land in question, to the civil court under section 30 of the Land Acquisition Act, 1894, and the petitioners will have to sort out the matter before the reference court. In that event, such petitioners will have to pay the full allotment price within the time 146 O.S. No.177/2020 stipulated, without seeking adjustment of compensation for the acquired site.
(vi) If any of the petitioners does not fulfil the requirements for allotment, under the allotment rules, their cases may be considered for allotment of 20 x 30 sites as per the Rules containing incentive scheme for voluntary surrender of lands. For the purpose of the said scheme, such petitioners will be deemed to have voluntarily surrendered the sites.
(vii) The above scheme will be available to only those who are owners, as a consequence of execution of registered sale deeds in their favour prior to the date of preliminary notification (and not to GPA/Agreement holders).
The learned Advocate for the BDA has stressed upon the words, "at the prevailing allotment prices" in the above noted passage (and more particularly at 10(c)(a)(iii).
Para 160(iii) reads as under :
160. In view of the foregoing, we affirm the directions of the Division Bench subject to the following further directions and clarifications:
(i) xxxxxxxxxxx
(ii) xxxxxxxxxx 147 O.S. No.177/2020
(iii) BDA shall give an option to each writ petitioner whose land has been acquired for Arkavathy layout:
(a) to accept allotment of 15% (fifteen percent) of the land acquired from him, by way of developed plots, in lieu of compensation (any fractions in excess of 15% may be charged prevailing rates of allotment).
OR
(b) in cases where the extent of land acquired exceeds half an acre, to claim in addition to compensation (without prejudice to seek reference if he is not satisfied with the quantum), allotment of a plot measuring 30' x 40' for every half acre of land acquired at the prevailing allotment price.
22.2 1999 (2) Kar. L.J. 684, Felicia Fali Variava and Anr vs. The Bangalore Development Authority, Bangalore.
Therein, the Hon'ble High Court of Karnataka has ruled to the effect that allotment of a site by the BDA in favour of a minor (who is ineligible for allotment of a site by the BDA under Rule 10(1) of the 1984 Rules) can be cancelled by 148 O.S. No.177/2020 the BDA and that the sital value paid on behalf of the allottee (minor) can be refunded. 22.3 1998(4) Kar. L.J. 504, Miss T.S. Vedavalli vs. The Commissioner, Bangalore Development Authority, Bangalore.
The facts of the case show that in the application filed by her (allottee) before the BDA in the year 1988 she had stated she did not own any house or site in Bangalore; and that no site was allotted to her or her relation. Based on such declaration by her, the BDA had allotted to her site No.396 in Hosur-Sarjapur Road, Sector VI Layout, measuring 40'x60' and intimated the same to her on 18-02-1994. Subsequently, in an enquiry held against her, it was found that at that point of time she was admittedly an allottee of a site [being allotted by Bharath Electronics Ltd., (BEL)]. In the said enquiry proceedings, the Commissioner of 149 O.S. No.177/2020 BDA had passed an Order on 21-10-1997 holding that she obtained said site No.396 by the allottee from the BDA by making the said false declaration in contravention of Rule 10(3) of the 1984 Rules and as such allotment of said site No.396 by the BDA in favour of the allottee was liable to be cancelled. Accordingly, vide the said order dated 21-10-1997, the Commissioner of BDA had cancelled the allotment of site No.396 in favour of the allottee, forfeited the deposited sital value, and resumed the possession of said site No.396 from her, by invoking the provisions contained in Rule 13(9) of the 1984 Rules. The Hon'ble High Court of Karnataka had affirmed the said findings of the Commissioner of BDA and also held that there is no time-limit prescribed for cancellation of allotment of site.
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O.S. No.177/2020 22.4 ILR 2009 KAR 446, Smt. Muninarasamma vs. The State of Karnataka Urban Development Department and Anr.
In the said case, the land loser had challenged the acquisition proceedings after lapse of 31 years. The Hon'ble High Court of Karnataka had dismissed the Writ Petition. Such a question is not involved in this case. Indeed, the case on hand before this Court shows that the acquisition was upheld upto the Hon'ble Supreme Court in Bondu Ramaswamy case.
22.5 The learned Advocate for the BDA has submitted that so far as the relief of declaration and cancellation in respect of the impugned sale deed in respect of the suit property is concerned, Sections 31 and 34 of the Specific Relief Act, 1963, are applicable. Regarding the scope and ambit of 151 O.S. No.177/2020 the said provisions, he has relied upon the following judgments :
(i) AIR 1939 Madras 894, Vellayya Konar and Anr., v. Ramaswami Konar and Anr., and
(ii) AIR 1960 Madras 1, Muppudathi Pillai v.
Krishnaswami Pillai and others.
22.6 He relies upon AIR 1949 Federal Court 88, Gangadara Ayyar and Ors., v. Subramania Sastrigal and Ors., for the proposition of law that where a party is duty bound to produce evidence, but, fails to discharge the said burden of proof, no conclusion can be recorded in favour of such a party merely on the ground of paucity of evidence which is of their own creation.
22.7 (2013) 3 SCC 801, Joseph John Peter Sandy vs. Veronica homas Rajkumar and Anr., The learned Advocate for the BDA has relied upon this judgment of the Hon'ble Supreme Court for the 152 O.S. No.177/2020 proposition of law regarding the burden of proof of undue influence. He has relied upon para 18 which reads thus :
"18. If there are facts on the record to justify the inference of undue influence, the omission to make an allegation of undue influence specifically, is not fatal to the plaintiff being entitled to relief on that ground; all that the Court has to see is that there is no surprise to the defendant. In Hari Singh v. Kanhaiya Lal, AIR 1999 SC 3325, it was held that mere lack of details in the pleadings cannot be a ground to reject a case for the reason that it can be supplemented through evidence by the parties."
22.8 AIR 1987 SC 1713, Union of India vs. Nihar Kanta Sen and Ors., This judgment is in respect of compensation payable to the land owner who lost the land in land acquisition proceedings. The said question is not involved in this case.
23. The learned Advocate for the defendant has relied upon the following judgments : 153
O.S. No.177/2020 23.1 The learned Advocate for the defendant has argued regarding what is fraud and what is misrepresentation. He has also argued regarding the party on whom the burden of proving fraud and misrepresentation lies. He has also argued regarding the requirement of pleadings under Order VI Rule 4 of the Code of Civil Procedure, 1908, regarding fraud and misrepresentation. He has also argued regarding appreciation of evidence touching fraud and misrepresentation. In this regard he has relied upon the following judgment :
23.2 (2011) 8 SCC 613, Ramesh Kumar and Anr., vs. Furu Ram and Anr.., At para 16 the Hon'ble Supreme Court has ruled regarding fraud in the following words :
"16. ............. Fraud can be of different forms and different hues. It is difficult to define it with precision, as the shape of each fraud depends upon the fertile imagination and cleverness who conceives of and perpetrates the fraud. Its ingredients are an intention to deceive, use of unfair 154 O.S. No.177/2020 means, deliberate concealment of material facts, or abuse of position of confidence.
`Fraud' is `knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his detriment'. `Fraud' is also defined as a concealment or false representation through a statement or conduct that injures another who relies on it in acting. (vide The Black's Law Dictionary). Any conduct involving deceit resulting in injury, loss or damage to some one is fraud."
23.3 For the very same purpose for explaining what is fraud, the learned Advocate has relied upon another judgment of the Hon'ble Supreme Court in (2009) 8 SCC 751, Mohammed Ibrahim and Ors., vs. State of Bihar and Anr., 23.4 In ILR 2005 KAR 2808, Gurukrupa Cooperative Housing Society Limited vs. Bangalore Development Authority, at paras 13 to 15, the Hon'ble High Court of Karnataka has ruled thus:
"13. The BDA Act provides for the establishment of Developmental Authority for the development of the City of Bangalore and areas adjacent thereto and for matters connected therewith. The 155 O.S. No.177/2020 sole purpose and object of this enactment is to provide mainly the residential sites to the needy public who belong to the lowest strata of the society, who cannot purchase sites in open market. For that purpose the authority acquires lands, forms, layouts and then allots sites formed in the layout in accordance with the rules framed under the Act. For the sites allotted to an allottee a price is fixed by the BDA and this is always less than the prevailing market price in the locality. In addition to forming layouts by themselves, the Act also provides for permitting formation of new extensions or layouts or making new private streets by private persons and agencies. Such persons have to make the necessary applications with plans and the Authority is empowered to call upon such persons to pay sums necessary for meeting the expenditure of making roads, side drains, underground drainage and water supply, lighting and charges for such other purposes, provided, the said applicant also agrees to transfer the ownership of the roads, drains, water supply mains and open space left out by him to the Authority permanently without claiming compensation therefor. They may also collect monies for execution of any scheme or work for augmenting the water supply, drainage, roads, lights and such other amenities within the Bangalore Metropolitan Area. Without the prior permission of the Authority no one is permitted to form layouts within the Bangalore Metropolitan Area. The Act also provides for reconveying the land which is acquired by the BDA to the owner as contained in Section 38C of the Act. In addition, the Act also empowers the authorities to make bulk allotment, to lease, sell or transfer its properties or to reserve certain areas for civic amenities, etc.
14. In the case of an allotment of a site in the layout formed by the BDA, the allottee has no 156 O.S. No.177/2020 pre-existing title before such allotment is made. It is only after an allotment is made and such allottee pays the price fixed for such allotment and after he complies with other legal requirements the site allotted to him is conveyed, thus conferring title on such an allottee. On execution of a sale deed by the authority in favour of the allottee he becomes the absolute owner of the site. He has to pay the price fixed by the authorities to acquire title to the property allotted to him.
15. The same principle cannot apply to a case of reconveyance. The word "reconvey" presupposes that the person to whom the land or site is reconveyed was the owner of the land, which was acquired by the Authority. On such acquisition, he ceased to be the owner and title passes to the authority. If the authority finds the land so acquired is not useful for the purpose for which it was acquired, then at the request of such owner of the land/site Section 38C provides for reconveyance in favour of the original owner by passing of a resolution by the Board. Section 38- C(a) provides, on such reallotment by way of reconveyance the allottee shall be liable to pay any charges as the authority may levy from time to time. In the case of a reconveyance the allottee has a pre-existing right. When his land is acquired, if he has not been paid compensation for the same and when the land is reconveyed to him, to expect him to pay the prevailing allotment rate which includes cost of the land would not stand to reason because, he was not paid compensation for the land acquired. Therefore, in the case of reconveyance when the site or land is reconveyed to the original owner, all that the BDA is entitled to is the developmental charges and the charges for the amenities which are given to such land. It cannot be the prevailing rate as in the case of an 157 O.S. No.177/2020 allotment of a site. Therefore, any charges mentioned in Section 38-C(a) cannot be the allotment rate of a site to an allottee for the first time. It is to be necessarily less than that and the cost of the land is to be excluded."
23.5 By referring to the judgment of the Hon'ble High Court of Karnataka in Gurukrupa Co-operative Society Ltd., (supra), the learned Advocate for the defendant has submitted that the members of the Association (including the defendant) have preexisting right for allotment of site in view of the judgments of the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court in Bondu Ramaswamy case and other cases cited supra which are rendered in connection with the Arkavathi Layout and also in view of the Resolutions passed by the BDA which are discussed supra. Hence, he submits that the BDA is entitled only for betterment charges, but, not for guidance value of the suit property.
158
O.S. No.177/2020 23.6 In a judgment of the Hon'ble High Court of Karnataka in W.P. No.29437/2019 (BDA) in the matter of Mr. Gollarahally Vijay vs. State of Karnataka and Anr., DD on 05-07-2022, at paras 7 and 8, th Hon'ble High Court of Karnataka has ruled thus :
"7. The reasons given by the respondent No.2 (financial loss) cannot be accepted by this Court. The respondent No.2 is a statutory authority created under a statute, it is required to discharge its public functions in the interest of the citizens in the Country and more particularly the citizens of Bengaluru. The respondent No.2/BDA is not a commercial business so as to make commercial profit and or to contend that there would be financial loss caused to the respondent No.2. The same is also bad in law since it is violation of the principles of Article 14 of the Constitution of India on account of charging differential amounts as development charges for different persons. Once the development charges have been charged at Rs.159 per square feet for similarly situated site owners in Defense Enclave Phase-II, Arkavathi layout, all the persons in Defence Enclave Phase-II are entitled to the same rate per square feet and the petitioner is also entitled to make payment for only Rs.159/- per square feet as development charges.
8. Considering that this Court had passed orders in W.P. No.49255/2014 and W.P. No.16684/2017, I am of the considered opinion that the benefit of the said orders and the 159 O.S. No.177/2020 benefit of the revision affected by the BDA is required to be extended to the petitioner also. Hence, the respondent is directed to refund the amount in excess collected by the respondent No.2/BDA and retain only an amount of Rs.159/- per square feet, as re-fixed by the BDA itself."
23.7 Regarding duty of the Court to find out the truth, the learned Advocate for the defendant has relied upon a judgment of Hon'ble High Court of Delhi in 2016 SCC OnLine Del 4322, Meera Devi and Ors., vs. Jitender and Ors., Therein the Hon'ble High Court of Delhi has cited a judgment of the Hon'ble Supreme Court in (2010) 10 SCC 677 Ritesh Tewari vs. State of Uttar Pradesh, wherein the Hon'ble Supreme Court has ruled that every trial is voyage of discovery in which truth is the quest.
23.8 In Prem Singh and Ors vs. Birbal and Ors., reported in (2006) 5 SCC 353 at para 27, the Hon'ble Supreme Court has ruled thus : 160
O.S. No.177/2020 "27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption."
23.9 In (2018) 4 Supreme Court Cases 481, Krishna Devi vs. Keshri Nandan, the facts of the case was that the plaintiff who challenged the impugned sale deed therein had stated that the executant of the sale deed was not having good state of mind and, hence, the impugned sale deed therein was vitiated. The Ist Appellate Court, the Hon'ble High Court as well as the Hon'ble Supreme Court had held that the plaintiff therein had failed to prove the alleged state of mind of the executant and hence, the alleged fraud and misrepresentation was not accepted.
23.10 In (2007) 7 SCC 363, Chacko and Another vs. Mahadevan, the Hon'ble Supreme 161 O.S. No.177/2020 Court had accepted the proof of fraud on the basis of the medical certificate to the effect that the executant was suffering from unsoundness of mind. The learned Advocate for the defendant has argued that this judgment is quoted for the purpose of explaining as to under what circumstances the Court may accept the allegation of fraud or misrepresentation. He further submits that no such proof of alleged fraud or misrepresentation is forth coming in the case on hand. Hence, he submits that the allegation of fraud and misrepresentation claimed by the BDA must be rejected.
23.11 In (2022) 2 SCC 573, Electrosteel Castings Limited vs. UV Asset Reconstruction Company Limited and Ors., at para 8, the Hon'ble Supreme Court has ruled thus :
"8. In Bishnudeo Narain in para 22, it is observed and held as under: (SCC p. 454) 162 O.S. No.177/2020 "22. ..... Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may Bengaluru and the same applies to undue influence and coercion. See Order 6 Rule 4, Civil Procedure Code"."
23.12 The learned Advocate for the defendant has relied upon a judgment of the Hon'ble High Court of Karnataka reported in 2009 SCC OnLine Kar 389, Ishappa @ Ishwarappa vs. Kalakappa and Ors., for the same purpose ; and argued that the BDA ought to have pleaded all the particulars of facts which constitute fraud and/or misrepresentation and that such a pleadings is not there in the plaint. For the very same purpose the learned Advocate for the defendant is relying on a judgment of the Hon'ble Supreme Court in (2005) 5 163 O.S. No.177/2020 SCC 527 Gayatri Devi and Ors., vs. Shashi Pal Singh.
23.13 In (2006) 4 SCC 476, Saheb Khana vs. Mohd. Yousufuddin and Ors., at para 13 and 14 the Hon'ble Supreme Court has ruled thus :
"13. Therefore before the sale can be set aside merely establishing a material irregularity or fraud will not do. The applicant must go further and establish to the satisfaction of the Court that the material irregularity or fraud has resulted in substantial injury to the applicant. Conversely even if the applicant has suffered substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has been occasioned by a material irregularity or fraud in publishing or conducting the sale.
14. A charge of fraud or material irregularity under Order XXI Rule 90 must be specifically made with sufficient particulars. Bald allegations would not do. The facts must be established which could reasonably sustain such a charge."
23.14 For the very same purpose regarding pleadings and evidence touching the allegations of fraud and misrepresentation, the learned Advocate 164 O.S. No.177/2020 for the defendant relies upon the following judgments: (i) In (2017) 9 SCC 469, Chandro Devi and Ors., vs. Union of India and Ors., ; (ii) In (2004) 8 SCC 588, A.C. Ananthaswamy and Others vs. Boraiah (Dead) by L.Rs. ; (iii) (2019) 9 SCC 353, Ali Hussain (Dead) Through Legal Representatives vs. Rabiya and Others ; and (iv) ILR 2004 KAR 4068 Budavant Subraya Palekar vs. Babu Vajra Chandavarkar and Ors., 23.15 (2020) 7 Supreme Court Cases 366, Dahiben vs. Ar vindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and Ors., The Hon'ble Supreme Court has ruled thuse at para 29.9 :
"29.9. In view of the law laid down by this Court, even if the averments of the Plaintiffs are taken to be true, that the entire sale consideration had not in fact been paid, it could not be a ground for cancellation of the Sale Deed. The Plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered Sale 165 O.S. No.177/2020 Deed. We find that the suit filed by the Plaintiffs is vexatious, meritless, and does not disclose a right to sue."
23.16 In (1999) 3 SCC 573, Vidhyadhar vs. Manikrao and Anr., at para 36 to 38 the Hon'ble Supreme Court has ruled thus :
"36. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised".
Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised"
indicate that actual payment of whole of the price at the time of the execution of sale deed is not sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/-, the sale would be complete.
37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gyatri Prasad v. Board of Revenue and Ors. (1973) Allahabad Law Journal 412, it was 166 O.S. No.177/2020 held that non-payment of a portion of the sale price would not effect validity of sale. It was observed that part payment of consideration by vendee itself proved the intention to pay the remaining amount of sale price. To the same effect is the decision of the Madhya Pradesh High Court in Sukaloo and Anr. v. Punau .
38. The real test is the intention of the parties. In order to constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in presenti or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record."
23.17 The learned Advocate for the defendant has drawn the attention of the Court to cross-examine portion of deposition of PW.1 wherein the learned Advocate for the defendant had drawn the attention of the PW.1 regarding various documents and asked the PW.1 as to whether there was any impediment for the PW.1 to produce those documents and that the PW.1 has replied stating that there is no impediment to produce such documents and in spite of the same, neither the BDA nor the PW.1 has produced such 167 O.S. No.177/2020 documents. In this background, the learned Advocate for the defendant has relied upon a judgment of the Hon'ble Supreme Court in (2016) 12 SCC 566, Ajay Kumar D. Amin vs. Air France. In the said judgment at para 6, the Hon'ble Supreme Court has ruled thus :
"6. .......... Therefore, the fact remains that on the important aspect of the matter i.e., non- production of the documents, the adverse inference has rightly been drawn by the Commissioner as well as by the trial court after adverting to the Privy Council Judgment in Moti Lal v. Kundan Lal, wherein it has been held that failure by a party in spite of the order for discovery to produce account books which ought to have been produced or should have explained the non-production raises a presumption that the contents were unfavourable to the party. Thus, adverse inference should be drawn against the respondent."
23.18 The learned Advocate for the defendant has argued that inadequacy of consideration is not a ground for setting aside the impugned sale deed under Section 31 of the Specific Relief Act, 1963. According to him the remedy for the BDA, if really there is any 168 O.S. No.177/2020 inadequacy of consideration in the case on hand, is to file a suit for recovery of balance consideration amount. For this proposition of law he basically relies upon the provisions contained in Explanation- 2 of Section 25 of the Indian Contract Act, 1872. Said Explanation-2 to Section 25 of the Indian Contract Act, 1872 reads thus :
"Explanation 2 - An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given."
23.19 He also relies upon the following judgments of Hon'ble High Courts regarding said proposition of law : (i) AIR 1980 ALL 63, Smt. Laikunnisa vs. Hari Prasad and (ii) 2006 SCC OnLine Cal 567, Harendra Nath Gose vs. Union of India.
169
O.S. No.177/2020 DISCUSSIONS AND CONCLUSIONS ON THE OVERALL EFFECT OF THE PLEADINGS, EVIDENCE AND ARGUMENTS :
24. The learned Advocate for the defendant has argued to the effect that on consideration of the entire materials on record, it is impossible to come to conclusion that the DS-IV has allotted and sold the suit property to the defendant in a hurried manner and unilaterally. He has also highlighted the instances where a site ad-measuring much more than 30'x40' is allotted and sold by the BDA either by collecting betterment charges or by collecting mere registration charges. For example:
(i) Ex.D-3, and Ex.D-4 sale deeds ; (ii) Ex.D-15 -
Resolution No.214/2012 dated 02-11-2012 ; and
(iii) Ex.D-21 - Order sheet/office notes maintained by the BDA for re-conveyance of a site ad- measuring 65'x69' in favour of one Smt. Vijayalakshmi. He has also highlighted about the decisions taken by the BDA in (i) Ex.P-5 (=Ex.D-8) 170 O.S. No.177/2020 Resolution No.43/2004, (ii) Ex.P-6 (=Ex.D-13) Resolution No.377/2011, and (iii) Ex.P-7(=Ex.D-12) Resolution No.141/2014 to submit that as per the said 3 Resolutions of the BDA, the BDA can allot a site up to a ceiling limit of 50'x80'. According to him, the deposition of the PW.1 to the effect that collection of insufficient betterment charges and non-collection of guidance value in respect of that portion of the suit property which is in excess of 30'x40' (i.e., the suit property ad-measures 60'x40' ; up to 30'x40', site can be allotted and sold by collecting betterment charges ; and in respect of remaining 30'x40' portion of the suit property, the BDA has to collect guidance value) are the only irregularities committed by the DS-IV while allotting and selling the suit property, plays a decisive role in this case. According to him, if they are the only irregularities, then in view of the well settled proposition of law noticed supra, which is to 171 O.S. No.177/2020 the effect that inadequacy of consideration amount is not a ground on which a Court can cancel a sale deed by invoking Section 31 of the Specific Relief Act, 1963. According to him, non-production of affidavit by the defendant regarding the domicile of the defendant in Bengaluru for a prescribed period of time ; and regarding the defendant and/or his dependents not holding a site or residential building in Bengaluru is not fatal to the case of the defendant ; and that the said defect, if any, is curable one as per the evidence of PW.1. According to him, the plaint does not satisfy the requirements of Order VI Rule 4 CPC regarding pleading of material facts and material particulars which constitute fraud and misrepresentation. According to him, even the evidence adduced is also deficient. According to him, the burden in respect of fraud and misrepresentation never shifts to the defendant. Hence, for want of pleading and 172 O.S. No.177/2020 proof of the facts constituting alleged fraud and alleged misrepresentation, issue No.1 has to be held in the negative and ultimately, the suit has to be dismissed.
25. In Bondu Ramaswamy case, the Hon'ble Division Bench of the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court have held that if the site owners and the land owners (but not the GPA/agreement holders) who are entitled for the benefit of alternative sites, as per the guidelines issued in the said judgments. It is also well settled in the said judgment that there should be no dispute regarding such title of the applicant before the BDA (the defendant in this case) in respect of revenue site held by such applicant, which such applicant has lost in the land acquisition proceedings.
173
O.S. No.177/2020
26. On perusal of the pleadings it is found that the defendant has claimed that one Sri Srinivas was the owner of the written statement 'A' schedule property at the time of preliminary notification. In support of this plea, a sale deed dated 27-05-1996 bearing Document No.862/1996- 97, Book - I, Vol.No.1324, pages 162-165 registered on 24-05-1997 is mentioned in the written statement and it is produced and marked at Ex.D-16. This Court has held trial in OS No.155/2020 to OS No.188/2020 (totally 34 suits) simultaneously. Curiously, in all the said 34 suits, Ex.D-16 is common. Ex.D-16 is running as a golden thread through all the said 34 suits. It is needless to say that the present suit is one among the said 34 suits.
27. What the defendant claims is that said Srinivas was not able to manage the affairs of the 174 O.S. No.177/2020 written statement 'A' schedule property and, hence, he had appointed and nominated the defendant to manage the affairs of the written statement 'A' schedule property. It is fascinating to note that the defendant is not even GPA holder or the agreement holder (let alone being the owner) in respect of the written statement 'A' schedule property.
28. The defendant has not produced his title deed in respect of the alleged revenue site held by him, if any, alleged to have been lost by him in the land acquisition by the BDA. He has not produced encumbrance certificate, khatha certificate or any other kind of documents to evidence his title/possession over the alleged revenue sites held by him, if any.
175
O.S. No.177/2020
29. Another aspect to be considered would be that 36 guntas of land (appears to be the basis for the defendants/losers of lands/sites/applicants before the BDA for alternate sites) in all the 34 suits. The reason is that in all the 34 suits, Ex.D-16 sale deed is common. 36 guntas is equal to 39204 square feet. One gunta is equal to 1089 square feet. As per the claim of the defendant, in view of the Ex.P-5 to Ex.P-7 Resolutions of the BDA, where the revenue site of the claimant for alternative site exceeds 30'x40', the BDA can allot alternative site of a measurement more than 30'x40'. 30'x40' would come to 1200 square feet. According to the defendants in all 34 suits (as argued by the learned Advocate for the defendants in all 34 suits) the measurement of the sites held by the defendant (or the defendants as the case may be, as in OS No.188/2020, there are two defendants jointly claiming) in each case is 60'x40'. If that is 176 O.S. No.177/2020 accepted, the total measurement of all the said 34 sites would be (60'x40' X 34 = 81600) 81600 square feet. In the ultimate analysis it has to be visualised that there were 34 revenue sites of 60'x40' each whose total extent is 81600 square feet in a land measuring 36 guntas (or 39204 square feet) which is next to impossibility.
30. The above aspect of the matter can be viewed in one more different angle. If a vast land is converted as a layout for residence purpose, 55% of such land can be used for formation of sites. Out of remaining 45% of land, 25% of land would be dedicated for formation of roads, 10% of land would be dedicated for formation of drainage and the remaining 10% of land would be dedicated for formation of parks, playgrounds etc., 55% of 39204 square feet (36 guntas) of land is 21562.2 square feet. The Court is called upon to accept 177 O.S. No.177/2020 that there were 34 revenue sites of 60'x40' in an area of 21562.2 square feet. As noted earlier the total extent of 34 sites of 60'x40' is 81600 square feet. By any stretch of imagination, it is improbable to accept that there existed 34 sites of 60'x40' in an area of 21562.2 square feet.
31. In some cases, the defendant of the concerned case has given details of the sale deed. In many cases no such details are given. Even in those cases where details of such sale deed are given, such sale deeds, encumbrance certificates, and khatha certificates of the revenue site held by such defendant are not produced and marked in the concerned cases. On the other hand, in all the said 34 suits, the concerned defendant of each suit has produced and got marked Ex.D-16 sale deed in the name of Sri Srinivas in respect of 36 guntas of land. Why the defendant/s in each of the said 34 178 O.S. No.177/2020 suits has/have chosen to produce and rely upon Ex.D-16 is not explained. In the absence of production of title deeds etc., even in those cases where title deeds are pleaded ; and in the absence of pleading and evidence in respect of title deeds in other cases (out of said 34 suits) it is presumed and inferred that the defendants in all the 34 suits are relying upon Ex.D-16. In this background, the possibility or otherwise of existence of 34 sites of 60'x40' dimension has been considered.
32. In the absence of pleadings of details of the title deeds by the said 34 claimants in said 34 suits and also in the absence of production of such title deeds, encumbrance certificates, and also khatha certificates in respect of such 34 sites, it is not possible to visualise that the said 34 claimants/defendants in said 34 suits have complied with the requirement of production of 179 O.S. No.177/2020 such documents before the BDA before execution of sale deeds impugned in the said 34 suits. Proof of title of the said 34 claimants/defendants in the said 34 suits is the first and foremost requirement which need to be satisfied in view of the guidelines of the Hon'ble Supreme Court in Bondu Ramaswamy case.
33. When the facts and circumstances of the case on hand are critically and closely scrutinized and analyzed, it would definitely indicate that the doctrine of "Res ipsa loquitor" (things speak for themselves) can be made applicable to the case on hand. Normally, the said doctrine is applied in the tort law while analyzing negligence. Applying the said doctrine to the facts of this suit and said other 33 suits, it has to be held that the said 34 claimants/defendants in said 34 suits (which includes the present suit also) have failed to prove 180 O.S. No.177/2020 the existence of 34 revenue sites of 60'x40' dimension and also that they were owners of such 34 revenue sites. Under the above noted facts and circumstances of the case on hand, it has to be held that the defendant has failed to pass the preliminary/first test laid down by the Hon'ble Supreme Court in Bondu Ramaswamy case, namely proof of existence of revenue site and proof of title of the defendant over such revenue site. All these facts and circumstances would indicate undue haste, non-application of mind or executing impugned sale deed for any extraneous reasons. The cumulative effect of all the facts and circumstances discussed supra is that the BDA has been successful in establishing that the impugned sale deed is result of fraud and misrepresentation or at any rate, the impugned sale deed is not a legal and valid document and it has not conveyed valid title over the suit property in favour of the 181 O.S. No.177/2020 defendant. So far as the concept of the injury or loss sustained by the BDA in view of the alleged fraud and misrepresentation is concerned, the BDA is merely a trustee of the sites on behalf of the people. If the sites of the BDA are allotted and sold in flagrant violation of the prescribed rules, then such allotment and sale would be hit by Section 23 of the Contract Act, 1872. In this view of the matter also the impugned sale deed is liable to be interfered with.
35. It is true that some instances of deviations made by the BDA regarding allotment of sites quite contrary to the Resolutions passed by the BDA are brought on record in this case. Does it mean that the judicial process should be used to perpetuate the illegalities in other cases also is a basic question for consideration of this Court in this suit. The answer is emphatic "NO".
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O.S. No.177/2020
36. AIR 1949 Federal Court 88 Gangadara Ayyar and Ors., vs. Subramania Sastrigal and Ors., "14. It was contended by the learned counsel for the appellants that the decision of the Court below against the appellants regarding these properties had been reached because of a wrong approach to this matter in law and that the rule of onus of proof as regards benami transactions had not been fully appreciated. It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. The Courts below proceeded to decide the case after fully appreciating the above rule and in our judgment their decision does not suffer from the defect pointed out by the learned counsel for the appellants."
37. In a judgment in (2020) 13 SCC 234 Municipal Corporation of Greater Mumbai (MCGM) 183 O.S. No.177/2020 vs. Abhilash Lal and Ors., at para 39, the Hon'ble Supreme Court has ruled thus: " The principle that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all, articulated in Nazeer Ahmed vs. King Emperor, has found widespread acceptance. In the context of this case, it means that if alienation or creation of any interest in respect of MCGM's properties is contemplated in the statute through a particular manner, that the end can be achieved only through the prescribed mode, or not at all."
38. Applying the said principles to the facts of the case on hand, it has to be held that the BDA sites have to be allotted and sold in the manner prescribed in the BDA Act and Rules. In the present case, the BDA sites have to be allotted in the manner declared by the Hon'ble Supreme Court in Bondu Ramaswamy case or not at all. 184
O.S. No.177/2020
39. In AIR 2012 SC 2010 A Shanmugam vs. Ariya Kshatria Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangham rep. By its President etc., the Hon'ble Supreme Court ruled thus:
"24. The entire journey of a Judge is to discern the truth from pleadings, documents and arguments of the parties. Truth is the basis of justice delivery system......."
40. In (2012) 5 SCC 370 Maria Margarida Sequeria Fernandes vs. Erasmo Jack de Sequeria., the Hon'ble Supreme Court ruled thus :
"43. "Satyameva Jayate" (Literally: "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth the divine path is 185 O.S. No.177/2020 spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides."
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.""
41. In view of the above conclusions, Issue No.1 is held in the Affirmative.
42. Issue No.3 : The suit is one for cancellation of the impugned sale deed under Section 31 of the Specific Relief Act, 1963. The BDA has paid Court fee on the value mentioned in the impugned sale deed. The learned Advocate for the BDA has submitted that the Court fee paid is sufficient. He has relied upon the provisions contained in Section 186 O.S. No.177/2020 38 of the Karnataka Court Fees and Suits Valuation Act, 1958. He has also relied upon the judgments of the Hon'ble High Court of Karnataka in
(i) 2011(1) KCCR 52 Smt. Anandamma and Ors., vs. Sharada @ Munithayamma ; (ii) 2013(3) KCCR 2237, Smt. Suguna and Ors., vs. V. Sunil Kumar Holla and Ors., and (iii) ILR 2017 KAR 2657, Asuntha D'Souza vs. Joyce Paskina D'Souza Nee D'Mello and Anr., I have perused the facts of this case, the said provision and the said judgments. In the facts and circumstances of this case, the said provision and the said judgments are applicable to the case on hand. The Court fee paid is sufficient.
Hence, issue No.3 is held in the Negative.
43. Issues No.2 and 4: In view of the findings recorded on issue No.1, the BDA is entitled for the relief claimed in this suit. Hence, issues No.2 and 4 are held in the Affirmative.
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44. Issue No.5: Hence, the following :
ORDER (1) The suit is decreed with cost.
(2) A registered sale deed bearing document No.BDA-1-09304-2018-19 stored in C.D.No. BDAD295 dated 21-
03-2019 of the office of the
Additional District Registrar,
Bengaluru Urban District, Bengaluru, is hereby cancelled under Section 31 of the Specific Relief Act, 1963.
(3) Issue direction to the defendant to hand over the original of the impugned sale deed to the plaintiff -
Bengaluru Development Authority. (4) Issue direction to the defendant to hand over possession of the alternate site covered under the said sale deed bearing document No.BDA- 1-09304-2018-19 stored in C.D.No. BDAD295 dated 21-03-2019 of the 188 O.S. No.177/2020 office of the Additional District Registrar, Bengaluru Urban District, Bengaluru, to the BDA.
(5) Issue direction to the Additional District Registrar, Bengaluru Urban District, Bengaluru, to make an entry in the concerned register/s maintained in the said office regarding cancellation of the said sale deed bearing document No.BDA- 1-09304-2018-19 stored in C.D.No. BDAD295 dated 21-03-2019 of the office of the Additional District Registrar, Bengaluru Urban District, Bengaluru, (6) Draw Decree Accordingly.
(Dictated to the judgment writer, transcribed by her, corrected, signed and then pronounced by me in the open court, on this the 15th day of December, 2022) (D.P. KUMARASWAMY) VI Addl. City Civil & Sessions Judge C/c XLI Addl. City Civil & Sessions Judge, Bengaluru.
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O.S. No.177/2020 ANNEXURE
1. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Sri Lohit Gowda - 26.10.2021
(b) Defendants' side :
D.W.1 Sri Arun Prasad - 29.08.2022
2. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Authority letter
Ex.P.2 Attested copy of Preliminary
Notification dated 03.02.2003
Ex.P.3 Attested copy of Final Notification
dated 23.02.2004
Ex.P.4 Modified final notification dated
18.06.2014
Ex.P.5 Extract of resolution No.43/2004
dated 03.02.2004 containing 2 pages Ex.P.6 Extract of resolution No.377/2011 dated 20.12.2011 Ex.P.7 Extract of resolution No.141/2014 dated 27.09.2014 Ex.P.8 Extract of resolution No.138/2011 dated 28.04.2011 Ex.P.9 Extract of resolution No.80/2018 dated 27.03.2018 Ex.P.10 Representation submitted by 190 O.S. No.177/2020 defendant Association dated 20.02.2019 Ex.P.11 Attested copy of allotment letter in favour of defendant Ex.P.12 Attested copy of letter addressed by BDA to register the documents Ex.P.13 Certified copy of sale deed in favour of defendant Ex.P.14 Attested copy of office memorandum dated 12.04.2019 Ex.P.15 Attested copy of Tippani dated 15.04.2019
(b) Defendant's side :
Ex.D.1 Preliminary Notification Ex.D.2 BDA endorsement Ex.D.3 Certified copy of sale deed Ex.D.4 Certified copy of sale deed Ex.D.5 GPA executed by the defendant Ex.D.6 Certified copy of the preliminary notification dated 03.02.2003 Ex.D.7 Certified copy of the final notification dated 23.02.2004 Ex.D.8 Certified copy of the resolution No. 43/2004 of the BDA dated 03.02.2004 Ex.D.9 Certified copy of the index presentation form and the petition in W.P.No. 32120 /2013 Ex.D.10 Certified copy of the final order passed by the Hon'ble High Court of Karnataka in W.P. 191 O.S. No.177/2020 Nos. 32120-32121 and 32371-32376 of 2013 and 3481-3558 of 2014 ( LA-BDA) in the matter of M/s Trinity Village Plot Owners Association and another Vs State of Karnataka and 2 others DD on 24.01.2004 Ex.D.11 Certified copy of the modified final notification dated 18.06.2014 Ex.D.12 Certified copy of the resolution No.141/2014 of the BDA dated 27.09.2014 Ex.D.13 Certified copy of the resolution No.377/2011 of the BDA dated 20.12.2011 Ex.D.14 Certified copy of the resolution No. 138/2011 of the BDA dated 28.04.2011 Ex.D.15 Certified copy of the resolution No. 214/2012 of the BDA dated 02.11.2012 Ex.D.16 Certified copy of the sale deed of the defendant (regarding purchase of revenue site) Ex.D.17 Certified copy of the Registration certificate issued by DRCS Ex.D.18 Certified copy of the Renewal receipt along with list of office bearers of association Ex.D.19 Certified copy of the RTI application dated 02.11.2021 along with postal order filed before the BDA Ex.D.20 Certified copy of the endorsement dated 24.01.2022 issued by LAO of BDA Ex.D.21 Certified copy of the note sheet of the BDA 192 O.S. No.177/2020 Ex.D.22 A Certified copy of the representation dated 12.02.2014 of the defendant and others made before the BDA through the Association Ex.D.23 A Certified copy of the notice dated 12.03.2014 issued by the BDA against the Association Ex.D.24 A Certified copy of the representation dated 27.01.2018 of the defendant and others made before the BDA through the Association Ex.D.25 A Certified copy of the representation dated 30.01.2018 of the defendant and others made before the BDA through the Association Ex.D.26 A Certified copy of the representation dated 03.04.2018 of the defendant and others made before the BDA through the Association Ex.D.27 Certified copy of the endorsement dated 08.01.2016 issued by BDA VI Addl. City Civil & Sessions Judge C/c XLI Addl. City Civil & Sessions Judge, Bengaluru.
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