Bangalore District Court
S.B.Pradeep vs ) The Karnataka Industrial Area on 26 November, 2016
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 26th day of November 2016
Present: Shri Krishnamurthy B.Sangannanavar,
B.Com.LL.B., (Special)
IX Addl. C.C & S.J, Bangalore.
O.S. NO.2268/1996
Plaintiff: S.B.Pradeep, Aged about 36 years,
S/o. H.S.Bhakthavathsala, Prop.
M/s.Pradeep Industries, No.453, I
Floor, 11th Cross, Sadashivanagar,
Bangalore 560 080.
[By Sri.NS/BL, advocate]
-Vs-
Defendants: 1) The Karnataka Industrial Area
Development Board (A Govt. of
Karnataka undertaking) having its
office at II Floor, R.P. Building,
No.14/3, Nrupathunga Road,
Bangalore 560 002. by its
Executive Member
2) M/s.Electronics & Controls,
168-B, Peenya Industrial Estate,
Bangalore 560 058, by its
Proprietor - Sri.K.Ramachandra
Iyer
since deceased represented by his
Legal representatives -
(a) Smt.Sundari Ramachandran
(Wife), Aged about 44 years
2 O.S.No.2268/1996
(b) Ms.Vidya Iyer (Daughter), Aged
about 22 years
(c) Ms.Divya Iyer (Daughter), Aged
about 18 years
(d) Smt.K.Pattamal, W/o.late
Krishnamurthy Iyer (mother), Aged
about 75 years
All residing at No.547, III Main, III
Cross, II Block, R.T.Nagar,
Bangalore 32.
(D1:By Sri.B.Srinivas, advocate
D2(a) to (e) : By Sri.Madhu
S.Parmaj, advocate)
Date of institution of the suit 29.03.1996
Nature of the suit Declaration,
Possession and
Permanent injunction
Date of commencement of 30.05.2001
recording the evidence
Date on which the judgment 26.11.2016
was pronounced
Total duration : Day/s Month/s Year/s
27 07 20
JUDGMENT
This is a suit filed by plaintiff to declare that he is a confirmed allottee of the suit schedule land 3 O.S.No.2268/1996 as per the confirmatory letter of Allotment dated 23/28.03.1987 issued by 1st defendant and possession certificate dated 6/20.6.1988 and entitled for possession of the suit schedule land. Consequently, grant of permanent injunction restraining defendants from entering upon or remaining in possession on the suit schedule plot.
2. On facts, case of the plaintiff is pleaded below:
The plaintiff is a Mechanical Engineer. He wanted to start an industry on his own, applied to the 1st defendant for allotment of plot in Peenya Industrial Area as per his application dated 11.7.1983. Accordingly, 1st defendant sent a letter of intent dated 14/22.10.1983. The 1st defendant, initially allotted 'half an acre' of land and thereafter, on his request, allotted an additional land making up the extent of the plot to one acre in plot No.29A, situated in II Phase of Peenya Industrial unit. Thus, he was allotted 4040 sq.meters of land. He has paid 99% of the cost of the land and received confirmatory letter of allotment dated 23/28.03.87. On 03/04.04.1987, he was notified that he could take possession of 4 O.S.No.2268/1996 plot and shortly, thereafter, received a letter dated 15/21.04.1988 alleging that he had not taken possession of the plot and if he did not do so within a week, allotment would be cancelled. He has been repeatedly visiting the office of the 1st defendant, requesting for possession of the site as he was ready and willing to take possession of the said site in accordance with law. Subsequently, he was put in possession of 2nd May 1988 and to that effect, possession certificate dated 6/20.06.1988 was given to him. During his visits to the 1st defendant's office, he was asked to apply Government of Karnataka for exemption u/s.20 of the Urban Land Ceiling and Regulation Act.
Accordingly, on 29.06.1988, he submitted an application u/s.6 and 20 of the ULCR Act marking copy to the Executive Member of the 1st defendant. However, he had not heard anything till then and requesting the Executive Member of the 1st defendant to remind the Government as he wanted to execute lease-cum-sale agreement in respect of the schedule property in favour of 1st defendant. He repeatedly requested the Government about his application for exemption and insisted the 1st defendant on execution of lease-cum-sale 5 O.S.No.2268/1996 agreement as he wanted to start construction activities to manufacture Vacuum Metalising in the suit property at an early date. He had paid Rs.1,40,669/- towards consideration of allotment. He has been in possession of the plot on and after 2nd May 1988. The lease-cum-sale agreement has not been executed by 1st defendant in spite of persistent, oral and written request made by him.
However, on 19.3.1996, when he had been to Peenya for some work and went near suit plot found several people trespassed on the suit land. Further found some construction work had commenced. He learnt from some of those people that a firm called Electronics and Controls having its place of business at 168-B, Peenya Industrial Estate had commenced the construction work. He went to the 1st defendant's office on the next day, made enquiries as to how the third party had started constructions, got only evasive replies and on the next few days, he was told that allotment in his favour may have been cancelled. He had no knowledge of such cancellation. He had not received any notice from 1st defendant. He has not received any communication from 1st defendant that it was intended to cancel the allotment. The 6 O.S.No.2268/1996 1st defendant is a Government of Karnataka undertaking cannot act arbitrarily and capriciously in utter disregard of law and principles of natural justice. The 1st defendant is a Board established under Karnataka Industrial Area Development Act, 1966 amended by Karnataka Act, 19 of 1987 has to function and carry on its activities without violating the provisions of law. The plaintiff having paid 99% of the sale price was put in possession of the suit plot obtained possession certificate is entitled for obtaining lease-cum-sale agreement and he is entitled to continue in possession of the plot without any interference. The actions of the 1st defendant are malicious and malafide, apparently there has been a fraudulent collusion between defendants for mutual benefit. Under Sec.53 of the T.P.Act, the plaintiff is entitled to be in possession without any interference by the 1st defendant. It is therefore, sought for grant of permanent injunction restraining defendants from interfering with his peaceful possession and enjoyment of the suit schedule property.
Initially, plaintiff has sought for grant of relief of permanent injunction, subsequently, got amended the plaint thereby sought for declaration 7 O.S.No.2268/1996 that he is a confirmed allottee of the suit schedule land as per the confirmatory letter of allotment dated 23/28th March 1987 issued by 1st defendant and possession certificate dated 6/20th June 1988 and he is entitled to the possession of the suit schedule land.
3. On facts, defence put forth by 1st defendant is as follows:
The 1st defendant submitted that main function of the Board is to acquire the lands and to develop in order to allot the same in favour of the Industrial Entrepreneur for establishing the industries. Normally, allotments are being made on lease-cum-sale basis. This will be intimated to the prospective allottee by way of letter of intent. After fulfilling the conditions of the letter of intent, lease- cum-sale agreement will be executed in favour of the allottee which is subject to the conditions therein. The letter of intent will be valid for a period of one month from the date of its receipt and the allottee is required to fulfill certain conditions mentioned there in the letter of intent and a confirmatory letter of allotment shall be issued on payment of the price and on furnishing 8 O.S.No.2268/1996 letter of sanction of loan by financial institutions. Failure to fulfill any of the conditions at 1(a) to (g) of the time schedule shall result in cancellation of allotment and forfeiture of the 99% of the amount paid towards tentative cost of land together with the commitment charges. The 1st defendant is at liberty to resume the allotted land after giving notice to the allottee. As per clause 11(a) to (g) of letter of intent which clearly spells out the consequences of the violation in respect of non- implementation of the project. The plaintiff cannot accuse the defendants act as malicious and wrongful. The remedy available to the plaintiff is elsewhere as per the conditions attached to the letter of intent, instead of following the conditions of the letter of intent, plaintiff accusing the 1st defendant that the Board has acted in a malafide intention, shall not improve the case of the plaintiff. The 1st defendant had no other alternative but to cancel the allotment. Since plaintiff has failed to obtain exemption u/s.2(1) of U.L.C. Act which are condition precedent for execution of the lease-cum-sale agreement. The 1st defendant admits payment made by plaintiff at Rs.1,12,669/- and in consideration of this amount, confirmatory 9 O.S.No.2268/1996 letter of allotment dated 28.03.1987 was issued. The 1st defendant issued cancellation notice on 06.07.1989 under registered post. Accordingly, plaintiff's allotment was cancelled. 2nd defendant after taking exemption from H.U.D. Department have started construction and production activity in the schedule plot. The allegation made against defendants that somebody were doing construction work over the schedule premises is false and denied. The plaintiff has kept quiet for seven years and by suppressing material facts, has approached Court which is not maintainable.
4. Defendant No.2 is a Proprietary concern represented by its Proprietor Sri.K.Ramachandra Iyer, died during pendency of the suit as such his legal representatives were brought on record as Defendants 2(a) to 2(d).
The proprietor of 2nd defendant Mr.K. Ramachandra Iyer, during his life time, has not submitted written statement.
The 2nd defendant has contended that plaintiff is in no way concerned with the suit property nor has any right, title, interest or possession over any part of the same in whatsoever 10 O.S.No.2268/1996 capacity. The 1st defendant denied that plaintiff was put in possession on 02.05.1988 and he was put in possession of the suit schedule property as on the date of the institution of the suit. The plaintiff has never been put in possession of the suit property nor he is entitled to put in possession thereof. The 2nd defendant is in peaceful possession and enjoyment of the schedule property as an absolute owner thereof, upon which neither plaintiff nor any other person has any rights of whatsoever nature and the plaintiff filed suit without any title, interest, right or possession over the suit schedule property is not maintainable in law. The 2nd defendant is a registered owner in occupation of the suit property. The 2nd defendant being an allottee, having been put in possession of the schedule property by the 1st defendant under possession certificate and the registered lease- cum-sale agreement, is in lawful possession of the same as such, suit of the plaintiff is baseless which cannot be entertained by the Court. The 1st defendant put the 2nd defendant in possession on 6.6.1990 vide possession certificate of the similar date. Thereafter, they have executed a registered lease-cum-sale agreement vide document dated 11 O.S.No.2268/1996 28.12.1994. The 2nd defendant obtained the plan duly approved from the concerned authorities and after putting up construction thereon is carrying on their business activities in the schedule property. In fact, 2nd defendant has a reasonable apprehension that plaintiff is likely to interfere with their peaceful possession and enjoyment of the schedule property. Further, suit of the plaintiff is barred by law of limitation.
5. In view of the above prime pleadings, this court formulated following issues which are recasted on 19.8.2000. They are as follows:
(1) Whether the 1st defendant proves that the plaintiff violated the terms and conditions of the allotment and as such allotment was cancelled?
(2) Whether the plaintiff proves that he continued to be in juridical possession of the suit schedule plot on the date of the suit?
(3) Whether the 2nd defendant proves that it is in lawful possession of the suit schedule plot on the date of the suit?
(4) Whether the suit is barred by
limitation period?
12 O.S.No.2268/1996
(5) Whether the suit is not
maintainable in view of the demand
by the plaintiff for an alternate site?
(6) Whether the valuation of the suit schedule plot is proper and court fee paid thereon is sufficient?
(7) Whether the 2nd defendant proves that it is a bonafide allottee of the suit schedule plot without notice of the previous allotment to the plaintiff?
(8) Whether the plaintiff is entitled to a declaration, as sought for?
(9) Whether the plaintiff is entitled to a decree of possession as sought for?
(10) Whether the plaintiff is entitled to a decree of permanent injunction, as sought for?
(11) What decree, what order?
6. In support of the above issues, plaintiff examined himself as P.W.1 and through him, Exs.P-1 to P-63 documents got marked. On the contrary, one Mr.M.S.Shivashankaran, GPA holder of 2nd defendant examined as D.W.1 and through him, Exs.D-1 to D-49 got marked. 1st defendant 13 O.S.No.2268/1996 examined one witness as D.W.2, through him Ex.D-50 to D-56 got marked.
7. After closure of evidence on either side, having heard the learned counsels for plaintiff and defendants 1 and 2, this court would prefer to record the following findings on the above issues: -
Issue No.1 : In the Negative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : Does not arise at all
Issue No.5 : In the Negative
Issue No.6 : Does not arise at all
Issue No.7 : In the Negative
Issue Nos.8 & 9: In the Affirmative
Issue No.10 : This issue becomes
redundant or infructuous
Issue No.11 : As per final order,
for the following:
REASONS
8. Issue No.6: The Court formulated this issue only after the plaint got amended pursuant to the relief sought by plaintiff. In the plaint, the plaintiff sought to declare that he is a confirmed allottee of the suit schedule land as per 14 O.S.No.2268/1996 confirmatory letter of allotment dated 23/28th March 1987 issued by defendant No.1 and possession certificate vide dated 6/20.06.1988. The issue whether valuation of the suit schedule plot is improper and if so, whether the court fee paid on the plaint by plaintiff is insufficient is already examined by the Court, recording finding against the plaintiff, by an order dated 19.01.2004. This issue was decided by the Court on the basis of the evidence on record, market value of the suit plot (excluding the building and machineries). It was valued at Rs.40.00 lakhs as on the date of the suit. Accordingly, directed the plaintiff to pay the court fees on Rs.40.00 lakhs. This was held by the court as required u/s.24(a) of K.C.F. & S.V.Act 1958. It is not in dispute that the plaintiff is not paid such Court fees on the valuation determined by the Court. In fact, it is borne from record that the plaintiff herein has paid court fee of Rs.1,69,520/-. It is to be ascertained herein from the valuation slip and the Court record that the plaintiff has paid Rs.7,605/-on the plaint earlier was taken into account to make good the Court fee to be paid by plaintiff. It is therefore, question of 15 O.S.No.2268/1996 recording finding on this issue does not arise at all. Accordingly, recorded.
9. Issue No.4: As the defendants have taken up specific contention that suit filed by plaintiff is barred by law of limitation, as such this issue was heard by the Court by giving opportunity to both parties, thereby a negative finding came to be recorded as per order dated 03.08.2007. The Court held this issue in favour of the plaintiff. In other words to say, Court held that suit filed by the plaintiff is well within time limitation, as such recording finding on this issue again does not arise at all.
10. It is also appropriate to make mention of the fact from the records that the 2nd defendant filed IA u/o.7 R.11 of C.P.C. r/w. Sec.34 of Specific Relief Act, which was heard and dismissed by an order on 09.03.2012. Further, to be noted herein that IA filed by LRs of 2nd defendant on 8.11.2011 u/o.14 R.5 of C.P.C. was heard and dismissed vide considered order dated 15.06.2012 of this court.
16 O.S.No.2268/199611. Issue No.5: If we examine order sheet dated 19.9.2000, found filing of a memo on behalf of plaintiff seeking for allotment of an alternate plot, in lieu of the suit property, which of course was never considered by the 1st defendant. Further to be noted herein from the order sheet that the memo is dismissed, on the ground that the 1st defendant to prevent the same being allotted to the plaintiff and deprive him of his opportunity, has allotted to the third party. The most important fact to be noted herein from the said memo that the request made to the 1st defendant to allot an alternate plot is made without any prejudice to his contentions in this suit, with only intention of resolve the suit in between the parties. It is therefore, learned counsel for plaintiff is right in contending that this issue had become redundant or infructuous. Thus, reaching to such conclusion, since we could not find any pleadings as to the allotment of the alternate plot, recording finding on such issue does not survive for consideration/ redundant/infructuous or it would be record in the Negative.
17 O.S.No.2268/199612. Issue Nos.1 to 3 and 7: All these four issues are vital which are to be decided by this Court on the basis of pleadings of the respective parties, their rival contentions, on the basis of oral/documentary evidence and principles enunciated in the decisions cited by learned counsels on record for the respective parties.
It is not in dispute that most of documents produced by plaintiff and defendant No.2 are originated from the office of 1st defendant. In so far as plaintiff is concerned, he is a Mechanical Engineer passed in 1983, wanted to start an industry of his own in the filed of Vaccum Metalising, as such applied to the 1st defendant for allotment of plot in Peenya Industrial Area, which in fact is not disputed by 1st defendant.
13. The plaintiff in the suit is examined as P.W.1. He has produced Ex.P-1 letter of intent issued by office of 1st defendant, which is dated 14/22.10.1983. This is a letter of intent in respect of allotment of land in Peenya II Phase Industrial area pursuant to the application submitted by S.B.Pradeep, No.25, Link Road, Malleshwaram, Bangalore-560 003 and this is dated 11.7.1983. In 18 O.S.No.2268/1996 this letter of intent, 1st defendant -Board prepared to allot plaintiff approximately half an acre in a plot No.29 for the proposed industry for the manufacture of Annoidasation (Job work) subject to the terms and conditions indicated in the Annexure appendix and also as per the terms and conditions mentioned in this document.
14. The plaintiff has not produced annexure appendix to letter of intent. However, 2nd defendant produced standard conditions attached to letter of intent as per Ex.D-1, wherein found, the time schedule for various activities subsequent to the issue of confirmatory letter of allotment under para-1(a) to 1(g). These time schedule are incorporated not only in the defence statement submitted by 1st defendant but the 2nd defendant. The time schedule for taking over possession of land would be one month from the date of receipt of confirmatory letter of allotment.
For making application for obtaining exemption orders u/s.20 of Urban Land (Ceiling & Regulation) Act, 1976 would be 15 days from the date of receipt of possession certificate.
19 O.S.No.2268/1996For execution of lease-cum-sale agreement would be 15 days from the date of receipt of possession certificate or receipt of exemption orders from the Government in Housing and Urban Development Department.
For getting approval of the Board for blue prints would be one month from the date of execution of lease agreement.
For commencement of Civil Engineering Works would be three months from the date of approval of Blue Prints.
For Completion of construction of factory building would be 12 months from the date of receipt of confirmatory letter in respect of small scale units and 18 months in respect of medium/large scale industries.
For commencement of production would be 24 months from the date of receipt of confirmatory letter.
15. According to 1st defendant, time schedule is not followed by the plaintiff herein would be discussed at an appropriate stage, whether they are the only condition precedents or any other 20 O.S.No.2268/1996 mandatory actions or omissions are to be examined by the court.
16. Now, let us come to examine Ex.P-1 letter of intent wherein in para-11, "Failure to fulfill any of the conditions at 1(a) to (g) of the time schedule shall result in cancellation of allotment and forfeiture of 99% of the amount paid towards the tentative cost of land together with the commitment charges, entire amount of interest and Earnest Money Deposit. Out of the amount forfeited 84% of cost of land shall be refunded to the concerned financial institutions which has financed the project."
17. The next document would be Ex.P-2 allotment letter issued by defendant No.1 is dated 15/19th October 1984 wherein Ex.P-1 intent letter is mentioned as reference letter, in consideration of payment of Rs.17,100/- made by plaintiff on 16.1.1984, 17.7.1984 and 5.10.1984 representing 15% of tentative cost of land, he was allotted 4040 square meters of land in plot No.29A of Peenya II Phase is none other the schedule property herein the plaint. The details of land allotted to plaintiff 21 O.S.No.2268/1996 could be seen under this document with specifying boundaries and its dimension as well as description which is located in Survey Nos.36 and 41 of Chokkasandra village. This was issued by Executive Member of 1st defendant is not in dispute. In other words to say that it was validly issued signed by all the four signatories.
18. Ex.P-3 to P-9 are receipts for having deposited amount of Rs.8,550/- on 16.1.1984, Rs.4,550/- on 17.7.1984, Rs.4,000/- on 05.10.1984, Rs.60,000/- on 08.06.1985, Rs.15,000/- on 23.12.1985, Rs.28,000/- on 29.01.1986 and Rs.622/- on 11.3.1986 with 1st defendant. In fact, these receipts are not disputed by 1st defendant. Ex.P-10 is a confirmatory letter of allotment issued by 1st defendant dated 23/28.03.1987. It is found in this confirmatory letter of allotment about payment of Rs.1,12,669/- and the plaintiff was advised to adhere to the time schedule prescribed in the standard conditions attached to the letter of intent namely, Ex.D-1 produced by 2nd defendant. If we examine this document could see that 1st defendant was advised in this confirmatory letter of allotment that he has 22 O.S.No.2268/1996 to take over possession of the land allotted to him within a month from the date of his letter. Further, he is requested to obtain and produce National Savings Certificate for Rs.1,000/-.
19. Ex.P-11 is a letter addressed to plaintiff by Executive Member of defendant No.1 dated 16/21.4.1988 which was sent by RPAD informing him that 1 acre of land in Plot No.29A of Peenya Industrial Area, II Phase for setting up of Aluminium Anodising unit and it is noticed that although the confirmatory letter of allotment was issued on 08.05.1987, so far plaintiff has not taken possession of land allotted in his favour thereby, failed to adhere the time schedule prescribed by the Board and in this regard, to take notice that he failed to contact Deputy Development Officer and take over possession of land within seven days from the date of receipt of this letter, further action will be taken to cancel the allotment for his failure to take over possession of land as per para-11 of the letter of intent namely Ex.P-1, this is dated 16.4.1988. Ex.P-12 is a possession certificate in respect of schedule property and the plaintiff has taken possession of plot No.29 'A' II Phase, Peenya 23 O.S.No.2268/1996 Industrial Area on 2nd May 1988. However, this possession certificate is dated 06.06.1988. The property described in this possession certificate is none other the property mentioned under allotment letter marked as per Ex.P-2 and the same is described as plaint schedule.
Thus, all these documents establish that schedule property which was allotted in favour of plaintiff and the plaintiff was put in possession of such property by defendant No.1 under Ex.P-12 on 2nd May 1988 and to that effect, issued possession certificate dated 6.6.1988.
20. Ex.P-13 to P-18 are letters addressed to the Secretary to Government, HUD Department and defendant No.1. In Ex.P-13 letter dated 28.06.1989 addressed by plaintiff to The Secretary to Government, H.U.D. Department, enclosing an application form u/s.20 and 6 of ULCR Act, 1976 duly filled therein, has requested for issuance of an exemption order at an earliest, so that he could get the lease-cum-sale agreement executed in his favour. He has marked copy of the said letter to The Executive Member of defendant No.1. Ex.P-14 is letter dated 19.2.1989 addressed to the 24 O.S.No.2268/1996 Executive member of defendant No.1 stating that he applied exemption u/s.20 and 6 of the ULCR Act, 1976 after enquiring with the Board Officers directly to the H.U.D. Department, enclosing copies of correspondences for their reference and informed that so far, he has not heard anything from the office of H.U.D. Department and he has requested that he intends to execute lease-cum- sale agreement with the Board. Ex.P-15 is letter dated 18.6.1989 referring Ex.P-14 addressed to Executive Member of defendant No.1 requesting to execute lease-cum-sale agreement in his favour in order to start construction activities and to go in to production at an early date. Ex.P-17 is letter dated 25.07.1991 addressed to Executive Member of defendant No.1 in the matter of execution of lease- cum-sale agreement corresponding to file No.4474 stating that he was allotted Plot No.29 'A' in 2nd Phase, Peenya Industrial Area to an extent of 4040 square meters and had remitted 99% of the cost of the land in the year 1984 itself and even after lapse of nearly five years, no lease agreement was entered between himself and defendant No.1, now he wants to execute lease agreement. Ex.P-18 is letter dated 13.6.1994 addressed to the Chairman, 25 O.S.No.2268/1996 KIADB namely defendant No.1 regarding execution of lease-cum-sale agreement informing that being a qualified Engineering Graduate, very much interested in manufacturing activity, with that intention had applied for allotment of Industrial land in Peenya II Stage. In response to his request, Board was kind enough to allot one acre bearing No.29 'A' in II Stage, Peenya Industrial Area on 15.10.1984. He has promptly paid 99% of the land cost as per Board's requirement by 29.01.1986. After much follow up, the Board issued a possession certificate on 06.06.1988. He repeatedly requested the Board to issue lease-cum-sale deed which went in vain and requested to make necessary arrangement to execute lease-cum-sale deed and permit him to go ahead with project immediately.
Thus, all the above documents produced by P.W.1 to seek relief in this suit against defendants.
21. However, according to 1st defendant, plaintiff kept quiet for a period of one year from 28.3.1987, as such Letter dated 21.4.1988 was issued to the plaintiff and thereafter, plaintiff had failed to obtain exemption from H.U.D. Department 26 O.S.No.2268/1996 and in getting the lease-cum-sale agreement executed, this defendant left with no other alternative had issued cancellation letter dated 6.7.1989 cancelling the allotment of the plot made in his favour. This action of the 1st defendant is seriously disputed by plaintiff. According to 1st defendant, Board took a decision in the meeting held on 28.2.1990 to allot the schedule land in favour of 2nd defendant and to that effect, letter of confirmation of allotment dated 28.2.1990 issued in favour of 2nd defendant. Further, possession of suit schedule land was also handed over to the 2nd defendant on 6.6.1990 by complying with all the formalities and the 2nd defendant after obtaining exemption from H.U.D. Department had started construction and production activity in the schedule property. Even this fact submitted by defendant No.1 and deposed by D.W.2 is seriously disputed by plaintiff contending that 1st defendant and defendant No.2 are colluded each other to deprive the suit plot possessed by the plaintiff even as on the date of institution of the suit. The plaintiff would contend that even without obtaining permission of the Court, pending determination of this suit, defendants 1 and 2 have entered into 27 O.S.No.2268/1996 deed of sale on 24.9.2001. According to plaintiff this was an arbitrary action of the statutory authority with malafide intention to deprive the rightful entitlement to establish the industry by an engineer graduate, who is now become Court bird right from the this court up to the Apex Court of India on one or the other orders.
22. According to 1st defendant, allotment of suit land was validly made in favour of 2nd defendant notwithstanding cancellation of suit plot allotted in favour of plaintiff for other reasons and he is not entitled for the reliefs claimed in the suit.
In this regard, it would be just and proper now to examine Ex.D-55 - "TO" REGISTER maintained by 1st defendant office marked through D.W.2. The relevant entries marked in this register are Ex.D-55(a) to D-55(e). According to D.W.2 - Assistant Secretary working with 1st defendant having been authorized by Chief Executive Officer and Executive Member of 1st defendant to give evidence in this suit has shown Ex.D-55(e) "TO" REGISTER entry as noted in the register is as follows:-
28 O.S.No.2268/1996Number Name & Particulars Postage Remarks Address 4996/ Pradeep NM-order 6-10 RPAD 4474 Industries, of his plot Malleshwaram, No.29A Bangalore-3. peenya Area
23. According to 1st defendant, above such letter was sent to plaintiff intimating him about cancellation of site allotted to him. It is to be noted herein could not find a postal receipt or postal acknowledgement except such entry. Further to be noted herein that the 1st defendant has failed to produce either office copy or contents of the said letter maintained by their office to prove that allotment made validly, confirmed and put him in possession was ordered to be cancelled for violation of the conditions attached to Ex.P-1 as found in Ex.D-1. It is the specific case of the plaintiff, he never received any letter from the office of 1st defendant informing him about cancellation of the allotment of site allotted, confirmed, thereafter put in possession of the same and he never dispossessed by 1st defendant followed by the process known to law. It is therefore, it would be 29 O.S.No.2268/1996 just and proper to appreciate evidence of D.W.2, P.W.1, Ex.D-55 keeping in mind the principles enunciated in the decisions cited by learned counsel for plaintiff, whether such an entry could be termed as service on plaintiff without producing contents of the letter informing plaintiff cancelling the allotment. It would play vital importance, since the very plot was allotted in favour of defendant No.2. It would be the contention of the plaintiff that even without following due process of law as contemplated either under the provisions of Karnataka Industrial Areas Development Act, 1966 or rules framed there under or under the Public Premises (unauthorized Occupants) Eviction Act, 1972 acted in flagrant breach of the provisions of law is for the reasons best known to them. It is therefore, this fact would play a vital importance to decide the facts in issue between parties in the matter to grant reliefs to the parties. Though the role of the 1st defendant would be more onerous than the 2nd defendant, considering the date of filing suit and the property being allotted, confirmed and put in possession by plaintiff validly and under valid documents for the reasons best known leave the said matter to be agitated by 30 O.S.No.2268/1996 defendant No.2. In other words to say that this dispute has become a dispute between plaintiff and 2nd defendant. However, in reality it is not so, since the ownership of the suit plot vests with the 1st defendant and it is not that the 1st defendant is an ordinary litigant but an Authority of the State Government, constituted under the State Act. The officers of the Board are none other officers of the State on deputation and they are conferred with certain duties owe to citizens in particular, entrepreneurs in the field of engineering and alike other matters in the best interest of the State. It is therefore, instead of 1st defendant participating actively or at least stepping into the witness box, have pushed 2nd defendant to enter into witness box is also for the reasons best known to the Board and its officers. This conduct of the 1st defendant and evidence on record establish that 1st defendant has supported the 2nd defendant in all and every aspect of the matters in respect of the suit property and the lis on hand, right from the date of filing of the suit till end. It is therefore, it would be just and proper to examine the documents produced by defendant No.2 in order to ascertain as to how and 31 O.S.No.2268/1996 the manner in which the suit plot was allotted in favour of 2nd defendant.
24. As already stated above, Ex.D-1 is a Standard Conditions attached to letter of intent. This is produced by D.W.1, who is examined on behalf of defendant No.2. In fact, clause 1(a) to 1(g) of this document has been incorporated in the defence statement submitted by defendants, they are as to the time schedule for taking over possession of land, for making application for obtaining exemption orders u/s.20 of the Urban Land (Ceiling and Regulation) Act, 1976, for execution of lease-cum-sale agreement, for getting approval of the Board for Blue Prints, for commencement of civil engineering works, for completion of construction of factory building and for commencement of production work in such property.
25. In this regard, plaintiff has submitted the following events for better understanding as to how the events are happened in the matter of the allotment etc; They are as follows:
32 O.S.No.2268/1996Sl. Date Particulars
No.
1. 22.10.1983 Letter of Intent from 1st
defendant to plaintiff
2. 19.10.1984 Letter of Allotment from 1st
defendant to plaintiff
3. 28.03.1987 Confirmatory letter from 1st
defendant to plaintiff
4. 26.06.1988 Possession certificate from 1st
defendant to plaintiff
5. 13.07.1988 Application from 2nd defendant to 1st defendant
6. 02.08.1988 2nd defendant pays Rs.30,576/-
to 1st defendant
7. 03.12.1988 1st defendant issues letter of intent to 2nd defendant
8. 22.02.1989 1st defendant issues allotment letter to 2nd defendant
9. 06.07.1989 Alleged cancellation of plaintiff by 1st defendant
10. 16.09.1989 2nd defendant pays Rs.2,40,997/-
to 1st defendant
11. 02/19.05. 1st defendant issues confirmatory 1990 letter to 2nd defendant
12. 06.06.1990 1st defendant issues possession certificate to 2nd defendant
13. 09.10.1992 ULC clearance to 2nd defendant
14. 28.12.1994 Lease-cum-sale agreement between 1 and 2 defendant st nd 33 O.S.No.2268/1996
15. 30.06.1995 1st defendant approves 2nd defendant's building plan
16. 30.03.1996 Suit filed as 2nd defendant starts construction
26. Thus, by noting down the above events which would play vital role, in deciding the issues on hand. Let us come to examine Ex.D-3 confirmatory letter of allotment. This is dated 11.05.1990 and it is issued in favour of 2nd defendant on the basis of letter of intent dated 03.12.1988 and letter of allotment dated 22.02.1989. In this confirmatory letter of allotment, 1st defendant allotted 4040 square meters of land in plot No.29 'A' of Peenya II Industrial Area and such allotment made in favour of 2nd defendant is confirmed by 1st defendant under this document pursuant to application dated 13.07.1988 submitted by 2nd defendant. Ex.D-4 is possession certificate in respect of property allotted and confirmed under Ex.D-3 in respect of schedule property on 06.06.1990 issued by Asst. Engineer and taken possession of property also on 6.6.1990. If we compare this document along with Ex.P-12 possession certificate issued in favour of plaintiff wherein found that 1st defendant 34 O.S.No.2268/1996 while issuing possession certificate on 6.6.1988, two years prior to Ex.D-4 was also issued by the same Asst. Engineer, whereas Ex.D-4 is not at all countersigned by Deputy Development Officer, Development Officer and Chief Development Officer. However, in Ex.P-12, all these officers have countersigned and in fact, property was put in possession of plaintiff on 02.05.1988 prior to issuance of this certificate. In other words to say that plaintiff has taken legal possession of suit property on 02.05.1988 and thereafter, the 1st defendant validly issued possession certificate. In so far as the possession certificate issued in favour of the 2nd defendant as per Ex.D-4 is concerned could not find counter-signatures of the authorized officers and it was issued only by the Asst. Engineer and to that effect as already stated above, there is no explanation assigned either by the 1st defendant or the 2nd defendant as to why issued only by the Asst. Engineer with keeping unsigned by the three counter-signing officers, suffice to think twice by the Court that there was some mischief played in the process of allotment made in favour of the 2nd defendant in so far as the suit plot is concerned, since they knew, that as on the date 35 O.S.No.2268/1996 was validly possessed by the plaintiff. Further to be noted herein that Ex.P-12 and Ex.D-4 were issued by different Engineers, but on comparison of signature found on these two documents could see that Asst. Engineer who has signed Ex.P-12 has also signed Ex.D-4, which would establish that he had knowledge of putting plaintiff in possession of suit property under Ex.P-12 as on 02.05.1998, yet he has issued Ex.D-4 even without obtaining counter-signature of Deputy Development Officer, Development Officer and Chief Development Officer respectively, who are counter-signing authorities under the KIADB Act. Thus, this fact would made the case of the plaintiff strong to hold that as on the date of filing of the suit, he was in possession of the suit property. Ex.D-5 is an agreement entered between Mr.K.Ramachandran, Proprietor namely lessee - 2nd defendant herein and the 1st defendant is dated 28th December 1994. Ex.D-6 is sanctioned plan for construction of industrial schedule dated 03.05.1995. Ex.D-8 is valuation report dated 14.04.2001 and they are only the documents came in to existence pursuant to the sale agreement as such need not require to examine in detail.
36 O.S.No.2268/199627. It is important to note herein that 2nd defendant has addressed a letter as per Ex.D-9 seeking an allotment of plot measuring one acre of land at Peenya Industrial Area. This letter is dated 11.07.1988. Ex.D-10 is a receipt for having paid Rs.500/- on 13.07.1988 towards earnest money deposit for the land allotted by the 1st defendant. Ex.D-11 is letter dated 15/19th July 1988 addressed by 1st defendant in favour of 2nd defendant that the Board decided to allot land in Peenya Industrial Area and no further action will be taken unless 15% cost of land as indicated amounting to Rs.30,584/- will be deposited within seven days from the date of receipt of this letter. Accordingly, as per Ex.D-12 on 02.08.1988, Rs.30,576/- was deposited by the 2nd defendant in favour of the 1st defendant. Thereafter, Ex.D-13 letter of intent was issued to 2nd defendant for allotment of land in Peenya IV Phase Industrial Area pursuant to the application dated 13.07.1988. If examined could see that the Board decided to allot approximately half an acre of plot No.454 at Peenya IV Phase Industrial Area. Thus, these documents are not in respect of schedule property but the property which was allotted to 2nd 37 O.S.No.2268/1996 defendant pursuant to the application stated above are not at all disputed by the plaintiff and they are nothing to do with the suit plot situated at Peenya II Phase I A.
28. Ex.D-14 is a letter dated 13.1.1989 addressed by 2nd defendant to 1st defendant requesting for additional half an acre and to review the situation to allot minimum one acre of land in Peenya Industrial Area. Thus, the 1st defendant only after this letter, wake up to allot the suit schedule property in favour of 2nd defendant without validly canceling the allotment made in favour of plaintiff and this action on the part of the Board is seriously disputed by the plaintiff in the evidence. It is to be noted herein that the 1st defendant has not at all informed the plaintiff as to allotment of the suit Plot in favour of the 2nd defendant. In this regard, we could not find any evidence as to placing the same for consideration before the Board by giving an opportunity to the plaintiff, who is proved to be in possession of the said Plot. It is to be noted here in that as per Ex. D-15 on 21/22.02.1989 pursuant to Ex.D-14 allotted 1913.0 square meters of land in plot 38 O.S.No.2268/1996 No.324 of Peenya IV Phase Industrial Area in lieu of earlier allotment of half an acre of land in Plot No.454 of the same area in favour of the 2nd defendant. The details of the plot also enclosed to the said letter. All other terms and conditions stipulated in the letter dated 03.12.1988 remain unaltered. It is to be noted herein that this is the allotted plot No.324 measuring 1913.0 square meters and not the schedule property. Further could see allotment letter dated 21/22-02-1989 specifying the property allotted in favour of defendant No.2 with specific boundaries, in consideration of payment of Rs.30,576/- made by defendant No.2 on 02.08.1988. Ex.D-16 is letter dated 02/03-03-1989 addressed by Executive Member of 1st defendant to 2nd defendant referring letter dated 13-01-1989 namely Ex.D-14 that they were allotted half an acre of land in Plot No.324 in lieu of same extent allotted in plot No.454. It is given to understand that they have approached Chairman, KIADB with a request to allot one acre of land in Plot No.17-J1 and 17-J2 of Peenya Industrial Area. In this connection, as they are measuring half an acre each and if they intend to have half an acre of land in either plot No.17-J1 or 39 O.S.No.2268/1996 17-J2, same could be considered. In other words to say that absolutely there was no reference about schedule property to be allotted in favour of defendant No.2 as on this date would establish that plaintiff was in possession of schedule property as on the date of Ex.D-16.
29. Ex.D-17 and D-18 are two receipts for having deposited Rs.1,12,222/- on 16.09.1989 and Rs.1,28,775/- on 15.03.1990 by 2nd defendant towards 99% of balance cost of land. Ex.D-19 is letter dated 4/10.04.1989 addressed by 1st defendant to 2nd defendant requesting to deposit Rs.20,390/- with commitment charges of Rs.352/- on or before 16.04.1990 to enable them to take further action. Ex.D-20 is receipt dated 25.04.1990 for having deposited Rs.20,742/- by 2nd defendant with 1st defendant which in fact are not disputed by any of the parties. Ex.D-21 is order dated 09.10.1992 signed on 19.08.1992 by Under Secretary, H.U.D. exempting the provisions of Sec.20(1) of ULCR Act, 1976. Ex.D-22 is letter dated 07.08.1989 addressed by Mr.K.Rama- handra Iyer with reference to their letter dated 09.03.1989 and subsequent discussions regarding 40 O.S.No.2268/1996 allotment of one acre of land requested to allot one acre land in lieu of half acre of land which has already been allotted. Thus, this letter establishes that there was no action as on such date to consider as to allotment of schedule property in favour of 2nd defendant in lieu of half acre of land which has already been allotted. It is therefore, 1st defendant has taken notice of the fact that as on such date, the suit schedule property was already allotted in favour of plaintiff, to whom confirmatory letter was sent and the plaintiff has already deposited 99% of the lease price of the land allotted to him and he was put in possession of the said property by 1st defendant which is already stated above, signed by all the competent officers or we may call it authorized signatories by issuing possession certificate to that effect not on the date of putting him in possession but after few days which could be seen from the said certificate. It is therefore, question arisen as to why the 1st defendant has suddenly taken decision to allot the suit property in favour of 2nd defendant without following procedure contemplated under the said Act is for the reasons best known to the officers of the Board and 2nd defendant. In this regard, this 41 O.S.No.2268/1996 court would like to observe here that so far as allotment or cancellation of Plot in the Industrial Area is concerned, powers are vest with the Board under the Act and the Court in the present suit has to examine whether plaintiff was in possession of the suit Plot as on the date of the suit and to examine whether he is entitled for recovery of possession.
30. Ex.D-23 is a letter dated 06.08.1990 addressed by 2nd defendant in favour of 1st defendant forwarding set of documents to Additional Special Deputy Commissioner, Urban Land & Ceiling, for exemption of their allotted plot along with required papers. Ex.D-24 is a letter addressed to the Additional Special Deputy Commissioner and competent authority, Urban Land Ceiling, Bangalore, dated 11.12.1990 informing him that the Under Secretary to Government, Housing and Urban Development Department, have forwarded their application for exemption under ULCR Act, 1976. Their proposed project is getting delayed for want of their report. Ex.D-25 is letter dated 28.08.1992 requesting defendant No.1 to write the Department of Housing 42 O.S.No.2268/1996 and Urban Development for an early action in this regard marking copy to The Secretary of 1st defendant; The Commissioner - Industries and Commerce Department; Secretary - Department of H.U.D. and the Addl. Special Deputy Commissioner - Urban Land Ceiling, Bangalore, seeking exemption u/s.20 of U L (C & R) Act, 1976 in respect of plot No.29-A of Peenya II Phase Industrial Area. Ex.D-26 is yet another letter addressed to 1st defendant is also on the same subject namely exemption u/s.20 of U L (C & R) Act, 1976 requesting to look into the matter and revert to them with a favourable reply. Ex.D-27 is yet another letter addressed by 2nd defendant in favour of 1st defendant on 05.11.1992 to grant an additional period of two years for implementation of the project attaching the standard condition attached to letter of intent. Ex.D-28 is letter seeking extension of time for implementation of project at plot No.29-A, Phase II, Peenya. Ex.D-30 is letter of 2nd defendant addressed to the Secretary, Department of Housing and Urban Development that it was an inordinate delay in exemption of Industrial land allotted by KIADB, although fulfilled all the necessary formalities as 43 O.S.No.2268/1996 required and as communicated, they have not yet obtained exemption orders, this is letter dated 25.4.1992 establish that plaintiff was in possession of schedule property even as on the said date. It is to be noted herein that what is applied to 2nd defendant would also applies to plaintiff herein in the matter of obtaining ULCR and the time schedule, since, plaintiff being confirmed allottee in possession has also requested seeking exemption of ULCR from concerned authority. It is also to be noted herein that obtaining ULCR is only a procedural aspect and it is also the duty of the 1st defendant Board to see that ULCR could be issued at an earliest point of time. When plaintiff has fulfilled all requirements except awaiting ULCR from Special Deputy Commissioner, Bengaluru. The plaintiff is a small entrepreneur. He is an Engineer graduate of the year 1983, intended to establish his own industry in the schedule property. His ambition was to start the said project in the suit Plot, which could not be commenced because of inordinate delay in exempting u/s.20 of ULCR Act, 1976, would certainly a big set back or a blow not only to him but would give rise to draw an inference, as to how 44 O.S.No.2268/1996 the government authorities are functioning as they wish and will, which would put similar such entrepreneurs to put financial loss and their future prospects in the industrial field.
31. Ex.D-31 is a letter dated 22/24.02.1990 addressed by 1st defendant to 2nd defendant allotting half an acre of land assigned 4040 square meters of land in plot No.29-A of Peenya II Phase in lieu of plot No.324 of Peenya IV phase and requested to remit a sum of Rs.1,28,775/- towards balance 99% cost of land together with commitment charges. Thus, 1st defendant allotted the suit property under this letter. In so far as deposit of 99% of cost of land together with commitment charges is remitted by 2nd defendant is already stated above. Ex.D-32 is a letter dated 24/30.05.1994 addressed by 1st defendant to 2nd defendant in view of delay in grant of exemption u/s.20 of ULCR Act, 1976, he has granted 13 months extension of time from the date of receipt for construction of the factory building and commencement of production. If this action of the 1st defendant could be possible in so far as 2nd defendant, why not in favour of plaintiff would be a 45 O.S.No.2268/1996 question mark, although he had fulfilled all the requirements except awaiting exemption u/s.20 of ULCR Act, 1976. Ex.D-33 is a letter dated 08/10.11.1994 written by Deputy Director of 1st defendant in favour of 2nd defendant requesting to remit Rs.34,165/-. Ex.D-34 is a receipt for having remitted such amount on 16.11.1994. Even on such date, possession of plaintiff has to be said as an confirmed allottee in possession of the suit schedule property as he too was awaiting grant of exemption u/s.20 of ULCR Act, 1976. Ex.D-29 is a letter of 2nd defendant addressed to 1st defendant that they are in receipt of their letter, requested to furnish lease-cum-sale deed proforma to execute the same at the earliest. Ex.D-35 is a letter dated 28.12.1994/03.01.1995 addressed by 1st defendant in favour of 2nd defendant enclosing a lease agreement and to present the same before Sub-Registrar, Bangalore North Taluk, Bangalore, before 28.02.1995 to have it registered and to return the original registered document to their office.
32. Ex.D-36 is a letter addressed to defendant No.2 by Deputy Development Officer of defendant 46 O.S.No.2268/1996 No.1 pursuant to letter dated 03.05.1995 intimating that the license is valid up to 30.06.1995 subject to the conditions mentioned in the letter. Ex.D-37 is letter dated 31.12.1995 addressed by Asst. Engineer of defendant No.1 to defendant No.2 informing that the license granted to 2nd defendant for construction of factory building has expired on 30.06.1995. But it is noticed that he continued with the construction work in spite of instructions to stop the work during previous inspections of their plot. As such, 2nd defendant was informed to stop construction works immediately and approach the head office to obtain extension of time for implementation of their project failing which action will be initiated against defendant No.2.
33. It is pertinent to note herein that letters on such line never addressed to plaintiff before allotting suit site in favour of 1st defendant and before cancellation of the suit plot for non- fulfillment of conditions attached to letter of intent in so far as time schedule. Although plaintiff was waiting for an order from concerned department to exempt u/s.20 of ULCR Act, as already stated that 47 O.S.No.2268/1996 obligation there under is not unilateral, since 1st defendant Board is also obliged to see that the said process has to be pursued from concerned department to get exemption u/s.20 of ULCR Act or else at least to expedite the proceedings pending before Housing and Urban Development Department, whether before concerned Secretary or before Special Deputy Commissioner authorized to deal such matters appointed as competent authority by Government to encourage the new entrepreneurs.
34. Ex.D-39 is a letter dated 29.10.1990 addressed by Under Secretary to Government, H.U.D Department (ULC) marking a copy to 2nd defendant, directing Addl. Special Deputy Commissioner and Competent Authority, Urban Land Ceiling about receipt of letter dated 15.10.1990 from KIADB and to examine the proposal and to furnish a report to Government immediately. It is to be noted herein that by then, plaintiff was also awaiting such an exemption from competent authority. Yet, the 1st defendant has failed to act upon on the request of the plaintiff to pursue the matter before competent authority or 48 O.S.No.2268/1996 concerned department as the case may be. It is already stated that allotment of suit plot by 1st defendant in favour of 2nd defendant is under Ex.D-31 on 22/24.02.1990 by way of a letter written by Executive Member of 1st defendant.
35. Ex.D-40 is notice u/s.20(1) of the Urban Land (C&R) Act, 1976 dated 17.03.1992 in respect of property bearing No.29-A measuring 4040.00 sq. meters, this notice is issued by Surveyor, Urban Land Ceiling, Bangalore, in favour of 2nd defendant. Ex.D-41 is letter dated 19/25.08.1992 addressed to 2nd defendant to obtain exemption order from Housing and Urban Development Department establish the fact that 1st defendant was unaware of Ex.D-40 notice dated 17.03.1992. It is to be noted herein that 1st defendant is Board and the property vest with Board. Therefore, any notice to be issued by Surveyor, Urban Land Ceiling, Bangalore in favour of 2nd defendant had also to be notified to 1st defendant which is lacking in this document.
36. The next document would be Ex.D-42 sale deed dated 24.09.2001 executed by Asst.
49 O.S.No.2268/1996Secretary of 1st defendant in favour of 2nd defendant in respect of schedule property, though the matter is seized in this suit either 1st defendant or 2nd defendant have not obtained permission from Court to execute this sale deed on 24.09.2001. Admittedly, this suit is filed on 29.03.1996 seeking certain reliefs which is within the knowledge of defendants 1 and 2. 1st defendant is a statutory authority constituted under law by the State Government, yet, executed sale deed in respect of schedule property in favour of 2nd defendant without obtaining permission from Court. Ex.D-43 is sketch showing the plot No.29/A. Ex.D-44 to D-49 are photographs produced through D.W.1 to show that their employees are working in the factory premise.
37. D.W.2 is one of the officer of 1st defendant and he has produced Ex.D-51 letter of intent dated 01/03.12.1988. It is not in respect of suit property but in respect of half acre of land in plot No.454 of Peenya IV phase. Ex.D-52 is already marked as Ex.D-31 through D.W.1. Ex.D-53 is already marked as Ex.D-4 through D.W.1.
50 O.S.No.2268/199638. Ex.D-56 is a counter affidavit filed by respondent No.2 - The Secretary of 1st defendant in a Special Leave Petition (Civil) No.25986/2014 before Hon'ble Supreme Court of India between 2nd defendant herein as petitioner, plaintiff and 1st defendant herein as respondents 1 and 2. It is not necessary to examine the contents of counter affidavit filed by Secretary, KIADB in the said petition.
39. The last document would be Ex.D-54 produced through D.W.2 is a letter dated 25.07.1996 written by plaintiff to 1st defendant regarding plot No.29(A) at II Phase, Peenya Industrial Area that on his application for grant of temporary injunction against 2nd defendant, the Court has made an order for maintenance of status-quo on 17.07.1996 and he deliberately refrain from making any comments about what has transpired so far but his humble request that injustice which has been indisputably done to him, may kindly be undone by their good self without waiting for a verdict from the Court to restore plot to him and he is confident that with their widely known sense of justice and fair play, they will not 51 O.S.No.2268/1996 hesitate to do justice to him, by allotting an alternative plot in the same location, at the same term and conditions of the allotment of plot 29(A) which would enable him to achieve his 10 year old ambition of starting an industry of his own being a qualified graduate Mechanical Engineer. He has waited nearly ten years and any further wait would cause him insufferable mental agony, suspense, great financial loss and damages, for no fault of him. He has made such application without prejudice to his claim made by him on the suit plot and he shall withdraw his suit unconditionally as soon as his request is conceded. On this request letter, much argued, not only by 1st defendant, but also by 2nd defendant, that it would establish that plaintiff is not entitled for any reliefs in the suit, which would be discussed at an appropriate stage.
40. Learned counsel for 1st defendant would submit that allotment made in favour of plaintiff is subject to cancellation and resumption and power to cancel allotment is provided for in The K.I.A.D. Act are in line with Sections 11 and 31 of T.P. Act and no specific permission of Court is required to be obtained, unlike resumption power of leased 52 O.S.No.2268/1996 property. In this regard, relied on a decision reported in ILR 1998 KAR 1637 in Sri.Venkata- ram Company Vs. State of Karnataka and others.
41. Further would submit that power to cancel and forfeiture are lawful and not opposed to public policy and to find support placed reliance reported in ILR 2005 Kar.774 in KSSIDC vs. Prinyanka Products and another.
42. Further would submit that notice of cancellation sent by registered post and presumption of receipt that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre- paying and properly addressing it the same has been received by the addressee and to find support placed reliance in reported in AIR 1981 SC 1284 (Har Charan Singh vs. Shiv Rani) and AIR 1989 SC 630 (M/s.Madan and Company vs. Wazir Jaivir Chand).
43. Further would submit that 1st defendant need not approach Court to rescind allotment since 53 O.S.No.2268/1996 no right exists after cancellation of allotment and there is a bar under Specific Relief Act (Sections 22, 31 and 34). Further, plaintiff waived his claim by not challenging the acts of the 1st defendant. In this regard, relied on a decision reported in 1965 (2) SCR 222 in Satyanarayan vs. Yellogi Rao.
44. Further would submit terms of allotment not complied with and mandatory exemption approval from ULCER authorities not obtained and no possession as on date of suit and no right, title on the property in favour of plaintiff as such, relief cannot be granted as prayed by plaintiff and further, plaintiff has not sought relief against 2nd defendant to whom registered lease deed got executed in 1994 much prior to the date of suit in 1996 and the plaintiff was aware of cancellation of his plot but suppressed the same and the cancellation of the suit plot was not challenged. Further would submit that no registered instrument obtained by plaintiff from 1st defendant and he cannot seek protection u/s.53-A of T.P. Act.
45. Learned counsel for 1st defendant would submit supporting the contentions of the 2nd 54 O.S.No.2268/1996 defendant that execution of sale deed pending disposal of the suit to which Doctrine of lis pendens does not apply at all, since the 2nd defendant was allotted with the suit plot prior to initiation of the suit, as such 2nd defendant could not be termed trespasser in possession. Further would submit that in such circumstances, Court cannot grant any relief in favour of plaintiff much less prayed in the suit and if would granted, would affect rights of other interested parties. 1st defendant would submit that the conduct of the plaintiff disentitles grant of any relief, as amended plaint is not in conformity with the original plaint.
46. The learned counsel for 2nd defendant would submit allottee of land is only a Licensee, order dated 04.04.2013 passed by the Bench of Hon'ble High Court in the case of Karnataka Industrial Areas Development Board vs. Hegde and Golay Limited rendered in OSA No.25/2012 c/w. OSA No.26/2012 is relied on wherein in paragraph-33 on page-47, it was held, "Therefore, in the instant case, it is clear that the Company was allotted a site by the Board 40 years back. Therefore, we have to find out 55 O.S.No.2268/1996 what is the nature of right the company acquired under such allotment. Regulation 15 of the Karnataka Industrial Areas Development Board Regulations, 1969 deals with the rights of allottee as a licensee, which reads as under:
"15. Allottee as a Licensee:
Till the agreement for lease, sale or lease-cum-sale is executed, the allottee will be considered as a mere licensee who shall have licence and authority only to enter upon the land allotted to him and to start construction of buildings or works and will have no power to legally alienate his interest except to the extent allowed by the Board for raising loans. No sub-division of the plot will be allowed without the permission of the Board given in writing."
47. Further in para-34, "A reading of the aforesaid provision makes it very clear, till the agreement for lease or lease- cum-sale is executed, the position of the allottee would be as a mere licensee who shall 56 O.S.No.2268/1996 have licence and authority only to enter upon the land allotted to him and to start construction of buildings or and will have no power to legally alienate his interest except to the extent allowed by the Board for raising loans. Therefore, by an allotment, the allottee do not acquire any interest in the immovable properties. When an allotment is made under the provisions of the Karnataka Industrial Areas Development Act, 1966, the Board has the power to resume possession of the premises or part thereof or the residential tenement as in the manner provided under Section 34B. Section 34B reads as under:
"34B: Resumption of the possession of premises including the residential tenements on breach of terms and conditions of lease or holding without authority:
(1) Where the Board is of the opinion that an allottee of any premises or part thereof or residential tenement in an industrial area or industrial estate has violated any of the terms or conditions of allotment or holds it 57 O.S.No.2268/1996 without any authority it may, without prejudice to Section 25 give notice to such allottee and Banks or Financial Institutions, in whose favour the Board has permitted the mortgage or leasehold rights of the premises, or residential tenements specifying the breaches of the terms and conditions of the allotment calling upon the allottee to remedy such breaches within a time stipulated in the notice.
(2) If the allottee fails to remedy the breaches within the time so stipulated, the Board shall serve a notice upon the allottee under intimation to such Bank or Financial Institutions to show cause within thirty days from the date of service of notice, why the possession of the premises or part thereof or residential tenement should not be resumed.
(3) After considering the cause, if any, shown by the allottee and after giving him an opportunity of being heard, the 58 O.S.No.2268/1996 Board may pass such orders, as it deems fit.
(4) Where the Board passes an order under sub-section (3) for resuming possession of the premises or part thereof or residential tenement in the industrial area it may, by notice in writing, order any allottee to surrender and deliver possession thereof to the Board or any person duly authorized in this behalf within the date specified in the notice.
(5) If any allottee refuses to surrender or deliver the possession of the premises or part thereof or residential tenement within the time specified in the notice, the Board or any officer authorized by it in this behalf may resume the possession of the premises or part thereof or residential tenement free from all encumbrances and for that purpose may use force as may be necessary."59 O.S.No.2268/1996
48. Further would submit that when plaintiff has not challenged cancellation of site, submitted can he maintain suit is a point to be decide by the Court. The 1st defendant wrote letters to rectify as to the time schedule attached to letter of intent marked as per Ex.D-1.
49. Further would submit Resumption of land is justified in the terms and conditions of allotment are not adhered. In this regard, placed a reliance in Indu Kakkar vs. Haryana State Industrial Development Corporation Limited in (1999) 2 SCC 37 and Karnataka State Small Industries Development Corporation Limited, Bangalore vs. Priyanka Products, Mumbai & another in 2005 (2) Kar.L.J.5 (DB).
50. The learned counsel further would submit that letter of allotment does not create any right over the property and placed Hansa vs. Gandhi vs. Deep Shankar Roy in (2013) 12 SCC 776 and B.Krishnappa vs. Bangalore Development Authority in RFA No.1303/2011 dated 19.02.2014.
60 O.S.No.2268/199651. Further would submit that Court has no jurisdiction to grant relief when no relief is sought against a party. In this regard, placed the following decisions, they are:
1. Sheikh Abdul Kayum and others vs. Mulla Alibhai and others (AIR 1963 SC
309)
2. Scotts Engineering, Bangalore vs. Rajesh P.Surana and others [(2008) 4 SCC 256]
3. Bharat Amratlal Kothari vs. Dosukhan Samadkhan Sindhi & others AIR 2010 SC 475
4. Fertilizer Corporation of India Ltd., and another vs. Sarat Chandra Rath & others AIR 1996 SC 2744
5. Om Prakash and others vs. Ram Kumar and others [(1991) 1 SCC 441]
6. Dr.Shehla Burney & others vs. Syed Ali Mossa Raza (Dead) by LRs & others (2011) 6 SCC 529
52. Further, would submit that subsequent allotment results in novation of previous allotment and to find support placed 2006 (10) SCC 96 in Jitendranath vs. Jubilee Hills Co-op. House Building Society. Learned counsel further submit 61 O.S.No.2268/1996 that Sec.53-A of T.P.Act can only be used as a defence and to find support placed AIR 1968 SC 794 in Delhi Motor Company vs. V.A.Basrurkar and submit that when consequential relief of possession is not sought, suit is barred u/s.34 of the Specific Relief Act, 1963 and to find support placed reliance AIR 1972 SC 2685 in Ram Saran vs. Ganga Devi and (2012) 8 SCC 148 in Union of India vs. Ibrahim Uddin and others.
53. Learned counsel further submit that Court should not grant relief which is merely illusory and to find support placed reliance reported in ILR 2007 KAR.339 in Sri.Aralappa vs. Jagannath and others wherein it was held, "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit.
54. Further, it was held, "When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate 62 O.S.No.2268/1996 consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property."
55. The learned counsel would further submit Registration of instrument is constructive notice and to find support placed ILR 1997 KAR 3434 in Sha Champalal Oswal vs. Peralu A Channa and would submit that plaintiff is not entitled for reliefs against defendant No.2
56. On the contrary, learned counsel for plaintiff submits that in C.R.P.No.2203/1999 passed by Hon'ble High Court dated 7th March 2000 filed by 2nd defendant herein against plaintiff
- S.B.Pradeep and 1st defendant - KIADB aggrieved by the order dated 14.06.1999 passed by VI Addl. CCJ, Bangalore, on IA-3 in O.S.No.2268/1996, it was held in para-6:
"The Trial Court has chosen to allow the amendment. As warranted by the facts of the case, the plaintiff is the owner of the property by virtue of the allotment made to him as early as nine years prior to the suit 63 O.S.No.2268/1996 and this factum has already been mentioned in para 3 of the plaint, and a reference has also been made. It is only for incorporation of the prayer by way of Declaration and the question of limitation does not arise."
In Para-8, "The only question is whether the allotment made in favour of defendant No.2 by the 1st defendant is valid, especially when there is already an allotment made in favour of the plaintiff which was followed by the certificate of possession."
Para-9, "Normally, the title goes in respect of any open land to the title holder or the allottee as in this case. No doubt one of the arguments made by the learned counsel for the petitioner that the later order of allotment to the 2nd defendant has not been challenged. In my opinion, such challenge is not necessary, because in the light of earlier order the subsequent order becomes bad in law, and the K.I.A.D.B / Board should have 64 O.S.No.2268/1996 verified its own records before granting the site on the mere filing of the application. This is not first case that has come up for consideration before this Court and this Court has taken judicial notice of the fact that when an allotment is made in respect of an allottee and possession certificate is also issued, suddenly some allotment is made in respect of another person and he is also given a possession certificate. Now it is too early to decide as to who exactly is the rightful owner of the property entitled to be in possession thereof. However, prima facie, the case is in favour of the plaintiff that he must be deemed to be in possession of the property by virtue of the possession certificate as well as the order of allotment. If that be the disposition by the KIAD or the plaintiff, then as a public authority they should have produced the records to show that the plaintiff was dispossessed before granting possession certificate in favour of the defendant No.2. Therefore, taking into consideration the prima facie case in favour of the plaintiff, and taking further into 65 O.S.No.2268/1996 consideration that the declaration is only formality which is based upon an allegation and averment made in the plaint on the date of filing of the plaint itself, the legal objection was taken by the defendant in the written statement that the defendant has put the burden on him to prove the validity of the order of allotment in favour of the plaintiff and the validity of the possession certificate in favour of the plaintiff, the legal objection was sought to be rectified by praying a declaration, in such an event, it cannot be said that the amendment cannot be allowed."
57. Consequently, dismissed the revision petition and the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.11682/2000 dismissed the leave petition and in Special Leave to Appeal (C) No.14387/2014 on 05.01.2015 dismissed the special leave petition arising out of the judgment and order dated 01.04.2014 in W.P.No. 25090/2012 passed by High Court of Karnataka.
66 O.S.No.2268/199658. Learned counsel for plaintiff would submit that order of cancellation of allotment had said to have been issued and said to have been sent to plaintiff by registered acknowledgement due as per Ex.D-55(e) itself is not proved would be the reply to all the contentions urged on behalf of the defendants 1 and 2. If we examine Ex.D-55(e) we could not find date and particulars as to the content of RPAD, no postal receipt or postal acknowledgement due are pasted/attached for having sent to the plaintiff. In this regard, learned counsel placed reliance 1998 SCC Online Kar 24 :
(1998) 4 Kant LJ 57 in Smt.B.K. Parvathamma vs. Bangalore Development Authority wherein it was held, "If an order is passed and kept in the drawer or always kept in the office without it being sent or served on the person concerned, the order cannot be said to be effective."
It is therefore, learned counsel would rightly submit that letter said to have been sent to the plaintiff cancelling the allotment shall be deemed to be ineffective and inoperative as it had never been communicated to the plaintiff and confirmed 67 O.S.No.2268/1996 allottee of the schedule property shall not be deemed to have been cancelled by ineffective order by cancelling and the plaintiff shall not incur any disqualification as he was put in possession of schedule property under valid possession certificate.
59. Learned counsel placed reliance reported in ILR 1990 KAR 3599 in K.S.Prakash vs. Bangalore Development Authority, wherein it was held in para-22 "Apart from the unilateral action taken by the Chairman during the dying minutes of his office, the question arises as to why a reasonable opportunity of hearing was not afforded to the petitioner before a decision was taken to reverse the earlier order and to make a fresh allotment in favour of respondent-2. The principles of natural justice enter the scene here. Fair play requires that the petitioner who would suffer civil consequences of revocation of the earlier order of allotment and a decision for making a fresh allotment to respondent- 2 should have been permitted to make his 68 O.S.No.2268/1996 representation to substantiate his case for grant of possession certificate in the context of the earlier decision taken in the matter by the B.D.A. Denial of this opportunity amounts to a flagrant violation of the Rule of Law and is further accentuated by the failure of a public authority in the performance of its statutory functions. There is no room for arbitrariness in the matter of this nature where substantive rights of the parties are involved. I am of the opinion that denial of possession certificate to the petitioner is illegal and irrational and the allotment of the marginal land in question to respondent-2 is illegal, arbitrary and capricious."
As already stated above that Ex.D-4 possession certificate dated 6.6.1990 issued by 1st defendant is signed by Assistant Engineer and not countersigned by Deputy Development Officer, Development Officer and Chief Development Officer who are authorized to subscribe their signatures as countersigning authorities, which would play a vital importance and the principles enunciated in the decision cited supra is directly applicable to the 69 O.S.No.2268/1996 facts in so far as Ex.D-4 possession certificate is concerned. The 1st defendant through D.W.2 has failed to produce the proceedings of the Board for having cancelled the allotment in favour of plaintiff and for having taken possession of the suit property before allotting in favour of defendant No.2. In other words to say that plaintiff was put in duress between such integral period which would not helpful to the defendants in the present suit.
60. Learned counsel for the plaintiff placed a reliance reported in ILR 1996 KAR 3384 in M/s.Hanuman Silks & another vs. Karnataka Industrial Areas Development Board & others wherein it was held, "The absence of any provision enabling the Board to take possession from Lessees and the express provision for making Public premises Act applicable to the premises leased by the Board, leads to inescapable conclusion that termination of leases and eviction of Lessees are left to be governed by contract and general law. Therefore, any act of forcible dispossession of a Lessee by 70 O.S.No.2268/1996 the Board will be an act otherwise than in accordance with law."
Further in para-11.6, "No where does the Act provides for the Board taking back possession of the leased plots from the Lessees, without recourse to eviction proceedings, whatever be the circumstances. On the other hand, the Act contains a specific provision (Section 25) providing for application of Public Premises Act to premises leased by the Board. The absence of any provision enabling the Board to take possession from Lessees and the express provision for making Public Premises Act applicable to the premises leased by the Board, leads to inescapable conclusion that termination of leases and eviction of Lessees are left to be governed by contract and general law. Therefore, any act of forcible dispossession of a Lessee by the Board will be an act otherwise than in accordance with law."
71 O.S.No.2268/1996Further in para-11.9, "The Board placed strong reliance on Section 14(f)(ii) to contend that the Statute enables it to evict allottees and that enables the Board to take possession from Lessees, without recourse to any action for eviction.
The word 'evict' is not synonymous with the word 'dispossess". Normally, the word 'evict' connotes lawful dispossession by process of law, that is to recover possession by virtue of a judgment or order of a Court of Law or empowered authority. Thus the power to 'evict the allottee' given to the Board is the power to remove the allottee from possession by an 'eviction proceedings' and not a power to forcibly and directly dispossess an allottee without recourse to an eviction proceedings. The Act does not lay down any procedure to evict tenants. Hence the word 'evict' in Section 14(4)(ii) only means to take possession in the manner provided in law. At all events, Section 14(4)(ii) does not apply to allottees of plots or sites. Section 14(f)(ii) empowers 72 O.S.No.2268/1996 the Board to modify or rescind such allotments, including the right and power to evict the allottees concerned, on breach of any of the terms and conditions of their allotments. The use of the words 'such allotments' and 'allottees concerned' in Section 14(f)(ii) shows that the power to 'evict' is in respect of allottees mentioned in Sub-clause (1) of Section 14(f), that is, allottees of factory sheds or part of buildings or residential tenements and not allottes of plots."
61. The suit filed by plaintiff initially for grant of injunction, got amended, consequently sought for declaration and for recovery of possession with a plea that during pendency of the suit, defendant No.2 in collusion with defendant No.1 put up construction, though Court directed parties to maintain status-quo. It is true that the plaintiff has not sought for recovery of building put up by defendant No.2 on the suit plot and he cannot seek such relief also. In this regard, learned counsel for plaintiff placed reliance reported in AIR 1980 73 O.S.No.2268/1996 PATNA 197 in Ramrup Rai vs. Mst.Gheodhari Kuer & others wherein it was held in para-8 "It cannot be disputed that where the defendant puts up construction pendent elite or after the passing of the decree, then the executing Court can order demolition of the structures and deliver vacant possession. But where the constructions are put up before the institution of the suit, the executing Court cannot order demolition of the structures, but would simply deliver possession of the land and the buildings after removal of the judgment-debtor there from. In either case, however, the Court may before ordering delivery of possession give time to the judgment-debtor to remove himself the materials."
62. Further, in AIR 1970 Allahabad 648 in Mohd. Ismail vs. Ashiq Husain wherein it was held, "Suit for possession of vacant land - buildings put up pendent elite - Removal in execution - Building put up prior to institution of suit - Remedy suggested. The 74 O.S.No.2268/1996 defendant putting up superstructure after filing of suit cannot claim advantage out of the buildings wrongfully put up"
63. Further, in AIR 1994 Andhra Pradesh 164 in Sheriff Iqbal Hussain Ahmad vs. Kota Venkata Subbamma and others wherein it was held, "New constructions made on suit property by defendants in spite of protests by plaintiffs - Directed to be treated as accretions to suit property without liability."
64. Learned counsel for plaintiff would submit that 2nd defendant had already plot in the same vicinity could have made enquiries into the previous confirmatory allotment and putting plaintiff in possession of vacant plot, had not cared to examine the various documents made in favour of plaintiff, has put up construction in violation of interim order of the Court has some force in consideration of the evidence on record. It is to be noted herein that plaintiff has proved that he is a confirmed allottee of the suit plot was put in possession through possession certificate issued 75 O.S.No.2268/1996 by Board - 1st defendant signed by all the authorized signatories, same could not be equated with Ex.D-4 possession certificate dated 6.6.1990 issued in favour of 2nd defendant which is not signed by three officers who are authorized signatories is already stated supra while referring the said document.
In such view of the matter, learned counsel for plaintiff is right in contending that plaintiff being confirmatory allotee of the suit plot, has paid full amount, was put in possession of the said plot under a valid possession certificate, cannot deprive of his rights which he is entitled u/s.53-A of T.P.Act, although defendant No.2 has put up construction as could be seen from photographs produced by D.W.1 and he is right in contending that such possession is juridical possession of plaintiff.
65. In so far as moulding of reliefs sought by plaintiff is concerned, to do justice, placed reliance reported in (1994) 2 SCC 594 in Hindalco Industries Limited vs. Union of India and others wherein it was held in para-7, 76 O.S.No.2268/1996 "It is settled law that it is no longer necessary to specifically ask for general or other relief apart from the specific relief asked for. Such a relief may always be given to the same extent as if it has been asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. The Court must have regard for all the relief and look at the substance of the matter and not its forms. It is equally settled law that grant of declaring relief is always one of discretion and the Court is not bound to grant the relief merely because it is lawful to do so. Based on the facts and circumstances the Court may on sound and reasonable judicial principles grant such declaration as the facts and circumstances may so warrant. Exercise of discretion is not arbitrary."
66. In AIR 1971 Gujarat 241 in Vohara Abbasali Mahomadalli Lakhawala vs. The State of Gujarat in para-18 it was held, "The principle which Mr.Justice Tendolkar has laid down in that case is that it is not 77 O.S.No.2268/1996 the form of the prayer which matters but it is the substance thereof which should be looked into. No exception can be taken to that principle."
67. In AIR 1985 Orissa 126 in Jagabandhu Naik and another vs. Gouri Bandha and others wherein held, "Suit praying for declaration of title and confirmation of possession - Court can order recovery of possession though there is no specific prayer for recovery of possession if necessary court fee had been paid for."
68. In AIR 1992 Orissa 76 in Chennaru Naghbhusan Rao vs. M.Rama Rao and others in para-8, "In view of this, the recovery of possession can be brought within the expression of 'other relief' as contained in Order 7, Rule 7, C.P.C. and the Court is competent to grant such relief to the plaintiff even though there was no specific prayer for such relief in the prayer portion of the plaint."
78 O.S.No.2268/199669. In AIR 1984 Allahabad 1 in Narendra Kumar Jain and another vs. Sukumar Chand Jain and others wherein it was held, "Moulding of relief is permissible under Order 7 Rule 7 C.P.C."
70. In AIR 1983 Andhra Pradesh 214 in Govt. of the State of Orissa, Bhubaneshwar vs. Jaldu Rama Rao and Company, Machilipatnam by the end of paragraph-5, it was held "The principles that emerge from the above decision can be summed up. The bare declaratory relief touching the contractual right not accompanied by a consequential relief is barred under S.42 (old) and Sec.34 (present) of the Specific Relief Act and the bare declaratory relief can be granted if it constitutes relief in the nature of legal debt or right to property. Sec.34 of the Specific Relief Act is not exhaustive of all circumstances and recourse to Order 7 Rule 7 C.P.C. is not excluded in appropriate cases."
79 O.S.No.2268/199671. In AIR 1967 SC 436 in Vemareddy Ramaraghava Reddy and others vs. Konduru Seshu Reddy and others by the end of para-8, it was held, "A construction of this kind was the subject matter of appeal in (1899) 26 Ind. App 16 (PC) and falls outside the purview of S.42 of the Specific Relief Act and will be governed by the general provisions of the Civil Procedure Code like S.9 or O.7 R.7."
72. and in AIR 1988 Allahabad 160 in Food Corporation of India, Gorakhpur vs. Mahabir Prasad Bhartiya, wherein it was held in paragraph-14, "It has, therefore, been held in a string of decisions that the provisions of S.42 of the old Act or of S.34 of the Act, 1963 are not exhaustive, in case any relief is claimed otherwise than, a declaration as to any legal character of any right, to any property, in that event general provisions of O.7, R.7 and S.9 of the Code would apply. In toher words, in case the relief falls out side the purview of S.42 of the old Act, 1887 or S.34 80 O.S.No.2268/1996 of the present Act, in that case the Courts have power to grant such a decree under the general provisions of the Civil P.C. in continuity of the requirement of the Section."
As such, they would be arise only when this court determined to record finding that the plaintiff has proved his possession as on the date of suit and proved that the suit plot was not resumed from him followed by law.
73. In so far as the contention of 2nd defendant that plaintiff had not paid the rent as fixed in letter of intent could not be examined by this court. Admittedly, the plaintiff has paid 99% of the land cost and 1% was payable as leased rent at Rs.57/- per year for ten years after executing lease-cum-sale agreement. The rent paid would be adjustable against the balance 1% cost of the land at the end of ten years lease period along with interest at 12.5% for any paid rent. The plaintiff is not liable to pay any lease rent till the execution of lease-cum-sale agreement as informed by 1st defendant. On the contrary, defendants 1 and 2 have not produced any documents that 2nd defendant had paid the required rent as per its 81 O.S.No.2268/1996 allotment letter and such contention of 2nd defendant that 1st defendant cancelled the allotment of plaintiff for non-payment of rent is baseless. In other words to say such defenses could not be available to them.
74. Thus, from the documents produced on behalf of plaintiff, defendants 1 and 2, it is clear that plaintiff was only required to make application for ULC clearance within 15 days of the issuance of Possession certificate and not for obtaining ULC clearance which the plaintiff did. There was no time limit stipulated for obtaining ULC clearance there at. Therefore, learned counsel for plaintiff is right in contending that 1st defendant had alternate option of executing lease-cum-sale agreement in favour of plaintiff within 15 days from possession certificate without waiting for ULC clearance, in the event of any delay in procuring ULC clearance and he is right in contending that document sought to be executed was lease-cum- sale agreement and not an absolute sale deed which ought to be executed after 11 years thereafter and there was no impediment to execute the same has legal substance. It is therefore, 82 O.S.No.2268/1996 contention of 1st defendant that it did not execute lease-cum-sale agreement for want of ULC clearance and further contention that allotment came to be cancelled for want of ULC clearance is baseless also could be acceptable by the Court. D.W.2 in his evidence admits that plaintiff was in possession of suit plot. He admits that plaintiff has to apply for ULC Clearance under Clause 1(b) within the stipulated period and as per Clause (c) Board has power to execute lease-cum-sale deed within 15 days and it is not mentioned that clause(c) is not applicable to Bangalore jurisdiction and it is found in his evidence that whether issuance of ULC Clearance to the plaintiff is rejected or not is not within his knowledge. In other words to say that application of plaintiff to issue ULC from competent authority was only pending and D.W.2 was not aware whether ULC application was rejected or issued to the plaintiff. Thus, from such evidence coupled with evidence of P.W.1 in the documents stated supra, plaintiff has proved that there was no violation of any allotment terms.
83 O.S.No.2268/199675. Thus, from the above such evidence on record, the 1st defendant is miserably failed to prove that only for want of ULC from plaintiff, allotment of suit plot in favour of plaintiff came to be cancelled. Further, to be noted herein that the 1st defendant has failed to show that it had issued any mandatory prior 90 days show cause notice to the plaintiff intending to cancel the allotment, prior to cancellation, contrary to its own contention in the written statement at Para-11 pleaded "----In case allottee fails to fulfill the above mentioned conditions, then the Board is at liberty to resume the allotted land after giving 90 days notice to allottee." As already stated above, 1st defendant has miserably failed to produce at least copy of such prior notice or an acknowledgement of service on plaintiff or a postal receipt as the case may be, thereby violating its own rule of issuing notice prior to any intended cancellation. This fact gets fortified by the admission made by D.W.2 in his cross-examination admitting the fact that before cancelling an allotment, 90 days show cause notice shall be issued and he is not aware of such issuance of notice to the plaintiff. Under such circumstances, alleged cancellation of allotment 84 O.S.No.2268/1996 made to plaintiff by way of cancellation notice dated 6.7.1989 sent by a Registered post shall be deemed to be ineffective and inoperative as it had never been communicated to the plaintiff. If we examine Ex.D-55(e) could not find full address of the plaintiff and it is significant to notice here that particulars of column has no such word "cancellation" and D.W.2 has admitted that he has not seen any such document showing cancellation of site allotment. Further to be noted herein that there exist an identical entry dated 05.07.1989 marked as Ex.D-55(f) which is not to the knowledge of D.W.2 nor has he any explanation for the same, as such obviously, there cannot exist two identical entries on two successive days for the same event. Under such circumstances, defendant No.1 has to be held failed to put their actions would fall in the category of presumptive notice. All this goes to establish neither there existed a cancellation notice nor the same was dispatched to plaintiff or was serviced on the plaintiff. Hence, there was no cancellation and the entry claimed to have been done is only fabricated to cover up the fraud fortified from the contents of Ex.D-4 possession certificate, wherein, except Asst.
85 O.S.No.2268/1996Engineer, other three authorized signatories have not signed the document which is not explained by 1st defendant.
76. Further to be noted herein that Termination of allotment and resumption of possession has to be governed by Contract followed by prior 90 days notice and not by alleged dispatching a mere cancellation letter u/s.14(f)(ii) of KIADB Act. The evidence on record establish, no resumption of plaintiff's possession followed by due process of law contemplated under KIADB Act, either by invoking General Law or under KPP Act, 1974, as provided u/s.25 of the KIADB Act. It is therefore, learned counsel for plaintiff is right in contending that 1st defendant has failed to prove that it has either cancelled allotment or resumed possession even u/s.14(f) of KIADB Act. Hence, from the above, it is clear that there was neither cancellation nor resumption of possession of plaintiff at any time in any manner whatsoever, prior to issuing allotment and possession certificate in favour of 2nd defendant. It is therefore, plaintiff has proved that the allotment of suit Plot in favour of the 2nd defendant is made behind the 86 O.S.No.2268/1996 back of plaintiff and even without obtaining consent of the authorized officers of the Board. In this regard, learned counsel for the plaintiff is right in contending that possession of 2nd defendant would be that of a trespasser only. The plaintiff has established that, 1st defendant never refunded the consideration amount in his favour. Admittedly, plaintiff has paid 99% of the land cost. As already held that the suit Plot was validly allotted, confirmed and was put in possession of plot. The Act contemplates for refund of consideration amount after deducting 15% of forfeiture amount as per clause-11 of Ex.P-1 which is not followed goes without saying that there was no resumption of suit plot from plaintiff and the allotment of suit plot in favour of 2nd defendant was made in cavalier manner is nothing but in collusion. This is mainly because there was no cancellation of allotment of the plaintiff and the entire action is nothing but fraudulent, since 1st defendant without taking possession of the suit plot and even without refund of plaintiff's consideration amount went on allotting the very plot in favour of 2nd defendant in breach of the Board Law. It is therefore, principles enunciated in 87 O.S.No.2268/1996 the decisions cited supra by learned counsel for the defendants could not come to their assistance, since those principles would be applies only when the 1st defendant proves that the allotted plot in favour of plaintiff was validly cancelled and the said plot was validly resumed followed by due process of law before the very plot was ordered to be allotted in favour of the 2nd defendant, confirmed the same and then put him in possession. However, evidence on record established that 1st defendant has miserably failed to prove the plot allotted in favour of plaintiff was validly cancelled and it was resumed followed by Law contemplated under the KIADB Act.
77. Learned counsel for plaintiff would submit that suit is of 1996 and it was not mandatory to have a registered contract to claim protection by plaintiff u/s.53-A of T.P.Act. It is therefore, learned counsel would submit that 2nd defendant is not entitled to seek for protection when he has come into possession on the basis of void document. In other words to say that to protect possession of 2nd defendant not available, 88 O.S.No.2268/1996 when plaintiff was allotted suit plot, confirmed and was put in possession validly has legal substance.
78. In the above circumstances, legal position of the 2nd defendant would be only an allottee/ agreement holder and not the transferee/ purchaser as on the date of the suit. As already stated above that the sale deed executed by 1st defendant in favour of 2nd defendant in respect of the suit plot is made, during pendency of the suit, even without obtaining permission of the Court to that effect. It is therefore, contention that no permission of the Court is required is not accepted, for simple reason that 1st defendant has miserably failed to establish that allotment issued in favour of plaintiff, which was subsequently confirmed, legally put in possession, was not legally cancelled followed by rules contemplated under the KIADB Act. In such view of the matter, plaintiff has to be held continued to be in juridical possession of suit schedule plot as on the date of the suit.
79. If according to defendant No.1, plaintiff has violated any allotment terms as found in Ex. D-1, as already held has to give prior 90 days 89 O.S.No.2268/1996 notice and the plot allotted, proved to be in possession of plaintiff, has to be resumed in accordance with law before same could be allotted in favour of 2nd defendant. Further, consideration amount paid by plaintiff were to be refunded after deducting 15% of the said amount towards forfeiture. If such actions are proved, by the defendants, then the matter would have been different. In such situation, for the plaintiff, remedy would be somewhere else and not in the present form. However, plaintiff herein has proved that the 1st defendant has miserably failed to establish issuance of 90 days prior notice before cancellation of the possessed plot and failed to resume the plot from the possession of plaintiff, followed by mandatory provisions contemplated under general law and KIADB Act. It is therefore, it may not be difficult to hold that the allotment made in favour of the 2nd defendant is nothing but made behind back of the plaintiff. As such, even if plaintiff is held to be a licensee till the agreement for lease, sale or lease cum sale is executed facts remain established that plaintiff was in possession of the suit plot as on the date of the institution of the suit and such possession has to be held 90 O.S.No.2268/1996 juridical possession in the eyes of law. In this regard, learned counsel for plaintiff rightly submitted that in Law, a person with constructive possession stands in the same legal position as a person with actual possession. Therefore, as on the date of the suit, plaintiff has proved that he was in lawful possession and physical possession of the suit plot as a confirmed allottee. It is therefore, finding on issue No.1, would be record in the Negative and it goes without saying finding on issue No.2 would be in the Affirmative.
80. In view of findings on issues 1 and 2, the possession of the 2nd defendant is held that of a trespasser at all times, as such the 2nd defendant cannot take shelter under allotment documents made by 1st defendant, since 1st defendant has thrown all norms, rules and laws to the wind to allot suit plot in favour of 2nd defendant, without valid cancellation of confirmed allotment and such allotment made even without resuming the plot from plaintiff, followed by rules contemplated under the KIADB Act. It is therefore, plaintiff is justified to seek relief of declaration and his entitlement of possession of suit plot. This was 91 O.S.No.2268/1996 sought by him only after, he lost physical possession, though continued to be deemed or constructive possession, as confirmed allottee.
81. The contention of learned counsel for defendant No.2 that as they are claiming right on the suit plot under 1st defendant, as such no relief could be granted against them is not accepted, for the reasons stated above and in view of the findings recorded on issues 1 and 2. Further, the contention of learned counsel that relief which plaintiff has to seek for specific performance and not for declaration in the present form is also not arise, since the 1st defendant has miserably failed to prove issuance of 90 days prior notice and resumption of the plot. It is therefore, this Court held that the plaintiff herein has rightly sought for declaration that he is a confirmed allottee by virtue of confirmed allotment and putting him in possession of suit plot under a valid possession certificate. Further, in trial, proved that as on the date of the institution of the suit, he was in physical possession of the suit plot and the Court held that he is in juridical possession of the suit schedule property.
92 O.S.No.2268/199682. In the above such circumstances, contention that suit for declaration and for grant of injunction as prayed by plaintiff is not maintainable could not be accepted at all. Thus, reaching to such conclusion, possession of the 2nd defendant in law is held that of possession of a trespasser and he is in possession of the suit schedule plot as a trespasser as such, finding on issue No.3 would be record in the Negative.
83. Since, plaintiff has proved that as on the date of institution of the suit, he is in lawful possession of the schedule property, as on the date of allotment of suit plot in favour of 2nd defendant, without prior notice as contemplated under KIADB Act without there being resumption and without there being taken valid possession from plaintiff, 1st defendant being a party is held had notice of all such things and in law, 2nd defendant is claiming right through the said authority has to be held had constructive notice of prior allotment of suit site in favour of plaintiff. It is therefore, contention that 2nd defendant that he is a bonafide allottee of the suit schedule plot without notice of the previous allotment to the plaintiff is held not proved, in view 93 O.S.No.2268/1996 of the findings recorded on issues 1 to 3. In such view of the matter, finding on issue No.7 would be record in the Negative.
84. Issue No.8 & 9: The plaintiff in the suit has sought for declaration that he is a confirmed allottee of the suit schedule land as per the confirmatory letter of allotment dated 23/28.03.1987 issued by 1st defendant and possession certificate dated 06/20th June 1988, they are marked as per Ex.P-10 and P-12 respectively. The plaintiff has sought for such relief as the defendants are denying the confirmed allotment, his possessory rights over the suit plot. It is to be noted herein that the plaintiff has not sought to declare his ownership over the schedule property. In other words to say that defendant No.1 still vests with powers or rights to follow the procedure contemplated under the Act. If Board still to form an opinion to cancel the allotment made in favour of plaintiff is bound to follow the rules and the provisions of general law and the KIACB Act. It is therefore, this Court is of the considered view that there is no legal impediment to declare the relief sought by plaintiff. The plaintiff 94 O.S.No.2268/1996 has sought for declaration that he is a confirmed allottee entitled for possession, which could be granted by the Court in view of findings recorded on the other issues. Thus reaching to such conclusion, findings on issues 8 and 9 would be record in the Affirmative.
85. Issue No.10: In view of the affirmative findings on issues 8 and 9, in particular, finding on issue No.9 as the Court held that plaintiff is entitled for recovery of possession of the schedule property, grant of permanent injunction either against 1st defendant or 2nd defendant does not survive for consideration, as such, finding on this issue would be record in the negative.
86. Issue No.11: In view of the above findings and in the result, this court passes the following:
O R D E R The suit of the plaintiff is decreed with cost in the following terms:-
(a) The plaintiff is declared a confirmed allottee of the suit schedule property as per the confirmatory letter of allotment dated 23/28th March 1987 issued by defendant No.1 and 95 O.S.No.2268/1996 possession certificate dated 06/20th June 1988. Consequently, entitled to the possession of the suit schedule land from defendants 1 and 2 being in juridical possession.
(b) Draw a decree accordingly.
(Dictated to the J.W., transcribed by her, corrected and then pronounced by me in the open court, on this the 26th day of November 2016).
(Krishnamurthy B.Sangannanavar) IX Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 S.B.Pradeep List of witnesses examined for defendants:
D.W.1 M.S.Shivashankaran D.W.2 S.G.Ramachandra
List of documents exhibited for plaintiff:
Ex.P-1 Allotment letter of intent issued by KIADB Ex.P-2 Another allotment letter 96 O.S.No.2268/1996 Ex.P-3 to 9 Payment receipts from 1st defendant to plaintiff Ex.P-10 Confirmatory allotment letter Ex.P-11 RPAD to take possession from 1st defendant to plaintiff Ex.P-12 Possession certificate Ex.P-13 Letter dt.29.6.1988 Ex.P-14 & 15 Reminder letters dated 19.2.1989 & 18.6.1989 issued by KIADB Ex.P-16 Reminder letter dated 19.6.1989 issued by KIADB Ex.P-17 Reminder letter dated 25.7.1991 Ex.P-18 Reminder letter dated 13.6.1994 Ex.P-19 Endorsement by Chief Inspector of Factories Ex.P-20 Certificate from KPTCL Ex.P-21 Generator license to 2nd defendant Ex.P-22 to 25 Paper publications in Deccan Herald and Times of India Ex.P-26 Police complaint dt.17.3.1997 Ex.P-27 Acknowledgement by police dated 27.3.1997 Ex.P-28 Endorsement by police dated 1.4.1997 Ex.P-29 Police complaint dated 17.7.1997 Ex.P-30 Acknowledgement by police dated 18.7.1997 Ex.P-31 Endorsement by police dated 18.7.1997 97 O.S.No.2268/1996 Ex.P-32 to 61 Positive photographs Ex.P-32(a) to Negatives 61(a) Ex.P-62 Reminder letter dated 20.5.1989 Ex.P-63 Take over agreement dated 1.12.1997 List of documents exhibited for defendants:
Ex.D-1 Standard conditions attached to letter of intent dated 22.10.1983 Ex.D-2 Notice dated 26.7.1996 Ex.D-3 Confirmatory letter of allotment dated 11.5.1990 Ex.D-4 Possession certificate dated 6.6.1990 Ex.D-5 Registered lease-cum-sale agreement dated 12.1.1995 Ex.D-6 Plan approval dated 3.5.1995 Ex.D-7 GPA of LRs of 2nd defendant Ex.D-8 Valuation report Ex.D-9 Copy of letter dated 11.7.1988 Ex.D-10 Receipt dated 13.7.1988 Ex.D-11 Letter dated 15.7.1988 Ex.D-12 Receipt dated 2.8.1988 Ex.D-13 Letter of intent dated 1.12.1988 Ex.D-14 Request letter dated 13.1.1989 98 O.S.No.2268/1996 Ex.D-15 Letter of allotment dated 21.2.1989 Ex.D-16 Letter dated 3.3.1989 issued by 1st defendant Ex.D-17 Receipt dated 16.9.1989 Ex.D-18 Receipt dated 15.3.1990 Ex.D-19 Letter dated 4.4.1990 Ex.D-20 Receipt dated 25.4.1990 Ex.D-21 Order dated 9.10.1992 Ex.D-22 to 30 Correspondences Ex.D-31 to 37 Office copy of correspondences Ex.D-38 to 41 Letters of order in original Ex.D-42 Registered absolute sale deed Ex.D-43 Site sketch Ex.D-44 to 49 Photographs Ex.D-50 Office order Ex.D-51 Letter of indent dated 11.7.1988 Ex.D-52 Additional land letter of allotment dated 22.2.1990 Ex.D-53 Possession certificate dated 6.6.1990 Ex.D-54 letter from plaintiff to Commissioner ID & Director of Industries Ex.D-55 Original "To" Register Ex.D-55(a) to Relevant entries at page 146 to (e) 149 Ex.D-55(b) Relevant entry page No.141 99 O.S.No.2268/1996 Ex.D-56 Affidavit by 1st defendant in SLP No.25986/14 IX Addl. City Civil & Sessions Judge, Bangalore.