Karnataka High Court
M/S Glittek Infrastructure Pvt Ltd vs State Of Karnataka on 23 June, 2023
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE 2023
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.38084 OF 2015 (BDA)
BETWEEN:
M/S. GLITTEK INFRASTRUCTURE PVT. LTD.,
NO.711, "KRISHNA"
7TH FLOOR, 224
AJC BOSE ROAD
KOLKATTA- 700 017
REPRESENTED BY ITS DIRECTOR
SRI KAMAL KUMAR AGARWAL
AGED ABOUT 60 YEARS
S/O LATE M.P. AGARWAL
... PETITIONER
(BY SRI AJESH KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
URBAN DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA
VIDHANA VEEDHI
BANGALORE - 560 001.
2
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
3. THE DEPUTY COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
4. THE ASSISTANT COMMISSIONER
(RE-CONVEYANCE AND RE-ALLOTTEMENT)
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
5. THE ENGINEERING - MEMBER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
6. THE SECRETARY
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
7. THE DEPUTY SECRETARY-II
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
3
KUMARA PARK WEST
BANGALORE - 560 020.
8. THE ASSISTANT EXECUTIVE ENGINEER
NO.2 (SOUTH) SUB DIVISION
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
9. THE TAHSILDHAR
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
10. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
N.R. SQUARE
BANGALORE.
11. THE ASSISTANT REVENUE OFFICER
MADIWALA
BRUHAT BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 068.
12. BANK OFFICERS AND OFFICIALS HOUSE
BUILDING CO-OPERATIVE SOCIETY
1ST MAIN ROAD
SESHADRIPURAM
BANGALORE - 560 020
REPRESENTED BY ITS SECRETARY
4
13. SRI THIMMARAYAPPA
MAJOR IN AGE
S/O LATE N. RAMAIAH REDDY
(SINCE DECEASED REPRESENTED
BY HIS LEGAL REPRESENTATIVE
RESPONDENT NO.14 - SRI MURALI)
14. SRI MURALI
MAJOR IN AGE
S/O THIMMARAYAPPA
15. SMT. G. PREMA
MAJOR IN AGE
W/O SUNDAR REDDY
16. SMT. NAGAMMA
MAJOR IN AGE
W/O LATE A. MUNI REDDY
17. SRI THILAKNATH REDDY
MAJOR IN AGE
S/O LATE A. MUNI REDDY
SL. NO.13 TO 17 ARE RESIDING AT
NO.5, 1 MAIN ROAD
MADIWALA NEW EXTENSION
MARUTHINAGAR
BANGALORE - 560 068
(RESPONDENT NO.17 SINCE DECEASED
REPRESENTED BY HIS LEGAL REPRESENTATIVES)
17(A) MS. RAMAVATHI
AGED ABOUT 32 YEARS
WIFE OF LATE MR. TILAKNATHA REDDY
17(B) MASTER SHASHANK
AGED ABOUT 14 YEARS
SON OF LATE MR. TILAKNATHA REDDY
5
17(C) KUMARI RISHIKA REDDY
AGED ABOUT 13 YEARS
DAUGHTER OF LATE MR. TILAKNATHA REDDY
PARTIES 2 AND 3 SINCE MINORS
ARE REPRESENTED BY THEIR
NATURAL GUARDIAN
MOTHER MRS. RAMAVATHI
PARTIES 17(A) TO 17(C) ARE RESIDING AT
FLAT NO.005, GROUND FLOOR,
COMFORT PLACE,
2ND CROSS, 29TH MAIN, 1ST PHASE
BTM LAYOUT, 1ST STAGE,
BANGALORE - 560 068.
18. SRI SHANTHA KUMAR
MAJOR IN AGE
S/O LATE A. MUNI REDDY
RESIDING AT NO.168/30
4TH MAIN ROAD
VYALIKAVAL
SADASHIVNAGAR
BANGALORE - 560 080.
19. ADDITIONAL DISTRICT REGISTRAR
BANGALORE CITY DISTRICT
BANGALORE
20. THE SECRETARY
HOME DEPARTMENT
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
VIDHANA VEEDHI
BANGALORE - 560 001.
6
21. THE DIRECTOR GENERAL OF
POLICE IN KARNATAKA
NRUPATUNGA ROAD
BANGALORE - 560 001.
22. THE DIRECTOR GENERAL OF POLICE (CID)
CALTRON ROAD
BANGALORE - 560 008.
... RESPONDENTS
[BY: SRI K.N. PHANINDRA, SENIOR ADVOCATE FOR
SRI KIRAN KUMAR D.K. ADVOCATE FOR R13, R14 & R18;
SRI R. SRINIVASA GOWDA, AGA FOR R1;
SRI JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI G. LAKSHMEESH RAO, ADVOCATE FOR R2 TO R9;
SRI N.R. JAGADEESWARA, ADVOCATE FOR R10 & R11;
NOTICE HELD SUFFICIENT TO R12 AND
19 TO 22 & R17 (1 TO 3)]
***
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE RE-
CONVEYANCE/RE-ALLOTTMENT BEARING NO.003185 DATED
17.04.2015 ISSUED BY THE BDA/R1 AND R4 IN FAVOUR OF
R13 TO R17 VIDE ANNEXURE-Q AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 30.05.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE
THE FOLLOWING:
7
ORDER
S. SUNIL DUTT YADAV. J THIS ORDER HAS BEEN DIVIDED INTO THE FOLLOWING SECTIONS TO FACILITATE ANALYSIS:
I RELIEF SOUGHT 8-10
II BRIEF FACTS 10-17
III CONSIDERATION
A. RE: ORDERS IN W.P.NOS.25560-25561/2014 17-21
B. RE: RE-CONVEYANCE / RE-ALLOTMENT 21-27
C. RE: SECTION 38-C(2) OF BDA ACT 27-31
D. RE: BAR OF CONVEYING RIGHTS IN A CIVIC AMENITY SITE TO THE PETITIONER 31-34 E. RE: AUTHORITIES RELIED UPON BY THE RESPONDENTS 35 F. RE: AUTHORITIES RELIED UPON BY THE 36-40 RESPONDENTS IV CONCLUSION 40-41 8 I. RELIEF SOUGHT:-
1. The petitioner has sought for the following:-
(a) issuance of writ of certiorari to quash the re-conveyance/re-allotment bearing No.003185 dated 17.04.2015 executed by respondent-Bangalore Development Authority (BDA) at Annexure-'Q';
(b) The petitioners have in effect also challenged the execution of sale deed dated 29.04.2015 executed by respondent No.4 - BDA in favour of respondent Nos.13 to 17
represented by respondent No.18 at
Annexure-'R';
(c) The petitioners have sought for quashing of the consequent Possession Certificate dated 30.04.2015 at Annexure-'S'.9
(d) The petitioners have sought for issuance of writ of mandamus directing the respondent Nos.10 and 11 not to effect any Khatha in the names of respondent Nos.13 to 17 or respondent No.18 and not to assess tax in the names of the aforementioned respondents.
(e) The petitioners have sought for issuance of direction to the Additional District Registrar to effect appropriate entry in the Register regarding quashing of the Sale Deed dated 29.04.2015;
(f) The petitioners have sought for a direction to respondent No.1 and/or
respondent Nos.20 and 21 to entrust the task of investigating into the criminal acts committed by Officials of the BDA as well as respondent Nos.13 to 18 and to initiate 10 appropriate proceedings under the provisions of the Prevention of Corruption Act by entrusting investigation to the C.I.D. or C.B.I. II. BRIEF FACTS:-
2. It is brought out that late Sri. Ramaiah Reddy was the owner of different Survey numbers in erstwhile Madiwala Village including Survey No.53 measuring 1 acre 20 guntas. On 07.02.1978, the City Improvement Trust Board (CITB) has acquired an extent of 1 acre 20 guntas in Survey No.53 for the formation of B.T.M. Layout. It is asserted that the land owner was in possession of an extent of 33 guntas. On 31.10.1992, the Bangalore Development Authority (B.D.A) stated to have passed a resolution bearing No.442/1992 resolving the State Government to withdraw the acquisition proceedings in respect of Survey No.53 of erstwhile Madiwala Village measuring an extent of 33 guntas. 11
3. However, on 27.09.1993 earlier Resolution dated 31.01.1992 was recalled on the ground that the land is not vacant and that once the possession has been taken the question of de-notification would not arise.
The relevant extract of the resolution is as follows:-
"«µÀAiÀÄzÀ ¸ÀASÉå: 210:93 (ºÀ¼ÉAiÀÄ ¸ÀASÉå:442:92:31-10-92) ªÀÄrªÁ¼À UÁæªÀÄzÀ ¸À.£ÀA.53gÀ 5J 33 UÀÄAmÉ ¥ÀæzÉñÀ:-
F ¥ÀæzÉñÀªÀÅ SÁ° EzÉ. EzÀ£ÀÄß ¥Áæ¢üPÁgÀªÀÅ FUÁUÀ¯Éà ¸Áé¢üãÀPÉÌ vÉUÉzÀÄPÉÆArgÀĪÀÅzÀjAzÀ ¨sÀÆ ¸Áé¢üãÀvɬÄAzÀ PÉÊ ©qÀĪÀ ¥Àæ±ÉßAiÉÄà GzÀ㫸ÀĪÀÅ¢®è ªÀÄvÀÄÛ PÁ£ÀƤ£À°è EzÀPÉÌ CªÀPÁ±À«®èªÁzÀÝjAzÀ ¢: 31- 10-92gÀ oÀgÁªÀÅ ¸ÀASÉå: 442:92£ÀÄß gÀzÀÄÝUÉƽ¹ §qÁªÀuÉ gÀa¸À®Ä PÀæªÀÄ vÉUÉzÀÄPÉƼÀÀÄzÀÄ."
4. W.P.No.5555/1994 was filed by late Sri. Ramaiah Reddy seeking issuance of mandamus to direct BDA to consider the representation and not to put up construction till decision is taken regarding dropping of proceedings as regards Survey No.53, which however came to be dismissed on 20.08.1996 holding that there 12 has been laches, as in the meanwhile possession has been taken and sites have been released and that recommendations of BDA for de-notification has been cancelled by the Sub-Committee formed by the Government.
5. On 23.12.2006, notification came to be issued for auction of Site No.2 at Bank Officers and Officials HBCS Layout, B.T.M. II Stage and the purpose was shown as "Shopping Complex". The petitioner was the successful bidder having paid a sum of Rs.18,05,05,890/- and after payment of consideration, the possession was handed over in terms of Annexure-'E' on 26.07.2007. The Sale Deed was also executed on 02.11.2007 as per Annexure-'F'.
6. Subsequently, W.P.Nos.25560-25561/2014 came to be filed by Sri Thimmarayappa S/o Ramaiah 13 Reddy and Smt.Prema D/o Ramaiah Reddy, seeking appropriate direction to the Government to take a decision in terms of Section 65B of the Bangalore Development Authority Act, 1976 ('BDA Act' for brevity) and to implement resolution of the BDA dated 31.10.1992. The said Writ Petition came to be disposed off stating "... in that view of the matter, petitions are disposed of with a direction to the respondent Authority to reconsider and take a decision according to law at the earliest." The operative portion of the said order was further modified on the basis of I.A.No.3/2014 whereby operative portion was modified directing "... that the respondent-authorities shall take proper steps to convey 33 guntas of land in favour of the petitioner who is said to be in possession...."
7. On 17.04.2015, BDA has executed a Re- grant/Re-allotment Certificate to Sri Thimmarayappa, Sri Murali, Smt.G.Prema, Smt.Nagamma and Sri Thilaknath 14 Reddy with respect to an extent of 2049.60 Sq. Mtrs. situated at Survey No.53, Madiwala Village, B.T.M. II Stage. The Sale Deed came to be executed on 29.04.2015 and the Possession Certificate also came to be issued on 30.04.2015 for the aforesaid extent.
8. The petitioner, M/s. Glittek Infrastructure Pvt. Ltd., filed the present Writ Petition, viz., W.P.No.38084/2015, challenging the order of re- allotment dated 17.04.2015 as well as the Sale Deed dated 29.04.2015 and consequential Possession Certificate dated 30.04.2015.
9. In the meanwhile, Review Petition Nos.332/2016 and 392/2016 was filed by the BDA seeking review of the final orders dated 20.11.2014 and 12.12.2014 passed in W.P. Nos.25560-561/2014. On 12.12.2017, the said Review Petitions came to be rejected.
15
10. The BDA pursuant to the order passed in W.P.Nos.25560-25561/2014 has executed six Sale Deeds on 09.02.2018 and 14.03.2018 in favour of Sri Thimmarayappa and others. (Details forthcoming from synopsis filed on behalf of Respondent No.18 dated 09.03.2023).
11. On 23.03.2017, the present Writ Petition came to be allowed setting aside the order of re- conveyance at Annexure-'Q' dated 17.04.2015 setting aside the Sale Deed dated 29.04.2015 at Annexure-'R' as well as setting aside the Possession Certificate dated 30.04.2015 at Annexure-'S'.
12. Subsequently, respondent No.18 herein assailed the order passed by the learned Single Judge dated 23.03.2017 in Writ Appeal No.2261/2017. The Division Bench in the said Writ Appeal, by its judgment dated 01.04.2021 allowed the Writ Appeal and restored 16 the Writ Petition in W.P.No.38084/2015, on which the present order is being passed.
13. Meanwhile, BDA filed Writ Appeal No.2299/2018 on 25.07.2018 challenging the orders dated 20.11.2014 and 12.12.2014 passed in W.P.Nos.25560-25561/2014 with a delay of 1313 days and eventually the said Writ Appeal came to be disposed off on 01.04.2021, while taking note that the present Writ Petition was pending consideration and reserving liberty to revive the Writ Appeal subject to the outcome of W.P.No.38084/2015 and all contentions were kept open.
14. Sri Thimmarayappa and other land owners represented by their General Power of Attorney holder Sri Shantha Kumar have sold four sites under the registered Sale Deeds dated 28.03.2018. (Details 17 forthcoming from synopsis filed on behalf of Respondent No.18 dated 09.03.2023).
15. Writ Appeal No.139/2020 filed by the petitioner herein was dismissed on 19.02.2020 the ground of laches and inaction. Subsequently, the petitioner filed SLP (Civil) No.7573/2020 challenging the order of 19.02.2020 in which notice has been issued and the matter is pending further consideration. III. CONSIDERATION:-
A. RE: ORDERS IN W.P.NOS.25560-25561/2014
16. It must be noted that as on date, the correctness of the order passed in W.P.Nos.25560- 25561/2014 assailed by the present petitioner is pending adjudication before the Apex Court in SLP (Civil) No.7573/2020 and the Apex Court has observed in its order on 01.11.2022 as follows:-
18
"...the High Court after taking note of pendency of the present Special Leave Petition adjourned the matter to await orders from this Court.
We request the High Court now consider and decide the pending Writ Petition on its own merits expeditiously as possible."
Accordingly, the present Writ Petition is required to be disposed off on its own merits. In light of the various legal developments noticed above, it would not be appropriate to enter into the correctness of the order passed in W.P.Nos.25560-25561/2014 notwithstanding the persuasive arguments advanced by the petitioner as regards the correctness of the order passed in W.P.Nos.25560-25561/2014. Propriety would demand that this Court ought not to express any observation or opinion on the correctness of such order, as the matter is pending adjudication before the Apex Court. 19
17. The order in W.P.Nos.25560-25561/2014 initially disposing off the Writ Petition stated, "... with a direction to the respondent Authorities to reconsider and take a decision according to law at the earliest." The said order was modified by order of 12.12.2014 passed on I.A.No.3/2014, which reads as, "... In modification of the operative portion of the order dated 20.11.2014, it is hereby directed that the respondents Authorities shall take proper steps to re-convey 33 guntas of land in favour of the petitioner who is said to be in possession and also in view of the observations made during the course of the order as to the various developments that took place and also as to the change of legal position by enacting new Land Acquisition Act, as well as policy decision taken by the Government to share the property in the ratio of 60:40 on such acquisition and also in accordance with decision of the Apex Court in the case of Union of India and Others v. Shivaraj and Others (2014) 20 6 SCC 564 and Hariram v. State of Harayana (2010) 3 SCC 621."
It must be noted that a conjoint reading of the order dated 20.11.2014 passed in W.P.Nos.25560- 25561/2014 and the order modifying the operative portion passed on 12.12.2014 would reveal that the direction of the Court was that the Authorities "shall take proper steps to re-convey 33 guntas of land in favour of the petitioner who is said to be in possession." The earlier direction on 20.11.2014 was for the respondent Authorities to reconsider and take a decision according to law at the earliest.
18. The only manner of construing both the orders in a meaningful manner would be that there was a direction for the respondent BDA to take proper steps for re-conveyance by reconsidering the representation and taking an appropriate decision. Such an interpretation 21 would be warranted as the Courts can only direct Authorities to act according to the statutory scheme and applicable law and there can be no direction for re- conveyance which otherwise is impermissible as per the statutory scheme. It must also be noted that the High Court does not possess any power akin to Article 142 of Constitution of India to pass a direction that goes beyond the statutory scheme.
B. RE: RE-CONVEYANCE / RE-ALLOTMENT:-
19. As on the date of the order being passed in W.P.Nos.25560-25561/2014 on 20.11.2014, Site No.2 (reserved for Shopping Complex) in Bank Officers and Officials HBCS, BTM II Stage Layout, which is claimed by persons claiming through Sri Thimmarayappa had been auctioned and Sale Deed executed by BDA in favour of the petitioner on 02.11.2007 itself. The petitioner M/s. Glittek Infrastructure Pvt. Ltd., had paid 22 Rs.18,05,05,890/- in the auction. The Possession Certificate for the auction site was issued on 08.01.2008. The Municipal Authority, i.e. Bengaluru Mahanagara Palike has issued Khatha Certificate on 14.03.2008 (Annexure-'H1') and the property has been assessed to tax as is evident from the Property Tax Receipts for the period from 2007-2008 to 2014-2015 at Annexures-'J', 'J1', 'J2' - 'J7'. The said documents would clearly reveal that title was created by virtue of the sale deed executed on 02.11.2007 and was complete by issuance of Possession Certificate and Revenue Authorities issuing Khatha Certificate and on the property being assessed to tax.
20. It is a settled position that no person can transfer a better title than what he has. If that were to be so, the question of BDA issuing a Re-grant/Re- allotment letter to Sri Thimmarayappa re-conveying 2049 Sq. Mtrs. in Survey No.53 to Sri Thimmarayappa 23 and others on 17.04.2015 does not arise. The Deed of Conveyance executed on 29.04.2015 in favour of Sri Thimmarayappa is non-est as the vendor BDA has been divested of title by virtue of conveyance in favour of the petitioner by way of auction in 2007 itself.
21. Section 38 of the BDA Act provides that "... the Authority shall have power to lease, sell or otherwise transfer any moveable or immoveable property which belongs to it ...". This only fortifies the right of BDA to deal with the property which belongs to it. Accordingly, the Deed of Conveyance dated 29.04.2015 re-conveying land to Sri Thimmarayappa does not convey any title or interest.
22. It is also to be noticed that once the Court has arrived at a conclusion that BDA was not vested with title or ownership to transfer by way of re-conveyance of rights in property in favour of Sri Thimmarayappa, as 24 admittedly, the title was transferred to the petitioner by way of Sale Deed on 02.11.2007, the Court, in exercise of power under Article 226 of Constitution of India, could set aside the order of re-allotment/ re-conveyance dated 17.04.2015. Once such order passed by an authority created under a statue is set aside, foundation on which Sale Deed dated 29.04.2015 has been executed is removed and the sale deed though a registered instrument, has no legs to stand. Consequently, the sale deed dated 02.11.2007 and the subsequent sale deed by Sri Thimmarayappa and other in favour of Respondent No. 18 on 02.06.2015 are instruments without any legal basis and being void can be declared so by this Court by exercise of its power under Article 226 of the Constitution of India.
Further, there is no ambiguity as regards identity as the boundaries in the Sale deed (re-allotment/ re-grant) dated 29.04.2015 executed by BDA in favour of 25 Sri. Thimmarayappa and others, as also the boundaries in the sale deed 02.06.2015 executed by Sri. Thimmarayappa and others in favour of Sri Shantha Kumar on the one hand and the public auction sale deed dated 02.11.2007 executed by BDA in favour of the petitioner are the same. This stand is not contradicted by BDA.
23. It is also relevant to notice the stand of BDA in their statement of objections filed on 20.10.2015, it is narrated that 1 acre 20 guntas in survey No.53 of Madiwala Village was acquired for the formation of BTM II Stage Layout as per the Preliminary Notification dated 19.09.1977 and Final Notification was issued on 07.02.1978, that award was passed on 17.11.1979, that possession was taken and handed over to the Engineering Division of BDA on 16.12.1979. It is averred at para-3 of the statement of objections that after acquisition on request made by the 'Bank Officers 26 and Employees House Building Co-operative Society' (Society), the BDA as per the Board Resolution No.216 dated 25.01.1984 had resolved to allot 20 acres in bulk in Survey numbers including Survey No.53 to the Society. The said Society had applied for sanction of layout plan to the BDA with respect to the said land which layout was approved on 09.08.1985. It is further narrated that the Society has relinquished 'C.A. 2' which is shown as "for Shopping Complex".
In light of the above stand of the BDA that the site was relinquished for "Shopping Complex" and that further, "it is only a bona fide mistake in re-alloting/ re-conveying the property in question in favour of respondent Nos.13 to 18" (see para-15 of statement of objections filed by BDA), the Respondent No.18 claiming through Sri.Thimmarayappa, who was the beneficiary of re-conveyance from the BDA is estopped from disputing the derivation of title as asserted by the BDA. In fact, 27 the GPA holder of Sri.Thimmarayappa respondent No.18 in his correspondences at Annexure-'R17' to the additional statement of objections, has taken the same stand regarding the derivation of title as that of BDA noticed above. Accordingly, the contention regarding identity of title cannot be entertained at this stage, which is a moon-shine defence.
C. RE: SECTION 38-C(2) OF BDA ACT
24. Section 38-C(2) of the BDA Act inserted by Act No.1 of 2000 which provides for sale by the Authority with previous approval of the Government in favour of the original owner of the land or the purchaser from the original owner, is a still born provision.
25. It was submitted by learned Senior Counsel Sri Jayakumar S. Patil appearing on behalf of respondent BDA that the introduction of 38-C(2) of the BDA Act is by way of Ordinance which has since been repealed and that 28 even otherwise date fixed for coming into force of the provision has not been notified by the Executive. The said aspect has been adverted to by this Court in the case of John B. James and Others v. Bangalore Development Authority and Another 1 and the relevant extract reads as follows:-
"Point II. PRAYER RELATING TO SECTION 38C(2):
54. As we have upheld the validity of the Repealing ordinance, Section 38C(2) which has been repealed under the said ordinance does not exist in the BDA Act. Therefore the question of either directing the State Government to appoint a date to bring into force the said Section, or directing BDA to examine the cases of petitioners with reference to the provision of Section 38C(2) does not arise. We may add that the position may not have been much different, even if the ordinance had not been promulgated or even if it is held that the Ordinance was invalid. Though the said section was inserted by Amendment Act 1 of 2000, the Legislature did not give effect to it, but 1 (2001) 1 Kant LJ 364 29 left it to the discretion and wisdom of the Executive to appoint the date from which the said provision should be brought into force. As the State Government did not appoint any such date and bring the Section into force, for all practical purposes, it is as if the said provision is not in the statute book. Therefore, petitioners will not be entitled to claim any benefit with reference to the said Section, even if it had remained in the Statute Book."
26. The said position is not controverted and no subsequent development is brought to the notice of the Court and accordingly, it can be held that recourse to Section 38-C(2) does not arise.
27. Even otherwise, if Section 38-C(2) was in operation, the exercise of such power was only conditional upon opinion of the Authority that such land cannot be used by it on account of existing structure or building and that it was not practicable to use such land for the purpose of development scheme or formation of 30 sites. Further, the Authority can take action only with the prior approval of the Government.
28. In the present case, it must be noted that the resolution of the BDA seeking for dropping of the acquisition proceedings dated 31.10.1992 came to be rescinded on 27.09.1993 as per the Resolution bearing No.210/93. The Government has also directed the BDA to rescind the resolution dated 31.10.1992 and to go ahead with the acquisition proceedings in its letter dated 11.05.1993.
29. Accordingly, without any material indicating that the Government had approved proposed action under Section 38-C(2) of the BDA Act and in light of the proceedings dated 27.09.1993 whereby the earlier resolution of the BDA recommending for dropping of proceedings has been rescinded and once a registered instrument conveying title in favour of the petitioner is in 31 existence, the question of taking any action for allotment/execution of Sale Deed in favour of Thimmarayappa does not arise.
D. RE: BAR OF CONVEYING RIGHTS IN A CIVIC AMENITY SITE TO THE PETITIONER:-
30. Insofar as the contention raised by learned Senior Counsel appearing on behalf of respondent No.18 that the Sale Deed in favour of the petitioner at the first instance on 02.11.2007 was itself void as the subject matter of transfer was a "Civic Amenity Site" and that could not have been conveyed in light of bar under Section 38-A(2) and accordingly the petitioner is to be denied relief, requires consideration.
31. It must be noted that for the bar under Section 38-A(2), to dispose of any area reserved for "Civic Amenities", the site in question must be a "Civic Amenity Site". Rule 2(b) of the Bangalore Development 32 Authority (Allotment of Civil Amenity Sites) Rules, 1989 defines 'Civic Amenity Site' as follows:-
"2(b) "Civic Amenity Site" means a site earmarked for Civic Amenity in a layout formed by the Authority or a site earmarked for Civic Amenity in a private layout approved by the Authority and relinquished to it."
32. This Court, in the case of Sudha Sudheendra Kallol, since dead by her L.R. v. Commissioner, Bangalore Development Authority and Another2 has held as follows:-
"6. Rule 2(b) of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 defines a "Civic Amenity Site" to mean "a site earmarked for civic amenity in a layout formed by the authority or a site earmarked for civic amenity in a private layout approved by the authority and relinquished to it". This is only "a means definition" as contra distinguished from "an inclusive definition". 2
ILR 2019 KAR 3748 33 Learned Author Justice G.P. Singh, in his Principles of Statutory Interpretation, 13th Edition-2012 at page-179 writes:--
"The Legislature has power to define a word even artificially. So the definition of a word in the definition section may either be restricted of its ordinary meaning or it may be extensive of the same. When a word is defined to 'mean' such and such, the definition is prima facie restrictive and exhaustive; whereas, where the word defined is declared to 'include' such and such, the definition is prima facie extensive."
7. The text and context of the aforesaid definition leaves no manner of doubt as to what a Civic Amenity Site is. To be a Civic Amenity Site, going by the said definition, earmarking of the said site as such, in the layout, be it formed by the BDA or a private developer, is a sine qua non which is missing in the instant case. A site not so earmarked in the BDA layout plan or the approved private layout plan does not become a civic amenity site merely by usage, not withstanding its description as a civic amenity site in any document other than the approved layout plan. In other words, a site which is not 34 earmarked as a Civic Amenity Site cannot be so treated as a Civic Amenity Site by act of parties post approval of the layout plan. The argument to the contrary cannot be countenanced without manhandling the definition prescribed under Rule 2(b)."
33. In the present case, the layout plan, copy of which has been produced at Annexure-'M' would indicate that the site is shown as "Shopping Complex". The auction notification at Annexure-'A' describes the site in question and its usage as "Purpose - Shopping Complex".
34. The mere description in the Schedule as 'C.A. Site' would not make it ipso facto a "Civic Amenity Site", as the layout plan does not reserve the Site No.2 as a "Civic Amenity Area".
35. Accordingly, the attack to the validity of the Sale Deed of the petitioner by the respondent in the present proceedings is liable to be rejected. 35 E. RE: ENQUIRY AGAINST THE OFFICIALS OF BDA
36. Though the petitioner has sought for investigation into the criminal acts committed by the officials of the BDA and to initiate appropriate prosecution proceedings, at the present stage of litigation note may be taken of the stand of BDA that notice has been issued to the Deputy Secretary - 1 to explain the illegality/misconduct committed by him in allotting the land without bringing it to the notice of Commissioner/Secretary. 3
37. To ensure accountability of the concerned, it would be appropriate that BDA complete the enquiry and take appropriate action as referred to in the "Proceedings of the meeting held on 05.04.2019 under the Chairmanship of the Commissioner to discuss the case related to Survey No.53 of Madiwala Village." 3 see para-4 of the proceedings of the meeting held on 05.04.2019 filed by BDA in memo dated 26.04.2019 in W.A.No.2261/2017 36 F. RE: AUTHORITIES RELIED UPON BY THE RESPONDENTS
38. The learned counsel appearing for respondent No.18 has relied on various legal authorities in support of their contention which are adverted to as follows:-
POWER OF THE WRIT COURT TO ADJUDICATE AND SET ASIDE SALE DEEDS:-
(i) In Smt.Suguna Rajkumar v. R. Rajmal and Another4, this Court was considering a situation wherein appellant claimed title to property under a sale certificate issued by the Court in pursuance of a Court sale of a property, while the respondent No.1 claimed title in pursuance of Sale Deed executed by the Court in a suit for specific performance of an Agreement of Sale. The Court has laid down the proposition that writ petition being a public law remedy cannot be invoked for resolution of private law disputes and that an effective 4 ILR 2005 KAR 1583 37 alternative remedy is laid out which could also go into disputed questions of fact. It is in light of the particular factual matrix that the observations of the Court are required to be noticed. However, in the present case, the relief regarding setting aside of the sale deed dated 29.04.2015 executed by the respondent No.4 - BDA is sought to be set aside consequent to setting aside of the re-conveyance/re-allotment bearing No.003185 dated 17.04.2015. Accordingly, the bar for Writ Court to set aside sale deeds may not operate in the present case where it is only a consequential relief.
(ii) The judgment in Binny Mill Labour Welfare House Building Co-operative Society Limited v. D.R. Mruthyunjaya Aradhya5, in fact supports the case of the petitioner and the observation at para-36 is to the effect that where a person who has already executed a sale deed were to execute one more sale deed and get it 5 ILR 2008 KAR 2245 38 registered in respect of the said property, the sale deed has no value in the eye of law as he is not the owner of the property on the date of the second sale deed. Accordingly, in the present case the sale deed executed to the petitioner being the first conveyance (02.11.2007), the question of BDA executing a fresh sale deed with respect to the same property does not arise and accordingly, execution of sale deed by BDA in favour of Thimmarayappa on 29.04.2015 is still born and void.
(iii) Satya Pal Anand v. State of Madhya Pradesh and Others6, the Apex Court has observed that, as the statutory remedy was already invoked, the question of adjudication of connected matters in the writ jurisdiction would not arise and accordingly, the questions raised in para-23.2(b) and 23.3(c) have in effect not been answered on its merits. The present factual matrix is different.
6(2016) 10 SCC 767 39 RE-ALLOTMENT OF CIVIC AMENITY SITES:
(i) In Purushotham v. State of Karnataka and Others7, a proposition that the area reserved for Civic Amenities shall not be disposed of for any other purpose under Section 38A of the BDA Act, is not in dispute but the same cannot be applied in the present facts in light of the discussion at consideration point No. (D).
(ii) In Bajaranglal Shivchandrai Ruia v.
Shashikant N. Ruai and Others8 and in Prem Singh and Others v. Birbal and Others9, the Apex Court has held that it is not necessary that the defendant has to challenge the title of the plaintiff by way of a substantive suit if otherwise it is null and void and that nullity of title could be set up as a defence and the burden would lie on the plaintiff to prove title. There is no dispute regarding the said proposition of law, however, as observed by the 7 (2016) 16 SCC 342 8 (2004) 5 SCC 272 9 (2006) 5 SCC 353 40 discussion at consideration Point No.(D), the nullity of title of the petitioners itself is a matter not free from dispute.
IV. CONCLUSION:-
39. In light of the resolution dated 31.10.1992 having been rescinded on 27.09.1993 and in light of the discussion made above, the re-allotment/re-grant at Annexure-'Q' dated 17.04.2015 is liable to be set aside. Consequently, the Sale Deed dated 29.04.2015 at Annexure-'R' in favour of respondent Nos.13 to 18 represented by respondent No.18 is declared as null and void, as also the re-allotment/re-conveyance, Possession Certificate at Annexure-'S' dated 30.04.2015 is set aside.
40. Needless to state that the findings given on adjudication is limited to the extent of rights which is a subject matter in the present petition and this observation is made in light of the submission made on 41 behalf of respondent No.18 that there are other litigations as well, which ought not to be impacted by the observations made in the present petition.
Accordingly, the petition is allowed in part.
Sd/-
JUDGE VGR