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2015 DIGILAW 1069 (KAR)

Ajay R. Gowda v. Bangalore Development Authority

2015-09-09

RAM MOHAN REDDY

body2015
ORDER : Ram Mohan Reddy, J. 1. The challenge in these petitions is over the Cancellation Deed dated 23.12.1997 registered in the office of the Sub-Registrar, Kengeri as Document No. 11304/1997-98, pages 33 and 34, Volume 1745 of Book-I, dated 27.12.1997, Annexure-N, executed by the Bangalore Development Authority (for short 'BDA') and the endorsement No. DSII/JPNIII/633/15-16 dated 26.6.2015 Annexure-Q of the respondent, 'BDA', while the other relief is for a writ of mandamus, directing the respondent, 'BDA', to consider petitioner's representation dated 9.3.2015 Annexure-P, and to execute an absolute sale deed in terms of Rule 13[8][i] and [ii] of the Bangalore Development Authority [Allotment of Sites] Rules, 1984, ('Rules' for short) as it existed prior to amendment by Notification dated 23.10.2000. 2. One Radha, wife of Gundappa Shastry the allottee of site bearing No. 633, 15th Cross, Sarakki, J.P. Nagar, Bengaluru, when put in possession under a possession certificate dated 04.01.1985 Annexure 'B' and a lease-cum-sale agreement dated 24.12.1984 executed between the allottee and the respondent/BDA, was registered as Document No. 6113/1984-85 of Book-I, Volume 2256 at pages 75 to 80 in the office of the Sub-Registrar, Bangalore South Taluk Annexure A'. That allottee unable to abide by the conditions of allotment as incorporated in the lease-cum-sale agreement, requested respondent 'BDA' to transfer the allotted site to Smt. R. Gayathri Devi, mother of the petitioner, whence, 'BDA, permitted the transfer as endorsed on 2.3.1992, on the reverse of the possession certificate dated 4.1.1985, Annexure 'B' stating that site No. 633 is transferred from the name of Smt. Radha, wife of Gundappa Shastry, to the name of Smt. R. Gayathri Devi, daughter of late Sri. M. Ramaswamy, as per usual conditions of allotment as per orders of Secretary dated 2.3.1992. Petitioner's mother, it is said, deposited Rs. 500/- as 'transfer fee', and paid Rs. 32,758/- towards value of the site, as per demand duly credited to the account of the respondent 'BDA' on 12.3.1992, following which respondent 'BDA', executed a transfer agreement in favour of petitioner's mother on 17.8.1992, registered in the office of the Sub-Registrar, Kengeri as Document No. 5035/1992-93, pages 79 to 81, Volume ADL587, Book-I, dated 29.10.1992 Annexure-G, recording conditions that the allottee will abide by the terms and conditions of the lease cum sale agreement dated 24.12.1984 including the obligation of the transferee to put up construction of a building on the said site. According to petitioner, his mother obtained sanction of a building plan from the Bangalore Mahanagara Palike and put up construction of a building consisting of three floors with a total built up area of 12,000 sq. feet, presently in the occupation of M/s. Shekar Nethralaya and Eye Hospital. Petitioner's mother reportedly died on 26.12.2012, where afterwards, the Bruhat Bengaluru Mahanagara Palike recognized the acquisition of the right, title and interest jointly by the petitioner and his father and recorded their names in its tax assessment record. Father of the petitioner reportedly died on 22.11.2013, following which petitioner having succeeded to the immovable property, secured khata of the said property in his name from the Bruhat Bengaluru Mahanagara Palike. Petitioner having sought a loan by mortgage of the immovable property was informed by the Bank that he did not possess an absolute title to the immovable property, whence on enquiry, BDA informed the petitioner that the transfer agreement was cancelled on 23.12.1997 by execution and registration of a cancellation deed, Annexure-N. Petitioner's representation dated 9.3.2015, Annexure-P requesting 'BDA' to regularize the transaction of the transfer of the lease-cum-sale agreement and to execute and lodge for registration the conveyance deed, when considered, was responded to by endorsement dated 26.6.2015, Annexure-Q of the 'BDA', stating that there is no provision in law to re-allot/re-grant site in favour of the petitioner. 3. Petitions are opposed by filing counter statement dated 20.8.2015 of the respondent 'BDA', inter alia, admitting facts set out in the memorandum of writ petition, however, contending that Annexures-N & Q legally valid do not call for interference. 4. Sri. 3. Petitions are opposed by filing counter statement dated 20.8.2015 of the respondent 'BDA', inter alia, admitting facts set out in the memorandum of writ petition, however, contending that Annexures-N & Q legally valid do not call for interference. 4. Sri. D.N. Nanjunda Reddy, learned Senior Counsel for the petitioner, submits, that the 'Rules', prior to amendment by Notification dated 23.10.2000, in so far as it relates to Rule-14, provided for restrictions, conditions on sale of sites, while Sub-rule (2-A) stated that where a lessee has alienated the site in contravention of sub-clause [iii] of Clause[a] of Sub-rule [2], the 'BDA' on an application of the purchaser of such site and subject to payment by the purchaser, an amount equal to 25% of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration, order for regularization of such alienation and may also convey title to such purchaser, hence respondent 'BDA' had no impediment to invoke the said rule and convey the immovable property in favour of petitioner's mother during her lifetime, regard being had to the fact that 'BDA' permitted the transfer of the site from Smt. Radha in favour of petitioner's mother during the year 1992. 5. It is next submitted that 'BDA' having permitted the transfer of the allotment of the site from Smt. Radha to petitioner's mother as disclosed in the endorsement recorded, on the reverse of the possession certificate, coupled with the receipt for payment of Rs. 500/- towards fee for transfer and Rs. 32,758/- being value of the property as demanded, for such transfer followed by the execution of the transfer agreement obligating petitioner to comply with all the terms and conditions of the lease-cum-sale agreement between Smt. Radha and 'BDA', there was no impediment for the respondent 'BDA' to execute the absolute sale deed conveying the said site in favour of petitioner's mother, on compliance with the terms and conditions including construction of the building 6. Learned Senior Counsel submits that the cancellation deed dated 23.12.1997, Annexure-N, executed unilaterally by the respondent 'BDA' without notice to petitioner's mother is illegal, contrary to and in violation of section 31 of the Specific Relief Act, 1963, and places reliance upon a decision in 'S. Venkoji Rao v. The Bangalore Development Authority, Represented by its Commissioner', ILR 2011 KAR 408. According to the learned Senior Counsel, to cancel the transfer agreement, Annexure-G, an instrument duly registered, respondent 'BDA' was required to institute a suit before the Civil Court of competent jurisdiction, invoking Section 31 of the Specific Relief Act, 1963, to declare as null and void the transfer agreement and having not done so, the cancellation deed, Annexure-N, is a nullity. 7. Learned Senior Counsel hastens to add that in the absence of a valid cancellation of the allotment in favour of Smt. Radha, and determining the lease cum sale Agreement as well canceling the decision of the 'BDA' over the transfer of the allotment, in accordance with law, the cancellation deed Annexure-N of the 'BDA' cannot but be characterized as arbitrary and perverse. 8. It is lastly submitted that the transfer of the allotment on 2.3.1992, Annexure-E followed by execution of transfer agreement dated 17.8.1992 Annexure-G, the cancellation deed dated 23.12.1997 Annexure-N is null and void since executed beyond reasonable time. 9. Per contra, Sri. C.R. Gopalaswamy, learned Counsel for the respondent 'BDA', seeks to sustain the cancellation deed Annexure-N and the endorsement Annexure-Q as being well merited, fully justified and not calling for interference. According to the learned Counsel, the cancellation deed was necessitated since transfer of allotment was not permissible hence petitioner's mother was disentitled to an absolute sale deed, conveying the said site. Although the cancellation deed Annexure-N is dated 23.12.1997, nevertheless, is five years from the date of execution of the transfer agreement dated 17.8.1992 Annexure-G, hence within reasonable period if reckoned from the date on which the respondent 'BDA' became aware that such transfer of allotment is impermissible. 10. Learned Counsel further submits that the endorsement Annexure-E on the reverse of the possession certificate does not record any resolution passed by the Board for transfer of the site, but states that it is on an order of the Secretary of the 'BDA'. 11. In the light of the facts supra, there is no dispute that site No. 633, 15th Cross, Sarakki, III Phase, J.P. Nagar, was allotted on 24.12.1984 to Smt. Radha, followed by delivery of possession under a possession certificate dated 4.1.1985 and the execution of lease cum sale agreement dated 24.12.1984 incorporating terms, conditions and obligations of the parties. 12. 11. In the light of the facts supra, there is no dispute that site No. 633, 15th Cross, Sarakki, III Phase, J.P. Nagar, was allotted on 24.12.1984 to Smt. Radha, followed by delivery of possession under a possession certificate dated 4.1.1985 and the execution of lease cum sale agreement dated 24.12.1984 incorporating terms, conditions and obligations of the parties. 12. Section 38 of the Bangalore Development Authority Act, 1976, hereinafter referred to as 'BDA Act' for short, empowers the Authority to lease, sell or transfer its properties. That section consists of two parts, first of which deals with the power of the 'BDA' to lease, sell or otherwise transfer any movable or immovable property which belongs to it, while the second to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. 13. The site in question when allotted to Smt. Radha and a lease-cum-sale agreement executed incorporating certain conditions, the allottee obtained leasehold rights, though, entitled to absolute rights subject to compliance with certain conditions, whence the 'BDA' promised to execute a sale deed in her favour. That Lessee having requested the 'BDA' to transfer her right, title and interest in the site in favour of petitioner's mother, when accepted by the respondent 'BDA' exercising a jurisdiction under the 'BDA Act', permitted transfer of the said site in favour of petitioner's mother, subject to all the terms and conditions in the lease cum sale agreement executed with Smt. Radha, as recorded in the transfer agreement, Annexure-G, on acceptance of transfer fee of Rs. 500/- and treating the said transfer as a fresh allotment on receipt of Rs. 32,758/- being the value of the said site on the date of the transfer. In short, the principle of promissory estoppel applies since there is acceptance of the letter of transfer from Smt. Radha, following which 'BDA' permitted the transfer of the site by way of allotment, and under the transfer agreement, received the consideration being the value of the site as on the date of transfer by way of a fresh allotment in favour of petitioner's mother, followed by delivery of possession hence, it is not open for the respondent/BDA to go behind its own decision. Significant to note that though an allotment was made to petitioner's mother, nevertheless, there was no order either canceling the allotment in favour of Smt. Radha or determining the lease cum sale agreement dated 24.12.1984, Annexure-A which terms and conditions were made binding on the petitioner's mother in view of the covenants in the transfer agreement, Annexure-G. If considered in the aforesaid light, petitioner is justifiably entitled to a legitimate expectation that 'BDA' would honour its commitment and assurance and execute the sale deed conveying the said property in favour of petitioner, since his mother is reportedly dead. 14. Section 31 of the Specific Relief Act, 1963 under Chapter V relating to 'Cancellation of Instruments' states that any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled, and if the instrument is registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Law provides for a procedure to be followed in matters relating to cancellation of registered instruments requiring it to be done in the manner therein and not in any other manner. When a certain thing is permitted to be done in a certain way, must be done in that way or not at all and other methods of performance are necessarily forbidden. 15. The jurisdiction to cancel transfer agreement, Annexure-G, undoubtedly vests with the Court and cannot be exercised by the respondent/BDA, in the light of Section 31 of the Specific Relief Act, 1963. 15. The jurisdiction to cancel transfer agreement, Annexure-G, undoubtedly vests with the Court and cannot be exercised by the respondent/BDA, in the light of Section 31 of the Specific Relief Act, 1963. In almost similar though not identical circumstances, this Court in Venkoji Rao's case supra, following the dictum in Binny Mill Labour Welfare House Building Co-operative Society Limited v. D.R. Mruthyunjaya Aradhya, ILR 2008 KAR 2245, recorded a finding that a conditional sale deed entitled the allottee to exercise absolute and full ownership rights in property conveyed and respondent/'BDA' therein without taking recourse to Section 31 of the Specific Relief Act, 1963, the cancellation of the conditional sale deed was held to be illegal. 16. In that view of the matter, it cannot but be said that the cancellation deed dated 23.12.1997, Annexure-N, executed unilaterally by the respondent 'BDA' to cancel the transfer agreement dated 17.08.1992, Annexure-G is void ab initio. 17. Viewed in the back drop of admitted facts the allotment, even assuming, was a fresh allotment in favour of petitioner's mother, as on 02.03.1992 endorsed on the reverse of possession certificate, Annexure-E, coupled with delivery of possession and execution of transfer deed, dated 17.08.1992, Annexure-G, obligating petitioner's mother to the terms and conditions of the lease cum sale agreement dated 24.12.1984, Annexure-A, the transfer of the site from Smt. Radha to petitioner's mother when acquiesced in by the respondent/BDA, its action to unilaterally cancel the transfer agreement by execution of the cancellation deed dated 23.12.1997, Annexure-N, smacks of abuse of power. 18. Yet again, a Division Bench, in Bangalore Development Authority, represented by its Commissioner v. Smt. Sumitradevi ILR 2004 KAR 1386, having invalidated the action of cancellation of allotment initiated after long gap of 18 years, held thus: "There can be no doubt that where no power of limitation is prescribed by an Act or the Rules made thereunder for the exercise of suo-moto statutory power, the exercise of that power cannot be impugned on the ground that it is barred by limitation. No period of limitation can be imposed otherwise than by statute or the rules made thereunder. But, nonetheless, the power vested in an authority to revise the orders of the subordinate authorities or to take any adverse action against a person suo-moto, has to be exercised within a reasonable time. No period of limitation can be imposed otherwise than by statute or the rules made thereunder. But, nonetheless, the power vested in an authority to revise the orders of the subordinate authorities or to take any adverse action against a person suo-moto, has to be exercised within a reasonable time. In our view, in cases where no period of limitation is prescribed under the statute or the Rules made thereunder for exercise of powers suo-moto, the question for consideration is not whether the exercise of the power is barred by limitation for in the absence of a period of limitation prescribed under the Act, the question of bar of limitation cannot arise, but it is a question of reasonable period within which that power should be exercised. What is reasonable period within which the statutory suo moto power could be exercised would undoubtedly be dependent upon the facts and circumstances of each case." (emphasis supplied) 19. In the light of the aforesaid observations and the fact that more than 5 years elapsed between the transfer agreement dated 17.8.1992, Annexure-G and cancellation deed dated 23.12.1997, it is needless to state that the action of the 'BDA' in unilaterally executing the cancellation deed on 23.12.1997 is unreasonable, unfair and arbitrary. Sequentially as on today, petitioner's mother and thereafter petitioner is in possession and enjoyment of the property for more than 22 years, hence 'BDA' would be well advised not to propose any further action to cancel the allotment made on 02.03.1992 though in the form of transfer in favour of petitioner's mother in respect of the property in question. 20. There is force in the submission of the learned Senior Counsel that Rule 14(2-A) of the 'Rules', as it existed prior to its substitution by notification dated 23.10.2000 did invest a jurisdiction in the 'BDA' on an application of the purchaser of a site in contravention of sub clause (111) of clause (a) of Sub-rule (2) of the 'Rules' on payment by the purchaser of an amount equal to 25% of the sital value, determined at the rates specified by the State Government, from time to time, for the purpose of registration, to order regularization of such alienation and convey title to such purchaser. 'BDA' in the circumstances of the case ought to have exercised that jurisdiction to convey the site in question to the petitioner's mother, on receipt of Rs. 'BDA' in the circumstances of the case ought to have exercised that jurisdiction to convey the site in question to the petitioner's mother, on receipt of Rs. 32,758/- as on 17.08.1992 towards value of the said site. On that score too, action impugned of the respondent/'BDA' is unjust and arbitrary. 21. Assuming the allotment of the site was made afresh in favour of petitioner's mother on 2.3.1992 following which the building is constructed, thereon, more than ten years having elapsed, i.e., the period of lease in terms of the transfer agreement dated 7.8.1992, Annexure-G and the lease-cum-sale agreement dated 24.12.1982, Annexure-A, petitioner is entitled to a sale deed of the site executed at his own cost in accordance with clause (i) of sub Rule (8) of Rule 13 of the 'Rules'. 22. Looking at it from any angle, neither the cancellation deed, Annexure-N nor the endorsement, Annexure-Q are justified, in the facts and circumstances. 23. In the result, petitions are allowed. Cancellation deed, Annexure-N is declared null, void and inoperative. Annexure-Q, endorsement is quashed and respondent/BDA is directed to execute and lodge for registration the conveyance deed in terms of the transfer agreement, Annexure-G, if petitioner has complied with the conditions of lease cum sale agreement dated 24.12.1984, Annexure-A, in any event by 30th September 2015.