Commissioner, Bangalore Development Authority v. Rajvir P. Sharma
2017-09-01
B.V.NAGARATHNA
body2017
DigiLaw.ai
JUDGMENT : 1. The Bangalore Development Authority (BDA), Bangalore, represented by its Commissioner has filed this appeal assailing the order passed in O.S.No.25449/2009 dated 18/08/2016 by the XXVI Addl. City Civil and Sessions Judge at Mayo Hall, Bangalore. On an application under Order XII Rule 6 r/w Section 151 of the Code of Civil Procedure, 1908 (CPC), the trial court decreed the suit on the basis of the admissions made in letter dated 06/03/2013 written by BDA to the State Government. 2. For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court. 3. Respondent filed the suit seeking the relief of declaration that the order dated 17/02/2009, canceling the allotment of the suit schedule property in favour of the plaintiff as null and void and for consequential relief of permanent injunction restraining the defendant, their men, agents or anybody claiming under them acting upon the order passed by the defendant dated 17/02/2009. 4. It is the case of the respondent-plaintiff that he had made an application to the defendant- authority seeking allotment of a site in Sir.M.Vishweshwaraiah Layout. That he was allotted a site bearing No.1542/1, situated at 1st Block of the Layout by Allotment Letter dated 11/08/2003. That BDA executed a registered sale deed dated 20/11/2003 in favour of the plaintiff and a Katha Certificate was also issued in his name. According to the plaintiff, he has been regularly paying the taxes on the said site and has been in peaceful possession and enjoyment of the suit site. 5. It is the further case of the plaintiff that after a lapse of about five years after the execution of the sale deed in his favour, BDA issued a show cause notice dated 11/09/2008 alleging that his wife Smt. Nagambika Devi owns a site in her name bearing No.24 situated at HSR Layout, Bangalore. That on 19/08/2003, the plaintiff has sworn to a false affidavit, stating that, neither he, his wife nor his children own any house or site property allotted by any society or association. That the plaintiff had violated Rule-13(9) of the BDA (Allotment of Sites) Rules, 1984 (hereinafter referred to as ‘Rules’ for the sake of brevity). The plaintiff replied to the said notice on 10/10/2009 denying the allegations levelled against him in the show cause notice.
That the plaintiff had violated Rule-13(9) of the BDA (Allotment of Sites) Rules, 1984 (hereinafter referred to as ‘Rules’ for the sake of brevity). The plaintiff replied to the said notice on 10/10/2009 denying the allegations levelled against him in the show cause notice. According to him, the Government of Karnataka through its appropriate authority perused the entire notice and passed an order dated 06/08/2008 to the effect that the plaintiff had not filed any false affidavit before the BDA regarding allotment of the site. That the affidavit filed by the plaintiff was not in violation of Rule-13(9) of the Rules and that the allotment of suit site to the plaintiff was not liable to be cancelled. 6. According to the plaintiff, the BDA allotted the suit site in favour of the plaintiff on 16/08/2003 and the sale deed had been executed in his favour by the BDA after due compliance of eligibility criteria and formalities. In fact, the plaintiff had sworn to an affidavit, which was in Kannada and the plaintiff did not know reading or writing of Kannada. Even then, he had not committed any error and had not sworn to any false affidavit. That, as on the date of the application for allotment of site i.e., in January 2003, and on 16/08/2003 i.e., the date of execution of the sale deed by the BDA in favour of the plaintiff, neither the wife of the plaintiff nor his children were owning any other site in Bangalore City. That on 19/08/2003, plaintiff had filed an affidavit in accordance with the defendant’s draft given by the BDA. 7. That the plaintiff had provided an advance intimation to the Government of Karnataka in accordance with All India Service Conduct Rules, on 08/10/2003 regarding allotment of sites. That on 20/11/2003, defendant executed an absolute sale deed in favour of plaintiff in respect of the suit site. The plaintiff had also intimated to the State Government about the registration of the property by the defendant in his name on 28/11/2003, in accordance with Rule 16(3) of All India Service (Conduct-5) Rules, 1968. That the Government of Karnataka did not seek any clarification nor raise any objections seeking clarification from the defendant. That in fact, at least forty senior officers had been allotted sites by the Government Authorities/Cooperative Societies in-spite of holding other sites including the BDA sites and vice versa.
That the Government of Karnataka did not seek any clarification nor raise any objections seeking clarification from the defendant. That in fact, at least forty senior officers had been allotted sites by the Government Authorities/Cooperative Societies in-spite of holding other sites including the BDA sites and vice versa. According to the plaintiff, after submitting a detailed reply to the show cause notice, he visited the office of the BDA on 26/02/2009 but as he came to know that the defendant had not considered his reply and no orders has been passed but the officials of the BDA gave a vague and evasive reply stating that they are proceeding to cancel the allotment in respect of the suit site. Thereafter, on 17/02/2009 the defendant infact illegally cancelled the allotment of the suit site. By the said order, defendant has cancelled the allotment of the suit site to the plaintiff and the amount paid by the plaintiff for registration of the suit site to the tune of Rs.5,72,400/- has been forfeited by the BDA. That, without there being any fault on the side of plaintiff, defendant has passed an order cancelling the allotment of suit site, which was allotted to the plaintiff and the same is illegal, arbitrary and the same has been passed without proper application of mind and without there being justification in doing so. Hence, the plaintiff filed the suit seeking a declaratory relief. 8. In response to the suit summons, the defendant-BDA appeared through his counsel and filed a detailed written statement contending that the suit is neither maintainable in law nor on facts. That the plaintiff has come before the Court by suppressing material facts and misleading the Court by suggesting falsehood with an ulterior motive. That the plaintiff had not issued any notice as contemplated under Section 64 of the BDA Act, 1976, which is a mandatory requirement and the suit was liable to be dismissed on that ground alone. According to the BDA, plaintiff had sworn to a false affidavit and had applied for an allotment of a site in Sir M.Vishweswaraiah Layout, I Block, formed by the defendant. Subsequently, as the plaintiff claimed a site in return for public service, he had filed an affidavit sworn to on 19/08/2003 which was one of the pre-conditions to be complied with by the applicant for allotment of site in the layouts formed by the defendant.
Subsequently, as the plaintiff claimed a site in return for public service, he had filed an affidavit sworn to on 19/08/2003 which was one of the pre-conditions to be complied with by the applicant for allotment of site in the layouts formed by the defendant. That the plaintiff willfully and knowingly suppressed material facts and had suggested falsehood, stating that neither he nor his wife or children had been allotted any site within the jurisdiction of BDA and they did not own any site. On the basis of the said application and affidavit, the defendant allotted site bearing No.1542/1 at Sir.M.Vishweshwaraiah Layout, I Block to the plaintiff and the sale deed was registered and possession certificate was also issued in favour of the plaintiff. After completion of the formalities, plaintiff requested for allotment of an alternative site at HSR Layout, which was not considered by the BDA. That on 27/12/2005, the defendant received notice from the office of the Chief Secretary to the Government of Karnataka, stating that plaintiff’s wife had already allotted site No.24, HSR Layout by Metropolitan Cooperative Housing Society Ltd., Bangalore during 1998 besides which plaintiff was also allotted a site at Nandanahalli, My sore City by the Karnataka State Police Employees Housing Cooperative Society. Thus, the defendant was called upon to furnish a copy of the affidavit furnished to the office of the Chief Secretary. That on 23/08/2007, the Personnel Secretary, Staff and Administrative Reforms Department issued another letter to the BDA stating that plaintiff’s wife who was then an IAS Officer was allotted a site bearing No.24, at HSR layout in the year 1998. That as per Government Circular dated 05/11/1999, a State Government official is entitled to only one residential site issued by a single agency and that he/she is not entitled for further allotment of any residential site. Further, if his/her spouse has already been allotted a house or residential site or flat, then he/she is not entitled for further allotment of site by the Authority. Further, the Chief Secretary of the Government of Karnataka had issued letter dated 30/10/2007 by taking into consideration the false affidavit filed by the plaintiff for allotment and directed the BDA to take action against the plaintiff. That the defendant issued a show cause notice to the plaintiff in light of the affidavit furnished and the letter of the Chief Secretary on 12/12/2007.
That the defendant issued a show cause notice to the plaintiff in light of the affidavit furnished and the letter of the Chief Secretary on 12/12/2007. Though the show cause notice was issued, the same was returned unserved. Then defendant-BDA directed the authority to serve the notice personally to the plaintiff. That plaintiff was served with the said notice on 11/09/2008 but he submitted an untenable reply on 10/10/2008 stating that his wife did not own any property as on the date of allotment of the suit schedule site. That the defendant further averred that the plaintiff, being an IPS officer, had contravened the provisions of law and had shamelessly taken certain contentions as in the plaint, which shows corruptive attitude of the plaintiff. Thus, after giving reasonable opportunity to the plaintiff, defendant had proceeded to pass order dated 18/02/2009 by cancelling the allotment of suit site allotted in his favour in terms of Rule 10 of the Rules. That the said order is in accordance with law. If at all the plaintiff had any grievance against the order, he could have approached the appropriate authority. In view of the aforesaid averment, defendant-BDA sought for dismissal of the suit. 9. Thereafter, the trial Court framed issues in the suit. 10. Subsequently, plaintiff filed an application under Order XII Rule 6 of CPC accompanied by an affidavit stating that BDA in its letter written to the Principal Secretary, Urban Development Department dated 06/07/2013 had admitted the fact that as on the date of allotment of the suit site to the plaintiff neither he nor his wife possessed any site within the jurisdiction of Bangalore Metropolitan Area and the affidavits and the letters dated 01/06/2013 and 18/08/2013 clearly disclose the fact that his wife had already sold the site in the year 2002. The said fact was categorically admitted by defendant in its letter dated 06/07/2013. That in the said letter, it was also admitted that no decision would be taken by the BDA as the matter is pending for adjudication before the trial Court. That the Law Officer of the BDA had given an opinion to the effect that the contents of the affidavit are true and correct and had advised the BDA that cancellation of allotment of site made in favour of the plaintiff was not in accordance with law and the norms of the BDA.
That the Law Officer of the BDA had given an opinion to the effect that the contents of the affidavit are true and correct and had advised the BDA that cancellation of allotment of site made in favour of the plaintiff was not in accordance with law and the norms of the BDA. On the basis of the said material facts, plaintiff sought for decreeing of the suit. 11. That the defendant-BDA has categorically admitted that the contents of the affidavit filed by the plaintiff to the BDA were not untrue and incorrect which was to the effect that as on the date of allotment of the suit site, plaintiff’s wife had already alienated the site allotted to her by Metropolitan Cooperative Housing Society Ltd., Bangalore and that neither he, his wife nor any member of his family owned a site within the jurisdiction of the Bangalore Metropolitan Area. Further, the site owned by the plaintiff in My sore did not have any bearing with regard to the site to be allotted by the BDA. 12. In response to the said application, BDA filed its objections, inter alia, contending that the defendant had nowhere admitted the aforesaid facts. On the other hand, defendant in its written statement denied the averments made in the plaint. That any allotment made by the BDA or any Housing Cooperative Society, if it is a valid allotment in the eye of law and such an allotment has been made to a member of a family of the applicant who was already allotted a site then such an applicant of the BDA would be disentitled to a site. That any alienation of a site allotted by the BDA or any Housing Cooperative Society would also come within the scope contemplated under the Rules. Therefore, the object and purpose of the Rules would have to be adhered to at the time of allotment of a site to the applicant. Just because the wife of the plaintiff had already sold the site allotted to her by Metropolitan Cooperative Housing Society Ltd., Bangalore, would not imply that there was no power for the BDA to withhold allotment of the site to the plaintiff. That the plaintiff had suppressed material facts before the BDA even though he is ineligible for allotment of a site.
That the plaintiff had suppressed material facts before the BDA even though he is ineligible for allotment of a site. That the defendant had nowhere in its letter dated 16/07/2013 accepted or admitted any fact in favour of the plaintiff. That in view of the categorical assertion made by the defendant in its written statement, that cannot be an admission in law, so as to entitle the plaintiff to a decree under Order XII Rule 6 of CPC. The defendant further contended that the plaintiff is evading from the clutches of law and does not intend to face trial in the suit and therefore, he is circumventing the trial of the suit by filing the said application. The defendant urged for dismissal of the application. 13. The trial Court on considering the arguments of the respective counsel on the said application framed the following points for consideration: “1. Whether the plaintiff is entitled for the judgment on admission as prayed in the I.A. filed under I.A. filed u/o. XII Rule 6 of the CPC? 2. What order?” 14. On hearing the learned counsel for the respective parties, the trial Court answered the said points in the affirmative and allowed the application filed under Order XII Rule 6 read with Section 151 of CPC and consequently, decreed the suit by holding that the cancellation order dated 17/02/2009, passed by the BDA as null and void. The trial Court further restrained the defendant, its men, agents, or anybody claiming under it, from interfering with the peaceful possession of the suit site by issuing an order of permanent injunction. 15. Being aggrieved by the suit being decreed on an application filed under Order XII Rule 6 read with Section 151 of CPC, the defendant-BDA has preferred this appeal. 16. I have heard the learned counsel for the appellant and learned Senior Counsel for the respondent and perused the material on record. 17. Appellant’s counsel contended that the trial Court was not right in allowing the application filed under Order XII Rule 6 of CPC filed by the respondent- plaintiff and thereby decreeing the suit. He drew my attention to the Rules framed by the BDA with regard to the allotment of sites within the Bangalore Metropolitan Area and contended that the spirit of the Rules must be borne in mind before considering the case of the plaintiff.
He drew my attention to the Rules framed by the BDA with regard to the allotment of sites within the Bangalore Metropolitan Area and contended that the spirit of the Rules must be borne in mind before considering the case of the plaintiff. He submitted that Rule 10(3) of the Rules as it then existed categorically stated that if any member of whose family owns a site or a house or has been allotted a site or a house by the BDA or a Cooperative Society registered under the Karnataka Co-operative Societies Act, 1969 or any other Authority within the Bangalore Metropolitan Area shall be ineligible to apply for allotment of a site. He submitted that the plaintiff filed an application on 15/05/2002 and that he was allotted the site on 11/08/2003. Thereafter, he had filed an affidavit on 19/08/2003 and on the basis of his affidavit, the sale deed was executed in favour of the plaintiff on 24/11/2003. According to appellant’s counsel, the plaintiff had filed a false affidavit by stating that neither he nor any member of his family owned a site within the limits of Bangalore Metropolitan area and that he was eligible for allotment of a BDA site. Whereas the fact was, his wife had been allotted a site by Metropolitan Cooperative Housing Society Ltd., on 30/12/1998 and that his wife being allotted a site by the Cooperative Society would disentitle the plaintiff from any allotment by the BDA. That the plaintiff knowing the aforesaid facts had sworn to a false affidavit and thereby had made an attempt to get himself allotted a site under the Rules. In fact, after the allotment made by the BDA, an enquiry was made by the Department of Personnel and Administrative Reforms (DPAR) as the respondent/plaintiff is an IPS Officer and that his wife is an IAS Officer and pursuant to that enquiry, the Chief Secretary to the Government of Karnataka wrote to the Commissioner, BDA to look into the matter with regard to there being any allotment of site in favour of the plaintiff and in that regard, a communication was issued by the Commissioner, BDA to the Principal Secretary, Urban Development Department on 06/07/2013.
The matter is still at the stage of enquiry and as the plaintiff by then had approached the trial Court, no steps have been taken with regard to withdrawal of the cancellation of the site and that the Commissioner, BDA was to report to the State Government on the request made by the State Government with regard to the details regarding the allotment of a site to the plaintiff and such a communication cannot be construed to be an admission, so as to decree the suit. He emphasized the fact that the applicant cannot be permitted to walk away with sites on the basis of misrepresentation and false affidavit and that the suit had to be tried, so as to adjudicate as to whether cancellation was in accordance with law or not and that by the impugned order, the trial of the suit has been curtailed. He submitted that the trial Court has to decide the suit after trial and in all probability, the suit would have to be dismissed but in the instant case, the trial Court has passed the impugned order and thereby has caused prejudice to the BDA. He submitted that the impugned order be set aside and the matter be remanded to the trial Court for the suit to be tried in accordance with law. 18. Per contra, learned Senior Counsel appearing for the respondent drew my attention to what is stated in Order XII Rule 6 of CPC to submit that where there is an admission of fact, either in the pleading or otherwise, i.e., de hors the pleadings, whether orally or in writing, then the Court may at any stage of the suit, either on the application of any party or on its own motion and without waiting for the determination of any other question between the parties, make such an order or give such judgment as it may think fit, having regard to such admissions. Learned Senior Counsel submitted that, in the instant case, letter dated 06/07/2013 categorically admits the fact that the plaintiff had not sworn to any false affidavit at the time of allotment of the suit site.
Learned Senior Counsel submitted that, in the instant case, letter dated 06/07/2013 categorically admits the fact that the plaintiff had not sworn to any false affidavit at the time of allotment of the suit site. He drew my attention to the cancellation order dated 17/02/2009 to contend that the reason for cancellation of the site was not because of there being any infraction of Rule 10 of the Rules, but for the reason that the plaintiff had submitted a false affidavit to the BDA while seeking allotment of the suit site to the effect that neither he, nor his wife or, any member of the family, had owned any site within the Bangalore Metropolitan Area and therefore, he would be eligible to be allotted the suit site. He contended that although the wife of plaintiff was allotted a site by the Metropolitan Cooperative Housing Society Ltd., on 30/12/1998, she had infact sold that site on 06/05/2002 before making an application to the BDA for allotment of the suit site. Thus, neither the plaintiff nor his wife or any member of the family owned any site within Bangalore Metropolitan Area so as to disentitle the plaintiff from allotment of a site. He further submitted that the suit site was allotted to him on 11/08/2003. Thereafter, he filed the affidavit on 19/08/2003. On the basis of the affidavit, sale deed was executed in favour of the plaintiff on 24/11/2003. After the allotment and nearly six years thereafter, BDA decided to cancel the site which was allotted to the plaintiff by alleging that the plaintiff had sworn to a false affidavit. He contended that if that is the allegation made against the plaintiff, then the cancellation cannot be on the basis of infraction of Rule 10 of the Rules. If at all, it could have been under Rule 13(3) of the Rules but the impugned cancellation order does not refer to Rule 13(3). 19. Learned Senior Counsel further submitted that from communication dated 06/07/2013 issued by the Commissioner, BDA to the Principal Secretary, Urban Development Department, it is clear that the plaintiff had not submitted any incorrect or untrue affidavit to the BDA for the purpose of allotment of site and in view of the said admission, it becomes clear that the cancellation of the order is without any substance.
If that is so, the trial Court on considering the same rightly decreed the suit by holding that the admission is made by the defendant and hence, the impugned order decreeing the suit would not call for any interference. In support of his submission, learned Senior Counsel placed reliance on the decision of the Hon’ble Supreme Court in the case of UTTAM SINGH DUGAL & CO. LTD., VS. UNION BANK OF INDIA reported in AIR 2000 SC 2740 . 20. By way of reply, the learned Counsel for the appellant placed reliance on the judgment of the Delhi High Court in the case of MANISHA COMMERCIAL LTD., VS. N.R.DONGRE reported in AIR 2000 DEL 176 so as to contend that where complex and contentious legal issues relating to construction of provisions such as Trusts Act are involved, application under Order XII Rule 6 cannot be granted nor can temporary injunction be granted. 21. Having heard the learned counsel for the appellant and learned Senior Counsel for the respondents, I find that the controversy in this appeal is in a very narrow compass. The question is whether the trial Court was justified in allowing the application filed under Order XII Rule 6 of CPC by decreeing the suit and thereby granting the relief to the plaintiff. Order XII Rule 6 of CPC reads as under:- “Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 22. The object and purpose of the said Rule has been noted by the Hon’ble Supreme Court in UTTAM SINGH DUGAL & CO. LTD., VS. UNION BANK OF INDIA reported in AIR 2000 SC 2740 in Paragraph 12 as under:- “12.
The object and purpose of the said Rule has been noted by the Hon’ble Supreme Court in UTTAM SINGH DUGAL & CO. LTD., VS. UNION BANK OF INDIA reported in AIR 2000 SC 2740 in Paragraph 12 as under:- “12. As to the object of the Order XII Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that “where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.” We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.” 23. Before such an application is allowed, the trial Court must scrupulously scrutinize as to whether there is a categorical admission of a fact or not. The said admission of a fact need not be only in the pleading. It could be de hors the pleading either before the filing of the suit or subsequent to the filing of the suit. The trial Court is empowered to decree the suit on the basis of admission made in favour of the plaintiff by the defendant or by anybody else which is in favour of the plaintiff either on the application made by any party or suo moto. 24. Having regard to the wide powers conferred on the trial Court to grant a judgment and decree in favour of the plaintiff on the basis of the admission of fact, great responsibility is cast on the Court to scrupulously scrutinize as to whether infact there is an admission in favour of the plaintiff so as to entitle the plaintiff to get the judgment and decree in the suit. 25.
25. It is a settled principle of law that an admission is the best piece of evidence. It is based on the aforesaid proposition that Order XII Rule 6 CPC has been amended by the Parliament by expanding the scope to the said provision with effect from 01/02/1977. 26. The relief of declaration sought by the plaintiff in the suit is to the effect that the order dated 17/02/2009 cancelling the allotment made in his favour is null and void. 27. The order impugned reads as under:- “I.A. filed by the plaintiff under Order-12 Rule-6 r/w Sec. 151 of the CPC is hereby allowed. Consequently, the suit of the plaintiff is decreed. It is hereby declared that, the Order passed by the defendant dtd. 17.02.2009 bearing No.BeAPra/Ayuktaru/SMVL-1/1542-1/2008-09 cancelling the allotment of suit schedule property, against the plaintiff, is null and void. It is further order that, the defendant, its men, agents or anybody claiming under it, are restrained by an order of Permanent Injunction, from acting upon the Order passed by the defendant dtd.17.02.2009 bearing No.BeAPra/Ayuktaru/SMVL-1/1542/1/2008-09. Under the circumstances, there is no order as to costs. Draw the decree accordingly.” 28. The operative portion of the order categorically states that the plaintiff having submitted a false affidavit to the BDA sought allotment of the site in question and that is the reason for cancellation of the site. Of course, the order of cancellation refers to Rule 10(9) which infact is not even in existence in the Rules. Possibly that is a typographical error. In this context, learned Senior counsel for the respondent submits that BDA ought to have referred to Rule 13(9) of the Rules as it then stood and not 10(9). Rule 13(9) as it then stood states as under:- “R.13(9): If the particulars furnished by the applicant in the prescribed application form for allotment of sites are found to be incorrect or false, the sital value deposited shall be forfeited and the site shall be resumed by the Authority.” 29. The crux of the matter is, as to, whether, the plaintiff had submitted a false affidavit within the meaning of Rule 13(9) as it then stood so as to make himself eligible for the allotment of the suit site.
The crux of the matter is, as to, whether, the plaintiff had submitted a false affidavit within the meaning of Rule 13(9) as it then stood so as to make himself eligible for the allotment of the suit site. The contention of the BDA is that the plaintiff’s wife was already allotted a site by the Metropolitan Cooperative Housing Society Ltd., Bangalore and the allotment of the said site to her disentitled the plaintiff to any allotment of site by the BDA. 30. Learned Senior Counsel for the respondent submits that the tenor of the impugned cancellation order is not in the manner in which the appellant’s counsel is now contending. Impugned cancellation is on the basis that the plaintiff had submitted a false affidavit and the fact that it was not a false affidavit has been admitted by the BDA in its communication issued to the Principal Secretary, Urban Development Department on 06/07/2013. Therefore, on a reading of the cancellation order dated 17/02/2009, the same would refer to only the allegation that the plaintiff had furnished a false affidavit and that the allegation against the plaintiff-respondent is not as to whether there was any infraction of Rule 10 of the Rules so as to disentitle him from allotment of the suit site. 31. In this regard, the contention of the plaintiff is that a reading of letter dated 06/07/2013 would categorically bring forth the fact that there had been no misrepresentation or a false statement made in the affidavit dated 19/08/2003 in as much as on the date of allotment of the site or even prior to that to be precise, on 06/05/2002, the plaintiff’s wife had sold the site allotted to her by Metropolitan Cooperative Housing Society Ltd., Bangalore. That the said site was allotted to her is in the year 1998 and she sold it on 06/05/2002. Therefore, as on the date the affidavit was submitted by the plaintiff, she did not own any site and neither did the plaintiff nor any family member own any site within Bangalore Metropolitan Area so as to disentitle the plaintiff to the allotment of suit site. 32.
Therefore, as on the date the affidavit was submitted by the plaintiff, she did not own any site and neither did the plaintiff nor any family member own any site within Bangalore Metropolitan Area so as to disentitle the plaintiff to the allotment of suit site. 32. In this regard, it would be useful to extract letter dated 06/07/2013 as under:- xxx xxx xxx Rule 10(4) “In case of officers belonging to All India Service, whose service are allotted to the Karnataka State Cadre and domiciled in the State of Karnataka for note less than two years immediately prior to the date of registration. xxx xxx xxx Rule 10, “Eligibility of allotment-No person shall be eligible for allotment. (3) Who or any member of whose family owns or has been allotted a site or a house by the Board or any other Authority, within the area under the jurisdiction of the Board. Provided that the Board may in its discretion relax this condition in case where the house owned is found inadequate having regard to the size of the family of the person applying for allotment of site. xxx xxx xxx 33. On perusal of the said communication, it becomes clear that the BDA who is the defendant in the suit has categorically admitted the fact that plaintiff’s wife had alienated the site allotted to her by Metropolitan Cooperative Housing Society Ltd., Bangalore in the year 2002. That the site allotted to the plaintiff in My sore does not disentitle the plaintiff from being allotted the suit site by the BDA. Further and more significantly, BDA has categorically stated in the said communication that the affidavit submitted by the plaintiff was true and correct. Whereas the reason for cancellation of the suit site, by order dated 17/02/2009 which is impugned in the suit, is that the affidavit submitted by the plaintiff was false and incorrect. In view of the categorical admission made by the BDA to the effect that the affidavit submitted by the plaintiff to the BDA was true and correct, the cancellation order passed by the BDA on the premise that a false affidavit was submitted by the plaintiff- respondent herein is totally contrary and opposed to the aforesaid letter dated 06/07/2013 and the admissions made therein and is without basis and thus, the cancellation.
In view of the express admission made by the BDA in the communication dated 06/07/2013, that the plaintiff did not submit any false affidavit, the trial Court has allowed the application filed under Order XII Rule 6 of the CPC. Infact, the trial Court has also extracted the portion of the letter dated 06/07/2013 and has concluded that the contents of the said letter and its admissions would entitle the plaintiff to a decree in the suit as the substratum of the order of cancellation of the allotment of the site to the plaintiff is without basis and hence illegal. The inference is that BDA has resiled from its reason for cancellation of the site allotted in favour of the plaintiff by clearly admitting in letter dated 06/07/2013 that the plaintiff did not submit an affidavit containing untrue/false statements so as to become eligible for allotment of the suit schedule property. 34. On considering the rival contentions raised in this appeal, in light of the material facts and also the documents furnished by the respective parties and in the light of the provisions, I find that the trial Court was justified in allowing the application. There is no merit in the appeal. The appeal is dismissed. Parties to bear there respective costs. In view of the dismissal of the appeal, I.A.1/16 also stands dismissed.