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2023 DIGILAW 468 (KAR)

Joseph Raj, S/O Shantappa v. State Of Karnataka

2023-03-17

KRISHNA S DIXIT

body2023
ORDER : Petitioner is knocking at the doors of Writ Court essentially for a direction to the Respondent-BDA to execute & register a conveyance in terms of specific Performance decree in his suit in O.S.No.6825/2011 decreed on 10.11.2014 against his vendor who happened to be the allottee of subject site at the hands of the BDA. Learned counsel for the Petitioner vehemently argues that the Respondents are not justified in not taking cognizance of the said decree and acting in accordance with the same. 2. After service of notice, the State has entered appearance through the learned AGA; the BDA & BBMP have entered appearance through their learned Panel Advocates. The BDA has filed a Statement of Objection on 12.7.2022 resisting the Writ Petition. Its Sr. Panel Counsel makes vehement submission for the dismissal of Petition contending that his client was not a party to the decree in question; the said decree was obtained ex parte qua the allottee of site in question; no explanation is offered for not arraying the BDA as a defendant; no Possession Certificate was ever issued to the allottee, though sital cost was remitted by him to the BDA in terms of Allotment Letter. 3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: (i) The site in question was allotted to Petitioner’s vendor after receiving the prescribed price and that the said site till date has been kept unallotted to anyone else are fairly admitted from the side of BDA, consistent with the records produced. Allotment of site is done not in a private negotiation but in accordance with the extant Allotment Rules promulgated under the erstwhile City of Bangalore Improvement Act, 1945 which has since been repealed by the Bangalore Development Authority Act, 1976, making the BDA a legal successor of City Improvement Trust Board. The Allotment Letter coupled with the payment of full price creates an equitable interest in the subject site in favour of allottee on the basis of which Petitioner has secured a Specific Performance decree in the subject suit, against him. The Allotment Letter coupled with the payment of full price creates an equitable interest in the subject site in favour of allottee on the basis of which Petitioner has secured a Specific Performance decree in the subject suit, against him. (ii) The above being the position, the decree of the Court has to be recognized and acted upon by the statutory authorities like the BDA, regardless of its being a party thereto or not, consistent with the ‘doctrine of feeding the grant by estoppel’ enacted in section 43 of the Transfer of Property Act, 1882 especially when no amount was due from the side of allottee towards the sital value nor any formal compliance was expected of him. Added, the subject site has been kept un-allotted to anyone else for decades and no third party rights have been created, either. Had BDA too been arrayed as a defendant, it would have been ideal for the adjudication of suit, is beside the point. If the allottee was entitled to have the conveyance in terms of allotment, his vendee standing in his shoes by virtue of agreement followed by Court decree, will have those rights, their jural correlative i.e., the duty resting on the shoulders of the then CITB and now BDA being its successor. (iii) The vehement submission of learned BDA Panel Counsel that his client was a necessary party to the suit and therefore, decree secured against someone else cannot be executed against others and as a corollary, his client cannot be asked to take cognizance of the court decree oscillates between what is true of law and what is not. Ordinarily, the decrees of courts, unless rendered in rem like the ones made in special jurisdiction of matrimonial, insolvency, probate & admiralty, bind parties eo nomine, cannot be gainfully disputed and therefore, they are not executable against non-parties. However, execution of a decree is one thing and acting on them by taking their cognizance, is another. Execution of decrees is “party-specific” whereas taking their cognizance, is not. The statutory authorities ordinarily cannot be heard to say that they would not take cognizance of the decrees passed by the Courts of competent jurisdiction subject to all just exceptions. This view secures succor from the inner voice of Article 261 of the Constitution of India, which reads as under: “261. Public acts, records and judicial proceedings. The statutory authorities ordinarily cannot be heard to say that they would not take cognizance of the decrees passed by the Courts of competent jurisdiction subject to all just exceptions. This view secures succor from the inner voice of Article 261 of the Constitution of India, which reads as under: “261. Public acts, records and judicial proceedings. (1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.” (iv) The provisions of Article 261 of our Fundamental Document has been very carefully crafted by the Makers of the Constitution, essentially keeping in view the principles of Federalism within the Indian constitutional context. This idea they have taken from the American Model. Article IV, Section 1 of the U.S. Constitution employing a similar clause, reads as under: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” (v) To fully appreciate the underlying principle of “Full faith and credit clause”, it would be profitable to peruse the background of Article IV of the U.S. Constitution on which Article 261 is presumably structured. Prior to the adoption of the Articles of Confederation (1777), in the absence of a statute providing otherwise, American Courts in each Colony, regarded the judgments of others merely as foreign & inconclusive, and only as a prima facie evidence of the matter adjudged[Thomas, J O. Neil, ‘The Full Faith and Credit Clause of the Federal Constitution’, Issue 5, Notre Dame Law Review, (1930)]. This structural fallacy permitted judgments to be re-examined on merits in the Colony concerned, eventually posing some difficulty. Therefore in March of 1781, the Articles of Confederation adopted the full faith & credit clause. The framers of the U.S. Constitution (1788) extended the full faith and credit clause to include the authentication of the records, Acts, and judicial proceedings while also providing Congress (U.S. Parliament) with the power to decide the manner in which records, Acts and judicial proceedings are to be proved, on the advice of James Madison Jr. (1751 -1836)[ The Federalist Papers, 42 (James Madison)]. (1751 -1836)[ The Federalist Papers, 42 (James Madison)]. Similarly, Section 118 of the Constitution of Australia employs a full faith and credit clause, which has the following text: “Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.” From the above discussion it can be presumed that the ‘full faith and credit clause’ was introduced not only as a principle of Federalism aimed at eliminating conflict of laws within a federal structure, but also to provide legitimacy and conclusiveness to acts, records and judicial proceedings. (vi) Although, Article 261 employs the expression “proceedings of the Union and of every State” as a qualification to the norm enacted therein, its text & context support the view that the statutory authorities, in the absence of justification to the contrary, as of necessity and consistent with rule of law, have to take inter alia cognizance of judicial proceedings; this constitutional obligation becomes more imperative when such proceedings have culminated into effective decrees & orders. If fraud, fabrication & duplicity are apparent to the naked eye, such cases stand on a different footing in view of decision of Apex Court in S.P.CHENGALVARAYA NAIDU vs. JAGANNATH, AIR 1994 SC 853 , hardly needs to be stated. The contention that no Possession Certificate was issued to the allottee and therefore, the one produced appears to be fake, does not come to the rescue of the Respondents, when allotment of site and receipt of the prescribed price therefor have been specifically admitted by the BDA. (vii) By virtue of agreement followed by the Court decree, the Petitioner fills the character of original allottee and therefore, becomes entitled to have the conveyance at the hands of the allotter i.e., BDA in respect of the subject site. The contention that the Respondent-BDA was a proper party if not a necessary party to the suit, is difficult to sustain in the light of decision of the Apex Court in RAZIA BEGUM vs. SAHEBZADI ANWAR BEGUM, AIR 1958 SC 886 , which broadly discusses as to who is a proper and who a necessary party. For the adjudication of the suit, the only necessary party was the allottee of the site and none others. For the adjudication of the suit, the only necessary party was the allottee of the site and none others. There is a lot of scope for the argument, had the BDA been arrayed as Defendant No.2 to the suit, it could have sought for its deletion from the Cause Title. (viii) The last contention of learned Panel counsel appearing for the BDA that the subject suit was decreed ex parte qua the allottee of the site in question and therefore, Court decree cannot be taken cognizance of, is untenable. So far as execution & enforceability of Court decrees are concerned, law does not differentiate between decrees that are obtained after full-fledged trial and those secured placing the defendants ex parte, subject to all just exceptions into which argued case of the Petitioner does not fit. Justice of the case even otherwise warrants that the BDA should do all endeavors to ensure fruits of the decree reach palms of the decree holder; an argument to the contrary cannot be sustained without undermining the sanctity of judicial process and that in turn would affect the rule of law in the realm. In the above circumstances, this Writ Petition succeeds; a Writ of Mandamus issues directing the Respondent-BDA to fructify the allotment of subject site in favour of the Petitioner-Decree Holder by executing & registering a regular conveyance within a period of eight weeks, failing which, the Respondent-BDA shall pay to the Petitioner a sum of Rs.500/-per day of delay brooked, in addition to risking the action for the contempt of this Court. Now, no costs. This Court places on record its deep appreciation for the able research and assistance rendered by its official Law Clerk cum Research Assistant, Mr. Faiz Afsar Sait.