M/S Glittek Infrastructure Pvt ... vs State Of Karnataka
2023 Latest Caselaw 3629 Kant

                          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

F. RE: AUTHORITIES RELIED UPON BY THE 36-40 RESPONDENTS

IV CONCLUSION 40-41

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 -

     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'.

(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

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.

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

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

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

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.

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

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

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:-

"...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.

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)

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

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

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

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

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

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

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,

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

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

(2001) 1 Kant LJ 364

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

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

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

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".

ILR 2019 KAR 3748

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

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.

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."

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

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

ILR 2005 KAR 1583

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

ILR 2008 KAR 2245

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.

(2016) 10 SCC 767

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

(2016) 16 SCC 342

(2004) 5 SCC 272

(2006) 5 SCC 353

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

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