Dismissed

Sri B Gangadharaiah v. Bengaluru Development Authority

Karnataka HC10 Oct 2023WP/25744/2022

Case brief

AI extract

What is this about?

Petitioner challenged non-execution of sale deeds for sites purchased from original allottees. Court held that under BDA Rules, allottees could not alienate sites within the 10-year lease period. Original allottees lacked title, complicating the transfer. Petition dismissed, and officer issuing contrary endorsement directed to initiate action.

What did the court decide?

The writ petition was dismissed; the respondent BDA is directed to initiate action against the officer who issued the invalid endorsement.

Sri B Gangadharaiah Vs Bengaluru Development Authority — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:36903 WP No. 25744 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 25744 OF 2022 (BDA)

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BETWEEN:

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SRI. B. GANGADHARAIAH, S/O. LATE BASAPPA, AGED ABOUT 64 YEARS, R/AT NO. EWS-192, 7^TH CROSS, 5^TH 'A' MAIN ROAD, NEAR KALIKAMBA TEMPLE, KENGERI SATELLITE TOWN, BENGALURU - 560 060.

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…PETITIONER

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(BY SRI. MUDUKANA GOUDA R PATIL, ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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BENGALURU DEVELOPMENT AUTHORITY, KUMARA PARK WEST, T. CHOWDAIAH ROAD, BENGALURU - 560 020, REPRESENTED BY ITS COMMISSIONER.

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THE DEPUTY SECRETARY-3, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, T. CHOWDAIAH ROAD, BENGALURU - 560 020.

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…RESPONDENTS

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(BY SRI. B. VACHAN, ADVOCATE FOR R1 AND R2)

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NC: 2023:KHC:36903 WP No. 25744 of 2022

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO CONSIDER THE REPRESENTATIONS DATED 8.2.2021 VIDE ANNEXURE L AND L1, BY EXECUTING THE SALE DEED IN RESPECT OF SITE NOS. 324 AND 325 OF JNANABHARATHI (VALAGEREHALLI) 1ST BLOCK LAYOUT IN FAVOUR OF THE PETITIONER.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner claiming to have purchased sites bearing No.324 and 325 of Jnanabharathi (Valagerahalli) 1st Block Layout, Bangalore from the original allottees namely Smt.Aseena and Smt.Noorjan is before this Court seeking direction to the respondent-BDA to consider his representation at Annexure-L and L1 to execute the deeds of sale in his favour.

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Learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submits that after allotment of the sites on 21.05.2009 in favour of the original allottees, the respondent-BDA except executing Leasecum-sale Agreements dated 13.07.2010 and 22.04.2010 and issuing possession certificates has not executed deeds of sale in favour of the original allottees. He further submits that the petitioner based on the aforesaid registered lease cum sale

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3 - NC: 2023:KHC:36903 WP No. 25744 of 2022

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agreements and the possession certificates purchased the aforesaid sites in terms of deeds of sale dated 11.10.2010 and has even obtained the Khathas from the Bruhat Bangalore Mahanagara Palike. That in response to a representation made by the petitioner the respondent-BDA has issued an endorsement dated 01.02.2021 as per Annexures-J and J1 agreeing to transfer the aforesaid sites in the name of the petitioner, subject to certain conditions imposed therein. Referring to the said Annexures, learned counsel for the petitioner submits that the respondent-BDA has already responded agreeing to transfer the sites in question in favour of the petitioner and all that required to be done is to execute the deeds of sale. He submits that non-execution of the deeds of sale by the respondent-BDA has caused prejudice to him. Hence the petition for direction.

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Sri. B Vachan learned counsel for the respondent-

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BDA, submits that the petitioner at the first instance has no locus standi to maintain the petition inasmuch as the original allottees had no absolute right, title and interest over the sites in question, as admittedly deeds of sale have not been executed in their favour. Bringing to the attention of this

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4 - NC: 2023:KHC:36903 WP No. 25744 of 2022

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Court to Rule 13 and Rule 14 of BDA (Allotment of Sites) Rules 1984, he submits that in view of the aforesaid rules which have been brought to effect from 03.04.2005 any alienation of the site allotted by the respondent-BDA to the allottees in contravention of the terms of Lease Cum Sale Agreement are nonest in the eye of law and any person claiming such right under said transaction also has no right. Thus he submits that the petitioner cannot rely upon the endorsement issued by the respondent-BDA as the same runs contrary to said provision. Hence, he seeks dismissal of the petition.

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Heard and perused the records.

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There is no dispute to the fact that the respondent-

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BDA had allotted the aforesaid sites bearing No.324 and 325 in terms of allotment letters dated 21.05.2009 in favour of one Smt.Aseena and Smt.Noorjan and had executed Lease Cum Sale Agreements in their favour on 13.07.2010 and 22.04.2010 respectively. Except the above the respondent- BDA had not executed any deed of sale in favour of the aforesaid allottees. It appears the petitioner based on the aforesaid documents has purchased the aforesaid two sites in terms of deeds of sale dated 11.10.2010 produced at Annexure-E and F and has even

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obtained the Khathas from the Bruhath Bangalore Mahanagara Palike. Having purchased the property from the original allottees, who themselves had no right, title and interest over the said property, the petitioner appears to have made representation to the respondent-BDA.

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It is trite law that the person cannot convey what he does not have. Perusal of Registered Lease Cum Sale Agreements produced at Annexure- B and D executed by the respondent-BDA in favour of original allottees it is seen that there are certain conditions imposed on the allottees, in that the allottees have merely been given lease hold rights in respect of the sites and the allottees would be entitled for execution of deeds of sale after expiry of period of 10 years subject to compliance of conditions imposed therein.

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In the instant case as noted above the Lease Cum Sale Agreements have been executed on 13.07.2010 and 22.04.2010 respectively. The petitioner herein has purchased the said sites from the original allottees in terms of the deeds of sale dated 11.10.2010 produced at Annexure-E and F

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respectively. In other words, the said deeds of sale have been executed just within a span of less than a year from the date of execution of the lease cum sale agreements.

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It is relevant at this juncture to refer to sub-Rule (2) of Rule 13 and Rule 14 of BDA (Allotment of Sites) Rules 1984 which are as under:

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" 13. Conditions of allotment and sale of sites.- The allotment of a site under these rules shall be subject to following conditions :

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[(1) ………

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[(2) After payment under sub-rule (1) is made, the Authority shall call upon the allottee to execute a lease-cum-sale agreement in Form III. If the allottee fails to execute the lease-cum-sale agreement within 60 days after the authority has called upon him to execute such agreement, the registration fee paid by the allottee may be forfeited, and the allotment of the site cancelled, and the amount paid by the allottee, may be refunded by the Authority after deducting such expenditure as might have been incurred by the authority.

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Provided that the authority may on application of the allottee permit him/her to execute a leasecum-sale agreement in Form III in the joint name of the allottee and him/her spouse.]"

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"14.Restrictions, conditions on sales of sites.- (1) The allottee shall not alienate the site within the lease period of ten years except mortgaging the site in favour of Government of India or the State Government or any financial

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institutions for the purpose of securing loan for the construction of building.

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(2) If the site is alienated within the lease period except for the purpose specified in sub-rule (1), the authority after a due notice to the lessee, shall cancel the allotment, resume the site and forfeit the amount paid by the lessee.

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It is also relevant at this juncture to refer Form III which is referred to in Sub-Rule (2) of Rule 13. In the said form III clause 6 specifically reads as under:

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Clause 6: the lessee shall not alienate the site or the building that may be constructed thereon during the period of tenancy.

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Thus cumulative reading of Sub-Rule (2) of Rule 13, format of Form III (clause No.6) and the exclusive condition referred to in Rule 14 as extracted above, mandates that the allotee shall not alienate the site or the building constructed thereon within the lease period of 10 years from the date of execution of Lease Cum Sale Agreement. The lessee/allottee would be entitled for seeking of execution of deed of sale only on compliance of the terms of Lease Cum Agreement and after expiry of lease period of 10 years. In the instant case there is violation of not only of the terms of Lease Cum Sale Agreement but also of the aforesaid statutory provisions.

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It is astonishing that the Deputy Secretary of the respondent-BDA has ventured into issuing the endorsement at Annexure-J and J1 unequivocally agreeing to transfer the sites in question in favour of the petitioner albeit, subject to certain conditions imposed therein. Needless to state that this sort of misuse of power by the person at helm of affairs has embolden the misuse of the statutory provisions and abuse of the very object and purpose of the Act and Rules. In that genuine allottees have not been given benefit of the scheme of the Act.

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For the aforesaid reasons, petition lacks merit and the same is dismissed.

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The respondent-BDA is directed to initiate action against the concerned officer who has issued an endorsement at Annexure-J and J-1 which is completely contrary to the provisions referred to above prohibiting transaction of the nature involved in this matter.

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Sd/JUDGE

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PHM

Sri B Gangadharaiah v. Bengaluru Development Authority

Case brief

What is this about?

What did the court decide?

Sri B Gangadharaiah v. Bengaluru Development Authority

Case brief

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What did the court decide?

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