Mrs. Laxmi Vs Bangalore Development Authority

MRS. LAXMI W/O MR. THIMAYYA, AGED ABOUT 66 YEARS, R/AT NO.601, ‘A’ BLOCK, 6^TH FLOOR, RENAISSANCE PARK -3, VEER SAVARKAR ROAD, SUBRAMANYANAGAR , MALLESHWARAM WEST, BANGALORE-560055.

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…PETITIONER

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(BY SRI BRIJESH SINGH M., ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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

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MR. NARASIMHA NAYAK @ RAJU GOWDA S/O SHAMBHANNA GOWDA AGED ABOUT 44 YEARS, RESIDING AT KODEKAL, SURPUR TALUK, YADGIRI DISTRICT-585 237.

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…RESPONDENTS

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(BY SRI B. VACHAN, ADVOCATE FOR R-1; SRI PRABHULING K. NAVADGI, SENIOR COUNSEL FOR SRI SANJEEVINI P. NAVADGI, ADVOCATE FOR R-2)

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NC: 2025:KHC:49720 WP No. 15200 of 2023

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALLING FOR THE RECORDS FROM RESPONDENT-BDA PERTAINING TO THE ALLOTMENT OF SCHEDULE SITE IN FAVOUR OF THE PETITIONER; ISSUING A WRIT OF CERTIORARI / ANY OTHER APPROPRIATE WRIT, CANCELLING THE LEASE-CUM-SALE AGREEMENT EXECUTED IN FAVOUR OF THE RESPONDENT NO.2 MR. NARASIMHA NAYAK AT RAJU GOWDA DATED 01.10.2015, REGISTERED AS DOCUMENT NO.BDA-1-03166-2015-16 STORED IN CD NO.BDAD214, BOOK NO.1 IN THE OFFICE OF THE ADDL DISTRICT REGISTRAR, BANGALORE DEVELOPMENT AUTHORITY, VIDE ANNEXURE-M AND ETC.

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THIS PETITION COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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The petitioner has approached this Court seeking the

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following reliefs:

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“WHEREFORE, it is prayed before this Hon'ble Court may be pleased to pass orders and issue any appropriate Writ or direction:

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i. Calling for the records from respondent-BDA pertaining to the allotment of schedule site in favour of the Petitioner;

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ii. Issuing a Writ of Certiorari/any other appropriate Writ, cancelling the Lease-cum-Sale Agreement executed in favour of the Respondent No.2 Mr. NarasimhaNayak @ Raju Gowda dated 01.10.2015, registered as Document No.BDA-103166-2015-16 stored in CD No.BDAD214, Book No.1, in the office of the Additional District Registrar, Bangalore Development Authority Vide ANNEXURE-M;

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iii. Direct the Respondent No.1- BDA to issue the Sale Deed/ Absolute Sale Deed in respect of site No.65 (Old No.69), RMV II Stage, Sy. No.25 and 28, Bhoopasandra, Bangalore, in favour of the Petitioner;

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iv. Award costs of Rs.25,00,000/to the Petitioner for the inordinate delay of more than 21 years, in issuing the sale deeds, mental trauma, agony and expenses incurred in the pursuit of obtaining the Sale Deed; v. Grant such other relief/reliefs as deem fit to grant in the facts and circumstances of the case in the interest of justice and equity.”

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Heard Sri Brijesh Singh M., learned counsel appearing for the petitioner, Sri B. Vachan, learned

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counsel for respondent No.1 and Sri Prabhuling K. Navadgi, learned senior counsel for Smt. Sanjeevini P. Navadgi, learned counsel for respondent No.2 and perused the material on record.

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Brief facts:

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The petitioner was initially allotted a site bearing No.189, I ‘A’ Block, J.P. Nagar 3^rd Stage under an allotment letter dated 12.09.2000. Thereafter, she submitted a representation dated 02.11.2000 requesting exchange of the said site for one situated in RMV II Stage., which request was forwarded by the Hon'ble Chief Minister with a recommendation for consideration. Pursuant thereto, the Bangalore Development Authority (BDA), allotted to the petitioner, Site No.69 in RMV II Stage (later re-numbered as Site No.65) carved in Survey Nos.25 and 28 of Bhoopasandra Village under allotment letter dated 03.02.2001. The petitioner states that she has paid the entire sale consideration, obtained an NOC for housing loan purpose, and repeatedly sought execution of the sale

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deed. It is further stated that the registration could not be completed due to the pendency of acquisition related identification concerning Survey Nos.25 and 28. Further, it is stated that the acquisition proceedings were challenged in W.P. No.1222/2003 and W.A. Nos.15859-860/2011 and SLP (C) No.24766-767/2019, which ultimately concluded in dismissal of the land owner's claim by 2019. According to the petitioner, once these proceedings concluded, no impediment remained for the execution of a sale deed in her favour.

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In the meantime, it appears that the BDA undertook modification of the RMV II stage layout pursuant to a resolution No.256/2011, resulting in renumbering and reshaping of certain sites including the petitioner's site. It is stated that despite said modification, the site corresponding to old No.69 (New No.65) continued to stand in her name in the BDA records.

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Further, it is stated that petitioner has obtained information under the Right to Information Act, 2005 revealing that BDA had executed a lease-cum-sale agreement dated 01.10.2015 in favour of respondent No.2 in respect of Site No.65, along with possession certificate dated 03.10.2015 and that the revenue entries, khata and tax assessments, were thereafter mutated in his favour. According to the petitioner, such execution of a registered instrument in favour of respondent No.2 during the pendency of litigation, while denying her the benefits, is arbitrary and illegal.

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Respondent No.1-BDA, filed objections stating

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that the site allotted to the petitioner became unavailable on account of changes made to the layout, respondent No.2 had independently sought an alternative site under ‘G’ category and that site No.65 was allotted to respondent No.2 and conveyed through a registered lease-cum-sale deed. It is further stated that Site No.61, which corresponds to respondent No.2's earlier site number, is

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partly encroached and built up, thereby, making restoration impossible and therefore, only an alternative site can be offered to the petitioner.

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Respondent No.2 has filed a statement of objections, asserting that he is a bona fide allottee under ‘G’ category and that he has paid full consideration, taken lawful possession, obtained katha in his name, and has been regularly paying property tax since 2015. He denies the allegations of irregularity. It is stated that the petitioner possess only a bare allotment letter and has no vested right, and that her challenge to the lease-cum-sale agreement, filed after 8 years, is hopelessly barred by delay.

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The petitioner, aggrieved by the execution of

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the lease-cum-sale agreement in favour of respondent No.2 and the BDA’s refusal to execute a sale deed in her favour, has approached this Court seeking cancellation of the lease-cum-sale deed dated 01.10.2015 and a direction

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to the BDA to execute an absolute sale deed in respect of

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Site No.65 in her favour.

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Learned counsel for the petitioner submits that the petitioner is a lawful allottee of a site No.69, situated in RMV's II stage layout, originally measuring 40x60 feet, which was later enhanced to 40x70 feet by allotment of marginal land. It is contended that the BDA issued endorsements acknowledging the allotment and receipt of the entire sale consideration, and that the allotment made in favour of the petitioner was never been cancelled. It is further urged that, notwithstanding the subsisting allotment, the BDA, in the year 2015, executed a leasecum-sale agreement in favour of respondent No.2 in respect of the very site number, and that the modified layout plan produced on record would clearly disclose that such subsequent allotment to respondent No.2 is only a device to accommodate him. Learned counsel further submits that the internal notes of the BDA and the modified plan demonstrate that the authorities have acted

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in colourable manner solely to favour respondent No.2, and that such action is arbitrary, malafide and hit by Article 14 of the Constitution. Learned counsel for the petitioner would submit that, in view of the admitted position that the petitioner was earlier allotted Site No.69 in RMV layout, the subsequent lease-cum-sale in favour of respondent No.2 cannot stand in the eye of law.

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Learned counsel appearing for the BDA, on the other hand, submits that the petitioner’s allotment and all subsequent steps taken by the authority are governed by the Bangalore Development Authority (Allotment of Sites) Rules, 1984 (‘BDA Rules’ for short), in particular Rule 11A, sub-clause (iv) thereof. It is further submitted, that under Section 65 of the Bangalore Development Authority Act, 1976 (‘the BDA Act’ for short), the State Government has issued directions which bind the authority in the matter of allotment, cancellation and re-allotment of sites. It is the specific contention that in terms of the regulations, once an allottee seeks exchange or otherwise

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considered for alternate allotment, he or she is not entitled to claim a site of higher dimension or in a premium location in a different layout merely on basis of an earlier allotment. Learned counsel submits that any cancellation of an earlier allotment or sale deed is required to be in conformity with Rule 11-A and the directions issued under Section 65, and that such provisions cannot be selectively invoked at the instance of petitioner to dislodge the rights of respondent No.2. It is therefore argued that the present attempt of the petitioner is essentially to secure a highdimensional site in a more valuable layout, contrary to the statutory scheme and the petition deserves to be rejected both on the ground of delay as well as the lack of entitlement under the Allotment Regulations.

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Per contra , learned senior counsel appearing for respondent No.2 submits that the lease-cum-sale agreement in favour of respondent No.2 is dated 01.10.2015, whereas, the present writ petition has been filed nearly 10 years thereafter, and therefore, it is liable

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to be dismissed on the ground of delay and laches. It is further submitted that there is no material on record to show that between 2001 and 2011 the petitioner made any effective representation seeking execution of a sale deed, nor did she question any proposed action of the BDA. Likewise, there are no contemporaneous materials between 2011 and 2019 to indicate that the petitioner was diligently asserting her right. It is submitted that respondent No.2 has paid the full consideration, registered lease-cum-sale agreement has been executed, possession has been delivered, and he has been paying property tax and holding katha in his name. In such circumstances, after the lapse of almost a decade, the petitioner cannot be permitted to challenge the settled rights of respondent No.2, particularly in the writ petition. It is thus, contended that the writ petition is not maintainable and is liable to be dismissed with costs.

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This Court has carefully considered the rival contentions urged and perused the material on record.

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Having heard the learned counsel, the point that arises for

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consideration is:

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“Whether the petitioner, who holds only an allotment letter dated 03.02.2001 in respect of Site No.69 (New Site No.65), can seek cancellation of the registered lease-cum-sale agreement dated 01.10.2015 executed by the BDA in favour of respondent No.2, whether the writ petition is liable to be dismissed on the ground of delay and laches?”

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The lease-cum-sale agreement was executed in favour of respondent No.2 on 01.10.2015. Cancellation of such an instrument requires adjudication of title, determination of disputed facts, and consideration of allegations of malafides , all of which must be adjudicated in a properly instituted civil suit under the Specific Relief Act, 1963 and not in a writ petition. The petitioner merely holds an allotment letter, which does not confer any proprietary right. On the contrary, respondent No.2 holds a registered lease-cum-sale agreement, a possession

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certificate, khata and tax receipts, hence, writ jurisdiction cannot be invoked to unsettle such established rights.

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The lease-cum-sale agreement was executed on 01.10.2015, whereas the petitioner has approached this Court only in 2023, nearly 10 years later. No documents have been produced by the petitioners for the period from 2001 to 2011, nor from 2011 to 2019 to demonstrate sustained pursuit of her claim. Except for a general assertion that litigation was pending regarding Survey Nos.25 and 28, there is no explanation for the long inaction. The Apex Court in the case of Pimpri Chinchwad New Township Development Authority

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Vs. Vishnudev Cooperative Housing Society and others¹ ( Pimpri Chinchwad ), has held that settled allotments and registered rights cannot be disturbed after undue delay. The said paragraphs are culled out as under:

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“39. In Shanti Sports a Bench of two Judges of this Court, speaking through Singhvi, J., took

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1 (2018) 8 SCC 215

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note of all the previous case law on the subject noted above and held as under: (SCC pp. 723, 734 and 726-27, paras 37, 39 & 43)

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“37. … Although, the plain language of Section 48(1) does not give any indication of the manner or mode in which the power/discretion to withdraw from the acquisition of any land is required to be exercised, having regard to the scheme of Parts II and VII of the 1894 Act, which postulates publication of notification under Section 4(1), declaration under Section 6 and agreement under Section 42 in the Official Gazette as a condition for valid acquisition of the land for any public purpose or for a company, it is reasonable to take the view that withdrawal from the acquisition, which may adversely affect the public purpose for which, or the company on whose behalf the acquisition is proposed, can be done only by issuing a notification in the Official Gazette.

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39. The requirement of issuing a notification for exercise of power under Section 48(1) of the Act to withdraw from the acquisition of the land can also be inferred from the judgments of this Court in Municipal Committee, Bhatinda v. LAO, U.P. State Sugar Corpn. Ltd. v. State of U.P.,

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State of Maharashtra v. Umashankar Rajabhau and State of T.N. v. L. Krishnan.

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43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.”

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40. In the light of the foregoing discussion, we are of the considered opinion that the then Revenue Minister, who passed the order dated 10-62004 had no power to deal with the matter relating to release of the land in question. He simply usurped the power under Section 48 of the Act, which he never possessed. It was an abuse of exercise of power by him while dealing with the State’s largesse.

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41. That apart, in our view, the filing of the writ petition by the landowners itself was an abuse of judicial process. It was for the simple reason that the earlier litigation, which travelled up to this Court thrice having ended against the landowners, it was binding on the parties. It prevented the landowners to again raise the same issue.

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42. Indeed, the release of part of the land in landowners' favour and retention of the remaining land for accomplishing the project vide Notification dated 20-8-1994 was in the nature of a bargain. It disentitled the landowners to seek further release of the remaining land. This is apart from the fact that consequent upon obtaining the possession of the land by the State, the release of the remaining land under Section 48 of the Act was otherwise not legally possible.

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43. In the light of the foregoing discussion, we are of the considered view that the High Court failed to examine the issues arising in the case in its correct perspective. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court which wrongly upheld the order dated 10-6-2004 passed by the Revenue Minister concerned.”

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The present case is squarely covered by the above principle. The petition suffers from gross and unexplained delay and laches and is liable to be rejected on that ground alone.

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An allotment letter, as stated, is only a preliminary step and does not confer any vested or proprietary right. The petitioner never obtained a leasecum-sale agreement nor established any continuous assertion of her claim for more than a decade. The petitioner cannot compel the execution of a sale deed in respect of a specific site that has already been conveyed to another allottee under a registered document.

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