Smt Rudramma Vs Bangalore Development Authority

SRI. M.G. ANAND S/O SRI. R GOPAL AGED ABOUT 46 YEARS R/AT NO.1209, 9^TH CROSS ROAD, 14^TH MAIN ROAD, G.K.V.K. POST, JUDICIAL LAYOUT, BANGALORE-560 065.

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SRI. N. NARASIMHAMURTHY S/O LATE NANJUNDAPPA, AGED ABOUT 42 YEARS R/AT NO.126, YADUNANDANA NILAYA, MYSORE ROAD, KUMBALAGODU, BANGALORE-560 074.

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…PETITIONERS

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(BY SRI. D.L. JAGADEESH, SENIOR COUNSEL FOR SMT. RAKSHITHA D.J., ADVOCATE)

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AND:

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

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THE ADDITIONAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560 020.

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THE EXECUTIVE ENGINEER BANGALORE DEVELOPMENT AUTHORITY, NADAPRABHU KEMPEGOWDA LAYOUT DIVISION T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560 020.

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

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…RESPONDENTS

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(BY SRI. G.M. ANANDA, ADVOCATE FOR R1 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSITUTION OF INDIA PRAYING TO QUASHING THE PROCEEDINGS / NOTICE DATED 5.1.2018 ISSUED BY R-1 VIDE ANNEXURE-L, PROPOSING TO CANCEL THE SALE DEED EXECUTED BY THE R-1 IN FAVOUR OF THE PETITIONER NO.1 IN RESPECT OF THE SCHEDULE PROPERTY AS THE SAME IS ARBITRARY, ILLEGAL AND CONTRARY TO LAW AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners are before this Court claiming to be the owners of land in Sy.No.8 measuring 1 acre 20 guntas of Soolikere village, Kengeri Hobli, Bangalore South Taluk, which was acquired by respondent -BDA for the purpose of formation of Nadaprabhu Kempegowda Layout. That award was passed in terms of which petitioner No.1 was held to be entitled for compensation in a sum of Rs.40 lakhs and developed land to an extent of 9583 sq. ft. in the form of site. In furtherance thereof, respondent -BDA allotted site bearing No.3303 forming part of land in Sy.No.35/2 of Bheemana Kuppe village, SectorF, 7^th block, Kempegowda Layout vide letter of allotment dated 13.06.2017 produced at Annexure-B. That deed of sale dated 27.06.2017 were executed and registered in respect of aforesaid sites by the respondent -BDA in terms of deed of sale produced at Annexure-C. Possession of the aforesaid site delivered and katha was registered. That petitioner No.1 has been paying the property tax in respect of aforesaid site.

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2. When things stood thus, representative of the

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respondent -BDA had informed the petitioner that respondent - BDA is proposing to allot the very same site in favour of one M.Ramaiah on the premise that land in Sy.No.35/2 over which said site is located belonged to Sri.M.Ramaiah and who is also entitled for allotment of developed area. That respondent -BDA has issued a notice dated 05.01.2018 produced at Annexure -L and that by the very same notice had called upon the petitioner to cancel the deed of sale on his own and to submit the records to respondent -BDA in this regard, failing which the respondent -BDA would initiate action in accordance with law. Aggrieved by the same petitioners are before this Court.

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Sri. D.L.Jagadesh, learned Senior counsel

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reiterating the averments and grounds urged in the petition refers to the judgment passed by this Court in the case of

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K. RAJU VS. BANGALORE DEVELOPMENT AUTHORITY

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reported ILR 2011 KAR. 120 and also another judgment in the case of BINNY MILL LABOUR WELFARE HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED VS. D.R. MRUTHYUNJAYA ARADYA reported in ILR 2008 KAR. 2245 submits that it is settled position of law that once the deed of

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sale is executed it cannot be cancelled unilaterally except by a decree by competent Court of law. He further submits that respondent -BDA without resorting to said action cannot call upon the petitioners to unilaterally cancel the said deeds of sale nor can they threatened the petitioners of they taking action in failure of cancellation of sites by the petitioners on its own.

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In response, learned counsel for the respondent -

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BDA submits that notice at Annexure-L came to be issued in view of the demand made by Sri.M.Ramaiah owner of the land in Sy.No.35/2, over which the sites have been formed and allotted to the petitioner No.1. He submits that the petitioner was not denied of his entitlement but was only called upon to surrender the said site to accommodate the claim of the said M.Ramaiah. He submits that there is no illegality or irregularity committed by the respondent -authorities. Hence, seeks for dismissal of the petition.

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Heard. Perused the records.

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There is no dispute of the fact that land belonging

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to the petitioner No.1 was acquired and he was held entitled for payment of compensation of Rs.40 lakhs as well as in the form

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of developed area to an extent of 9583 sq.ft. There is also no dispute of the fact that in furtherance to said entitlement of the petitioner, respondent -BDA allotted a site referred to above in terms of letter of allotment and were also executed deed of sale. Thus, allotment, delivery of possession and conveyance of title stood completed divesting the rights of the respondent - BDA in respect of said property. Once that is done, there is no provision for the respondent -BDA to resort for unilateral cancellation either by way calling upon the petitioner to voluntarily cancel or a threat to cancel on their own.

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The Coordinate Bench of this Court in the case of BINNY MILL LABOUR WELFARE HOUSE BUILDING COOPERATIVE SOCIETY LIMITED VS. D.R. MRUTHYUNJAYA

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ARADHYA reported in ILR 2008 KAR. 2245 while dealing with unilateral cancellation of a sale deed at paragraph 36 , 37 has held as under;

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"36. When the owner of a property sells/conveys the property to the purchaser under a written document and get the same registered, the right and the title to the said property is transferred from the owner to the purchaser on registration of the said documents. After such registration the owner of the property ceases to have any interest and all his rights in the property gets extinguished. He would not have any right to meddle with the property thereafter. If

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such a person were to execute one more sale deed and get it registered in respect of the said property the said sale deed has no value in the eye of law. The reason being on the date of the second sale deed, he is not the owner of the property. Therefore, the purchaser would not get title to the property as the vendor could convey only that title which he has in the property on the date of execution and registration of the sale deed. Similarly, if after execution and registration of the sale deed, the owner wants to get back the property, it has to be done by canceling the sale deed on any of the grounds which are available to him under the provisions of the Indian Contract Act. Unilaterally he cannot execute what is styled as a deed of cancellation, because on the date of execution and registration of the deed of cancellation, the said person has no right or interest in that property. Normally what can be done by a Court can be done by the parties to an instrument by mutual consent. Even otherwise if the parties to a document agree to cancel it by mutual consent for some reason and restore status quo ante, it is possible to execute such a deed. An agreement of sale, lease or mortgage or partition may be cancelled with the consent of the parties thereto. Because in the case of agreement of sale, lease, mortgage or partition, each of the parties to the said document even after the execution and registration of the said deed retains interest in the property and, therefore, it is permissible for them to execute one more document to annul or cancel the earlier deed. However, it would not apply to a case of deed of sale executed and registered. In the case of a sale deed executed and registered the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual

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consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel a deed vests with a Court and it cannot be exercised by the vendor of a property. In this context it is necessary to see Section 31 of the Specific Relief Act, which reads as under:—

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“ 31. When cancellation may be ordered.-

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(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.”

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37. A reading of the aforesaid provision makes it clear that both void and voidable instruments can be cancelled by the Court. The cause of action for such an action is an apprehension, if such an instrument is left outstanding may cause serious injury to the person against whom the written instrument is void or voidable. Such a person has the discretion to approach a competent Civil Court for adjudging the said instrument to be delivered up and cancelled. Even though in law a void instrument is unenforceable, has no value in the eye of law, void ab initio, the very physical existence of such a document may cause a cloud on the title of the party or cause injury or one can play mischief. Therefore, the law provides for cancellation of such instruments which are also non est, but which are in existence as a fact physically to get over the effect of such instrument. Once such an instrument is registered, the said registration has the effect of informing and giving notice to the World at large that such a document has been executed.

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Registration of a document is a notice to all the subsequent purchasers or encumbrances of the same property. The doctrine of constructive notice is attracted. Therefore, the effect of registration of an instrument not only affects the rights of the parties to the instrument but also affects parties who may claim under them. Therefore, once such an instrument is ordered to be delivered up and cancelled an obligation is cast upon the Court to send a copy of its decree to the officer in whose office the instrument was registered, so that such an officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Once such an entry is made in the books of the Sub-Registrar about the cancellation of the registered instrument, it also acts as a notice of cancellation to the whole World and it is also a constructive notice of cancellation of the said instrument."

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Following the same, another Coordinate Bench of

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this Court in the case of K. Raju vs. Bangalore Development Authority reported in ILR 2011 Kar. 120 at paragraph 43, 44

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has held as under;

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"43. It is clear from the above provision that both void and voidable instruments can be cancelled by the Court. This Court in Binny Mill Labour Welfare House Building Co-Operative Society Limited v. D.R. Mruthyunjaya Aradhya [LLR 2008 KAR 2245.] was considering a similar case where the vendor of the property had unilaterally cancelled the sale deed. It is held as under:

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“Unilaterally he cannot execute what is styled as a deed of cancellation, because on the date of execution and registration of the deed of cancellation, the said person has no right or interest in that property. Normally what can be done by a Court can be done by the parties to an instrument by mutual consent. Even otherwise if the parties to a document agree to cancel

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it by mutual consent for some reason and restore status quo ante, it is possible to execute such a deed. An agreement of sale, lease or mortgage or partition may be cancelled with the consent of the parties thereto. Because in the case of agreement of sale, lease, mortgage or partition, each of the parties to the said document even after the execution and registration of the said deed retains interest in the property and, therefore, it is permissible for them to execute one more document to annul or cancel the earlier deed. However, it would not apply to a case of deed of sale executed and registered. In the case of a sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties aggreing by mutual consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel a deed vests with a Court and it cannot be exercised by the vendor of a property.”

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(emphasis supplied by me)

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44. It is thus clear that when the sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the

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property, it has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel the deed vests with a Court and it cannot be exercised by the vendor of a property. After execution and registration of the sale deed, the BDA cannot determine the validity of the sale deed. It can neither execute a cancellation deed unilaterally. If the BDA is of the view that the sale deed executed by it is contrary to law, it has to approach the Civil Court for its cancellation as provided under Section 31 of the Specific Relief Act, Point No. (ii) is answered accordingly."

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In view of the aforesaid settled position of law and the facts narrated above, petition is allowed . Notice dated 05.01.2018 at Annexure-L issued by the respondent No.1 is hereby quashed.

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Sd/(M.G.S. KAMAL) JUDGE

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RU, List No.: 1 Sl No.: 30

Smt Rudramma v. Bangalore Development Authority

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Smt Rudramma v. Bangalore Development Authority

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