Smt C v Bhagya Vs the Commissioner

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED SALE DEED DATED 23.04.2018 EXECUTED BY THE RESPONDENT NO.2 IN FAVOUR OF THE RESPONDENT NO.4 IN RESPECT OF THE SCHEDULE PROPERTY WHICH HAD BEEN GOT REGISTERED IN THE OFFICE OF THE RESPONDENT NO.3 AS DOCUMENT NO. BDA - 1 - 00465 - 2018 - 19 IN BOOK I AND STORED IN CD NO. BDAD 36 DATED 25.04.2018 WHICH IS PRODUCED AT ANNEXURE-B 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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Petitioner is before this Court seeking following reliefs;

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"i) Issue a writ of certiorari or any other writ, order or direction quashing the impugned sale deed dated 23.4.2018 executed by the respondent No. 2 in favour of the respondent No. 4 in respect of the schedule property which had been got registered in the office of the respondent No. 3 as document No. BDA-100465-2018-19 in Book 1 and stored in CD No. BDAD 236 dated 25.4.2018 which is produced at Annexure 'B'.

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ii) Consequently direct the respondent No. 3 to make an entry regarding the quashing of the sale deed dated 23.4.2018 executed by the respondent No. 2 in favour of the respondent No. 4 and got registered in its office as document No. BDA-1-00465-2018- 19 in Book I and stored in CD No. BDAD 236 dated 25.4.2018 which is produced at Annexure 'B' in their relevant registers.

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iii) Pass an order prohibiting and restraining the respondent Nos. 1, 2 & 4 from interfering with the petitioner's peaceful possession and enjoyment of the schedule property in any manner.

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iv) Grant cost of this petition.

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v) And also grant such other and further reliefs as this Hon'ble Court deems fit considering the facts and circumstances of the case, in the ends of justice.

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2. Case of the petitioner is that she was allotted a site

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bearing No.13 in block No.16 of Arkavathi Layout as per the allotment letter dated 30.12.2005 produced at Annexure-C and

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a lease-cum-sale agreement dated 07.06.2006 was also executed by the respondent -BDA vide Annexure-D. The said allotment was subsequently cancelled by the respondent -BDA and the cancellation deed was also executed as per Annexure-F on 01.10.2016 on the premise of the said site physically not being available. Thereafter, petitioner was allotted an alternate site bearing No.1020 of 19^th Block of Arkavathi Layout as per allotment letter dated 28.06.2016 as per Annexure-E and a sale deed dated 28.04.2017 was executed as per Annexure-A absolutely conveying the said property infavour of the petitioner and that possession certificate was issued on 05.07.2017 as per Annexure-G and katha was also transferred in favour of the petitioner.

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When things stood thus, respondent -BDA executed another deed of sale dated 23.04.2018 as per Annexure-B infavour of respondent No.4 who since deceased now represented by his legal representatives as Respondent No.4(a), (b) and (c) conveying very same property which was conveyed in favour of the petitioner.

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Counsel for the petitioner relying upon the

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judgment passed by the Coordinate Bench of this Court in the case of K. RAJU VS. BANGALORE DEVELOPMENT

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AUTHORITY reported in ILR 2011 KAR 120 submits that respondent -BDA has no authority or jurisdiction to unilaterally cancel the sale deed without having recourse to the provisions of law as contemplated under Specific Relief Act. He submits the action of the respondent -BDA apart from being illegal is also ulterior inasmuch as the same has been made deliberately to cause hardship and prejudice to the petitioner. Hence, seeks for allowing of the petition.

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Learned counsel for the respondent -BDA though fairly submits that the respondent -BDA did not have jurisdiction or authority to cancel the sale deed unilaterally in view of the judgment of this Court referred to supra, however, he fervently submits that the same was due to bonafide mistake and oversight and that the respondent -BDA has already issued notice to the respondent No.4 stating that the site which was allotted to the petitioner, in respect of which the deed of sale was executed to respondent No.4 would be cancelled and that an alternate site to the respondent No.4

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would be allotted. Thus, he submits the remedial action is already undertaken and the same will be taken to its logical conclusion given some time in the matter.

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Submission is taken on record.

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Heard. Perused the records.

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Facts enumerated above would reveal that the

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petitioner was allotted site on two occasions. The site that was allotted on the second occasion culminated in respondent -BDA executing and registering deed of sale absolutely conveying the title in favour of the petitioner. Resultant, respondent -BDA retained no right, title or interest over the said site. Respondent -BDA had no semblance of right of any nature of whatsoever to cancel the deed of sale executed in favour of the petitioner and to allot the same to the respondent No.4.

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The Coordinate Bench of this Court in the case of

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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 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

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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 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

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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. 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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10. 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 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

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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 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 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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This Court has come across innumerable cases of this nature where unilateral cancellation of deeds of sale have taken place relentlessly. Though fervent submissions are made by counsel appearing for the respondent -BDA stating such action has taken place due to oversight, without there being any malafide motives, this Court cannot accept the said submission in view of the fact that the officers who are

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assigned with the said responsibility are not less than the rank of a Deputy Secretary and the error of this nature cannot be countenanced. The deliberate defiance and dereliction of duty is palpable which has resulted in unwarranted hardship to the petitioner besides a waste of precious judicial time consumed in the frivolous litigations of this nature which have caused only due to the laxity on the part of the concerned officer of the respondent -BDA. Pertinent to note that the order passed by this Court regarding unilateral cancellation in K. Raju's case (supra) is against the very respondent -BDA yet no lesson is learnt by respondent -BDA.

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In that view of the matter this Court is of the view that the competent authority of respondent -BDA be directed to initiate necessary enquiry against the concerned officer/s in accordance with law. Besides, the officer/s concerned shall be liable to pay cost of Rs.50,000/- recoverable from his personal account payable to the Karnataka Legal Services Authority. Registry to issue recovery certificate in this regard.

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In view of the above, following;

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ORDER

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(a) Writ petition is allowed.

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(b) Impugned sale deed dated 23.04.2018 executed by the respondent No.2 in favour of the respondent No.4 vide Annexure-B is hereby quashed.

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(c) Respondent No.2 is directed to issue necessary communication to the respondent No.3-Additional District Registrar to make entry in the register and issue necessary endorsement in this regard to the petitioner.

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

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RU, List No.: 1 Sl No.: 33

Smt C v. Bhagya v the Commissioner

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Smt C v. Bhagya v the Commissioner

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