Sri S G Subramani Vs Bangalore Development Authority

THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.1.2010 PASSED ON IA NO.3 IN O.S.NO.2141/2007 ON THE FILE OF THE XL ADDL. CITY CIVIL JUDGE, BANGALORE, ALLOWING THE IA NO.3 FILED UNDER ORDER 7 RULE 11(d) OF CPC AND REJECTING THE PLAINT FOR PERMANENT INJUNCTION AND RECOVERY OF MONEY.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiff assailing the order of the learned Judge rejecting the plaint under Order VII Rule 11(d) of CPC on the ground that there is no compliance of Section 64 of the Bangalore Development Authority Act, 1976 (for short 'the BDA Act'). Consequently, plaint is rejected.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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Facts leading to the case are as under:

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The plaintiff has instituted the suit against the defendant – Bangalore Development Authority (BDA) seeking a decree of permanent injunction restraining the BDA and its officials from interfering with her alleged peaceful possession and enjoyment of the suit schedule property. The plaintiff has further sought a perpetual injunction restraining the BDA from allotting the suit schedule property in favour of any third parties and has also claimed damages of Rs.1,00,000/- on the allegation that a portion of the structure put up by her was demolished by the officials of the BDA.

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The plaintiff traces her alleged right and possession through a chain of General Power of Attorney transactions. It is contended that the erstwhile owner, Muniyappa, executed a General Power of Attorney in favour of Mohammed Shafiulla Sheriff and M.K. Mohammed Ibrahim. The said GPA holders are stated to

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have entered into an agreement of sale dated 25.03.1991

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in favour of Smt. Lalitha and allegedly delivered possession to her. It is further pleaded that Smt. Lalitha, in turn, executed a General Power of Attorney dated 17.11.1994 in favour of the present plaintiff and placed her in possession of the property. On the strength of the said GPA, the plaintiff asserts that she is in actual possession and that certain structures have been constructed on the property.

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The plaintiff has also pleaded that portions of Survey No.359/2 were allotted to Vyalikaval House Building Co-operative Society and Bapuji House Building Co-operative Society, and that she had submitted an application to the said societies seeking regularisation of her construction before the Screening Committee. Alleging that during February 2007, officials of the defendant-BDA entered upon the property and demolished part of the structure put up by her, the plaintiff has instituted the present suit seeking the aforesaid reliefs.

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Upon service of summons, the defendant-BDA entered appearance and filed a detailed written statement, denying the plaint averments in toto. The defendant also filed I.A.No.1 under Section 64 of the BDA Act, seeking rejection of the plaint on the ground that the suit was instituted without issuance of the statutory notice as mandated under Section 64 of the BDA Act prior to filing a suit against the Authority.

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The learned Trial Judge, on examining the averments made in the plaint and the nature of relief sought, came to the conclusion that no statutory notice under Section 64 of the BDA Act had been issued before instituting the suit. Holding that compliance with Section 64 is mandatory, the learned Judge rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short 'CPC') on the ground that the suit was barred by law. Aggrieved by the said order of rejection, the plaintiff has preferred the present appeal.

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On a careful and independent examination of the

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plaint averments, the impugned order and the reliefs sought in the suit, the following points arise for consideration in this appeal:

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(i) Whether the learned Trial Judge was justified in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure on the ground of non-compliance with the mandatory requirement of notice under Section 64 of the Bangalore Development Authority Act?

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(ii) What order?

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Finding on Point No.(i):

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Before this Court adverts to the requisite conditions imposed on the citizens seeking relief against the BDA , more particularly Section 64, this Court deems it fit to extract paragraphs 2 and 3 of the plaint. This Court also deems it fit to extract the prayer column, which reads as under:

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"2. The land bearing Sy.No.359/2 of Marenahalli Village, Kempapura Agrahara, Bangalore North Taluk and more particularly mentioned in the "Schedule" herein, absolutely belongs to one Sri Muniyappa. He was in actual & factual possession of the same. As he was unable to look after his affairs for personal reasons, he had executed a General Power of Attorney in favour of Mohammed Shaffiulla Shariff and M.K.Mohammed Ibrahim authorising them to negotiate, entered into agreements and executed deeds of sale in favour of the purchaser/s of the sites. They were empowered to form a layout and sell the same.

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3. The said General Power of Attorney holders entered into a contract of sale with one Smt. Lalitha on 25.03.1981. She was put in possession of the same. Smt. Lalitha has executed General Power of Attorney in favour of the plaintiff on 17.11.1994 and put the plaintiff in possession of the same. The plaintiff is in possession of the property. Structures have been built upon the property. Plaintiff is in possession of the same."

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Prayer sought in the plaint

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"(a) Grant an order of permanent injunction restraining the Defendant, their officials, agents, servants, contractors, or any one acting or claiming

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on its behalf from entering upon or interfering with Plaintiff's peaceful possession & enjoyment of the schedule property mentioned herein;

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(b) Grant an order of permanent injunction against the Defendant, its officials, agents, servants, contractors, or any one acting or claiming on its behalf from allotting the Schedule Property to some other parties;

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(c) Direct the Defendant to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) with current & future interest at 15% p.a. till payment if made.

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(d) For costs and such other reliefs as this Hon'ble Court might deem meet."

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(Emphasis Supplied)

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On a plain reading of paragraphs 2 and 3 of the

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plaint, extracted supra, it is unequivocally clear that the plaintiff is asserting both title and possession solely on the basis of a chain of General Power of Attorney transactions.

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The original owner, Muniyappa, is said to have executed a GPA in favour of Mohammed Shafiulla Shariff and M.K. Mohammed Ibrahim; the said GPA holders allegedly

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entered into an agreement of sale with Smt. Lalitha and delivered possession; and thereafter, Smt. Lalitha is stated to have executed yet another GPA in favour of the present plaintiff, under which the plaintiff claims to be in possession. Thus, the entire foundation of the plaintiff’s claim rests upon successive GPA transactions and not upon any registered deed of conveyance transferring right, title and interest in the immovable property.

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The legal position in this regard is no longer res integra. The Hon’ble Apex Court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana¹ , has authoritatively held that a General Power of Attorney is not

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an instrument of transfer in regard to any right, title or interest in an immovable property. The Hon'ble Supreme Court has categorically declared that transactions of sale of immovable property through GPA, agreement to sell popularly known as “GPA sales” do not convey title nor create any interest in immovable property. It was further

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1 (2012) 1 SCC 656

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held that immovable property can be legally and lawfully transferred only by a registered deed of conveyance as contemplated under Section 54 of the Transfer of Property Act, 1882 read with the provisions of the Registration Act.

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The Hon'ble Apex Court clarified that a GPA is merely an instrument creating an agency whereby the agent is authorised to act on behalf of the principal, and such instrument does not, by itself, convey ownership.

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Applying the ratio laid down in Suraj Lamp (supra) to the facts of the present case, it is evident that the plaintiff, who claims possession under a GPA executed by a person who herself derived rights under an agreement of sale and GPA, cannot assert lawful title to the suit schedule property. When the very foundation of the plaintiff’s claim of right is based on GPA transactions without a registered sale deed, the assertion of possessory

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rights is legally untenable. Consequently, the plaintiff cannot seek to injunct a statutory body like the BDA on the premise of ownership derived through a GPA chain, as

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such transactions do not convey valid title in the eye of

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law.

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On a comprehensive reading of the plaint averments, it is evident that the plaintiff has not even pleaded, much less established, any grounds seeking dispensation of the statutory notice contemplated under Section 64(2) of the BDA Act. There is absolutely no foundational pleading that the suit falls within the exceptional category warranting urgent relief so as to dispense with the issuance of notice. In the absence of such specific pleadings invoking Section 64(2), the suit ought to have been preceded by a statutory notice as mandated under Section 64(1) of the BDA Act.

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In that backdrop, the crucial question that arises is whether a suit seeking injunction against a statutory authority like the Bangalore Development Authority is maintainable without prior compliance with the mandatory requirement of notice. The Division Bench of

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this Court in K.P.Arvind vs. Government of

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Karnataka² , has categorically held that where the relief sought relates to acts done or purported to be done in exercise of statutory powers, issuance of notice is a condition precedent for institution of the suit. In the absence of such notice, the suit is barred by law and the plaint is liable to be rejected under Order VII Rule 11(d) of CPC. Though the said judgment was rendered in the context of Section 80 of CPC, the principle laid down therein squarely applies to statutory notices which are mandatory in character.

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In the case on hand, the action is directed against the Bangalore Development Authority, a statutory body constituted under the BDA Act. A Coordinate Bench of this Court in Smt. Rangamma vs. Chairman, Bangalore Development Authority³ , has specifically examined the scope and ambit of Section 64 of the BDA Act and has held that compliance with the statutory notice

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2 ILR 1992 Kar 307

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3 ILR 2001 Kar 3722

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contemplated under Section 64 is mandatory before instituting a suit against the Authority. The Court further held that where such mandatory requirement is not complied with, the plaint is liable to be rejected as being barred by law, and the Court is empowered to invoke Order VII Rule 11(d) of CPC.

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This Court has also, while interpreting Sections 64 and 66 of the BDA Act, consistently held that when the statute provides a specific protection to the Authority and its officers in respect of acts done or purported to be done in good faith under the BDA Act, the procedural safeguards engrafted in the statute, including prior notice, cannot be lightly ignored. Section 66 of the BDA Act grants statutory protection to the Authority and its officials for acts done in good faith under the Act. When such protection is read in conjunction with Section 64 of the BDA Act, it becomes manifest that the legislative intent is to ensure that the Authority is afforded an opportunity to consider and, if possible, redress the grievance before

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being dragged into civil litigation. Therefore, compliance with Section 64 of the BDA Act is not an empty formality but a substantive statutory requirement.

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In the present case, the plaintiff has neither issued the statutory notice under Section 64(1) nor laid the necessary foundation for seeking dispensation under Section 64(2). The relief sought in the suit is directly against the alleged acts of demolition carried out by the officials of the BDA in purported exercise of their statutory powers. Therefore, the bar under the statute squarely applies.

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In view of the authoritative pronouncements of this Court and having regard to the statutory scheme under Sections 64 and 66 of the BDA Act, the learned Trial Judge, strictly adhering to the settled position of law, was fully justified in rejecting the plaint under Order VII Rule 11(d) of CPC. The impugned order does not suffer from

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