Sri. Anil Prakash Thumbapuri Vs the Bengaluru Development Authority

SRI. ANIL PRAKASH THUMBAPURI AGED ABOUT 51 YEARS, S/O LATE T.M. PRAKASH R/AT NO.21, S.B.T. LAYOUT, OPP: YELAHANKA TILES FACTORY YELAHANKA, BENGALURU-560064 REPRESENTED BY POWER OF HOLDER SRI. ARUN PRAKASH THUMBAPURI AGED ABOUT 48 YEARS, S/O LATE T.M. PRAKASH

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…PETITIONER

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

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AND:

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Digitally signed by HEMALATHA J Location: HIGH COURT OF KARNATAKA

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THE BENGALURU DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER T. CHOWDAIAH ROAD, KUMARA PARK WEST BENGALURU-560020

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THE DEPUTY SECRETARY-3 BENGALURU DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD KUMARA PARK WEST BENGALURU-560020

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…RESPONDENTS

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(BY SRI. UNNIKRISHNAN M., ADVOCATE FOR RESPONDENT NOS.1 AND 2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE

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HC-KAR

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BEARING NO.BDA/DS-3/1932/2019-20 DATED 11.11.2019 AS PER ANNEXURE-Q ISSUED BY RESPONDENT NO.2 AS THE SAME IS ARBITRARY, ILLEGAL AND CONTRARY TO LAW.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has sought for a writ in the nature of certiorari to quash an endorsement bearing No.¨ÉAC¥Áæ/GPÁ-

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3/1932/2019-20 dated 11.11.2019 issued by respondent No.2, by

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which he was called upon to pay additional consideration of Rs.6,13,499/- for conveyance of marginal land, failing which, a sale deed dated 04.08.2009 executed in respect of marginal land would be cancelled.

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(i) The petitioner claims that he purchased a site bearing No.1932/28/1 situate at 26^th main road, Magadi Road Chord Road, Corporation Ward No.36, Bengaluru, from Smt. Shashikala Urs in terms of a sale deed dated 18.04.2007. The petitioner claimed that he paid a sum of Rs.6,14,189/- as sale consideration for the marginal land adjacent to the aforesaid property. The respondent - BDA issued a notice calling upon

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HC-KAR

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the petitioner to pay further sum of Rs.3,63,006/- towards final cost of the marginal land and the said amount was paid by him. The petitioner therefore, claimed that in all he had remitted a sum of Rs.9,76,505/towards cost of marginal land. Thereafter, the respondent - BDA executed a sale deed dated 03.08.2009 in respect of marginal land and a khata was issued in respect of marginal land. The petitioner claims that he constructed a house in the aforesaid land. Long thereafter, the respondent - BDA caused a notice calling upon the petitioner to remit a sum of Rs.6,13,499/- as additional consideration for the marginal land. The petitioner replied stating that he had remitted a sum of Rs.6,13,499/- on 29.08.2007 and that a sale deed was already executed in his favour and hence, was not liable to pay any additional consideration.

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(ii) The respondent - BDA again issued similar notices calling upon the petitioner to pay a sum of Rs.6,13,499/- on 14.02.2014 and 16.05.2014. The petitioner claims that he submitted a reply which was accepted and the proceedings were dropped. Later on 11.11.2019, the respondent - BDA issued another endorsement again calling upon the petitioner to pay a sum of Rs.6,13,499/-. The petitioner submitted his reply.

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HC-KAR

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However, apprehending that the respondent - BDA may cancel the sale deed in respect of marginal land, the petitioner is before this Court.

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The learned Senior counsel appearing for the petitioner submitted that the respondent - BDA having once executed a sale deed cannot now call upon the petitioner to pay further sum of Rs.6,13,499/- and the respondent - BDA has no authority in law to unilaterally cancel the sale deed. He therefore, prays that the impugned endorsement issued by the respondent- BDA be quashed.

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(i) The writ petition is opposed by the respondents, who contend that after the respondent - BDA agreed to sell the marginal land to the petitioner, the payment of Rs.6,14,189/- was not made by the petitioner, but was made by the predecessor in title of the petitioner. It is contended that the site bearing No.1932/28/1 purchased by the petitioner was earlier allotted by erstwhile City Improvement Trust Board to one Sri. R. Subramani on 24.03.1973. The said Sri. R. Subramani instead of obtaining absolute sale deed in his name, sold it in favour of Smt. V. Saroja and later Smt. V. Saroja

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HC-KAR

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approached the respondent - BDA for conveyance of the aforesaid property and accordingly, allotment was transferred in the name of Smt. V. Saroja and the sale deed was executed in her favour on 23.05.1989. The said Smt. V. Saroja conveyed the property to Smt. M. Vijaya on 29.06.1989 and she in turn sold it to Smt. C. Vydehi on 01.02.1993, who then sold it to Smt. Shashikala Urs on 24.08.2000. The petitioner purchased it from Smt. Shashikala Urs.

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(ii) On 26.10.2005, the said Smt. Shashikala Urs had applied for allotment of marginal land in her favour. The respondent - BDA after considering her application had issued a demand for a sum of Rs.6,13,499/- for allotment of the marginal land. However, the said notice returned unserved as she was not available at the address. The respondents contended that therefore, letter of allotment of the marginal land was not issued to Smt. Shashikala Urs. However, later Smt. Shashikala Urs deposited a sum of Rs.6,13,499/- on 30.08.2007, by which time she had sold the property bearing No.1932/28/1 to the petitioner. Hence, she was not entitled to apply for allotment of the marginal land. It is contended that the petitioner had occupied the marginal land without any right,

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HC-KAR

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title and interest and on his request, the respondent - BDA decided to regularize the illegal possession by collecting Rs.3,63,006/- as penalty on 03.08.2009.

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(iii) It is contended that there was a dispute between the petitioner and Smt. Shashikala Urs, as the latter started meddling with the allotment of the marginal land in favour of the petitioner. The respondents claimed that an understanding was arrived at between the petitioner and Smt. Shashikala Urs on 15.04.2008 in terms of which both of them agreed to keep a sum of Rs.6,13,499/- in a fixed deposit which would be paid to the respondent - BDA for sale consideration for allotment of the marginal land. It is contended that since Smt. Shashikala Urs had paid a sum of Rs.6,13,499/- and the petitioner had paid Rs.3,63,006/- as penalty, the respondent - BDA executed a deed of sale in favour of the petitioner in respect of the marginal land on 03.08.2009. Later, Smt. Shashikala Urs started demanding refund of sum of Rs.6,13,499/- from the respondents and accordingly, on 25.10.2013, a sum of Rs.3,40,000/- and a sum of Rs.2,73,499/- was refunded to her. Therefore, it is contended that the petitioner has deliberately suppressed all material facts and hence, demand was raised by

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HC-KAR

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the respondents calling upon the petitioner to pay a sum of Rs.6,13,499/-. The respondents have denied that the claim of Rs.6,13,499/- was dropped as contended by the petitioner and claimed that the impugned endorsement dated 11.11.2019 is valid in the eyes of law and the respondents are entitled to initiate suitable proceedings for annulling the sale deed in favour of the petitioner.

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The learned counsel for the respondents submitted that the petitioner has not paid a sum of Rs.6,13,499/- but it is Smt. Shashikala Urs, who had paid the said sum and the authority having realized that the amount is paid by Smt. Shashikala Urs, refunded the sum of Rs.6,13,499/- to Smt. Shashikala Urs and therefore, it is the responsibility of the petitioner to pay the said amount. He submits that since it is the duty of the petitioner to pay said amount, the impugned endorsement is issued.

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I have considered the submissions of the learned Senior counsel for the petitioner as well as the learned counsel for the respondents.

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HC-KAR

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The fact that the sale deed was already executed by the respondents in favour of the petitioner in respect of marginal land on 03.08.2009, is not in dispute. A perusal of the sale deed executed in favour of the petitioner would go to show that the entire consideration as agreed was paid by the petitioner. After execution of the sale deed, the transaction stood concluded and hence, the respondents could not have laid a claim demanding a sum of Rs.6,13,499/- on any ground whatsoever including the ground that the respondents had refunded a sum of Rs.6,13,499/- to Smt. Shashikala Urs. The least that the respondents must have done before refunding the sum to Smt. Shashikala Urs, was to inform the petitioner about the request made by Smt. Shashikala Urs for refund. Since that is not done, the respondents cannot now call upon the petitioner to pay a sum of Rs.6,13,499/-. Even otherwise, the respondents cannot claim that failure to pay a sum of Rs.6,13,499/- would result in unilateral cancellation of the sale deed.

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Once the sale deed is executed and the transaction

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is complete, the respondents have no authority in law to cancel a validly executed conveyance such as, sale deed. In this

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HC-KAR

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regard the law is well settled and a Co-ordinate Bench of this Court in K. Raju vs. BDA [2010 SCC OnLine KAR 4322] held as follows:-

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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

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HC-KAR

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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 above, the petition is allowed . The impugned endorsement bearing No.¨ÉAC¥Áæ/GPÁ-3/1932/2019-20

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dated 11.11.2019 issued by respondent No.2 is quashed. It is however, open for the respondents to proceed against the petitioner in accordance with law, if they have any claim against the petitioner, in which event, any observation made herein will not impair the right of the respondents but shall be decided in accordance with law.

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Sd/(R. NATARAJ) JUDGE

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PMR

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List No.: 1 Sl No.: 58

Sri. Anil Prakash Thumbapuri v. the Bengaluru Development Authority

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Sri. Anil Prakash Thumbapuri v. the Bengaluru Development Authority

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