C. Ramesh vs The Bangalore Development Authority and Others

K.L. Manjunath, J.—The legality and correctness of the order passed by the learned Single Judge in W.P. No. 5918/2010 is called in question in this appeal.

The appellant filed the writ petition requesting the Court to issue a writ of certiorari to quash the order passed by the BDA dated 11.2.2010, cancel the sale deed dated 10.7.2007, the consequential sale deed dated 20.8.2007 and further consequential sale deed dated 18.2.2010 before the Sub-Registrar, Bommanahalli, Bangalore Rural District and also to restore the khatha in respect of site No. 818, 4th Block, Koramangala in his favour, to declare that the BDA has no power or authority to unilaterally cancel the sale deed dated 16.5.1990 and that competent civil Court alone has power to cancel such registered sale deed.

According to the petition averments, site No. 818, Koramangala layout was allotted to third respondent Sri. Srivatsan Rangachari vide allotment letter dated 5.5.1990 and later on, on 7.5.1990, a lease-cum-sale agreement came to be executed by the BDA in favour of the third respondent and he was put in possession of the property vide Annexure-H dated 15.5.1990. A conditional sale deed was also executed on 16.5.1990 and later on, the khatha was transferred to the name of the third respondent vide Annexure-K dated 25.5.1990 and thus Sri. Srivatsan Rangachari had become the absolute owner of the property and later on Sri. Srivatsan Rangachari sold the aforesaid property in favour of the petitioner under a registered sale deed dated 6.4.2005.

It is also the case of the petitioner that the aforesaid site No. 818 was earlier allotted to 2nd respondent K.N. Krishna Murthy and on his request, the said site came to be cancelled, later allotted to third respondent-vendor of the appellant-writ petitioner and a sale deed came to be executed in favour of the appellant at the instance of the 2nd respondent. The allotment made in favour of third respondent has been revoked by the BDA and conditional sale deed also came to be cancelled unilaterally and restored the site in favour of the 2nd respondent. In the circumstance, writ petition came to be filed.

It was contended by the BDA and the second respondent that at no point of time, the site in question was allotted by BDA in favour of the third respondent and the documents relied upon by the third respondent viz., the letter of allotment, possession certificate, conditional sale deed and khatha certificate are all false and fabricated documents and having learnt that a fraud was played on the BDA in obtaining such documents without signature of the Secretary of the BDA, a notice was got issued to the third respondent so also the appellant herein and after recording their statement and holding a detailed enquiry and after inspecting the records maintained by BDA found that such allotment was never made in favour of the third respondent and the third respondent had no power to sell the site in favour of the appellant herein, cancelled the conditional sale deed stated to have been executed by the BDA. It is also the case of the petitioner that prior to filing of this petition, after coming to know of the cancellation, the petitioner filed a writ petition before this Court in W.P. No. 14037/2008 and this Court had allowed the writ petition, directed the BDA to hold an enquiry and take action in accordance with law. Thereafter the enquiry was held in detail and BDA came to the conclusion that the documents relied upon by the petitioner are all concocted and site was never allotted to his vendor-the third respondent. Accordingly, the documents created by the third respondent were cancelled by the BDA.

Contending that the cancellation made by BDA is illegal and the BDA unilaterally could not have cancelled and that the BDA was required to approach the Civil Court for cancellation of such document filed the writ petition. The learned Single Judge having examined the matter in detail came to the conclusion that the BDA never allotted the site to the third respondent and the documents relied upon by the third respondent are all concocted and fabricated and no payment was also made by the third respondent. Accordingly, the writ petition came to be dismissed.

Challenging the legality and correctness of the same, the present appeal is filed by the appellant.

The learned counsel for the appellant Sri. Varadarajan contends that the learned Single Judge has committed an error in dismissing the writ petition. According to him, the learned Single Judge was required to allow the writ petition on the ground that the BDA has no right to cancel the sale deed executed by BDA in favour of the third respondent unilaterally even if fraud had been played by the third respondent in obtaining such document, the BDA was required to approach the competent Civil Court and without filing a civil suit, the cancellation of the site in question is bad in law. To support his arguments, he has relied upon the judgment of this Court in S. Venkoji Rao Vs. Bangalore Development Authority, , Sri K. Raju Vs. Bangalore Development Authority, , judgment of Madras High Court in Latif Estate Line India Ltd. Vs. Mrs. Hadeeja Ammal, The Inspector General of Registration and The Sub Registrar Ambattur, and also judgment of this Court in the case of Binny Mill Labour Welfare House building Co-operative Society Limited Vs. D.R. Mruthyunjaya Aradhya, .

The learned counsel for the respondents submit that these judgments have no application to the facts of this case. According to them, the BDA never allotted the site in question to the vendor of the appellant, who is the third respondent. The third respondent participated in the enquiry and gave his statement, did not produce any document to show that he had paid the sale consideration to the BDA and was unable to produce any documents. The documents maintained by BDA clearly reveal that the site was not allotted in favour of the third respondent and cancelled the sale deed made in favour of the third respondent, the third respondent having fully aware of the fraud played by him joining with one Muniraju, who is the king-pin in creating such documents did not venture to challenge the cancellation of the allotment made in his favour. According to learned counsel for the BDA, when the third respondent has not challenged the action of the BDA, appellant being purchaser of the site in question, having stepped into the shoes of his vendor, cannot question the legality and correctness of the action taken by BDA in canceling the documents, which were not really executed by the BDA.

It is also submitted that the judgments relied upon by the appellant have no application to the facts of this case because in those judgments, there was a contract between the parties and that the documents were executed between the parties. Under such circumstance, this Court held that the cancellation of such registered document could be made only by means of filing a civil suit. According to him, filing of civil suit in the instant case could not arise for consideration, because, such documents were never executed by BDA and he submits that when the third respondent has not supported the case of the appellant, the appellant cannot question the action of the BDA by filing a writ petition. He also contended that the arguments of the learned counsel for the appellant has to be accepted that competent Civil court has jurisdiction to entertain such disputes. Even the appellant also cannot maintain the writ petition, because, he tried to seek cancellation of the conditional sale deed executed by the BDA. Therefore, he submits that the writ petitioner has to approach the Civil Court for the relief and not by way a writ petition. In the circumstances, he requests to dismiss the appeal.

Having heard the learned counsel for the parties, we have to consider whether the learned Single Judge has committed any error in dismissing the writ petition of the appellant.

The admitted facts in this appeal are that the appellant is trying to contend that he has purchased the property in question from third respondent. According to him, the third respondent was allotted the site in question by the BDA and that the third respondent has transferred his title. Therefore, the consequential conditional sale deed executed by BDA in favour of the third respondent after third respondent alienating the property in favour of the appellant is bad in law. But the contention of the BDA is that the documents relied upon by the appellant and the third respondent are all got up and fabricated and at no point of time, the site in question was allotted to the third respondent and third respondent has not paid any consideration to the BDA and all the documents relied upon by him are all concocted.

The appellant has not disputed that site No. 818 claimed by the appellant was earlier allotted to Sri. K.N. Krishnamurthy-respondent No. 2 in this appeal on 30th January 1988 under a lease-cum-sale agreement and that the site allotted in favour of Sri. Krishnamurthy was got cancelled by means of a registered cancellation deed dated 7.5.1990 and thereafter the site in question was available to BDA to allot the same to any other person. According to him, execution of the sale deed in favour of his vendor Sri. Srivatsan Rangachari was at the request of 2nd respondent-Krishna murthy and that the cancellation has been made at the behest of the appellant. But the entire contention of the appellant cannot be believed by any Court because even according to the appellant, site in question was allotted in favour of Krishna Murthy under a lease-cum-sale agreement dated 30th January 1988 and that the site allotted to Krishna Murthy was cancelled on 7.5.1990. Even if we accept the said contention that as on 7.5.1990, the site so allotted in favour of Krishna Murthy was in force, the BDA can allot the same site only after cancellation of allotment made in favour of Krishna Murthy. If the cancellation of allotment of Krishna Murthy has been made on 7.5.1990, the contention of the appellant that the very same site was allotted on 5.5.1990 in favour of his vendor cannot be believed, because, as on 5.5.1990, the BDA could not have allotted the same site in favour of the appellant''s vendor. We have also seen the allotment letter dated 5.5.1990, which is produced at Annexure-F. On perusal of the allotment letter dated 5.5.1990, it shows that the appellant''s vendor Srivatsan Rangachari had applied for allotment pursuant to a notification dated 3.7.1987 and site was allotted by the order of the secretary dated 2.5.1990. But in the instant case, as on 2.5.1990, the Secretary, BDA could not have allotted the same site in favour of vendor of the appellant, because, it was allotted to Krishna Murthy-2nd respondent in this appeal. Annexure-F further reveals that the appellant''s vendor has paid Rs. 6,300/- as initial deposit and he was required to pay Rs. 43,600/- within 90 days from the date of intimation. When the allotment letter is dispatched on 5.5.1990, the question would be when the vendor of the appellant could receive this allotment letter, when he can make the payment. Nothing is produced before the Court to show that his vendor paid Rs. 43,600/- as per the intimation of allotment. Even without paying the same, within two days from the date of allotment letter dated 5.5.1990, a lease-cum-sale deed has been entered into on 7th May 1990. There also it is not mentioned how the payment is made by the vendor of the appellant and subsequently how he was put in possession of the site on 15.5.1990 and within a week thereafter, a conditional sale deed is also executed on 16th May 1990 and there also the details of payment made by him has not been shown. The BDA having come to know the fraud played by the vendor of the appellant, an enquiry was conducted. In the enquiry, the statement of the vendor has also been recorded, wherein he has failed to produce any documents to show the payment made by him. According to his statement, he paid initial deposit of Rs. 2,000/-, but the same is contrary to the allotment letter vide Annexure-F, because, under Annexure-F, it is mentioned as if the vendor of the appellant had paid Rs. 6,300/- as initial deposit. From the above document, it is clear that a fraud was played by the vendor of the appellant. Even otherwise, the Court can take judicial notice about the conduct of the third respondent. If really, the third respondent was a genuine allottee, having sold the property by him, he could not have kept quiet without challenging the order of cancellation. For the reasons best known to him, the cancellation order has not been challenged by him, because, he is party to the fraud and even in the writ petition, he is arrayed as third respondent. It is stated in his counter as if the cancellation has been made by the BDA without issuing any notice. The said statement is also incorrect, because his statement is recorded when enquiry was held pursuant to the direction issued by this Court.

Viewed from any angle, it is clear that site in question could not have been allotted by the BDA in favour of the third respondent on 5.5.1990, because by that time, the site in question was allotted to the second respondent Krishna Murthy. Before allotment made in favour of K.N. Krishna Murthy is cancelled, the BDA could not have allotted the site to the appellant''s vendor. In this background, if a document is created unilaterally by playing a fraud on the BDA, the BDA on noticing such transaction has cancelled the registered sale deed executed in favour of vendor of the appellant. The appellant has no jurisdiction to challenge the same by filing a writ petition. It is for the vendor to file a suit and get the khatha cancelled and otherwise the appellant can file a suit before the Civil Court. When the appellant''s vendor has not challenged, the appellant cannot question the same, because, it is not the case of the appellant that there is an inter-se dispute between him and his vendor and thus when the appellant is sailing with his vendor and his vendor has kept quiet even after cancellation of the documents by BDA, the appellant cannot contend before the Court that the BDA be directed to approach the Civil Court for no fault of its. Accordingly, we hold that no error is committed by the learned Single Judge in dismissing the writ petition. Sofar as judgments relied upon by the appellant''s counsel are concerned, in all cases, the BDA had allotted sites and thereafter unilaterally, it had cancelled the same. But in the instant case, when the BDA had never allotted any site to the vendor of the appellant, question of BDA approaching the Civil Court will not arise at all.

Accordingly the appeal is dismissed.