1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.17381/2015 (BDA) BETWEEN:
SRI.MANJUNATH SHETTY S/O.SRI.RAJIV SHETTY AGED ABOUT 30 YEARS RESIDING AT NO.75 2ND MAIN, BHARTHI LAYOUT S.G.PALYA, THAVAREKERE BANGALORE-560 029.
(BY SRI.H.T.VASANTH KUMAR, ADV.) AND:
1. BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD BANGALORE-560 020 REPTD. BY ITS COMMISSIONER.
2.SRI.M.MUNIKRISHNAPPA S/O LATE. MARIYAPPA AGED ABOUT 54 YEARS GIDADAKONENAHALLI VILLAGE YESHWANTHPURA HOBLI BANGALORE NORTH TALUK BANGALORE-560 056.
(BY SRI.SACHIN B.S., ADV. FOR R1, R2 SERVED AND UNREPRESENTED) … PETITIONER … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED CANCELLATION ORDER VIDE ANNEXURE-E DATED 27-02-2015 ISSUED BY THE R-1 AUTHORITY FOR TERMINATING THE ALLOTTED SITE NO.196/B, BBMP KATHA NO.1458/196/B, SITUATED AT SECTOR-III, HSR LAYOUT BANGALORE-560 103, MEASURING EAST TO WEST 12.19 MTRS., AND NORTH TO SOUTH 18.29 MTRS TOTALLY MEASURING 222.95 MTRS AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner who is the purchaser of the schedule property to the writ petition from the original allottee is before this Court for a writ of certiorari to quash the impugned cancellation order made in No.BKI/4553/2014- 15 dated 27.02.2015 as per Annexure-E issued by the first respondent-Bangalore Development Authority (hereinafter referred to as ‘the BDA’ for short) terminating the allotted site No.196/B, BBMP Katha No.1458/196/B situated at Sector-III, HSR Layout, Bangalore-560 103 measuring East to West 12.19 Mtrs and South to North 18.29 Mtrs, totally measuring 222.95 Sq. Mtrs and also prohibition not to interfere with the peaceful possession and enjoyment of the schedule property and to dispossess the petitioner from the land in question.
2. It is the case of the petitioner that originally the schedule property mentioned in the writ petition was allotted to the second respondent by the BDA on 07.06.2013 and absolute registered sale deed was executed by the BDA on 25.06.2013 in favour of the second respondent which is titled as Incentive site (d«ÄäUÉ §zÀ°AiÀiÁV ¤ªÉñÀ£À ºÀAaPÉ ªÀiÁqÀ¯ÁzÀ ¤ªÉñÀ£ÀzÀ PÀæAiÀÄ¥ÀvÀæ) and subsequently issued Possession Certificate on 25.06.2013 as per Annexures-B and C respectively. Thereafter the second respondent had become the absolute owner of the schedule property mentioned in the writ petition. By virtue of allotment letter, sale deed and possession certificate, the second respondent had executed the absolute sale deed dated 17.01.2014 in favour of the present petitioner for a valuable consideration of Rs.1,20,00,000/- (Rupees One Crore Twenty Lakhs only) and the petitioner was put in possession of the property in question.
3. When things stood thus, very strangely, the BDA has cancelled the sale deed dated 25.06.2013 made in favour of the original owner M.Munikrishnappa unilaterally by Cancellation Deed dated 27.02.2015 and the same was registered before the Additional District Registrar, Bangalore Urban District and Sri.M.Nagaraj, Deputy Secretary-I, BDA who has furnished the document in terms of Section 88(1) of the Registration Act without notice either to the original vendor-second respondent Munikrishnappa or to the petitioner who is the purchaser of the property in question under a registered sale deed dated 17.01.2014. Hence, the present writ petition is filed.
4. The first respondent-BDA filed statement of objections on 02.11.2017 contending that BDA has utilized the land in Sy. No.26/2 of Valagerahalli Village for formation of the Road, without following the acquisition proceedings. Thereafter, one Munikrishnappa, S/o Late. Mariyappa - the second respondent submitted the application to the BDA along with some documents pertaining to Sy. No.26/2 of Valagerahalli Village, to show that he is the owner of that land and he is entitled for alternative land on the basis of the documents. Accordingly, on the basis of the documents, BDA has allotted the site which is in dispute in favour of the second respondent. Thereafter, on the basis of the complaint filed by one Mr. Jagannath, it came to the knowledge of the BDA that, the second respondent has got the allotment of the said site by producing created documents in respect of Sy. No.26/2 of Valagerahalli Village with the impression that he is the owner of that property. On enquiry, the Superintendent of police of BDA found that the second respondent has got the allotment of the said site by making impersonation. Therefore, immediately the BDA cancelled the sale deed executed on 24.06.2013 in favour of the second respondent on the ground that he has obtained the sale deed from the BDA based on the basis of created and fraudulent documents. Therefore, petitioner is not entitled for any relief before this court.
5. The BDA has further contended that the petitioner was not the allottee of BDA and he has purchased the site from the second respondent who got allotment of the site from the BDA without having any right by producing fraudulent documents. As such the petitioner has no right to file the present writ petition and the writ petition is liable to be dismissed.
6. Second respondent is served, conveniently absent and remained unrepresented.
7. I have heard the learned counsel for the parties to the lis.
8. Sri. H.T. Vasant Kumar, learned counsel for the petitioner vehemently contended that the impugned order dated 27.02.2015 passed by the first respondent BDA thereby cancelling the registration of the sale deed dated 25.06.2013 of his vendor i.e., the second respondent is erroneous and contrary to the material placed on record. He would further contend that the impugned order passed by the BDA is in utter violation of principles of natural justice. No notice was issued either to the vendor of the petitioner or to the petitioner who is the subsequent purchaser under the registered sale deed dated 17.01.2014. On that ground alone, the impugned order passed by the first respondent is liable to be quashed. He further submitted that the cancellation deed dated 27.02.2015 was presented before the Additional District Registrar, Bangalore Urban District. Who, without following the procedure as contemplated under the Registration Act and Rules, has unilaterally registered the cancellation deed. He further submitted that once the sale deed executed by BDA in favour of the vendor of the present petitioner on 25.06.2013, the BDA is no longer the owner of the property, has lost its right and title over it and therefore they cannot cancel unilaterally. He would further contend that if BDA wanted to cancel the sale deed of the vendor of the petitioner, the only remedy for the BDA was to approach competent civil court under the provisions of Section 31 of the Specific Relief Act, 1963. Therefore, he sought to quash the impugned order passed by the BDA by allowing the present writ petition for the relief sought for.
9. Per contra, Sri. Sachin, learned counsel for the first respondent – BDA sought to justify the impugned order. He submits that since the second respondent who is the allottee under the BDA by virtue of allotment dated 24.06.2013, and has subsequently obtained Possession Certificate from BDA on 25.06.2013, has cheated BDA by producing false documents and on the basis of the impersonation made by the said person, the BDA has cancelled the sale deed. Admittedly, the vendor of the petitioner has not challenged the said action of the BDA and therefore, the present petitioner cannot challenge the same before this court. He further submitted that when the BDA noticed the fraud played by the vendor of the petitioner, namely the second respondent, in order to protect the interest of the BDA and general public, the action is taken to cancel the sale deed in good faith. Therefore, he sought to dismiss the Writ Petition.
10. Having heard the learned counsel for the parties, the points that arise for consideration in the present writ petition are:
1) “Whether the BDA can cancel the sale deed of the vendor of the petitioner unilaterally without notice to the vendor of the present petitioner and purchaser- petitioner?
2) Whether the jurisdictional Additional District Registrar has the authority to cancel the registration of any document unilaterally after it was registered, under the provisions of Registration Act and Rules?”
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the materials available on record carefully.
12. It is an undisputed fact that on the basis of the documents which have been produced by the second respondent claiming that he is the owner of Sy. No.26/2 of Valagerahalli Village, the BDA accepting his ownership, by order dated 07.06.2013 allotted the site bearing No.196/B morefully described in the schedule to the writ petition and subsequently executed the absolute registered sale deed on 25.06.2013 in favour of the second respondent without imposing any terms and conditions. Thereafter it is also not in dispute that the second respondent has alienated the property in question in favour of the present petitioner under a registered sale deed 17.01.2014 for valuable consideration at Rs.1,20,00,000/- (Rupees One Crore Twenty Lakhs).
13. It is further case of the petitioner that after purchase, the Bangalore Mahanagara Palike (‘BBMP’ for short) issued Katha Certificate in his favour and he is also paying tax to the BBMP. Thereafter, he obtained plan and other permission from the competent authority constructed the house and residing in the said house morefully described in the plaint schedule.
14. However, as alleged by the BDA that the second respondent playing fraud on the BDA obtained the allotment on 07.06.2013 and subsequently registered on 25.06.2013. It is not known, why the BDA has not issued notice either to the vendor of the petitioner or the petitioner who is the subsequent purchaser. It is also not forthcoming from the materials on record that while making allotment on 03.06.2013, the BDA was satisfied with the ownership of the second respondent in respect of Sy. No.26/2 and it has utilized Sy. No.26/2 measuring 21 gutnas, and allotted site No.196/B, BBMP Katha No.1458/196/B situated at Sector-III, HSR Layout, Bangalore-560 103 measuring East to West 12.19 Mtrs and South to North 18.29 Mtrs, totally measuring 222.95 Sq. Mtrs.
15. It is also not forthcoming if the second respondent played fraud, impersonation on the BDA, then what is the action taken by the BDA against the officers who certified that the second respondent was the owner of the Sy. No.26/2 of Valagerahalli Village which was utilized for formation of Road. Once the BDA satisfied itself with the ownership of second respondent and allotted a site - the property in question in his favour on 02.06.2013 and 25.06.2013, very curiously how the BDA suddenly wakeup in 2015 i.e., on 27.02.2015 and cancelled the sale deed of the vendor of the petitioner unilaterally without following the procedure/s as contemplated and in utter violation of principles of natural justice.
16. Sri. Sachin, learned counsel appearing for the first respondent on instructions, submitted that BDA already initiated criminal action against the second respondent on impersonation in Crime No. 60/2015. It is for the BDA to pursue that criminal case pending between the parties.
17. It is also not forthcoming as to why the Commissioner-BDA, has not initiated any action against the officers of the BDA who satisfied and gave report/opinion that second respondent was the owner of the Sy. No.26/2 of Valagerahalli Village while allotting the site in favour of him.
18. The impugned cancellation order of the sale deed dated 27.02.2015 clearly depicts that BDA cancelled the sale deed of the second respondent i.e., vendor of the petitioner dated 25.06.2013 only on the ground that he has created false documents claiming that he is the owner by impersonation and got the allotment. If that is so, the BDA could have ascertained the latest position by issuing notice to both the vendor and the present petitioner. The same has not been done. Very curiously, the cancellation of the order has been presented before the Additional District Registrar – Bangalore Urban District by one Nagaraj, Deputy Secretary No.1 on behalf of BDA. Very strangely, the Additional District Registrar also register the cancellation document even in the absence of the other side which is against the provisions of Section 32A of the Registration Act. That is how the cases are created and presented before the courts are flooding and pending before the court because of irresponsibility on the part of either the citizens like second respondent or the officers of BDA or the officers of Revenue Department (Registrars).
19. It is needless to observe that if the BDA is aggrieved by the registration of the sale deed made in favour of the vendor of the petitioner-second respondent and if found, he has obtained by misrepresentation/impersonation or fraud, the BDA ought to have invoked the provisions of Section 31 of the Specific Relief Act, 1963 which reads as under:
“ 31. When cancellation may be ordered. – (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 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.”
20. Even before cancellation of the registered sale deed (document) unilaterally, when presented by the Officer of BDA, it is the duty of jurisdictional Additional District Registrar, Bangalore Urban District that before registration, he has to follow the procedure as contemplated under the provisions of Sections 32, 32A of the Registration Act, 1908 read with Rule 41 of Karnataka Registration Rules 1965 Sections 32, 32A of the Registration Act reads as under:
“32. Persons to present documents for registration.—Except in the cases mentioned in [sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,— (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such a person, or (c) by the agent of such a person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
32A. Compulsory affixing of photograph, etc. – Every person presenting any document at the proper registration office under section 32 shall affix his passport photograph and fingerprints to the document:
Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.”
Rule 41 of the Karnataka Registration Rules 1965 reads as under:
“41. Examination of a document by the Registering Officer.--- Every document shall before acceptance for registration be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with. If there is any informality in presentation of a nature which can be remedied, the Registering Officer shall give the party such information as may be necessary and return the fees and the document with a view to the document being presented again in due form, For instance, in case such as those mentioned below he should explain the defect to the presentant; if the document is presented in the wrong office; or presented beyond the prescribed time limit or the parties have come without the prescribed fees; if an agent has come without a power-of-attorney or without such a power as the Act required, or if the presentant is not a competent person to present the document, if the description of the property is either insufficient for purpose of identification or does not fulfill the requirements of Rules 13 to 15, if the document is not accompanied by a translation or by copy of a map when such translation or copy is necessary; if there are unattested interlineations, alterations, erasures or blanks, which the Registering Officer considers should be attested by the initials of signature of the executants; if the date of execution is not given in the document of if it is anterior to the date of purchase of the stamp paper on which the document is written, or if the date is given according to both the British and the Indian calendars and these dates do not tally. The action of the Registering Officers in this respect shall be confined to advice and he shall not himself alter the document in any way.”
21. Admittedly, in the present case, though it is the duty of the registering authority to know the person who present the documents for registration or cancellation and compulsorily by affixing the photographs of both the persons and examination of documents the same has not been done and it has unilaterally cancelled the sale deed of the vendor of the second respondent which is contrary to the provisions of Section 32 of the Registration Act, 1908.
22. It is also not in dispute that the BDA executed absolute registered sale deed dated 25.06.2013 in pursuance of the allotment made. Once an absolute sale deed is executed in favour of the second respondent, he becomes absolute owner in terms of the provisions of Section 54 of the Transfer of Property Act, 1908 which reads as under:
54. “Sale” defined.—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.”
23. By careful reading of the aforesaid provisions, it is made clear that when the owner of property sells or conveys the property to the purchaser in written document and get the same registered, the right, title and interest in the said property is transferred from the owner to the purchaser on registration of said document. Thus, once such sale transaction takes place, the transfer is complete. The vendor of the property seizes to be the owner of the property. The effect of registration of such instrument not only affects the rights of parties to the instrument – property whom claim under sale. Therefore the Legislature thought fit to enact the provisions of Section 31 of the Specific Relief Act, 1963.
24. A plain reading of the Provisions of Section 31 of Specific Relief Act, 1963 makes it clear that any person against whom a written statement is void or voidable, and who has reasonable apprehension that such instrument, even left outstanding may cause him serious injury, may sue to have it adjudge void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancel. If the instrument has been registered under Registration Act, 1908, the court shall also sent/send its decree to the officer to whose officer in which the document has been registered and such officer shall note on the copy of the instrument contained/containing in his book the fact/affect of his cancellation. It is thus evident that having executed a registered instrument in the nature of absolute sale deed, it was not open for the BDA or Additional District Registrar to unilaterally cancel the same. If the document was void or voidable, the BDA ought to have approached the competent civil court for appropriate remedy in accordance with Law.
25. This court in the case of “Binny Mill Labour Welfare House Vs. D.R. Mruthyunjaya Aradhyaa” reported in ILR 2008 KAR 2245 while considering the provisions of Section 31 of the Specific Relief Act and the provisions of 2(h), 2(i), 2(g) and 2(J) of the Indian Contract Act, 1972, as held in paragraph No.36 as under :-
“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 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, 1963. Therefore, the power to cancel a deed vests with a Court and it cannot be exercised by the vendor of a property.”
26. The Hon’ble Supreme Court while considering the provisions of Registration Act and Specific Relief Act, 1963 and powers of this court under Article 226 of the Constitution of India in the case of “Satya Pal Anand Vs. State of Madhya Pradesh and Others” reported in (2016) 10 SCC 767 held that recall of registration/documents which were properly presented for registration, re-opening question of registration after registration cancellation or registration of documents after registration, competent authority there for is a civil court alone and none of the authorities/officers under the Registration Act, 1908 have powers in that regard. In paragraph Nos. 25 and 36 it has held as under:
“ 25. It is a well-established position that the remedy of writ under Article 226 of the Constitution of India is extraordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Dipak Misra, J. We respectfully with that view.”
36. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the extinguishment deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitfully to cause loss and harm to the other party to the deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the 1908 Act enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it si unfathomable as to how the registration of the document by following procedure specified in the 1908 Act can be said to be fraudulent. AS aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration fo the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the civil court.”
27. The Hon’ble Supreme Court while considering the provisions of section 31 (1) and (2) of the Specific Relief Act, 1963 in the case of “Thota Gangalaxmi and Another Vs. Government of Andhra Pradesh” reported in (2010) 15 SCC 207 in paragraph Nos. 4 and 5 held as under:
“4. In our opinion, there was no need for the appellants to approach the civil court as the said cancellation deed dated 04.08.2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is not disputed that A and the title to the land, that title passes to B on the registration of the sale deed (retrospectively) from the date of the execution of the same) and B then becomes the owner of the land. If A wants to subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.
5. In this connection, we may also refer to Rule 26(k)(i) relating to Andhrapradesh under Section 69 of the Registration Act, 1908, which state:
“(i) The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered declarations showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered seed of conveyance on sale.
Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a government officer competent to execute government orders declaring the properties contained in the previously registered conveyance on sale to be governed or assigned or endowment lands or properties not registerable by any provision of law:
A reading of the above Rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent court that the cancellation deed can be registered and that too after notice to the parties concerned. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaning less transactions.”
28. In view of the aforesaid reasons, the issues raised in the present writ petition have to be held in “Negative” holding that the BDA has no authority to cancel registration unilaterally without following the principles of natural justice to both the vendor and the present petitioner and the jurisdictional Additional District Registrar has no jurisdiction to cancel the registration of the sale deed dated 25.06.2013 unilaterally without the consent of the second respondent in whose favour the BDA registered the document and he is not the competent authority to cancel the same in view of the provisions of Section 31 of the Specific Relief Act, 1963 and the Civil court is the only competent and exclusive authority to cancel the sale deeds on obtaining the proof of fraud played by the vendor/second respondent.
29. It is relevant to state at this stage that because of the societal irresponsibility of the second respondent, who according to the first respondent-BDA created documents to claim that he is the owner of Sy.No. 26/2 of Valagerahalli Village measuring 21 guntas which was acquired by BDA and which was utilized by the BDA for formation of road without any acquisition proceedings and before allotting the site in favour of the second respondent by the authorities on 07.06.2013 ought to have scrutinized the documents carefully and after satisfying themselves ought to have allotted the site. The presumption is that once they allotted the site in favour of the second respondent they have been satisfied with the ownership of the second respondent. If that is so, before cancellation of the said sale deed, it is the duty of the Commissioner, BDA to initiate action against the concerned officers who certified that the second respondent was the owner of Sy. No. 26/2 measuring 21 guntas of Valagerahall Village and then they ought to have issued notice to the second petitioner who is the original allottee on 25.06.2013 from BDA and subsequent purchaser who is the present petitioner who purchased the said site from the second respondent on 17.01.2014 for a sale consideration amounting to Rs. 1,20,00,000/- (Rupees One Crore Twenty Lakhs) which clearly indicates that there is no institutional responsibility by the authorities of the BDA towards the society and very unfortunately, the Additional District Registrar who is the competent authority under the Registration Act and Rules, while registering any document, he/who has to evaluate the procedure as contemplated under the relevant Act and Rules either before registration or before cancellation of document, when the person in whose name the document is registered, in the absence of that person, he (Registrar) cannot cancel the registered document. Inspite of the legislative intention of the provisions of the Act and Rules, still the Additional Registrar of Stamps unilaterally acted and cancelled the registered sale deed which is impermissible.
30. The conduct and actions of the officers of the BDA, second respondent and the Additional District Registrar is nothing but obstruction of court proceedings unnecessarily creating/ generating litigations. That is how the courts are flooded with frivolous litigations. Therefore, it is high time for the Commissioner-BDA to take action against the persons concerned who certified that second petitioner was the owner of the Sy.No.26/3 of Valagerahalli Village property and allotted the site, the property in question in favour of the second respondent on 07.06.2013 so as to avoid injustice being done by the authorities of the BDA to the general public at large.
31. It is also high time for the Principal Secretary, Revenue Department and Inspector General of Stamps and Registration to take serious action against erring Additional District Registrars / Sub-Registrars in the State by issuing proper circular to avoid any injustice being done to the general public at large who spend their entire life savings for the immovable property either allotted by the BDA, or purchased for valuable consideration.
32. This is also a fit case to direct the Commissioner-BDA to identify the concerned officers and take departmental action against those persons and they are liable to pay the cost of the litigation for wasting precious time of public as well as court.
33. Therefore, in the interest of justice, it is just and appropriate to impose costs of Rs.25,000/- (Twenty Five Thousand Rupees Only) payable by the concerned officer of the BDA (from his/their personal pocket and not from the Bangalore Development Authority) to the Advocates Welfare Fund within a period of two months from the date of receipt of a copy of this order and the Commissioner of the BDA shall ensure that the Officers concerned has/have to pay the costs within the time stipulated failing which the Secretary, Bar Council, State of Karnataka shall initiate action for recovery of the said amount.
34. It is also high time for the Principal Secretary, Revenue Department as well as the Inspector General of Stamps and Registration to initiate Departmental Enquiry against the then Additional Registrar, Bangalore Urban District, who has registered the document at the instance of Deputy Secretary – Sri Nagaraj, Bangalore Development Authority, who cancelled the document and concerned Additional Registrar is liable to pay costs of Rs.25,000/- from his personal pocket (and not from the Government) which has to be deposited before the Member Secretary, Karnataka State Legal Services Authority, who is also the Convener of Juvenile Justice Committee, High Court of Karnataka towards Juvenile Justice within a period of two months from the date of receipt of a copy of this order and the Principal Secretary, Revenue Department shall ensure the prompt payment from concerned Additional Registrar within the stipulated period failing which the Member Secretary, Karnataka State Legal Services Authority, who is also the Convener of Juvenile Justice Committee, High Court of Karnataka is at liberty to recover the cost from the officer concerned.
35. In view of the aforesaid reasons, the impugned cancellation order dated 27.02.2015 passed by the BDA as per Annexure-E vide No. BKI/4553/2014-15 is totally without jurisdiction and cannot be cancelled unilaterally without following the procedure as contemplated under Section 31 of the Specific Relief Act, 1963.
36. Accordingly, writ petition is allowed. The impugned cancellation order dated 27.02.2015 passed by the BDA as per Annexure-E vide No. BKI/4553/2014-15 is hereby quashed.
37. However, it is open for the BDA to take appropriate action in terms of provisions of Section 31 of the Specific Relief Act, 1963 against second respondent in accordance with Law.
The Registry is directed to send the copy of this order to the Secretary, Bar Council, State of Karnataka and Member Secretary, Karnataka State Legal Services Authority to take necessary steps to recover the costs imposed in accordance with Law.
Sd/-
JUDGE Bsv