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2023 Supreme(Kar) 189
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
KRISHNA S DIXIT, J.
Joseph Raj, S/O Shantappa – Appellant
Versus
State Of Karnataka – Respondent
Writ Petition No. 8204 of 2019 (BDA)
Decided on : 17-03-2023
Advocate Appeared:
For the Appellant :SRI. KRISHNA SWAMY S, ADVOCATE
For the Respondent:SRI.R SRINIVASA GOWDA., SRI.B S KARTHIKEYAN., ADVOCATE
Point of Law: Article 261 of Constitution of India, which reads as public acts, records and judicial proceedings.
Headnote:
Bangalore Development Authority Act, 1976 - Transfer of Property Act, 1882 - Section 43 - Constitution of India, 1950 - Article 261 - Decree of specific Performance - Allotment Letter - Direction to Respondent to execute & register a conveyance in terms of specific Performance decree in his suit decreed against his vendor who happened to be allottee of subject site at hands of BDA – Subject suit was decreed ex parte qua allottee of site in question and therefore, Court decree cannot be taken cognizance of, is untenable - Para 5.
Finding of the Court: By virtue of agreement followed by Court decree, Petitioner fills character of original allottee and therefore, becomes entitled to have conveyance at hands of allotter i.e., BDA in respect of subject site - Contention that Respondent-BDA was a proper party if not a necessary party to suit, is difficult to sustain in light of decision of Apex Court in RAZIA BEGUM vs. SAHEBZADI ANWAR BEGUM, which broadly discusses as to who is a proper and who a necessary party - For adjudication of suit, only necessary party was allottee of site and none others - There is a lot of scope for argument, had BDA been arrayed as Defendant No.2 to suit, it could have sought for its deletion from Cause Title.
Result: Petition succeeds.
ORDER :
Petitioner is knocking at the doors of Writ Court essentially for a direction to the Respondent-BDA to execute & register a conveyance in terms of specific Performance decree in his suit in O.S.No.6825/2011 decreed on 10.11.2014 against his vendor who happened to be the allottee of subject site at the hands of the BDA. Learned counsel for the Petitioner vehemently argues that the Respondents are not justified in not taking cognizance of the said decree and acting in accordance with the same.
2. After service of notice, the State has entered appearance through the learned AGA; the BDA & BBMP have entered appearance through their learned Panel Advocates. The BDA has filed a Statement of Objection on 12.7.2022 resisting the Writ Petition. Its Sr. Panel Counsel makes vehement submission for the dismissal of Petition contending that his client was not a party to the decree in question; the said decree was obtained ex parte qua the allottee of site in question; no explanation is offered for not arraying the BDA as a defendant; no Possession Certificate was ever issued to the allottee, though sital cost was remitted by him to the BDA in terms of Allotment Letter.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:
(i) The site in question was allotted to Petitioner’s vendor after receiving the prescribed price and that the said site till date has been kept unallotted to anyone else are fairly admitted from the side of BDA, consistent with the records produced. Allotment of site is done not in a private negotiation but in accordance with the extant Allotment Rules promulgated under the erstwhile City of Bangalore Improvement Act, 1945 which has since been repealed by the Bangalore Development Authority Act, 1976, making the BDA a legal successor of City Improvement Trust Board. The Allotment Letter coupled with the payment of full price creates an equitable interest in the subject site in favour of allottee on the basis of which Petitioner has secured a Specific Performance decree in the subject suit, against him.
(ii) The above being the position, the decree of the Court has to be recognized and acted upon by the statutory authorities like the BDA, regardless of its being a party thereto or not, consistent with the ‘doctrine of feeding the grant by estoppel’ enacted in section 43 of the Transfer of Property Act, 1882 especially when no amount was due from the side of allottee towards the sital value nor any formal compliance was expected of him. Added, the subject site has been kept un-allotted to anyone else for decades and no third party rights have been created, either. Had BDA too been arrayed as a defendant, it would have been ideal for the adjudication of suit, is beside the point. If the allottee was entitled to have the conveyance in terms of allotment, his vendee standing in his shoes by virtue of agreement followed by Court decree, will have those rights, their jural correlative i.e., the duty resting on the shoulders of the then CITB and now BDA being its successor.
(iii) The vehement submission of learned BDA Panel Counsel that his client was a necessary party to the suit and therefore, decree secured against someone else cannot be executed against others and as a corollary, his client cannot be asked to take cognizance of the court decree oscillates between what is true of law and what is not. Ordinarily, the decrees of courts, unless rendered in rem like the ones made in special jurisdiction of matrimonial, insolvency, probate & admiralty, bind parties eo nomine, cannot be gainfully disputed and therefore, they are not executable against non-parties. However, execution of a decree is one thing and acting on them by taking their cognizance, is another. Execution of decrees is “party-specific” whereas taking their cognizance, is not. The statutory authorities ordinarily cannot be heard
