Sri. Subhash vs The State Of Karnataka & Ors.

“01)

Issue a writ of certiorari thereby to quash the allotment and registration of sale deed dated 04/08.04.2019 in respect of plot No.7-P17P2 in favour of the 4^th respondent as at Annexure-G as contrary to the government order dated 04.01.2019 is illegal and arbitrary;

02)

Issue a writ of mandamus directing the respondents no.1 to 3 to execute the sale deed in respect of the excess area abutting the plot of the petitioner measuring 20 x 40 ft by considering the representation and correspondence as at Annexure-E & F within such stipulated time as this Court deems fit, in the circumstances of the case;

03)

Pass any other order/s or direction/s which this Court may deem fit to grant in the circumstances of the case”

“25.

Once the BDA executes a conveyance, it becomes functus officio in respect of that sites. Possession, enjoyment and mutation records vest with the allottee and the BDA cannot unilaterally alter the site boundaries, enlarge or shrink the dimension, merge marginal lands. To recast the site as a corner site or dispossess the allottee. Thus, the endorsement requiring surrender of original documents is wholly without jurisdiction. Respondent Nos.3 and 4 are purchasers in auction. However, the BDA could not have auctioned what it has no longer owned. The auction is built on an illegal foundation. The unilateral administrative reclassification of the petitioners' land. Therefore, the auction notification, auction confirmation, and sale deeds in favour of respondent Nos.3 and 4 cannot override the petitioners’ prior registered sale deeds.

29.

This Court cannot lose sight of the fact that the respondents had gone far beyond their authority by conducting the auction without putting the petitioners on notice, without declaring the site as a corner site at an earlier point, and without affording even a minimal opportunity to the petitioners to contest such reclassification. Once a registered sale deeds have been executed by authority years ago, the petitioners stood vested with indefensible title, therefore any notice of calling for surrender of that deeds and simultaneously asserting that the sites are now sold to auction purchasers ceases to be a preliminary steps and becomes a substantive encroachment upon the vested property rights.

30.

In such circumstances, the petitioners cannot be expected to “keep quiet” or wait for further coercive steps, when the respondent-authority had already divested the petitioners of the property in the internal records and had conveyed the same to third parties. This Court is, therefore, fully justified in exercising its writ jurisdiction to interfere with and restrain such overreach, or for allowing the process to continue would amount to permitting the authority to perpetuate an illegality under the pretext of issuing a show cause notice. Accordingly, the objection that the writ petitions are premature or directed against a show cause notice is rejected.”

“16.

The actions of the respondents, particularly the contradictory statements and the arbitrary cancellation of the allotment of Plot No.553D to the petitioner, while simultaneously executing a lease-cum-sale agreement with Respondent No.5, reflect bias and arbitrariness. The respondents have not substantiated the alleged breach of terms by the petitioner, making their actions legally indefensible. The respondents’ conduct in this matter violates the rules and regulations related to the allotment of industrial plots, demonstrating a clear case of administrative malfeasance.

17.

The petitioner’s right to the allotted industrial plot has been unjustly compromised due to the respondents’ contradictory actions. The possession certificate, payment acknowledgments, and initial allotment letter all point to the petitioner’s rightful claim to Plot No.553D. The subsequent actions by the respondents to cancel the allotment and reassign the plot to Respondent No.5, without proper justification, constitute a grave miscarriage of justice.

18.

Given the findings, this Court deems it fit to set aside the order of cancellation of the allotment of Plot No.553D to the petitioner. Additionally, the lease-cum-sale agreement and the sale deed executed in favor of Respondent No.5 concerning Plot No.553D are also liable to be set aside. The respondents are bound directed to restore the allotment of Plot No.553D to the petitioner and ensure that possession is delivered to the petitioner forthwith. The petitioner is entitled to the rightful possession and use of the industrial plot as initially intended.”

“5.3

This is reiterated by the Supreme Court in Sohan Lal vs. Union of India and Another (AIR 1957 SC 529) observing thus,

“We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. If we were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered.”

(para 5)

(Emphasis Supplied)

“17.

The learned Single Judge noted that in ordinary circumstances, the court would not entertain a writ petition for cancellation of registered documents. However, in the given facts considering the apparent fraud perpetuated by appellant No.2 as well as his children Smt.Devi and Dr.Ashwin, the Court considered it necessary to entertain the said writ petitions. The learned Single Judge held that a deed unilaterally cancelling registered deeds cannot be executed and registered. The learned Single Judge also held that the Senior Sub-Registrar could not have impounded any document without giving notice to the concerned party. In view of the findings as noted above, the learned Single Judge allowed the writ petitions.”

“8.

Petitioner was allotted plot No.68 situated at Humnabad Industrial Area measuring 8089 sq. meters by allotment letter dated 14.09.2009. He was put in possession of the allotted industrial plot on 27.01.2010. Admittedly, respondent No.6 was allotted plot No.68/P by allotment letter dated 07.03.2019. Plot No.68/P allotted to respondent No.6 is behind the industrial plot of petitioner. The petitioner claims that without considering his application for allotment of land behind his plot, respondent No.6 was allotted the said plot. The petitioner has no right or preemptive right to seek allotment of additional land behind or adjacent to his plot. No provision for such allotment is also brought to the notice of this Court. The petitioner placed reliance on Government order dated 04.01.2019. However, the said Government order would not come to the rescue of the petitioner, since it is issued prescribing method to collect sital value where additional land which is in use, is allotted in favour of an allottee. In the instant case, plot No.68/P is allotted in favour of respondent No.6 and the petitioner has failed to establish that plot behind his plot is in his possession.”

“THE PRESUMPTION OF GENUINENESS AND

DUE EXECUTION

50)

We will now advert to the next facet of the lis, namely, whether the Consolidation Authorities and the High Court were justified in doubting the genuineness and due execution of the registered sale deed dated 04.06.1957 based on alleged

discrepancies relating to the attesting witness. 51) At the outset, it is necessary to note that the original sale deed dated 04.06.1957 was a registered document. The original deed having not been available, a certified copy thereof was produced before the Consolidation Authorities. It is trite law that a registered document carries a presumption of valid execution and genuineness unless rebutted by cogent evidence. In this regard, it would be apposite to refer to the recent decision of this Court in Hemalatha (D) by Legal Representatives v. Tukaram (D) by Legal Representatives and Others16, wherein the relevant observation read thus:

“31.

It is a settled position of law that a registered Sale Deed carries with it a formidable presumption of validity and genuineness. Registration is not a mere procedural formality but a solemn act that imparts high degree of sanctity to the document. Consequently, a Court must not lightly or casually declare a registered instrument as a “sham”. Adopting the principles enunciated in Prem Singh v. Birbal, (2006) 5 SCC 3531, Jamila Begum (Dead) Through Lrs. v. Shami Mohd. (Dead) Through Lrs., (2019) 2 SCC 7272, and Rattan Singh v. Nirmal Gill, (2021) 15 SCC 3003, this Court reiterates that the burden of proof to displace this presumption rests heavily upon the challenger. Such a challenge can only be sustained if the party provides material particulars and cogent evidence to demonstrate that the Deed was never intended to operate as a bona fide transfer of title.

32.

The grounds typically accepted to challenge a registered Deed at the instance of the vendee/executant are fraud or want of capacity in any party or mistake of fact or fundamental illegality like where the Deed was executed under deceit or sold by a fraudster who did not own the land or where the Deed was executed without consideration, namely, if no money or value was actually exchanged despite recitals in the Deeds or where there was coercion or intimidation like where the seller was forced to sign without free consent.

33.

While the aforementioned grounds are illustrative and not exhaustive, this Court must caution against the growing tendency to challenge registered instruments ‘at the drop of a hat’. If the sanctity of registered documents is diluted, it would erode public confidence in property transactions and jeopardize the security of titles. In a society governed by the Rule of Law, registered documents must inspire certainty; they cannot be rendered precarious by frivolous litigation.” (emphasis supplied)

52)

The aforesaid observations leave little room for doubt that a registered conveyance cannot be lightly brushed aside on conjectures or insignificant discrepancies. The burden to dislodge the presumption attaching to such an instrument lies heavily upon the party assailing it, and such burden can be discharged only through clear, cogent and convincing evidence establishing fraud, fabrication, want of execution or any other circumstance striking at the root of the transaction itself.”

ORDER