# G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER

- **Citation:** [2022] 8 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 2022-01-18
- **Case number:** Civil Appeal No. 380 of 2022
- **Bench:** K. M. Joseph, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-t-girish-v-y-subba-raju-d-by-lrs-and-another-36541
- **Pages:** 79

## Headnote

Specific Performance - Suit for - Maintainability - Plaint
property was allotted to first defendant by Bangalore Development
Authority (BDA) and a lease-cum-sale agreement was entered into
between BDA and the first defendant on 04.04.1979 - On
17.11.1982, the first defendant entered into the agreement with the
plaintiff agreeing to execute the sale deed of the site within three
months from the date on which, the plaintiff obtained the sale deed
from the BDA - Failure to execute the sale deed by first defendant
- Plaintiff instituted suit seeking specific performance - Trial Court
did not decree the suit for specific performance - On appeal, High
Court held the suit to be maintainable and directed the defendants
to execute the sale deed of plaint property in favour of plaintiff -
Whether the agreement to sell dated 17.11.1982 was in the teeth of
s.23 of the Contract Act and led to palpable defeat of the law in
question, as contained in the Statutory Rules or prohibited by the
same - Held: Case herein was governed by the Allotment of Site
Rules, 1972 which were statutory Rules, and contemplated a definite
scheme - Allotment to first defendant was made on 04.04.1979 and
he was obliged to construct a residential building within two years
under Rule 17(6) - But, at the time, agreement dated 17.11.1982
was entered into, the first defendant was already in breach - Under
the agreement, the parties expressly provided that the plaintiff was
to be put in possession of the site on 17.11.1982 - Clear case where
enforcing the agreement, as it is, would necessarily result in the
first defendant not acting in accordance with lease-cum-sale
agreement, which, she entered into with the BDA and importantly,
against the mandate of the law, as contained in the Rules -
Agreement between the parties contemplated giving a short shrift to
the mandate of the law - This is clear from the fact that under the
agreement, the first defendant was obliged to sell the site as it is -
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Construction of the building became a practical impossibility - The
price, agreed upon, was qua the site alone - The consideration and
the other terms of the agreement ruled out the possibility of a
residential building being constructed by the first defendant, who
as the allottee, was, under the law, obliged to construct the building
- The agreement to sell involved clearly terms which were impliedly
prohibited by law in that the first defendant was thereunder to deliver
title to the site and prevented from acting upon the clear obligation
under law - The contract / agreement was unenforceable for reason
that it clearly defeated the objects of the Rules which were statutory
in nature - The contract / agreement was patently illegal - High
Court erred in holding the suit for specific performance to be
maintainable - City of Bangalore Improvement Allotment of Site
Rules, 1972.
Contract Act, 1872 - s.23 - Constitution of India - Art.13 -
What is contemplated u/s.23 of the Contract Act is law, in all its
forms, being immunised from encroachment and infringement by a
contract, being enforced - Not only would a Statutory Rule be law
within the meaning of Art.13 of the Constitution but it would also
be law u/s.23 of the Contract Act.
Contract - A contract may expressly or impliedly, be prohibited
by provisions of a law - The intentions of the parties do not salvage
such a contract.
Allowing the appeals, the Court
HELD: 1. A contract may expressly or impliedly, be
prohibited by provisions of a law. The intentions of the parties do
not salvage such a contract. In the instant case, the Bangalore
Rules of Allotment, 1972 contemplate a definite scheme. Land,
which is acquired by the Public Authority, is meant to be utilised
for the particular purpose. The object of the law is to invite
applications from eligible persons, who are to be selected by a
Committee and the sites are allotted to those eligible persons,
so that the chosen ones

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[2022] 8 S.C.R. 991
991
G.T. GIRISH
v.
Y. SUBBA RAJU (D) BY LRs AND ANOTHER
(Civil Appeal No. 380 of 2022)
JANUARY 18, 2022
[K. M. JOSEPH AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Specific Performance - Suit for - Maintainability - Plaint
property was allotted to first defendant by Bangalore Development
Authority (BDA) and a lease-cum-sale agreement was entered into
between BDA and the first defendant on 04.04.1979 - On
17.11.1982, the first defendant entered into the agreement with the
plaintiff agreeing to execute the sale deed of the site within three
months from the date on which, the plaintiff obtained the sale deed
from the BDA - Failure to execute the sale deed by first defendant
- Plaintiff instituted suit seeking specific performance - Trial Court
did not decree the suit for specific performance - On appeal, High
Court held the suit to be maintainable and directed the defendants
to execute the sale deed of plaint property in favour of plaintiff -
Whether the agreement to sell dated 17.11.1982 was in the teeth of
s.23 of the Contract Act and led to palpable defeat of the law in
question, as contained in the Statutory Rules or prohibited by the
same - Held: Case herein was governed by the Allotment of Site
Rules, 1972 which were statutory Rules, and contemplated a definite
scheme - Allotment to first defendant was made on 04.04.1979 and
he was obliged to construct a residential building within two years
under Rule 17(6) - But, at the time, agreement dated 17.11.1982
was entered into, the first defendant was already in breach - Under
the agreement, the parties expressly provided that the plaintiff was
to be put in possession of the site on 17.11.1982 - Clear case where
enforcing the agreement, as it is, would necessarily result in the
first defendant not acting in accordance with lease-cum-sale
agreement, which, she entered into with the BDA and importantly,
against the mandate of the law, as contained in the Rules -
Agreement between the parties contemplated giving a short shrift to
the mandate of the law - This is clear from the fact that under the
agreement, the first defendant was obliged to sell the site as it is -
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Construction of the building became a practical impossibility - The
price, agreed upon, was qua the site alone - The consideration and
the other terms of the agreement ruled out the possibility of a
residential building being constructed by the first defendant, who
as the allottee, was, under the law, obliged to construct the building
- The agreement to sell involved clearly terms which were impliedly
prohibited by law in that the first defendant was thereunder to deliver
title to the site and prevented from acting upon the clear obligation
under law - The contract / agreement was unenforceable for reason
that it clearly defeated the objects of the Rules which were statutory
in nature - The contract / agreement was patently illegal - High
Court erred in holding the suit for specific performance to be
maintainable - City of Bangalore Improvement Allotment of Site
Rules, 1972.
Contract Act, 1872 - s.23 - Constitution of India - Art.13 -
What is contemplated u/s.23 of the Contract Act is law, in all its
forms, being immunised from encroachment and infringement by a
contract, being enforced - Not only would a Statutory Rule be law
within the meaning of Art.13 of the Constitution but it would also
be law u/s.23 of the Contract Act.
Contract - A contract may expressly or impliedly, be prohibited
by provisions of a law - The intentions of the parties do not salvage
such a contract.
Allowing the appeals, the Court
HELD: 1. A contract may expressly or impliedly, be
prohibited by provisions of a law. The intentions of the parties do
not salvage such a contract. In the instant case, the Bangalore
Rules of Allotment, 1972 contemplate a definite scheme. Land,
which is acquired by the Public Authority, is meant to be utilised
for the particular purpose. The object of the law is to invite
applications from eligible persons, who are to be selected by a
Committee and the sites are allotted to those eligible persons,
so that the chosen ones are enabled to put up structures, which
are meant to be residential houses. It is implicit in the Rules,
and what is more, in the lease-cum-sale agreement, that the
allottee, who is treated as a lessee under Rule 7, will remain in
possession and, what is more, proceed to fulfil his obligation under
the lease-cum-sale agreement and the Rules. The obligations of
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the allottee/lessee are unambiguous. He has held himself out to
be in dire need of a plot of land for the purpose of constructing a
residential building. He has to disclose his annual income and
any other means indicating his capacity, not only to purchase the
site applied for but also to construct the house. He has to respond
to the query as to whether any member of the family, of which he
is a member, owns or has been allotted a site or a house by the
Board or any other Authority, within the area under jurisdiction
of the Board. The applicant must, furthermore, disclose whether
he already owns a house or house site in the city or outside the
city. Whether the applicant's wife, husband or minor child owns a
house or house site, is another matter, he must disclose. Incorrect
information in any of these matters, would entitle the Board to
resume the site. Rule 11 specifically announces among the
principles as relevant for selecting an applicant for allotment,
the income of the applicant to build the house on the site for his
residence. No doubt, it is not applicable to certain classes, which
include the other backward classes. Rule 11(3) declares further
that the number of years, the applicant has been waiting for
allotment of a site, inter alia, as a relevant principle. [Para
74][1048-G-H; 1049-A-E]
2. Under the agreement, the parties contemplated and have
expressly provided that the plaintiff was to be put in possession
of the site on the date of the agreement, i.e., on 17.11.1982. Did
the parties contemplate the construction of the building residential
in nature, for the purpose of which, the site was allotted to the
first defendant? Is it not a clear case where enforcing the
agreement, as it is, would necessarily result in the first defendant
not acting in accordance with lease-cum-sale agreement, which,
she entered into with the BDA and, what is even more crucially
important, against the mandate of the law, as contained in the
Rules, which contemplated that the allotment was made for the
construction of a residential building by the allottee and the
construction was to be completed within the period of two years
or an extended period? The agreement between the parties
contemplated giving a short shrift to the mandate of the law. This
is clear from the fact that under the agreement, the first defendant
was obliged to sell the site as it is. Construction of the building
became a practical impossibility. The price, which was agreed
G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER
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upon, was qua the site alone. The consideration and the other
terms of the agreement, in other words, ruled out the possibility
of a residential building being constructed by the first defendant,
who as the allottee, was, under the law, obliged to construct the
building. [Para 76][1050-D-G]
3. The contention of the plaintiff that there was nothing,
which could have prevented putting up a building, is rejected.
The argument of plaintiff involves rewriting of the contract. This
is different from a situation where an allottee, without being
trammelled by an agreement, is unable to put up a building even
for the whole of ten years and action is not taken under Rule
17(6) and yet conveyance is made in his favour under Rule 17(7).
The direct impact of the agreement is that it compelled the party
to abstain from performing its obligation in law apart from
breaching the agreement with BDA. In other words, taking the
agreement as it is, it necessarily would be in the teeth of the
obligation in law of the first respondent to put up the construction.
The agreement to sell involved clearly terms which are impliedly
prohibited by law in that the first defendant was thereunder to
deliver title to the site and prevented from acting upon the clear
obligation under law. This is a clear case at any rate wherein
enforcing the agreement unambiguously results in defeating the
dictate of the law. The 'sublime' object of the law, the very soul of
it stood sacrificed at the altar of the bargain which appears to be
a real estate transaction. It would, in other words, in allowing the
agreement to fructify, even at the end of ten-year period of nonalienation, be a case of an agreement, which completely defeats
the law for the reasons already mentioned. [Para 77][1051-C-F]
4. The illegality goes to the root of the matter. It is quite
clear that the plaintiff must rely upon the illegal transaction and
indeed relied upon the same in filing the suit for specific
performance. The illegality is not trivial or venial. The illegality
cannot be skirted nor got around. The plaintiff is confronted with
it and he must face its consequences. The matter is clear. The
object of the law is set out in unambiguous term. If every allottee
chosen after a process of selection under the rules with reference
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to certain objective criteria were to enter into bargains of this
nature, it will undoubtedly make the law a hanging stock. [Para
79][1052-A-C]
Vishwa Nath Sharma v. Shyam Shanker Goela and
another (2007) 10 SCC 595 : [2007] 3 SCR 268 and
Ferrodous Estates (Pvt.) Limited v. Gopiratnam (Dead)
and others AIR 2020 SC 5041 - relied on.
Kedar Nath Motani and others v. Prahlad Rai and others
AIR 1960 SC 213 : [1960] SCR 861; Narayanamma
and another v. Govindappa and others (2019) 19 SCC
42; Sita Ram v. Radhabai and others AIR 1968 SC 534
: [1968] SCR 1 805; Balwant Vithal Kadam v. Sunil
Baburaoi Kadam (2018) 2 SCC 82 : [2017] 12 SCR 44;
Punjab & Sind Bank v. Punjab Breeders Ltd. and
another (2016) 13 SCC 283 : [2016] 2 SCR 876; Suraj
Lamp & Industries (P) Ltd. (2) Through Director v. State
of Haryana and another (2012) 1 SCC 656 : [2011] 11
SCR 848; Jambu Rao Satappa Kocheri v. Neminath
Appayya Hanamannayar 6 AIR 1968 SC 1358 : [1968]
SCR 706; Bhagat Ram v. Kishan and others (1985) 3
SCC 128; Union of India v. Col. L.S.N. Murthy (2012)
1 SCC 718 : [2011] 13 SCR 295; Gherulal Parakh v.
Mahadeodas Maiya and others AIR 1959 SC 781 :
[1959] Suppl. SCR 406; Ramzan v. Hussaini (1990) 1
SCC 104 : [1989] 2 Suppl. SCR 287; Ahmadsahab
Abdul Mulla (2) (dead) v. Bibijan and others (2009) 5
SCC 462 : [2009] 5 SCR 476; I.S. Sikandar 112 (Dead)
by Lrs. v. K. Subramani and others (2013) 15 SCC 27
: [2013] 17 SCR 24 and Mohinder Kaur v. Sant Paul
Singh (2019) 9 SCC 358 - referred to.
Yogambika v. Narsingh ILR 1992 KAR 717; Subbireddy
v. K.N. Srinivasa Murthy AIR 2006 Karnataka 4; Syed
Zaheer and others v. C.V. Siddveerappa ILR 2010
Karnataka 765; Manjeshwara Krishnaya v. Vasudeva
Mallya and Four Others. AIR 1918 Madras 578;
Nallakumara Goundan v. Pappayi Ammal and Another,
AIR 1945 Mad 219; T. Dase Gowda v. D. Srinivasaiah
G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER
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(1990) SCC Online Karnataka 613; K. Chandrashekar
Hegde v. Bangalore City Corporation and N.B. Menon
v. Bangalore Development Authority ILR 1988 KAR
356 - referred to.
Motilal v. Nanhelal AIR 1930 PC 287 - referred to.
Holman v. Johnson [1775 1 COWP 341] - referred to.
Case Law Reference
[1960] SCR 861
referred to
Para 6
(2019) 19 SCC 42
referred to
Para 6
[1968] 1 805
referred to
Para 50
[2007] 3 SCR 268
relied on
Para 55
AIR 2020 SC 5041
relied on
Para 55
[2017] 12 SCR 44
referred to
Para 59
[2016] 2 SCR 876
referred to
Para 60
[2011] 11 SCR 848
referred to
Para 61
[1968] SCR 706
referred to
Para 63
(1985) 3 SCC 128
referred to
Para 66
[2011] 13 SCR 295
referred to
Para 68
[1959] Suppl. SCR 406
referred to
Para 71
[1989] 2 Suppl. SCR 287
referred to
Para 87
[2009] 5 SCR 476
referred to
Para 87
[2013] 17 SCR 24
referred to
Para 90
(2019) 9 SCC 358
referred to
Para 91
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 380 of
2022.
From the Judgment and Order dated 24.08.2016 of the High Court
of Karnataka at Bengaluru in R.F.A. No. 1307 of 2002.
With
Civil Appeal No. 381 of 2022.
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Ms. Kiran Suri, Basant R., Sr. Advs., Mrs. Kirti Renu Mishra,
Ms. Apurva Upmanyu, S. J. Amith, Krishna Kumar, Dr. (Mrs.) Vipin
Gupta, Ms. Pritha Srikumar, Abhinav Ramanand, Vishnu Pazhanganat,
Ms. Mansi Binjrajka, Advs. for the appearing parties.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Leave granted.
2. The appellants are defendant 1(a), defendant 1(b) and second
defendant in a Suit filed for specific performance. Defendant 1(a) and
Defendant 1(b) have filed SLP(C)No.6858/2017 while defendant No.2
has filed SLP(C)No.6857/2017. The Trial Court while refusing specific
performance, directed the return of the amount paid by the plaintiff under
the contract. By the impugned judgment, the High Court allowed the
plaintiffs appeal and directed the appellants to execute the sale deed
relating to the plaint schedule property in favour of the plaintiffs (legal
representatives of original plaintiff). The parties will be hereinafter
referred to by their status in the Trial Court.
A BRIEF OVERVIEW OF FACTS
3. On 04.04.1979, the plaint schedule property, which consisted
of a site, was allotted to the first defendant (since deceased), by the
Bangalore Development Authority (hereinafter referred to as, 'the BDA').
Based on the allotment, a lease-cum-sale agreement was entered into
between the BDA and the first defendant on 04.04.1979. The first
defendant was put in possession on 14.05.1979. On 17.11.1982, the first
defendant entered into the agreement with the plaintiff agreeing to
execute the sale deed of the site within three months from the date on
which, the plaintiff obtained the sale deed from the BDA. On 01.03.1983
and 26.04.1984, the plaintiff issued letters to the first defendant, calling
upon her to execute the sale deed. The first defendant issued letter
dated 08.05.1984, intimating that the plaintiff was in breach. The
agreement itself had lapsed and the advance amount by the plaintiff was
forfeited. After issuing Notice on 14.02.1985, the plaintiff instituted the
Suit in question, seeking specific performance. The first defendant, after
filing Written Statement on 14.08.1986, died pending the Suit, on
18.07.1994. The plaintiff impleaded the husband of the defendant as
Defendant-1(a). A sale deed came to be executed by the BDA in favour
of the son of defendant no.1 and defendant-1(a), on 19.06.1996.
G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER
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Thereafter, the son executed sale deed of the plaint schedule property in
favour of the second defendant. It is further not in dispute that the son of
the first defendant and defendant-1(a) was impleaded as defendant1(b) in the Suit in the year 1997. The second defendant came to be
impleaded as second defendant in the Suit in the year 1997. Both the
defendant-1(b) and second defendant filed Written Statements.
4. The Trial Court did not decree the suit for specific performance
but directed return of Rs.50,000/- with 9 per cent interest. The High
Court found that the Suit is maintainable. It was further found that the
second defendant is not a bonafide purchaser for value without notice of
the Agreement to Sell dated 17.11.1982. It was further found by the
High Court that, the alienation made in favour of the second defendant,
was hit by the provisions of Section 52 of the Transfer of Property Act,
1882. Answering the point, whether the plaintiff was entitled to the relief
of specific performance, it was found that, in the facts, when the entire
sale consideration was paid by the plaintiff to the first defendant, nothing
more remained to be done by the plaintiff, and having found that the
second defendant was not a bonafide purchaser for value without notice,
and taking the view that Section 23 of the Specific Relief Act, 1963 did
not apply at all and there being no reason to not exercise discretion in
favour of the plaintiff, the Suit was decreed by directing defendant-1(a),
defendant-1(b) and the second defendant to jointly convey the plaint
schedule property to the plaintiff.
5. We heard Smt. Kiran Suri, learned Senior Counsel on behalf of
the second defendant and Shri R. Basant, learned Senior Counsel on
behalf of the plaintiff. Mrs. Kirti Renu Mishra, AOR, appears in the
Appeal filed by defendant-1(a) and defendant 1(b).
THE CONTENTIONS OF THE APPELLANTS
6. Smt. Kiran Suri, learned senior counsel appearing on behalf of
second defendant contended that the finding that the Suit was
maintainable, was unsustainable. She contended that an agreement must
be lawful, in order that a court may grant specific relief. It's her contention
that the agreement is unlawful, being opposed to public policy, and also
as it was a bargain, which would defeat the provisions of the law in
question, within the meaning of Section 23 of the Indian Contract Act,
1872. She invited our attention to the terms of the lease-cum-sale
agreement entered into between the first defendant and the BDA. She
pointed out that there was clear prohibition against the alienation of the
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site or the plaint schedule property for a period of ten years. She drew
support from the Bangalore Rules of Allotment, 1972 (hereinafter
referred to as, 'the Rules'). She pointed out that the court has erred in
not noticing that Rule 18(2) proclaims an embargo against alienation for
a period of ten years. The very agreement relied upon by the plaintiff
was unlawful, and therefore, the court could not have granted specific
performance. She drew support from Judgment of this Court in Kedar
Nath Motani and others v. Prahlad Rai and others1 and
Narayanamma and another v. Govindappa and others2. She further
contended that the Suit itself, besides being not maintainable, was
premature. She elaborated and contended that, what the agreement
between the plaintiff and the first defendant contemplated, was that, the
first defendant would execute the sale deed in favour of the plaintiff
upon the expiry of three months from the date of conveyance of sale
deed executed by the BDA. The agreement of lease-cum-sale
contemplated such a conveyance in favour of the first defendant only
after the expiry of ten years from the date of allotment and the date of
the lease-cum-sale agreement dated 04.04.1979. The Suit is filed a good
four years prior to even the expiry of ten years. She attacked the finding
of the High Court that the second defendant was not a bonafide purchaser
for value. She pointed out that as far as knowledge of pendency of Suit
is concerned, the evidence pointed to the second defendant not being
aware of the Suit, defendant-1(b) has admitted to not disclosing about
the pendency of the Suit to the second defendant. The second defendant
inspected the site and found it to be a vacant land except for a small
shed. Regarding the finding of the High Court that the original document,
evidencing delivery of possession of the plaint schedule property by the
BDA to the first defendant, was not given to the second defendant and
that only a photocopy was given, it is contended that second defendant
was informed that the original was lost. There was already an assignment
in favour of defendant-1(b). There was no need for the second defendant
to make any further inquiry. All possible inquiry was conducted by the
second defendant. There is no justification for the High Court to conclude
that second defendant was not a bonafide purchaser for value. As far as
finding of the High Court that the second defendant, a 20-years old, at
the time of the sale, did not have the wherewithal to purchase the property,
it could not be justified, having regard to the evidence which established
1 AIR 1960 SC 213
2 (2019) 19 SCC 42
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[K. M. JOSEPH, J.]
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that the second defendant was the owner of 10 acres of land. He was
into the business of selling milk and he had the necessary funds and
there is no occasion for the High Court to interfere with the findings of
the Trial Court in this regard.
7. Per contra, Shri R. Basant, learned Senior Counsel for the
plaintiff, reminded us that matter is appreciated by the two courts. The
finding that there was a valid contract by the Trial Court was not
challenged by the appellants. There is no pleading to justify the argument
that the agreement in question was not lawful. He would point out that
neither the lease- cum-sale agreement nor the Rules, prohibited the allotee
entering into an agreement to sell the site.He pointed out that the Rule,
which is relevant to the fact, is Rule 17. Even Rule 18, relied upon by the
appellants, did not stand in the way of the agreement to sell or the sale in
favour of the plaintiff. He also emphasised that it does not lie in the
mouth of the appellants to invoke the proposition that agreement in
question was unlawful. He pointed to the findings of the High Court that
by his conduct there was complete absence of bonafides in the claim.
He pointed out that as correctly found by the High Court, Doctrine of
Lis Pendens, applies. He further submitted that, at any rate, if the court
found that Lis Pendens did not apply, the fact that the second defendant
has not been found to be a bonafide purchaser for value, was sufficient
for this Court to decline to interfere, particularly, in a jurisdiction, which
originates from the grant of Special Leave under Article 136 of the
Constitution of India. He would refute the contention that the suit was
not maintainable and further that it was premature. He would point out
that confronted with the definite stand of the first defendant, who he
points out was the wife of an MLA and also a Minister, and having
regard to Article 54 of the Limitation Act, 1963, had no choice, except to
rush to the civil court and institute the Suit. He would rely upon large
body of case law, including judgments of the High Court of Karnataka,
to contend that an agreement to sell, in circumstances, such as obtaining
in the present case, was valid and lawful. He would command for our
acceptance, the findings of the High Court regarding the fact that second
defendant was not a bonafide purchaser for value. He did not have the
necessary capacity and he was fully aware of the pendency of the Suit.
THE LAW IN QUESTION
8. The City of Bangalore Improvement Act, 1945, going by the
Preamble, was enacted for the improvement of the city of Bangalore
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and to provide space for its future expansion. It contemplated the
appointment of a Board of Trustees, which was to consist of eleven
Trustees with the Chairman and six Trustees being appointed by the
Government. The Act clothed the Board with the power to undertake
improvement schemes. What is of relevance to the present case are the
following provisions:
9. Section 24 read as follows:
"24. Board not to sell or otherwise dispose of sites in certain
cases.-The Board' shall not sell or otherwise dispose of any
sites for the purpose of constructing buildings thereon for the
accommodation of person until all the improvements specified in
Section 23 [have been substantially provided for the estimates."
10. Section 29 dealt with the power of the Board to acquire, hold
and dispose of the property and it reads as follows:
"29. Power of Board to acquire, hold and dispose of property.-
(1) The Board shall, for the purposes of this Act, have power to
acquire and hold movable and immovable property, whether within
or outside the City.
(2) Subject to such restrictions, conditions and limitations as may
be prescribed by rules made by the Government, the Board shall
have power or lease, sell or otherwise transfer any movable or
immovable property which belongs to it, and to appropriate or
apply any land vested in or acquire by it for the formation of open
spaces or for building purposes or in any other' manner for the
purpose of any improvement scheme.
(3) The restrictions, conditions and limitations contained in any
grant or other transfer of any immovable property of any interest
therein made by the Board shall notwithstanding anything
contained in the Transfer of Property Act, 1882 (Central Act 4 of
1882) or any other law have effect according to their tenor.]"
11. Section 42 conferred power to make Rules. Following provisions
are relevant for the purpose of this case:
"42. Power of Government to make rules.-The Government may,
from time to time; make rules, not inconsistent with this Act. -
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G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER
[K. M. JOSEPH, J.]
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(aa)
regulating the allotment or sale by auction of sites by Board;
(ab)
specifying the conditions, restrictions and limitations subject
to which the Board may sell, lease or otherwise transfer
movable or immovable property;"
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12. Initially, bylaws regulating the allotment of sites were published
on 08.01.1954. These bylaws came to be cancelled upon enactment of
City of Bangalore Allotment of Site Rules, 1964. Thereafter, the City of
Bangalore Improvement Disposal of Site Rules, 1971 came to be enacted.
The said Rules came to be repealed with the making of the City of
Bangalore Improvement Allotment of Site Rules, 1972. These Rules
came into force on the 1st Day of September, 1972. These Rules are the
Rules, which would govern the fate of this case.
13. Rule 2(b) defines the word 'allottee' as meaning the person to
whom the site is allotted under these Rules. The Rules define backward
class. It also, inter alia, defines stray site.
14. Rule 3 reads as follows:
"3. Offer of sites for allotment.-(1) Whenever the Board has
formed an extension or layout in pursuance of any scheme, the
Board may, subject to the general or special orders of the
Government, offer any or all the sites in such extension or layout
for allotment to persons eligible for allotment of sites under these
rules.
(2) Due publicity shall be given in respect of the sites for
allotment specifying their location, number, the amount payable
as earnest money, the last date for submission of applications and
, such other particulars as the Chairman may consider necessary;
by affixing a notice to the notice board of the office of the Board,
and any other office as the Chairman may decide from time to
time and by publication in not less than three daily .newspapers
published in the City of Bangalore in English and Kannada having
a wide circulation in the city."
15. Rule 5 dealt with the allotment of stray sites.
Rules 6 contemplated disposal of sites for heritable purposes.
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16. Rule 7 proclaimed that the allottee was to be lessee and it
reads as follows:
"7. Allottee to be a lessee. -The site allotted under Rule 3 or
Rule 5shall be deemed to have been leased to the allottee until the
lease is determined or the site is conveyed in the name of the
allottee in accordance with these rules. During the period of the
lease, the allottee shall pay to the Board rent at the rate of rupees
three per annum where the area of the site does not exceed two
hundred square meters, rupees six per annum where the area of
the site exceeds two hundred square meters but does not exceed
five hundred square meters and rupees twelve per annum where
the area of the site exceeds five hundred square meters before
the commencement of each year."
17. Rule 8 dealt with applications. It contemplated that the
applications for allotment of site was to be in Form I. Several details are
to be furnished. It included the annual income of the applicant, whether
the applicant already owned a house or house site in the city, outside the
city and whether he had any share in such property and the value of the
share. It further included the query as to whether the applicant's wife/
husband/minor child, owned a house or house site inside or outside the
city. Since, it may be relevant to the decision at hand, we may advert to
the Form.
"FORM I
[See sub-rule (1) of Rule 8]
Form of Application for Purchase of Site
To
The Chairman,
City Improvement Trust Board, Bangalore 20
Sir,
I wish to purchase a building site measuring ........ in ... . . .
Extension, Bangalore. I agree to abide by the conditions of allotment
and sale of the site contained in Rule 17 of the City of Bangalore
Improvement (Allotment of Sites) Rules, 1972, and the terms of
the lease-cum- sale agreement; copies of which are enclosed in
duplicate. I also enclose the duplicate copies of the conditions of
G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER
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allotment and sale and lease-cum-sale agreement duly signed in
token of having accepted the conditions therein.
Particulars about me are given below. -
1.
Namë (in Block letters)
2.
Father's/Husband's name
3.
Age
4.
Whether the applicant belongs to Scheduled Caste or
Scheduled Tribe, Nomadic Tribes, Semi-Nomadic Tribes,
Backward Classes, Denotified Tribes.
5.
Whether married or single
6.
(a) Residential address: Permanent (House No., Name of
street, locality and Town):
(b) Present address: (if different from above) for
correspondence with the Board.
7.
(i) Occupation or post.
(ii) Address
(iii) Place of employment or business.
8.
(a) Annual income of the applicant (both from profession
and from properties if any)
(b) Any other means indicating the capacity of the applicant
to purchase the site applied for and to building a house
thereon.
9.
Whether the applicant is ordinarily a resident in Bangalore
City or in the area under the jurisdiction of the Board and
the period of such residence.
10.
Whether any member of the family of which the applicant
is a member owns or has been allotted site or a house by
the Board or any other authority, within the area under the
jurisdiction of the Board. (Furnish details).
11.
(1) Whether the applicant already owns a house or a housesite:
(a) in the City (with details)
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(b) outside the city (with details)
(2) Whether he/she has any share in such property and the
value of the share thereof.
12.
(1) Whether the applicant's wife/husband /minor child owns
a house or a house-site:
(a) in the City (with details)
(b) outside the city (with details)
(2) Whether the applicant's wife/husband/minor child has
any share in such property and the value o1 the share
thereof.
13.
Whether the applicant has transferred the ownership or
rights in the house or house- site already allotted to him/her
in any of the schemes of the Board or any other authority
to somebody else (if so, himish details).
14.
Whether the applicant or any members or his/her family
has already availed of any housing or loan scheme of
Government local body or Co-operative Society, if so, give
details.
15.
Whether the applicants applied for allotment of a site or a
site with a building, in any of the scheme of the Board or
and other authority and whether his/her deposit was refund
(if so, furnish details).
16.
Amount of earnest money deposited now (with Challan No.
and date).
I hereby solemnly declare that all the above information given by
me is true. I shall furnish any additional information in my
possession which you may require. If there is any delay on my
part to furnish the necessary information required by the Board, it
will be within the discretion of the Board to reject my application.
If, at any time it is found that the information given by me
above is incorrect, the Board can cancel the allotment, resume
possession of the site and forfeit part or whole of the amount paid
by me till then towards cost of the site or deposit.
G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER
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I am aware that under the Rules, I have to build the house
myself with my own resources.
Signature of Applicant
Station .....................
Date ..............................
Attested
Magistrate of the First Class
Date.............................. ."
18. Rule 10 dealt with the issue of eligibility for allotment and it
reads as follows:
"10. Eligibility for allotment. -No person.
(1) Nho. is not ordinarily resident (living independently or with
his family members). in the area within the jurisdiction of the Board
for not less than five years immediately before the last date fixed
for making applications:
Provided that the persons who are domiciled in the State of
Karnataka but serving in the Armed Forces of the Union outside
the State of Karnataka shall be eligible for allotment of Sites under
these rules.
(2) Who or any member of whose family owns or is a lessee
entitled to demand conveyance eventually or has been allotted a
site or a house by the Board or any other authority, within the
area under the jurisdiction of the Board; or of the Corporation of
the City of Bangalore, shall be eligible to apply for allotment of a
site:
Provided that the Board may relax the restriction in c1ause (1)
regarding residence in the case of persons. -
(i)
who are domiciled in the State of Mysore and who bona
fide intend to reside within the area under the jurisdiction
of the Board; or,
(ii)
who are domiciled.in the State of Mysore but have gone
outside the State on business, employment, study or training
and who bona fide intend to reside within the area under
the jurisdiction of the board;
or
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(iii)
who though not domiciled in the State of Mysore bona fide
intend to reside within the area under the jurisdiction of the
Board."
19. Rule 11 provided for the principles for selection of applicants
for allotment of sites. The following principles have been set out in Rule
11(1):
"11. Principles for selection of applicants for allotment of sites.
-(1) The Board shall consider the case of each applicant on its
merits and shall have regard to the following principles in making
selection. -
(i)
the status of the applicant, that is whether he is married or
single and has dependent children;
(ii)
the income of the applicant and his capacity to purchase a
site and build a house thereon for his residence:
Provided that this condition shall not be considered in case of
applicants belonging to Scheduled Castes, Scheduled Tribes,
Wandering Tribes, Nomadic Tribes and other Backward Classes.
(iii)
the number of years the applicant has been waiting for
allotment of a site and the fact that he did not secure a site
earlier though he is eligible and had applied for a site;
(iv)
persons who are ex-servicemen or members of the family
of the deceased servicemen killed in action, during the last
ten years."
20. The sites were to be allotted among different classes of persons
which included wandering tribes, scheduled tribes, scheduled castes, exservicemen, persons domiciled in Karnataka but serving in the Armed
Forces of the Union outside the State, State Government servants, Central
Government servants and servants of Corporation. 51 per cent was
reserved, in other words, in specific percentage terms for these categories.
49 per cent was made available for the general public. Non-availability
of applicants was also dealt with.
21. Rule 13 provided for selection of an applicant. The Board
was empowered to reject any application without assigning any reason.
22. Rule 17 provides for conditions of allotment. Since, much turns
on the impact of this Rule, we would refer to the same.
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"17. Conditions of allotment and sale of site.
- The allotment of a site under these rules shall be subject to the
following conditions. -
(1)
The allottee shall within a period of fifteen days from the
date of receipt of the notice of allotment, pay to the Board
twelve and a half per cent of the price of the site and if no
such payment is made the allottee shall be deemed to have
declined the allotment.
(2)
The balance of the value of the site (less than a sum of
rupees thirty where the area of the site does not exceed
two hundred square meters, rupees sixty where the area
exceeds two hundred square meters and does not exceed
five hundred square meters and rupees one hundred and
twenty where the area exceeds five hundred square meters)
shall be paid within ninety days from the date of receipt of
the notice of allotment, or such extended period not
exceeding one year as the Chairman may specify. Interest
at [fifteen per cent]] shall be paid on the said amount for
the extended period. If the said amount is not paid within
the period of ninety days or the extended period the earnest
money paid by the allottee shall be liable to forfeiture and
the allotment may be cancelled: [Provided that where an
allottee is a person. -
(i)
whose annual income does not exceed [three
thousand and six hundred rupees], he may choose to
pay the balance value of the site in quarterly, half
yearly or annual installments and the rate of interest
on the said amount for the extended period for
quarterly payment will be two per cent for half yearly
payments will be three per cent and annual payments
four per cent;
(ii)
whose annual income exceeds [three thousand and
six hundred rupees] but does not exceed seven
thousand and two hundred rupees interest at twelve
per cent per annum shall be paid on the said amount
for de extended period:
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Provided further that where an allottee is a person belonging
to a Scheduled Caste or Scheduled Tribe or other Backward
Classes or a nomadic tribe or a wandering tribe, or a
denotified tribe or a family of Defence personnel killed or
disabled during the recent war and whose annual income
from all sources does not exceed rupees five thousand, the
balance of the value of the site required to be paid under
this sub-rule shall be paid by him without interest within a
period of six years from the date of receipt of the notice of
allotment.]
(3)
Until the site is conveyed to the allottee the amount paid by
the allottee for the purchase of the site shall be held by the
Board as security deposit for the due performance of the
terms and conditions of the allotment and the lease-cumsale agreement entered into between the Board and the
allottee.
(4)
After payment under sub-rule (2) is made the Board shall
intimate the allottee the actual measurements of the site
and the particulars thereof and a lease-cum-sale agreement
in Form II shall thereafter be executed by the allottee and
the Board and registered by the allottee. If the agreement
is not executed within forty-five days after the Board has
intimated the actual measurements and particulars of the
site to the allottee, the earnest money paid by the allottee
may be forfeited, the allotment of the site may be cancelled,
and the amount paid by the allottee after deducting the
earnest money refunded to him. Every allottee shall
construct a building on the site in accordance with the plans
and designs approved by the Board.