Kar HC | Will an ex post facto approval validate a sale deed where prior approval by State Government was a statutory pre requisite? HC answers

Karnataka High Court: S. R Krishna Kumar J. allowed the petition and quashed the sale deed dated 23-08-2006.

 The present petition was filed seeking issuance of any writ, order or direction in the nature certiorari and quash the Resolution dated 10-12-2012 passed by the 2nd respondent Board and approval of Respondent 1 State Govt. dated 10-04-2013 for implementation of the scheme which is post purchase is in violation of section 33 (1) of Karnataka Housing Board Act which prescribes prior/previous approval of the State Government.

Counsel for petitioners Mr. Gurudas Kannur and C R Patil submitted that Section 33(1) of the KHB Act specifically mandates that in respect of Sale Deeds obtained by the KHB from private land owners in a value of more than Rs.5,00,000/- it is absolutely essential of prior approval of the State Government is obtained by the KHB before execution of the Sale Deed. Hence, it is an undisputed fact that no prior approval had been obtained by the KHB prior to / before execution of the Sale Deed and it was only on 10-04-2013 that the State Government granted approval to purchase the land of the petitioner; Section 33(1) of the KHB Act does not contemplate or permit post facto approval of any Sale Deed and consequently, the Sale Deed dated 23-08-2006 is clearly illegal and non-est in the eye of law. It was further submitted that that principles of res judicata are applicable only if there is no violation of any statutory provision and in a given case, where there is violation of statutory provision which has not been considered or adjudicated upon in the previous round of litigation, the said issue with regard to violation of statutory provision cannot be shut out on the technical ground of res judicata.

Counsel for respondents Mr. V S Kalasurmath, Mr. Basavraj Sabard, Mr. H R Gundappa submitted that the petition is barred by res judicata in view of the rejection of the claim of the petitioner’s father in the earlier round of litigation not only by way of the writ petition but also the suit filed by the petitioner’s father before the Civil Court. it was further submitted that the previous rounds of litigation instituted by the petitioner’s father and the petitioner, clearly indicate that repeated attempts are made to challenge the Sale Deed which is nothing but an abuse of process of law and the present petition is liable to be dismissed on this ground also. It is therefore submitted that there is no merit in the petition and that the same is liable to be dismissed.

 The Court relied on judgment Bajaj Hindustan Ltd., vs. State of U.P., (2016) 12 SCC 613 wherein it was observed that the words ‘approval’ includes ratification and ex post facto approval, the words ‘prior approval’ or ‘previous approval’ contemplates mandatory precondition / condition precedent and in the facts of the said case, the Apex Court came to the conclusion that the absence of the word ‘prior’ indicates that ex-post facto approval or ratification was permissible and valid; however, if the provision contemplates previous approval or prior approval, ex post facto approval or ratification would not validate or cure the defect on account of want / absence / lack of prior approval.

The Court observed that a perusal of the said Sale Deed dated 23-08-2006 will indicate that the total value of the sale consideration stated in the said Sale Deed is Rs.2, 07, 64,000/-; it is there clear that before the Sale Deed was executed, prior approval of the State Government was essential in terms of Section 33(1) of the KHB Act. The material on record clearly indicates that no prior approval was obtained by the KHB before execution of the aforesaid Sale Deed in its favour; on the other hand, the said approval was granted by the State Government in favour of the KHB only on 17-10-2012 as can be seen from the communication between the KHB and State Government. It is therefore clear that no prior approval was obtained by the KHB from the State Government before the execution of the subject Sale Deed dated 23-08-2006. The Court observed that in the facts of the instant case, obtaining of previous / prior approval from the State Government by the KHB before execution of the impugned Sale Deed dated 23-08-2006 would clearly invalidate and vitiate the said document and consequently, the same deserves to be quashed.

The Court further observed that absence / lack / want of previous / prior approval by the State Government before executing the impugned Sale Deed dated 23-08-2006 would vitiate and invalidate the said document and mere ex-post facto approval dated 10-04-2013 would not have the effect of ratifying or validating the Sale Deed due to the inherent lacuna / defect in the document at the time of its execution.

On the issue of res-judicata, the Court observed that in view of the material on record which clearly indicates that the issue of the validity of the Sale Deed qua Section 33(1) having not been adjudicated in the previous proceedings coupled with the express liberty / permission / leave granted by this Court, hence it cannot be said that the present petition is barred by res judicata.

 The Court thus directed The impugned Sale Deed dated 23.08.2006 executed by the petitioner’s father in favour of the respondent – KHB is hereby declared as null and void and directed to be cancelled, subject to the condition that the petitioner pays a sum of Rs.1, 07, 64,000/- together with interest at 6% p.a. from 23.08.2006 till the date of payment to the Respondent-KHB within a period of three months from the date of receipt of a copy of this order.”

[Kadasiddeshwara v. Principal Secretary, WP No. 101046 of 2021, decided on 08-10-2021]

Arunima Bose, Editorial Assistant has reported this brief.

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