Karnataka High Court
Shri B V Shivaswamy vs The Government Of Karnataka on 15 April, 2021
Author: Chief Justice Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2021
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
WRIT PETITION NO.20651 OF 2007 (BDA-PIL)
BETWEEN:
SHRI B.V. SHIVASWAMY,
AGED ABOUT 50 YEARS,
S/O (LATE) B.P.V. SWAMY,
R/O. #312, 3RD BLOCK,
RAJAJINAGAR,
BANGALORE - 560 010.
... PETITIONER
(BY SHRI B.N. HARISH, AMICUS CURIAE)
AND:
1. THE GOVERNMENT OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE BANGALORE DEVELOPMENT AUTHORITY,
REPRESENTED BY ITS COMMISSIONER,
KUMARA PARK WEST, T. CHOWDAIAH ROAD,
BANGALORE - 560 020.
3. THE DEPUTY SECRETARY,
THE BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST, T. CHOWDAIAH ROAD,
BANGALORE - 560 020.
2
4. THE BDA EMPLOYEES' WELFARE ASSOCIATION,
REPRESENTED BY ITS PRESIDENT,
KUMARA PARK WEST, T. CHOWDAIAH ROAD,
BANGALORE - 560 020.
5. THE ADDITIONAL DISTRICT REGISTRAR,
BDA COMPLEX, KUMARA PARK WEST,
T. CHOWDAIAH ROAD, BANGALORE - 560 020.
... RESPONDENTS
(BY SHRI V. SREENIDHI, AGA FOR R1,
SHRI. M.N. RAMANJANEYA GOWDA,
ADVOCATE FOR R2 AND R3,
SHRI. K. SACHINDRAKARANTH, ADVOCATE FOR R4,
R5 - SERVED)
---
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
THE ENTIRE RECORDS FROM THE 2ND RESPONDENT, THE
COMMISSIONER, BDA RELATING TO THE MURKY
TRANSACTION OF SALE OF 33.02 ACRES OF AGRICULTURAL
LANDS SITUATE AT DODDAKALLASANDRA, UTTARAHALLI
HOBLI, CONVEYED TO RESPONDENT NO.4 I.E. THE
PRESIDENT, BDA EMPLOYEES' WELFARE ASSOCIATION ON
09.11.2006 FOR A PALTRY SUM OF RS.88,31,587.00 & ETC.
THIS WRIT PETITION HAVING HEARD AND RESERVED
FOR ORDER, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
ORDER
By this public interest litigation, bulk allotment of a land to
an extent of 33 acres 02 guntas situated at Doddakallasandra
village, Uttarahalli Hobli, Bangalore South Taluk in Sy.Nos.15,
16 and 17 (the Schedule Land) made by the Bangalore
Development Authority (for short 'the BDA') to the Bangalore
Development Authority Employees' Welfare Association (4th
respondent) has been questioned on various grounds. The BDA
has been established under Section 3 of the Bangalore
Development Authority Act, 1976 (for short 'the BDA Act')
2. When this petition came up for hearing before the first
Court on 16th January, 2019, it was noticed that the Advocate for
the petitioner is no more. Therefore, Court notice was ordered to
be issued to the petitioner. After service of Court notice, none
appeared for the petitioner and, therefore, this Court by Order
dated 3rd June 2019 appointed Shri. B.N. Harish, Advocate as
amicus curiae to assist the Court.
3. On 17th November, 1998, a notification was issued by the
Commissioner of the BDA for acquisition of 1111 acres of the
land for formation of a layout known as Jayaprakash Narayan
Nagar, 9th stage. The Schedule Land was included in the said
notification. Thereafter, the lands comprising in various survey
numbers including the Schedule Land which is the subject
matter of this writ petition were acquired for formation of the said
layout. According to the case of the petitioner, on 7th October,
2005, the department of Stamp and Registration had issued a
notification revising the guideline market value of the
immoveable properties in the jurisdiction of various sub-registrar
offices in Bengaluru (urban) District. According to the case of
the petitioner, the land value of the agricultural land situated at
Doddakallasandra village was fixed at Rs.63,00,000/- per acre.
On 9th November, 2006, a sale deed was executed on behalf of
the BDA in favour of the 4th respondent in respect of three
parcels of land comprised in Sy.Nos. 16, 17 and 18 of
Doddakallasandra village, Uttarahalli Hobli, Bangalore South
Taluk, totally admeasuring 33 acres 02 guntas (the Schedule
Land) for consideration of Rs.88,31,587/-. The 4th respondent is
a Welfare Association of employees of the BDA. According to
the case of the petitioner, the Schedule Land was sold to the 4th
respondent at a peanut price and there was huge loss to the
State exchequer to the tune of rupees twenty crores.
4. It is contended in the petition that granting of such a
valuable land at a lower price and that too to an association of
the employees of the BDA is a gross illegality. It is pointed out
that it is not clear from the sale deed when the 4th respondent
applied for bulk allotment. Even a copy of the order passed by
the Government dated 19th April 2006, as described in the sale
deed was not provided to the petitioner. Various other illegalities
such as the breach of the provisions of the Bangalore
Development Authority (Bulk Allotment) Rules, 1995 (for short,
'the Bulk Allotment Rules') have been pointed out. It is
contended that a part of the Schedule Land admeasuring 30
acres is a Gomal land which is exclusively reserved for grazing
of animals. But the Schedule Land was allotted to the 4th
respondent for residential use without following the procedure
contemplated under Section 71 of the Karnataka Land Revenue
Act, 1964 (for short, 'the KLR Act') and the Karnataka Land
Revenue Rules,1966 (for short, 'KLR Rules).
5. A statement of objections has been filed by the BDA.
Placing reliance on the communication dated 19th April 2006,
(Annexure-R4), it is contended that the Government has
accorded permission to the BDA to allot bulk land to the 4th
respondent. The manner in which the cost of the land is
calculated is pleaded in paragraph 4 of the statement of
objections. It is contended that the Gomal land has ceased to be
as such due to urbanization.
6. The learned counsel appearing as Amicus Curiae firstly
submitted that the Schedule Land allotted to the 4th respondent
is a Gomal land. His submission is that the allotment has been
made in gross violation of Section 71 of the KLR Act and KLR
Rules. He relied upon Rule 97 of the KLR Rules and submitted
that due to violation of the said provision, the allotment made in
favour of the 4th respondent is illegal. He invited our attention to
Section 38-B of the BDA Act and pointed out that the bulk
allotment can be made only with the prior approval of the State
Government. He invited our attention to proviso sub-rule (1) of
Rule 7 of the Bulk Allotment Rules and submitted that said
proviso specifically provides that the bulk allotment can be made
only in respect of an area of five acres and if allotment is to be
made of a land having an area more than five acres, such
allotment can be made provided that the Government, for the
reasons recorded in writing, accords approval for allotment of
such land. He stated that the reasons recorded by the
Government have not been placed on record. He invited our
attention to Rule 9 of the Bulk Allotment Rules containing the
principles of selection. He submitted that the factors which are
mentioned in Rule 9 have not been considered at all. While
drawing the attention of the Court to clause (b) of Rule 10 of the
Bulk Allotment Rules, he submitted that the value of the land per
acre ought to have been fixed by the authority having regard to
the prevailing market value. He invited our attention to the
provisions of various laws.
7. The learned counsel appearing for the second and third
respondents submitted that there is an order made by the State
Government in terms of proviso to sub-rule (1) of Rule 7 of the
Bulk Allotment Rules and the State Government is not expected
to record detailed reasons for according approval for the bulk
allotment. He invited our attention to the fact that the Schedule
Land has already been converted into sites and various sites
were allotted to various persons who are not made as parties to
the writ petition. He would, therefore, submit that the allottees
of the sites being necessary parties were required to be made
parties. As, the allottees of the sites have not been made as
parties, the writ petition is liable to be rejected for non-joinder of
necessary parties. He submitted that the issues which are now
canvassed by the learned amicus curiae has not been raised
specifically in the writ petition. He submitted that several
subsequent events have happened. And, therefore, it is not
necessary for this Court to interfere at this juncture. Various
factual details were pointed out by the learned counsel for the
4th respondent which support the stand of the BDA.
8. The learned Additional Government Advocate appearing
for the State Government supported the contentions urged by
the BDA and submitted that no interference is called for.
9. We have considered the submissions made across the
Bar and the relevant provisions of law. Under Section 38-B of
the BDA Act, the BDA is empowered to make bulk allotment by
way of sale, lease or otherwise of any land which belongs to it or
is vested in it or acquired by it for the purpose of any
development scheme. It is further provided that prior approval
of the Government shall be obtained for allotment of bulk land to
any categories listed in Section 38-B. It is necessary to make a
reference to Section 38-B which reads thus:
"38-B. Power of Authority to make bulk
allotment.- Notwithstanding anything contained in
this Act or Development Scheme sanctioned under
this Act, the authority may, subject to any restriction,
condition and limitation as may be prescribed, make
bulk allotment by way of sale, lease or otherwise of
any land which belongs to it or is vested in it or
acquired by it for the purpose of any development
scheme.-
(i) to the State Government; or
(ii) to the Central Government; or
(iii) to any Corporation, Body or Organisation
owned or controlled by the Central
Government or the State Government; or
(iv) to any Housing Co-operative Society
registered under the Karnataka co-operative
Societies Act, 1959 (Karnataka Act 11 of
1959); or
(v) to any society registered under the Karnataka
Societies Registration Act, 1960 (Karnataka
Act 17 of 1960); or
(vi) to a trust created wholly for charitable,
educational or religious purpose:
Provided that prior approval of the
Government shall be obtained for allotment of land to
any category listed above."
(underlines supplied)
The Authority as defined by section 2(a) of the BDA Act is
BDA. The other provisions which are relevant for the
consideration of the questions involved in this petition are the
provisions of the Bulk Allotment Rules. The terms and conditions
on which bulk allotments can be made have been prescribed by
the Bulk Allotment Rules framed under the BDA Act. Rule-7 of
the said Rule is material which reads thus:
"7. Restrictions.- (1) The extent of land
allotted under these rules shall not exceed five
acres:
Provided that the Government may, for
reasons to be recorded in writing accord approval
for allotment of land exceeding five acres but not
exceeding One Hundred acres and the Authority
may in turn make allotment accordingly.
(2) The land allotted shall be used only for
the purpose for which it is allotted."
(underline supplied)
10. Thus, bulk allotment of a land having an area exceeding
five acres can be made by the BDA only on approval being
granted by the State Government for the reasons recorded in
writing.
11. The first question which arises for consideration is
whether the State Government had passed an order, as
required by proviso to sub-rule (1) of Rule 7 and the second
question is whether fair and transparent procedure has been
followed while allotting a large extent of land to the 4th
respondent. The other issue is whether the market value of the
land allotted to the 4th respondent has been fixed in accordance
with law. All these questions will have to be considered in the
context of the fact that the 4th respondent is an association of the
employees of the BDA.
12. In the writ petition, specific reliance has been placed on
the statutory requirement incorporated in the proviso to sub-rule
(1) of Rule-7 of the Bulk Allotment Rules. In paragraph-31,
reliance is placed on the said provision. There is a specific
contention raised to the effect that the market value of the
allotted land has not been fixed in accordance with law. We find
that the contentions regarding the failure to make proper
valuation in respect of the Schedule Land and the violation of
the Bulk Allotment Rules, inasmuch as there was a failure on the
part of the State Government in not recording reasons in writing,
as required by the proviso to sub-rule (1) of Rule-7 of the Bulk
Allotment Rules have been specifically pleaded in the writ
petition.
13. In the statement of objections filed by the BDA (2nd and 3rd
respondents), reliance is placed on the acquisition proceedings
of the Schedule Land. Reliance is also placed on the
Government Order dated 19th April 2006 (Annexure-R4) under
which, the Government has accorded approval for the bulk
allotment of the land in favour of the 4th respondent. Reliance is
placed on the proceedings of the BDA dated 14th February, 2008
(Annexure-R5) on the subject of bulk allotment of the land to the
4th respondent. Various contentions have been raised
regarding the manner in which the market value of the land is
fixed.
14. In the statement of objections filed by the 4th respondent,
it is pointed out that the BDA has made similar bulk allotments to
the Association of the IAS officers, to the Judicial Officers
Society etc. It is pleaded that the 4th respondent has spent huge
amount on development of the Schedule Land. It is stated that
for development of the property, the 4th respondent has so far
spent more than eight crores rupees and a sum of rupees two
crores has been paid to the authorities such as BDA, BESCOM
etc. In short, the contention of the 4th respondent is that totally
a sum of rupees ten crores has been spent by it on the
development of the Schedule Land. Various factual details have
been pleaded to justify the market value fixed by the BDA while
making bulk allotment to the 4th respondent. In Annexure-R1, the
details of the expenditure allegedly incurred on development of
the land have been set out. Annexure-R6 is the list of allottees.
It is stated therein that allotment of sites was made on 7th
December, 2007 to 759 members of the fourth respondent and
they have been placed in possession of the sites allotted to
them. The names, site numbers, area of the respective sites
and sital value received have been set out in the Annexure-R6.
Along with the statement of objections filed by the 4th respondent
on 29th June, 2011, photographs have been annexed as
Annexures-R3 and R4 showing that work of making internal
roads has been done and poles for street lights/electricity supply
have been erected.
15. It is to be noted here that the contents of the statement of
objections regarding formation of sites, allotment of sites out of
the Schedule Land to 759 members of the 4th respondent
Association have not been denied by the petitioner by filing a
rejoinder. Therefore, this Court will have to proceed on the
footing that in the year 2007, various sites mentioned in
Annexure-R6 to the statement of objections filed by the 4th
respondent forming part of the Schedule Land were allotted to
its 759 members after receiving the value of the sites from them.
None of the said allottees have been made parties to the
petition. Even in representative capacity, some of them have
not been made parties. Thirteen years have passed after the
sites were allotted to the members of the 4th respondent. The
allottees who are in large numbers will be directly affected by
the orders that may be passed in this petition. With the passage
of time, some of them might have constructed houses on the
sites allotted to them and some of they must have created third
parties interests over the sites allotted to them. Therefore, even
assuming that there is an illegality associated with the bulk
allotment made to the 4th respondent, no effective relief can be
granted in this petition, in the absence of the allottees.
Nevertheless, we are required to examine the legal contentions
raised in this petition.
16. It is an admitted position that the Schedule Land was
acquired by the BDA for public purpose after paying
compensation to the landowners. Therefore, the Schedule Land
being a valuable public property was vesting in the BDA which is
an agency and instrumentality of the State being a body
corporate created under the BDA Act, 1976. Any land which has
been vested in the Government or public authorities like the
BDA should be dealt with only by following a fair and transparent
procedure. As far as law regarding disposal of the public
property is concerned, the law is well settled. At this juncture,
we may refer only one leading decision of the Apex Court
rendered in the case of Akhil Bhartiya Upbhokta Congress -
vs- State of Madhya Pradesh and another1 . In paragraphs
64 to 67 of the said decision which are relevant read thus:
"64. In New India Public School v. HUDA (1996) 5
SCC 510 , this Court approved the judgment of the
Division Bench of the Punjab and Haryana High
Court in Seven Seas Educational
Society v. HUDA [AIR 1996 P&H 228 : (1996) 113
PLR 17] , whereby allotment of land in favour of the
appellants was quashed and observed: (New India
(2011) 5 SCC 29
Public School case [(1996) 5 SCC 510] , SCC p.
515, para 4)
"4. A reading thereof, in particular Section
15(3) read with Regulation 3(c) does indicate
that there are several modes of disposal of the
property acquired by HUDA for public purpose.
One of the modes of transfer of property as
indicated in sub-section (3) of Section 15 read
with sub-regulation (c) of Regulation 5 is public
auction, allotment or otherwise. When public
authority discharges its public duty the word
'otherwise' would be construed to be
consistent with the public purpose and clear
and unequivocal guidelines or rules are
necessary and not at the whim and fancy of
the public authorities or under their garb or
cloak for any extraneous consideration. It
would depend upon the nature of the scheme
and object of public purpose sought to be
achieved. In all cases relevant criterion should
be predetermined by specific rules or
regulations and published for the public.
Therefore, the public authorities are required
to make necessary specific regulations or valid
guidelines to exercise their discretionary
powers; otherwise, the salutary procedure
would be by public auction. The Division
Bench, therefore, has rightly pointed out that in
the absence of such statutory regulations
exercise of discretionary power to allot sites to
private institutions or persons was not correct
in law."
65 What needs to be emphasised is that the
State and/or its agencies/instrumentalities cannot
give largesse to any person according to the sweet
will and whims of the political entities and/or
officers of the State. Every action/decision of the
State and/or its agencies/instrumentalities to give
largesse or confer benefit must be founded on a
sound, transparent, discernible and well-defined
policy, which shall be made known to the public by
publication in the Official Gazette and other
recognised modes of publicity and such policy must
be implemented/executed by adopting a non-
discriminatory and non-arbitrary method
irrespective of the class or category of persons
proposed to be benefited by the policy. The
distribution of largesse like allotment of land, grant
of quota, permit licence, etc. by the State and its
agencies/instrumentalities should always be done
in a fair and equitable manner and the element of
favouritism or nepotism shall not influence the
exercise of discretion, if any, conferred upon the
particular functionary or officer of the State.
66 We may add that there cannot be any policy,
much less, a rational policy of allotting land on the
basis of applications made by individuals, bodies,
organisations or institutions dehors an invitation or
advertisement by the State or its agency/
instrumentality. By entertaining applications made
by individuals, organisations or institutions for
allotment of land or for grant of any other type of
largesse the State cannot exclude other eligible
persons from lodging competing claim. Any
allotment of land or grant of other form of largesse
by the State or its agencies/instrumentalities by
treating the exercise as a private venture is liable to
be treated as arbitrary, discriminatory and an act of
favouritism and/or nepotism violating the soul of the
equality clause embodied in Article 14 of the
Constitution.
67. This, however, does not mean that the State
can never allot land to the institutions/organisations
engaged in educational, cultural, social or
philanthropic activities or are rendering service to
the society except by way of auction.
Nevertheless, it is necessary to observe that once
a piece of land is earmarked or identified for
allotment to institutions/organisations engaged in
any such activity, the actual exercise of allotment
must be done in a manner consistent with the
doctrine of equality. The competent authority
should, as a matter of course, issue an
advertisement incorporating therein the conditions
of eligibility so as to enable all similarly situated
eligible persons, institutions/organisations to
participate in the process of allotment, whether by
way of auction or otherwise. In a given case the
Government may allot land at a fixed price but in
that case also allotment must be preceded by a
wholesome exercise consistent with Article 14 of
the Constitution".
(underlines supplied)
17. In the case on hand, we have carefully perused the
proceedings of the meeting dated 14th February, 2008 of the
BDA and the resolution passed therein, which is produced as
Annexure-R5 along with the statement of objections filed by the
BDA. In the said proceedings, a decision was taken by the
BDA to allot the Schedule Land to the 4th respondent under the
Bulk Allotment Rules. It is not the case of the BDA that a public
notice was given inviting the applications for bulk allotment from
the societies falling under any categories covered by clauses
(iv) and (v) of Section 38-B of the BDA Act. Without inviting
applications for bulk allotment, the case of the 4th respondent
was directly considered. While making bulk allotment to the 4th
respondent, the procedure followed by the BDA shows that
there was lack of transparency and no process which is fair and
transparent was followed by the BDA. The Apex Court in the
case of Akhil Bhartiya Upbhokta Congress (supra)
categorically held that once a piece of land is earmarked or
identified for allotment to institutions/organisations engaged in
any such activity, the actual exercise of allotment must be done
in a manner consistent with the doctrine of equality. The
competent authority should, as a matter of course, issue an
advertisement incorporating therein the conditions of eligibility
so as to enable all similarly situated eligible persons/institutions/
organisations to participate in the process of allotment, whether
by way of auction or otherwise. In a given case, the Government
may allot land at a concessional price, but in that case also the
allotment must be preceded by a fair process consistent with
Article 14 of the Constitution of India. Thus, as held by the
Apex Court, the action of the BDA being discriminatory and
arbitrary, the same will amount to violation of Article 14 of the
Constitution of India.
18. Now we turn to the second issue as to whether the
approval allegedly accorded by the State Government under
purported exercise of its powers and by following the procedure
contemplated under the proviso to sub-rule (1) of Rule 7 of the
Bulk Allotment Rules. We have perused the said letter dated
19th April 2006 sent by the Government which is at Annexcure-
R4 to the statement of objections filed by the BDA. It is claimed
to be permission accorded by the State Government. The
relevant portion of the said letter read thus:
"Sub: Allotment of bulk land to BDA's Employees
Association to allot sites to its members-
employees-Reg.
Ref: Letter No.BDA/Commissioner/2861/2005-
06 date: 12/1/2006
With reference to the above, your above
referred proposal has been considered.
Government has given approval in principle to
the proposal for allotment of bulk land to BDA's
Employees Association to allot sites to its
members-employees. However, I have been
directed to inform that Authority may choose land,
depending upon the availability of land".
(underline supplied)
19. Firstly, this letter does not record any reasons for
according approval for allotment of the bulk land having an area
exceeding five acres to the 4th respondent. Secondly, even the
area of the land permitted to be allotted to the 4th respondent is
not mentioned. Thirdly, the approval accorded by the State
Government is not qua a particular land as the details of the
land to be allotted to the 4th respondent are not incorporated in
the said letter. But it is a general approval granted. The proviso
to sub-rule (1) of Rule-7 of the Bulk Allotment Rules carves out
an exception to sub-rule (1) which lays down a mandatory rule
that if the area is more than five acres, the State Government's
prior approval for the reasons to be recorded in writing is
necessary. Thus, the benefit of the exception can be taken
provided that the condition laid down under the proviso to sub-
rule (1) of Rule-7 of the Bulk Allotment Rules is fulfilled. The
condition was of the State Government recording the reasons in
writing for granting approval for allotment of land exceeding five
acres but not exceeding one hundred acres. As, no reasons in
writing have been admittedly recorded by the Government in its
order dated 19th April, 2006, the bulk allotment of the land made
by the BDA in favour of the 4th Respondent is completely illegal
being manifestly arbitrary and the same will have to be held
violative of Article 14 of the Constitution of India.
20. As regards fixation of the market value of the allotted land
is concerned, the petitioners have not placed on record any
material to show what was the exact market value was on the
relevant date. Only the details of the components which are
required to be taken into consideration have been placed record.
21. Thus, on consideration of the above materials, the
scenario which emerges is that the allotment made by the BDA
in favour of the 4th respondent appears to be completely illegal.
However, only on the ground of non-joinder of 759 members
(allottees of the sites), this Court cannot grant any reliefs sought
in this petition. Moreover, the purchasers/members/allottees
may have created third party interests.
22. We must place on record our appreciation for excellent
assistance rendered by the learned counsel appointed as
amicus curiae.
23. Hence, we pass the following:
ORDER
i) The writ petition is rejected only on the ground of
non-joinder of more than 759 members of the BDA
Employees' Welfare Association (4th respondent)
who are allottees of the sites formed out of the
Schedule Land;
ii) There shall be no order as to the costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Vr
