Karnataka High Court

Smt Latha B C vs Bangalore Development Authority on 14 December, 2021

Bench: P.S.Dinesh Kumar, P.Krishna Bhat

                                          W.A No.2894/2014

                                 1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF DECEMBER, 2021

                              PRESENT

      THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                               AND
        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

           WRIT APPEAL No.2894 OF 2014 (BDA)

BETWEEN :

SMT. LATHA B.C
W/O CHANDRU
AGED ABOUT 48 YEARS
RESIDING AT "HIMADRI"
NO.862, 2ND MAIN, 3RD BLOCK
HBR LAYOUT
BANGALORE-560 084                         ... APPELLANT

(BY SHRI. B.V. SHANKAR NARAYANA RAO, ADVOCATE)

[THROUGH VIDEO CONFERENCE]

AND :

1.    BANGALORE DEVELOPMENT AUTHORITY
      T.CHOWDAIAH ROAD
      KUMARA PARK EXTENSION
      BANGALORE-560 020
      REP. BY ITS COMMISSIONER

2.    STATE OF KARNATAKA (U.D)
      DEPARTMENT OF URBAN
      DEVELOPMENT, VIKAS SOUDHA
                                                    W.A No.2894/2014

                                      2

         BANGALORE-560 001
         REP. BY ITS PRINCIPAL SECRETARY         ... RESPONDENTS

(BY SHRI. M. UNNIKRISHNAN, ADVOCATE FOR R1
    - THROUGH VIDEO CONFERENCE;
    SMT. A.R. SHARADAMBA, AGA FOR R2)

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT
PETITION NO.29943/2011 DATED 1/10/2012.

     THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.10.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR. J, PRONOUNCED THE
FOLLOWING:-

                               JUDGMENT

This intra-court appeal is directed against order dated

October 1, 012 passed in W.P.No.29943/2011.

2. Heard Shri. B.V. Shankar Narayana Rao learned

Advocate for appellant, Shri. M. Unnikrishnan learned

Advocate for respondent No.1 and Smt. A.R. Sharadamba,

AGA for R2.

3. Petitioner had applied for a residential site with

the BDA1. She was allotted site No.589 in Arkavathi Layout,

Bengaluru under the Scheduled Caste and Scheduled Tribe

quota. The total value of the site was Rs.7,58,500/-.

Bangalore Development Authority W.A No.2894/2014

Petitioner paid Rs.3,65,000/- on August 24, 2006 and

Rs.1,00,000/- on October 11, 2006. She did not pay the

remaining amount in time. It is averred in para 5 of the

writ petition that petitioner sought to pay the balance

amount of Rs.2,93,000/- by way of demand drafts on

March 23, 2007. BDA issued a notice dated August 5, 2009

calling upon her to show cause as to why the allotment

should not be cancelled. Petitioner received the notice on

August 19, 2009. She challenged the same in

W.P.No.29204/2009 and it was disposed of as a premature

petition. Petitioner thereafter approached the BDA for

reconsideration of her case. In the meanwhile, BDA

cancelled the allotment on November 13, 2009. Pursuant

to cancellation of the allotment, BDA refunded the amount

deposited by the petitioner. Petitioner claims to have

re-deposited the amount with the BDA.

4. In substance, petitioner's request for acceptance

of the balance amount stood rejected. Petitioner has

challenged the same in the instant writ petition. The W.A No.2894/2014

Hon'ble Single Judge has dismissed the writ petition with a

direction to the BDA to refund the amount.

5. Shri Shankarnarayan Rao for the appellant

submitted as on October 11, 2006, petitioner has paid

Rs.4,65,0000/-. She had sought for extension of time to

pay the balance amount of Rs.2,93,000/-. She tendered

the said amount through demand drafts as per Annexure-D.

The BDA has issued the show-cause notice on August 5

August 19, 2009, two years after the amount fell due, i.e.

March 26, 2007. Immediately thereafter, on August 25,

2009, petitioner tendered six demand drafts along with a

letter (Annexure-F). BDA has cancelled the allotment by

recording that Rules do not permit extension of time.

6. Shri Rao further submitted that Rule 13(1) of

the BDA(Allotment of Sites) Rules, 1984, as amended by

Act of 20082 is unconstitutional and violates Articles 14 and

21 of Constitution of India, because, it creates a distinction

between the allottees of sites measuring 6 x 9 M, 9x12 M

BDA Allotment Rules, 1984 W.A No.2894/2014

and 12 x 18 M. In support of this contention, he placed

reliance on para 41 in E.V.Chinnaiah Vs. State of A.P. and

others3. Accordingly, he prayed for allowing this appeal.

7. Shri Unnikrishnan for the BDA submitted that the

amendment brought to Rule 13 of the BDA Allotment Rules,

1984, do not violate any right enshrined in the Constitution

of India. By the amendment, the economically weaker

citizen among Scheduled Caste and Scheduled Tribes,

Backward Tribes or a person belonging to family of defence

personnel, killed or disabled during hostilities and who has

been allotted a site of a very small dimension like 6 x 9 M,

9x12 M and 12 x 18 M, have been extended with a facility

to pay the balance amount within a period of three years in

equal annual installments. He submitted that in the instant

case, petitioner has been allotted with a Bungalow site

measuring 50 x 80 ft. Therefore, she does not fall within

(2005) 1 SCC 394 W.A No.2894/2014

the category of persons mentioned hereinabove.

Accordingly, he prayed for dismissal of this writ appeal.

8. We have carefully considered rival submissions

and perused the records.

9. Undisputed facts of the case are, petitioner was

allotted a bungalow site measuring 50 x 80 ft. She did not

pay the balance amount of Rs.2,93,000/- in time but sought

to pay subsequently after expiry of the last date. BDA has

issued the show cause notice two years after the expiry of

last date. BDA claims to have returned the said payment

and petitioner claims to have re-deposited the said amount

with the BDA. The fact remains that petitioner did not

make the payment as per schedule and BDA has cancelled

the allotment.

10. The Hon'ble Single Judge has recorded that

petitioner being a defaulter could not have challenged the

validity of the Rule. He has held that if petitioner had paid

the amount in time, there was occasion to complain nor W.A No.2894/2014

would she have sought to challenge the validity of the Rule.

Petitioner has challenged the validity because she has been

deprived of the allotment due to delay in payment and such

conduct could not be countenanced. Accordingly, the

Hon'ble Single Judge has directed for refund of the amount.

11. The main contention of Shri Shankar Narayan

Rao is that the amendment brought to Rule 13 is ultravires

Constitution of India.


     12.      We    have     carefully   perused      the     amended

provision.      It reads as follows:

"13. 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 sixty days from the date of receipt of notice of allotment pay to the Authority, the balance sital value deducting the initial deposit. If the balance sital value is not paid within a period of sixty days, the Authority may on application of the allottee, extend the time for payment for a further period not exceeding one hundred twenty days as a final chance and the allottee shall pay an additional interest at the rate of eighteen per cent on the balance sital value for the first thirty days of the extended period and at the rate of twenty-

W.A No.2894/2014

one per cent for the next ninety days of the extended period. If the amount is not paid within such extended period also, the registration fee shall be liable to be forfeited and the allotment may be cancelled without prior intimation:] [Provided that where an allottee is a person belonging to.-

(a) the Scheduled Castes and Scheduled Tribes, Backward Tribes, or to a family of a defence personnel killed or disabled during hostilities and who has been allotted a site of 6x9 M and 9x12 M or 12x18 M dimensions; or

(b) belonging to economical weaker section of the society as notified by Government from time to time, and who has been allotted a site of 6x9 M dimension,

the balance of the value of the site required to be paid under this sub-rule shall be paid by him or her without interest, within a period of three years in equal annual installments from the date of receipt of the notice of allotment:

Provided that in case of allotment made from 1-1-2002 till the date of publication of these rules the balance of the value of the site required to be paid under this rule shall be paid by him or her without interest within a period of six months from the date receipt of the notice]".

13. Thus, it is clear that the facility to pay in

installment within three years is extended only to the

allottees of sites who are allotted with sites of small W.A No.2894/2014

dimension. In the instant case, petitioner was allotted with

bungalow site measuring 50 x 80 ft. Therefore, there is no

discrimination among a particular class of allottees as

petitioner belongs to the class of allottees of bungalow

sites. Therefore, the authority cited by

Shri Shankarnarayan Rao is not applicable to the facts of

the case.

14. In view of the above, there is no merit in this

appeal and it is accordingly dismissed.