Innisfree House School vs The Bangalore Development ...
2022 Latest Caselaw 7338 Kant

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                                                          WP No. 7124 of 2014


                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 24TH DAY OF MAY, 2022

                                              BEFORE
                        THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                           WRIT PETITION NO. 7124 OF 2014 (BDA)
                   BETWEEN:

                   INNISFREE HOUSE SCHOOL
                   9TH CROSS, 23RD MAIN
                   J.P. NAGAR, II PHASE
                   BANGALORE.
                   REP. BY ITS FOUNDER
                   PRINCIPAL, MRS. S. BOLAR
                   W/O LATE ASHOK BOLAR
                   AGED 69 YEARS
                                                                  ...PETITIONER
                   (BY SRI. GURUDAS S. KANNUR, SR. COUNSEL FOR
                       SRI. MURUGESH V. CHARATI, ADVOCATE FOR R1-PH)

                   AND:
                   1.     THE BANGALORE DEVELOPMENT AUTHORITY
                          T. CHOWDAIAH ROAD
                          BANGALORE-560020
                          REP. BY ITS COMMISSIONER

                   2.     AA. NA. KRU. PRATHISHTANA
                          NO.36/2, 1ST FLOOR
Digitally signed          PATALAMMAGUDI STREET
by
NIRMALADEVI               NEAR SOUTH END CIRCLE
Location: HIGH
COURT OF                  BASAVANAGUDI
KARNATAKA
                          BANGALORE-56004
                          REP. BY ITS SECRETARY

                   3.     AKSHARA CULTURAL & EDUCATIONAL SOCIETY
                          ASHIRWAD, NO.44, 1ST D CROSS
                          REMO LAYOUT, VIJAYANAGAR 2ND STAGE
                          BANGALORE-560040
                          REP. BY PRESIDENT

                   4.     THE GOVERNMENT OF KARNATAKA
                          URBAN DEVELOPMENT DEPARTMENT
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                                              WP No. 7124 of 2014


     VIKASA SOUDHA, BANGALORE-560001
     REP. BY ITS PRINCIPAL SECRETARY
                                              ...RESPONDENTS
(BY SRI. MSNMOHSN P.N, ADVOCATE FOR R2-PH;
    SRI. S.M. SURESH, ADVOCATE FOR R3-ABSENT;
    SRI. SHARANABASAPPA M. PATIL, HCGP FOR R4-PH)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS PERTAINING TO THE CIVIC AMENITY SITE NO.36/A [P1]
AND 36/A [P2] J.P. NAGAR, II PHASE LAYOUT, SY.NO.32,
MARENHALLI, BANGALORE FROM THE R-1 AND      CANCEL AND SET
ASIDE THE ALLOTMENT LETTER DATED 6.12.2013 VIDE ANN-T,
PERTAINING TO THE CA SITE NO.36/A[P2] ISSUED BY THE R-1 IN
FAVOUR OF R-3 BY WRIT OF CERTIORARI OR ANY OTHER WRIT,
DIRECTION OR ORDER AND ETC.
     THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY THE
COURT MADE THE FOLLOWING:
                              ORDER

1. The petitioner is before this Court seeking for the following

reliefs:

i. Call for the entire records pertaining to the civic Amenity Site No.36/A [P1] and 36/A [P2] J.P. Nagar, II Phase Layout, Sy.No.32, Marenhalli, Bangalore from the first respondent.

ii. Cancel and set aside the Allotment Letter dated 6.12.2013 vide No.Krama Sankhye 0506 Annexure ('T') pertaining to the CA Site No.36/A[P2] issued by the First respondent in favour of Third respondent, by Writ of Certiorari or any other writ, direction or Order.

iii. Cancel and set aside the Allotment Letter dated 9.1.2014 bearing No.Krama Sankhye 0510 Annexure ('V') pertaining to the CA site No.36/A[P1] issued by the First Respondent in favour of Second Respondent, by Writ of Certiorari or any other writ, direction or Order.

iv. A Writ in the nature of Mandamus or any other Writ direction or Order, directing the first Respondent to consider the applications of the petitioner dated to allot

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the CA site No. 36/A[P1] and 36/A[P2] J.P. Nagar, II Phase, Bangalore in favour of the Petitioner school.

v. Such other writ, direction or Order that this Hon'ble Court may deem just and expedient in the circumstances of the case, in the interest of justice and equity.

2. The petitioner is a School managed by the Bolar

Educational Trust, established in 1985, to impart education

to the children of J.P.Nagar and surrounding areas of

Bangalore South. The School is affiliated with the Council

for the Indian School Certificate Examination, New Delhi

(ICSE). The petitioner claims to have 850 students on its

rolls from Pre-nursery to Standard X.

3. The said School-petitioner had earlier applied for and was

granted a lease in the year 1990 in respect of Site No.36,

Sarakki I Phase, measuring 49 mtrs. x 81 mtrs., total area

of 3969 sq. mtrs. for the purpose of running of a School.

Subsequent thereto, the petitioner has established the

School and is running the same as aforestated.

4. It is the contention of the petitioner that though the

allotment made to the petitioner was only an extent of

3969 sq. mrts., the neighbouring abutting land was also

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fenced and permitted to be used by the petitioner in all

amount to 6609 sq.mtrs i.e., in the entire civic amenity

Site No.36.

5. The petitioner making use of the said land had made

several representations to the respondent No.1 seeking for

allotment of balance land. Instead of doing so, respondent

No.1 had issued a notification in the year 1991 notifying

the availability of an extent of 875 sq.mtrs (35 x 25 mtrs)

for allotment of a civic amenity. The residents had filed a

Writ Petition in W.P.No.2261/1922 challenging the said

notification. This Court had granted an interim order,

which was in force until the dismissal of the Writ Petition

on 26.05.1997 on the ground that the petition was based

on the apprehensions of the petitioner and there are no

facts which are placed to establish that in fact such an

allotment would to be made to a third party.

6. Subsequently the adjoining property was allotted to the

Department of Youth Services and Sports Youth Centre in

the year 2001, which again came to be challenged by the

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petitioner before this Court in W.P.No.30050/2001 and this

Court vide order dated 11.02.2005 set aside the allotment

and directed the Bangalore Development Authority (for

short, 'BDA')-respondent No.1 to reconsider the decision

after ascertaining the requirement of the petitioner. This

Court in its order had also permitted the petitioner as also

the Department of Youth to approach the BDA for

allotment of the land.

7. On 19.07.2005, the Bangalore Development Authority had

allotted Civic Amenity Site No.36/A to Hindustan Petroleum

Corporation Limited which has challenged by the petitioner

in W.P.No.15901/2006. This Court vide its order dated

07.08.2007 allowed the Writ Petition, quashed the

allotment made in favour of HPCL and BDA were directed

to follow the requirement of Rule 3 of Bangalore

Development Authority (Allotment of Civic Amenity Sites)

Rules, 1989. This Court further observed that it is open to

the petitioner as well as HPCL to approach BDA to apply

for the allotment of the civic amenity site which is required

WP No. 7124 of 2014

to be considered by the BDA on its merits in accordance

with law.

8. Subsequent thereto, the petitioner submitted various

representations seeking for allotment of the said land in

favour of the petitioner. The respondent No.1, however,

rejected the said request vide its order dated 02.11.2009

and allotted Site No.36/A(P1) measuring 1640 sq. mtrs to

respondent No.2 and to an extent of 1000 sq. mtrs in Site

No.36/A(P2) to the respondent No.3. These allotments

were challenged by the petitioner in W.P.No.36787/2009,

which came to be allowed by this Court vide its order dated

31.01.2012 and the allotment made in favour of

respondents No.2 and 3 were quashed and BDA was

directed to deal with the said civil amenity sites in terms

of the directions issued in W.P.No.15901/2006 vide its

order dated 07.08.2007.

9. Subsequent thereto, BDA issued a notification on

13.01.2013 calling for allotment of sites under the BDA

(Allotment of Civic Amenity Sites) Rules, 1989 (for short,

WP No. 7124 of 2014

'Rules'). Both the petitioner and respondents No.2 and 3

applied by submitting their applications, documents and

the required amount.

10. The BDA vide its resolution dated 22.10.2013 vide Subject

Nos.1/13 and 186/2013 allotted site No.36/A(P1)

measuring 1640 sq. mtrs to the respondent No.2 and 1000

sq.mtrs to the respondent No.3 respectively. It is the said

allotment which is under challenge before this Court in the

present writ petition.

11. Smt.Rosa Paramel, learned counsel for the petitioner

would submit that:

11.1. the resolution which had been passed vide Subject

Nos.1/13 and 186/2013 are in violation of BDA

(Allotment of Civic Amenity Sites) Rules inasmuch as

there is no consideration of any of the aspects

required to be considered under the said Rules;

11.2. The school requiring the abutting land the same was

required to be allotted to the school since there is no

WP No. 7124 of 2014

other land which would be suitable for the school,

whereas the Respondents 2 and 3 could have been

allotted land anywhere else.

11.3. Respondent No.1 has acted on a preconceived notion

and having pre-decided that the property has to be

allotted to respondents No.2 and 3 has gone ahead

and allotted the same without consideration of the

requirement of the petitioner and as such, BDA-

respondent No.1 has violated the orders passed by

this Court both in W.P.Nos.36787/2009 and

15901/2006 and as such, there being no

consideration, the orders which have been passed

and which have been impugned herein are required

to be quashed as also the representation and the

application filed by the petitioner is to be considered

in terms of the Rules.

12. Sri.Gurudas S.Kannur, learned Senior Counsel instructed

by Sri.Murugesh V.Charati, learned counsel for respondent

No.1-BDA submits that:

WP No. 7124 of 2014

12.1. The petitioner having been already allotted 3696

sq.mtrs in the year 1990, there is no vested right

created in favour of the petitioner for allotment of

further land;

12.2. When the petitioner having been allotted the land,

the petitioner would not be entitled to any further

allotment;

12.3. The grounds of challenge made by the petitioner are

unsustainable inasmuch as there is no vested right

created for allotment in favour of the petitioner and

as long as the discretion vested with the respondent

No.1-BDA has been exercised in a proper and

required manner, the petitioner cannot challenge the

orders passed by the BDA;

12.4. There being no allegation of malafide or bias against

either respondent No.1 and/or other respondents,

the decision of the BDA cannot be faulted with;

12.5. That it is in the discretion of the BDA to allot the land

and the same cannot be questioned by way of the

present Writ Petition filed under Article 226 of the

Constitution of India;

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12.6. In this regard, he relies upon the decision of the

Division Bench of this Court in the case of AICOBOO

NAGAR RESIDENTS WELFARE ASSOCIATION AND

ANOTHER VS. BANGALORE DEVELOPMENT

AUTHORITY, BANGALORE AND ANOTHER

REPORTED IN ILR 2002 KAR 4705 more particularly

paras 2, 6 and 10 thereof. The same is reproduced

hereunder for easy reference:

2. It is averred in the petition that lease of Civic Amenity site in favour of second respondent is illegal as opening of petrol outlet is not a Civic Amenity, and the second respondent is not entitled to allotment of civic amenity site. It is stated that rules of allotment have not been followed while leasing the site as no public auction was held and second respondent is putting up construction in violation of agreement of lease and sanctioned plan and hence lease is liable to be quashed.

6. No doubt in an appropriate case, this Court can issue directions if there is gross violation of fundamental rights or if the issue touches the conscience of the Court but not for personal gain or publicity or political gain.

10. We have considered the arguments of the learned Counsel for the parties and perused the materials on record which show that second respondent which is a Government of India Company had made an application for grant of civic amenity site on lease for opening petrol and diesel outlet on 9.12.1999. In view of plan as modified on 13.12.1998, civic amenity site 3 had not been reserved for any specific purpose and since second respondent is a Government Company, first

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WP No. 7124 of 2014

respondent passed a resolution on 31.1.2000 to lease said site measuring East to West 60.96 meters and North to South 36.58 meters and in all 2229.92 meters to the second respondent for opening petrol and diesel outlet and lease deed was executed on 13.10.2000 granting lease for 30 years by receiving lump sum amount of Rs. 35,45,573/- subject to terms and conditions mentioned in the deed and second respondent after obtaining sanctioned plan is putting up constructions. The contention of the learned Counsel for petitioners cannot be accepted as Section 2(bb)(vi) enables Government to issue notification specifying civic amenity and in exercise of said power notification was issued on 29.8.1990. Mere fact that diesel is not specifically mentioned would not vitiate grant of lease for opening outlet as the term "Petroleum outlet" is used in common parlance. In view of modification of plan on 13.2.1398 the contention that C.A. Site 3 was reserved for public purpose cannot be accepted. Since second respondent is a Government Company, in view of Civic Amenity Site Allotment Rules question of auction would not arise. In view of the above, it is clear that petitioners have failed to prove that impugned action of lease of site to second respondent violates fundamental rights or any legal right of the public. Since we are issuing no direction in these PILS, it is not necessary to go into the question whether these PILS are maintainable by a Secretary without any resolution that the Secretary is duly authorised to file these PILs.

12.7. By relying on the above decision, he submits that it

is only when there is a gross violation of fundamental

rights or the issue touches the conscience of the

Court that the directions could be issued by the Court

and the present case is not one which comes within

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those exceptions and as such is required to be

dismissed.

13. Sri.P.N.Manmohan, learned counsel for respondent No.2

would submit that:

13.1. the petition itself is misconceived and not

maintainable for the reason that the petition has

been filed by the School and not by the trust and in

terms of Rule 2(d) of the Rules, it is only an

institution which could be allotted a civic amenity

site. The present petition not having been filed by

the trust but by the school not satisfying the

requirement of Rule 2(d), the petition is liable to be

dismissed on this technical aspect itself.

13.2. He reiterates the submission made by the learned

senior counsel that there is no vested right created

in favour of the petitioner and he further reiterates

that the petitioner having been already granted a

particular land cannot seek for further allotment;

13.3. Insofar as the consideration of the application, he

submits that the application of the respondent No.2

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has been considered by the BDA, the committee in

the meeting has adverted to the fact that the person

in whose name the respondent No.2 has been

established was a noteworthy person in Kannada

language. He having rendered humanitarian

services for the propagation of the Kannada

language and therefore, the Trust is now established

in his name and also has been rendering services by

undertaking social, cultural, music, drama and other

activities. Respondent No.2 was eligible within the

terms of Rule 6 of the Rules. The objective of the

respondent No.2 has been considered, which satisfy

the requirement of Rule 7 and as such, the allotment

of civic amenity site cannot be questioned nor is it

amenable to be set aside.

13.4. He relies upon the decision of the Apex Court in the

case of CHANDRA SINGH AND OTHERS VS.

STATE OF RAJASTHAN AND ANOTHER reported

in (2003) 6 SCC 545 more particularly para 43

thereof. The same is reproduced hereunder for easy

reference:

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43. Issuance of a writ of certiorari is a discretionary remedy. (See Champalal Binani v. CIT [(1971) 3 SCC 20: AIR 1970 SC 645] .) The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. [See S.D.S. Shipping (P) Ltd. v. Jay Container Services Co. (P) Ltd. [(2003) 4 Supreme 44] Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Article 142 of the Constitution of India is entitled to pass such order which will do [ Corrected as per Official Corrigendum No. F.3/Ed. B.J./11/2004 dated 27-1-2004] complete justice to the parties.

14. None has appeared for respondent No.3. Learned AGA

adopts the submissions made by Sri.Gurudas

S.Kannur, learned Senior counsel for respondent No.1

and further submits that the matter is a dispute

between the petitioner and the other respondents, the

State being only a formal party.

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WP No. 7124 of 2014

15. Heard Smt.Rosa Paramel, learned counsel for the

petitioner, Sri.Gurudas S.Kannur, learned Senior

counsel for Sri.Murugesh V.Charati, learned counsel

for respondent No.1, Sri.P.N.Manmohan, learned

counsel for respondent No.2 and Sri.Sharanabasappa,

learned AGA for respondent No.4.

16. It is not in dispute that the petitioner has been allotted

a portion of Plot No.36 measuring 3969 sq.mtrs in

Sarakki I Phase for the purpose of running a school.

It is also not in dispute that the petitioner's school has

been established in the said plot and the school is

running with about 850 students.

17. The preliminary objection raised by

Sri.P.N.Manmohan, learned counsel for respondent

No.2 is that this petition has been filed by the school,

whereas it ought to have been the Trust which should

have filed the petition and therefore, the school not

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WP No. 7124 of 2014

having any legal status, the petition is liable to be

dismissed.

18. A perusal of the petition indicates that there is a

specific averment that the petitioner school is

managed by Bolar Education Trust established in the

year 1985 to impart education. A perusal of the

application which has been filed for allotment and

produced at Annexure-P also indicates that the

application has been filed by Bolar Education Trust,

represented by its Trustee and the said application is

filed for the purpose of establishing a Social and

Cultural Centre by stating that the petitioner has been

running a school in Plot No.36/A of J.P.Nagar I Phase.

19. It has also been stated in the application that the

petitioner has been attempting to obtain allotment of

the plot for the last 22 years and requisite amounts

have also been paid by Bolar Education Trust and

receipt issued by BDA is also in the name of Bolar

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Education Trust, in fact, the receipt issued by the BDA

also indicates that it is issued to Bolar Education Trust

which is running the petitioner's school.

20. In view of the above, the writ petition having been

filed in the year 2014, I am of the considered opinion

that it would amount to a travesty of justice if the

submission of counsel for respondent No.2 is accepted

at this stage and the petition dismissed on a mere

technicality when both the petitioner and respondents

are clearly aware that the petitioner's school has been

established and run by a Trust and the said Trust

satisfies the requirement of Rule 2(d) of the Rules of

1989. The matter could have been different if the said

requirement had not been satisfied, since I am of the

considered opinion that those requirements have been

satisfied and more so taking into consideration that

the BDA had earlier allotted a plot measuring 3969

sq.mtrs, such a technical objection would not be

maintainable.

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21. This Court while disposing W.P.No.15901/2006 vide

order dated 7.08.2007 had issued certain directions.

Same are reproduced hereunder for easy reference:

a. The allotment of site made in favour of the 2nd respondent as-well-as the petitioner after remand of the matter from this Court is hereby quashed.

b. The authorities shall strictly follow the rules i.e., Rule (3) of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 in disposing off the balance civic amenity sites in the aforesaid layout.

c. If they intend reserving it, they should pass an order under sec.3(1). If it is not reserved, the said site shall be offered for the purpose of allotment on lease basis to all institutions by issuing a paper publication, after inviting such applications, consider their relevant merits and claims and pass appropriate orders.

d. If the 2nd respondent seeks refund of the money paid, the Bangalore Development Authority shall refund the same forthwith.

e. However, notwithstanding this order, it is open to the petitioner as-well-as the 2nd respondent to approach the Bangalore Development Authority when it is offered for lease to apply and the case of all these persons shall be considered by the Bangalore Development Authority on its merits and in accordance with law without in any way being informed by any of the observations made in this order.

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22. A perusal of the above directions indicates that the

Authority was required to strictly follow the Rules

while disposing of balance civic amenity sites. There

was a specific reference made to Rule 3 as regards

issuing notifications and inviting applications. This

Court has specifically stated that notwithstanding the

order, it is open to the petitioner as well as respondent

No.2 therein, i.e., the Hindustan Petroleum

Corporation Limited to approach the BDA when it is

offered for lease to apply for the same and the same

to be considered by the BDA in accordance with law.

23. When the said order was passed there was no

submission made by the BDA that the petitioner was

not eligible for further allotment of plot, since there is

already an allotment of a plot. If at all such a

submission had been made, this Court could have

probably considered the same. Having conceded at

that point of time for the petitioner to apply in the

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event of the notification being issued, it would not now

be permissible for the BDA to contend that the

petitioner having been allotted a plot already could not

have applied for further allotment and/or filed the

present petition calling in question the allotment made

to respondent No.2 and 3. A perusal of the Rules of

1989 also does not indicate any prohibition for an

allottee of a civic amenity site not to apply for further

allotment. Be that as it may that is not the reason

attributed in the resolutions to reject the claim of the

petitioner. Infact the need of the school is for

expansion and use as a playground, which is of utmost

importance and requirement for the students, the BDA

ought to have taken this factor into consideration and

aided the functioning of an already existent and

running school rather than allotting the land to a new

applicant. It is rather shocking that the BDA has not

even bothered to consider the requirement of the

school and its children, which is paramount.

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24. Rule 7 of the Rules of 1989 reads as under:

Principles of Selection of institutions for leasing out civic amenity sites.

1. The authority shall consider the case of each institution on its merits and shall have special regard to the following principles in making the selection.-

(a) The objectives and activities of the institution and public cause served by it since its establishment;

(b) The financial position of the institution;

(c) The present location of the institution;

(d) The benefit likely to accrue to the general public of the locality by allotment of the civic amenity site;

(e) The bona fide and genuineness of the institution as made out in the annual reports, audit report etc.;

(f) The need of the civic amenity site by the institution for providing the civic amenity in question.

2. For the purpose of sub-rule (1), the authority may constitute a separate committee to be called "civic amenity site allotment committee" consisting of three official members and three non-official members. The Chairman of the authority shall be the Chairman of the Civic Amenity Site Allotment Committee.

3. Subject to the approval of the authority, the decision of the Civic Amenity Site Allotment Committee shall be final.

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25. A perusal of the same would indicate that apart from

the objective and activities of the applicant and

financial position, as also bonafides of the applicant,

what is required to be considered by the BDA is the

present location of the institution of the applicant,

benefit likely to accrue to the general public of the

locality, as also the need of civic amenity site by the

institution for providing civic amenity in question. In

the present case as observed above, there is no

dispute that the petitioner is running a school with

about 850 students in the adjoining property. The

petitioner has applied for and requested for allotment

of adjoining site since the same has already been put

to use as a playground and that the said property

would be required for the school and the students. It

was but required for the BDA while passing the

resolution and taking decision on the applications

received by adverting to all the parameters which

have been enumerated under Rule 7 of the Rules.

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26. The BDA also ought to have adverted to the

requirement of all the applicants and not only the

successful applicant in whose favour the BDA has

granted the site. A perusal of the resolution

aforementioned indicates that insofar as plot No.36-

A/P1 there were 16 applications received and insofar

as plot No.36-A/P2 there were 20 applications

received. A perusal of the resolution does not indicate

even the name of those applicants nor the purpose for

which the applications have been filed by them, let

alone the consideration of the parameters which have

been fixed under Rule 7 of the Rules of 1989. In this

background though Sri.Gurudas S.Kannur, learned

Senior counsel has submitted that all the aspects have

been considered and the discretionary power of BDA

is exercised in a proper manner, I am unable to accept

the submission since exfacie none of the requirements

of Rule 7 has been considered. The discretionary

power vested with the BDA is also required to be

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exercised in a proper and required manner and the

said discretion is not absolute. The BDA being a

statutory authority is required to discharge its

functions within the parameters fixed by the statute

and the Rules. The comparative analysis of all

applications is required to be made in terms of Rule 7

to arrive at who best deserves to be allotted with the

said Civic Amenity site. Such an analysis would

establish the application of mind as also the

transparency in the process. Instead of doing so, it

appears that the BDA has chosen who is to be allotted

with the Civic Amenity site and considered the

application filed, which is not permissible.

27. A perusal of the resolution dated 22.10.2013 at item

Nos.7 and 8 would indicate that the Committee having

taken into consideration that there was earlier

allotment which was set-aside by the Court has gone

ahead and allotted the plots to respondents No.2 and

3 except to state that this was in pursuance of a

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notification issued under Rule 3 and not the allotment

made outside the purview of the Rules.

28. The manner in which the resolutions have been passed

and the manner in which consideration has been given

clearly indicates that it was a pre-decided decision and

only an empty formality of issuing a notification under

Rule 3 has been complied with by the BDA before re-

allotment of civic amenity plots to respondents No.2

and 3.

29. The contention of Sri.P.N.Manmohan, learned counsel

for respondent No.2 that the notification was issued

for the purpose of establishing Social Welfare Centre

insofar as plot No.36/A-B1 and Technical Training

Centre insofar as plot No.36-A/B2, therefore, he

contends that the very purpose for which the

notification was issued not being one which the school

can make use of, no such allotment could be sought

for by the petitioner.

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30. It is due to the said submission that this Court is

constrained to observe the manner in which

respondent No.1-BDA has acted, inasmuch as this

Court had directed the BDA to issue a notification and

permitted the petitioner to participate in the same.

The allotment made in favour of respondent No.2 on

earlier occasion was for a Social Welfare Centre and

the allotment which had been made in favour of

respondent No.3 was for a Technical Training Centre

and it is glaringly apparent from the notification that

it is only to satisfy the requirement of respondents

No.2 and 3 that the purpose of inviting application has

been shown as a Social Welfare Centre and Technical

Training Centre. This in my considered opinion

appears only to disqualify the petitioner which is

impermissible. That being so the allottees cannot take

advantage of the action of BDA, since it is ex-facie

apparent that the notifications have been issued with

the relevant classification only on their behalf.

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31. The last contention which has been advanced by

Sri.P.N.Manmohan, learned counsel for respondent

No.2 is that a writ of certiorari being a discretionary

remedy, this Court could refuse to extend the benefit

of discretionary relief even though the decision may

be erroneous since grant of a certiorari would come in

the way of substantial injustice being done. This

submission is made by referring to para No.43 in the

Judgment of Chandra Singh's case extracted supra.

32. A perusal of the said para 43 indicates that the

observation made by the Hon'ble Apex Court was

made while considering the fact that if the writ petition

were to be allowed and illegal order quashed, the

same would revive another illegal order. In the

present case, I am of the considered opinion that

quashing of the order sought for in the present petition

would not revive any illegal order but only come to the

rescue of the petitioner who has been made to suffer

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from illegal resolution passed which is contrary to and

violative of Rule 7 of the Rules 1989. In my considered

opinion the impugned order suffers from various legal

infirmities which have been detailed hereinabove.

33. In view thereof, I pass the following:

ORDER

i. The writ petition stands allowed;

ii. The allotment dated 6.12.2013 at Annexure-T

insofar as plot No. 36/A (P2) in favour of

respondent No.3 and allotment dated 9.01.2014

at Annexure-V insofar as plot No. 36/A(P1) in

favour of respondent No.2 is quashed;

iii. The matter is remitted to respondent No.1-BDA

to strictly consider all the applications received

in accordance with the Rules which would include

Rule 7 amongst other Rules by ascertaining the

merits and demerits of all the applicants,

performing a comparative analysis thereof to

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ascertain the needs of the applicants and who

best deserves the allotment within a period of

three months from the date of receipt of copy of

this order.

iv. In the event of the plot being allotted to the

Petitioner, the BDA shall endeavor to allot a

similarly situate plot to Respondents 2 and 3

within a period of 3 months thereafter.

Sd/-

JUDGE

Prs*/ln