Karnataka High Court
Bangalore Development Authority vs Sri B L Ramakrishna on 23 September, 2022
Bench: B.Veerappa, M G Uma
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE M.G.UMA
WRIT APPEAL No.49/2022
CONNECTED WITH
WRIT APPEAL Nos. 518/2016, 111/2020, 618/2021, 874/2021,
899/2021, 924/2021, 956/2021, 985/2021, 1015/2021,
1031/2021, 1056/2021, 1057/2021, 1172/2021, 1191/2021
AND 53/2022
In WA No.49/2022
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BANGALORE-560020.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SMT. NIRMALA BAI N.,
S/O LATE V. SATHYANARAYANA RAO,
AGED ABOUT 55 YEARS,
2
R/A No.62, 7TH PHASE,
J.P. NAGAR, PUTTENAHALLI,
BANGALORE-560076.
...RESPONDENT
(BY SRI H.T. VASANTH KUMAR, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER DATED 08.12.2020 PASSED BY THE LEARNED SINGLE
JUDGE IN WP NO.14291/2020 AND TO ALLOW THE WRIT APPEAL.
In W.A.No.518/2016
BETWEEN:
1. BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE 560 020.
REPRESENTED BY ITS COMMISSIONER,
2. THE DEPUTY SECRETARY-II,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE 560 020.
(APPELLANTS 1 & 2 BOTH ARE
REPRESENTED BY THE SECOND APPELLANT)
...APPELLANTS
(BY SRI K. KRISHNA, ADVOCATE)
AND:
SRI B. L .RAMAKRISHNA,
S/O LATE LINGAIAH,
AGED ABOUT 61 YEARS,
3
R/AT NO.1113/R,
1ST 'G' MAIN ROAD,
BANGALORE 560 085
...RESPONDENT
(BY SRI B.V. SHANKARANARAYANA RAO, SENIOR COUNSEL FOR
SRI T.A. CHANDRASHEKAR, ADVOCATE)
****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 25/11/2015 PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.8371/2015 BY ALLOWING THE WRIT APPEAL IN
THE INTEREST OF JUSTICE AND EQUITY.
In W.A.No.111/2020
BETWEEN:
THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY,
SANKEY ROAD, CHOWDAIAH ROAD,
KUMARA KRUPA WEST,
BANGALORE-560020.
...APPELLANT
(BY SRI MURUGESH V. CHARATI, ADVOCATE)
AND:
SRI POOJIGAPPA,
S/O POOJA HANUMAIAH,
75 YEARS,
RESIDING AT GANIGARAHALLI,
CHIKKABANAVARA,
BENGALURU-560090.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI SUNDARESH H.C., ADVOCATE)
4
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET-ASIDE THE ORDER
DATED 07/02/2019 PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.2000/2017 AND TO ALLOW THE WRIT APPEAL.
In W.A.No.618/2021
BETWEEN:
THE BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
T. CHOWDAIAH ROAD,
BANGALORE-560020,
REPRESENTED BY ITS COMMISSIONER.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SMT. H. VIMALA BAI,
C/O H. BABU,
AGED ABOUT 67 YEARS,
K. H. B. COLONY, KAKS TOWN,
JALAHALLI, BANGALORE-560005.
...RESPONDENT
(BY SRI H.T. VASANTH KUMAR, ADVOCATE)
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 23/12/2020 PASSED IN WRIT PETITION NO.15452/2020 BY
THE LEARNED SINGLE JUDGE AND TO ALLOW THIS WRIT APPEAL.
In W.A.No.874/2021
BETWEEN:
1. THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
5
KUMARA PARK WEST,
T. CHOWDAIAH ROAD,
BANGALORE 560 020,
REP. BY ITS COMMISSIONER.
2. THE DEPUTY SECRETARY-II,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BANGALORE 560 020.
...APPELLANTS
(BY SRI B. VACHAN, ADVOCATE)
AND:
SMT. S. THARA,
S/O KRISHNAMURTHY,
AGED ABOUT 69 YEARS,
R/AT NO.297, 7TH MAIN,
NAGENDRA BLOCK,
BANASHANKARI III STAGE,
BENGALURU 560 050.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI SUNDARESH H.C., ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 26.11.2020 PASSED IN WRIT PETITION NO.51458/2017 BY
THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT APPEAL.
In W.A.No.899/2021
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
6
T.CHOWDAIAH ROAD,
BANGALORE-560 020.
...APPELLANT
(BY SRI MURUGESH V. CHARATI, ADVOCATE)
AND:
SRI K. G. RAMAKRISHNA,
S/O K.N.GOVINDAIAH,
AGED ABOUT 53 YEARS,
R/AT NO.17/1, 5TH MAIN,
K.G.NAGAR,
BENGALURU-560 019.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI SUNDARESH H.C., ADVOCATE)
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 19.11.2020 PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.40786/2019 (BDA) AND TO ALLOW THE WRIT
APPEAL.
In W.A.No.924/2021
BETWEEN:
THE BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST, T.CHOWDAIAH ROAD,
BANGALORE-560 020.
REP. BY ITS COMMISSIONER,
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
7
AND:
SRI B. N. N. MURTHY,
C/O M. NARAHARI,
AGED ABOUT 79 YEARS,
RESIDING AT NO.720,
1ST MAIN, 7TH BLOCK,
BSK 3RD STAGE,
BENGALURU-560085.
...RESPONDENT
(BY SRI H.T. VASANTH KUMAR, ADVOCATE)
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 08.12.2020 PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.14219/2020 AND TO ALLOW THE WRIT
APPEAL.
In W.A.No.956/2021
BETWEEN:
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
T. CHOWDAIAH ROAD,
BANGALORE 560020,
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI K.G. RAGHAVAN, SENIOR COUNSEL FOR
SRI B. VACHAN, ADVOCATE)
AND:
SMT. SHANTHAMMA C.,
W/O NARAYANAPPA N.,
8
AGED ABOUT 62 YEARS,
R/AT NO 26, RAMAKRISHNA MATTA ROAD,
KEMPEGOWDANAGAR MAIN ROAD,
OPP. CORPORATION WARD OFFICE,
BANGALORE 560019.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI SUNDARESH H.C., ADVOCATE)
****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 06.11.200 PASSED IN WRIT PETITION NO. 22681/2015
PASSED BY THE LEARNED SINGLE JUDGE AND TO ALLOW THE
WRIT APPEAL.
In W.A.No.985/2021
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST, T. CHOWDAIAH ROAD,
BANGALORE-560 020.
REPRESENTED BY ITS COMMISSIONER.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SRI. S. RAMESH KUMAR,
S/O R. SEETHARAM,
AGED ABOUT 57 YEARS,
R/AT NO.F-3, GIDDAPPA BLOCK,
B. S. A. ROAD, PRESSURE TOWN,
BANGALORE-560 005.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI H.C. SUNDARESH, ADVOCATE)
9
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 21.12.2020 PASSED IN THE WRIT PETITION
NO.15169/2020 BY THE LEARNED SINGLE JUDGE AND TO ALLOW
THE WRIT APPEAL.
In W.A.No.1015/2021
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
T. CHOWDAIAH ROAD,
BANGALORE 560 020,
REP BY ITS COMMISSIONER.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SRI MADAIAH,
S/O NANJAIAH,
AGED ABOUT 61 YEARS,
R/AT NO.2253, K. R. S. AGRAHARA ,
NEAR POST OFFICE, KUNIGAL TOWN,
TUMAKURU 572 130.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI H.C. SUNDARESH, ADVOCATE)
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 21.12.2020 PASSED IN THE WRIT PETITION
NO.15232/2020 BY THE LEARNED SINGLE JUDGE BY ALLOWING
THE WRIT APPEAL.
10
In W.A.No.1031/2021
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
T. CHOWDAIAH ROAD,
BENGALURU-560020,
REPRESENTED BY ITS COMMISSIONER,
(DR. MADHU)
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SRI RAJENDRA PATEL,
S/O LATE J. D. PATEL,
AGED ABOUT 54 YEARS,
R/A NO.65/2, N. R. ROAD,
SABHUVANI BUILDING,
BENGALURU-560002.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI H.C. SUNDARESH, ADVOCATE)
****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 21.12.2020 PASSED IN WRIT PETITION NO.15240/2020 BY
THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT APPEAL.
In W.A.No.1056/2021
BETWEEN:
THE COMMISSIONER,
BENGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
11
T.CHOWDAIAH ROAD,
BENGALURU-560020,
REPRESENTED BY ITS COMMISSIONER.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SMT. K. N. SANNAMMA,
W/O K.H. RAMU,
AGED ABOUT 65 YEARS,
R/AT NO.28, 5TH MAIN,
7TH CROSS, SAMPANGIRAMANAGARA,
BANGALORE-560027.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI H.C. SUNDARESH, ADVOCATE)
****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 19.11.2020 PASSED IN WRIT PETITION NO.45165/2019
PASSED BY THE LEARNED SINGLE JUDGE AND TO ALLOW THE
WRIT APPEAL.
In W.A.No.1057/2021
BETWEEN:
THE BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
T CHOWDAIAH ROAD,
BANGALORE - 560 020,
REPRESENTED BY ITS COMMISSIONER,
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
12
AND:
SRI LAKSHMINARASAPPA,
S/O LATE KADARAPPA,
AGED ABOUT 60 YEARS,
NO.114/4, PATEL BUILDING,
PANTHARAPALYA, MYSORE ROAD,
NAYANDAHALLI ROAD,
BENGALURU - 560 039.
...RESPONDENT
(BY SRI D. SHIVASHANKAR, ADVOCATE)
****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 03.11.2020 PASSED IN WRIT PETITION NO.14143/2015 BY
THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT APPEAL.
In W.A.No.1172/2021
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
T. CHOWDAIAH ROAD,
BENGALURU-560 020.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SRI GANGADHAR,
S/O LATE DODDALAKKAIAH,
AGED ABOUT 61 YEARS,
R/AT NO.324, 3RD CROSS,
2ND MAIN ROAD,
ARABIC COLLEGE POST,
13
HEGDE NAGAR,
BANGALORE-560062.
...RESPONDENT
(BY SRI H.T. VASANTH KUMAR, ADVOCATE)
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 21.12.2020 PASSED IN WRIT PETITION NO.15238/2020 BY
THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT APPEAL.
In W.A.No.1191/2021
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE 560020.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SMT. KOKILA G.,
W/O LATE PRABHAKAR,
AGED ABOUT 42 YEARS,
R/AT NO.115, 5TH MAIN,
OKALIPURA,
BANGALORE 560021.
...RESPONDENT
(BY SRI VASANTH KUMAR H. T., ADVOCATE)
*****
14
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 26.11.2020 PASSED IN WRIT PETITION NO.5983/2018 BY
THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT APPEAL.
In W.A.No.53/2022
BETWEEN:
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BANGALORE 560020.
...APPELLANT
(BY SRI B. VACHAN, ADVOCATE)
AND:
SRI MOTAIAH,
S/O KUNDAIAH,
AGED ABOUT 80 YEARS,
R/A No.729/c, 10TH CROSS,
4TH MAIN ROAD, M.C. LAYOUT,
VIJAYANAGAR, BANGALORE-560040.
...RESPONDENT
(BY SRI N. DEVADASS, SENIOR COUNSEL FOR
SRI H.C. SUNDARESH, ADVOCATE)
*****
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
DATED 08.12.2020 PASSED IN WRIT PETITION NO.14303/2020 BY
THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT APPEAL.
THESE MATTERS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:
15
JUDGMENT
These intra court appeals are filed by the Bangalore
Development Authority (for short, hereinafter referred to
'BDA') against the orders passed by the learned Single Judge
of this Court allowing the writ petitions in terms of the
decisions of this Court in the cases of Jayakumar Shetty,
Kempamma, Mohan Kumar and Manjunath R., in similar
circumstances and in identical writ petitions i.e., writ petition
Nos.13568/2015, 19093/2012, 38258/2013 and 5150/2019,
quashing the Cancellation Orders and Endorsements issued by
the BDA on respective dates and granting four weeks' time to
the respective petitioners to pay the entire sital value together
with interest at 21% per annum to the BDA and on making
such payment, the BDA was directed to take necessary steps
to allot the subject site or an alternative site in favour of the
petitioners within a period of three months from the date of
such payment.
I. FACTS OF THE CASE
Writ Appeal No.49/2022 arising out of the order dated 8.12.2020
passed by the learned Single Judge in Writ Petition
No.14291/2020:
2. It is the case of the original petitioner - Smt. Nirmala
Bai N., that her husband late V. Sathyanarayana Rao belonging to
General Catergory, had applied to the BDA for allotment of the site
measuring 30 x 40 sq. ft., and the BDA allotted a site bearing
No.883 in Gnanabharathi Layout Block, Block-2 (Nagadevanahalli),
Bangalore vide allotment letter dated 26.12.2000. As per the
allotment letter, the total cost of the site was Rs.1,77,250/- and
after deducting the initial payment of Rs.22,200/-, remaining
balance amount of Rs.1,55,350/- was required to be deposited
within the time stipulated, but due to financial difficulty, her
husband could not deposit the said amount within time. Thereby,
her husband submitted a representation to the BDA requesting to
grant some more time to deposit the balance sital value. However,
the BDA without issuing any notice and without giving an
opportunity to pay either by her or her husband, issued a
Cancellation Order dated 30.9.2004 for non-payment of amount
within the time stipulated which was contrary to the BDA Allotment
Rules. Thereafter, the petitioner-her husband approached the BDA
with a request to cancel the cancellation order as the aforesaid
balance amount was deposited by him and to execute the Sale
Deed in respect of the site allotted, in view of the Circulars issued
by the BDA in the year 2007 and 2010, to accept the balance sital
value with 21% interest from the allottees of the small sites
measuring 20 x 30 feet and 30 x 40 feet, who have not deposited
the sital value within time stipulated as per Annexures-D and E to
the writ petition and to execute the Sale Deed. Thereafter, the
matter was placed before the Commissioner of BDA for taking
necessary decision and the Law Officer of the BDA had opined to
accept the sital value with 21% interest in respect of the site
allotted. Inspite of the repeated representations made, the BDA
has not considered the same. In view of the fact that with regard
to similarly placed persons, who had approached the Court by filing
writ petitions, this Court had granted relief as sought for, the
petitioner also filed writ petition seeking quashing of the
Cancellation Order dated 30.9.2004 and direction to the
respondents-BDA to consider his representation dated 16.3.2016
and 20.1.2020 and accept the balance sital value with 21% interest
per annum from the date of allotment in terms of the Circulars
issued by the BDA and the order passed by this Court.
3. The learned Single Judge, after hearing both the
parties, by the order dated 8th December, 2020 allowed the writ
petition and quashed the Cancellation Order and the endorsement
in view of the earlier orders passed by this Court; granted four
weeks' time to the petitioner to pay the balance sital value together
with 21% interest per annum to the BDA and on such payment, the
BDA was directed to take necessary steps to allot the subject site or
an alternative site in favour of the petitioner within a period of
three months from the date of such payment. Hence, the present
writ appeal is filed by the BDA.
Writ Appeal No.518/2016 arising out of the order dated
25.11.2015 passed by the learned Single Judge in Writ Petition
No.8371/2015
4. It is the case of the original petitioner - B.L.
Ramakrishna before the learned Single Judge that he is a registered
applicant for allotment of site in the BDA vide Registration No.2406
dated 9.10.1984. He had made more than 7 attempts for
allotment of site measuring 40 x 60 sq. ft., since the year 1987 till
2000 and ultimately on 7.7.2001, the BDA issued an allotment
letter allotting a site bearing No.63, Block-V, Anjanapura,
measuring 12 x 18 meters. Thereafter, he approached the BDA
seeking extension of time for payment of balance sital value and
accordingly, the BDA granted time till 14.10.2001 by issuing an
Endorsement, dated 20.8.2001. At the time of allotment, the
petitioner was residing at No.759, 5th 'A' Cross, 2nd Block,
Banashankari 1st Stage, Bangalore-560050. Therefore, he
submitted a letter dated 25.10.2002 intimating the BDA about the
change of his address and requested for further extension of time
for payment of the balance sital value of Rs.3,01,450/-. On
subsequent enquiries with the BDA, he came to know that BDA had
taken up proceedings for cancellation of the site for non-payment of
the sital value by issuance of show cause notice to the old address
and to that effect, an order dated 23.4.2002 was also passed.
Thereafter, he submitted a representation dated 2.4.2012
requesting to take a lenient view in the matter by bringing notice to
the Authority the bonafide reasons for non-payment of the sital
value due to ill health of his mother and death of his brother. On
continuous request to the BDA for acceptance of sital value and for
retaining the allotment made to him after seven attempts, the same
did not yield. He again made a representation on 5.6.2014
explaining in detail the circumstances in which he could not pay the
sital amount. Since the petitioner, who had waited for 31 years for
allotment and after seven attempts, a site was allotted in his favour
which came to be cancelled for non-payment of the balance sital
value within time, he approached this Court by filing a writ petition
to quash the Cancellation Order dated 23.4.2002 and to issue a writ
of mandamus directing the BDA to accept the balance sital value of
Rs.3,01,450/- along with appropriate interest and execute
Conveyance Deed in his favour contending that the BDA had issued
a Circular dated 18.11.2010 for taking a lenient view regarding
delayed payment.
5. The learned Single Judge after hearing both the parties,
by the order dated 15th November, 2015 disposed of the writ
petitions and directed the petitioner to pay the balance sital
consideration with interest at 24% per annum from the date of
allotment till the date of deposit. On payment of such penalty for
the delay in payment of the balance sital value and also keeping in
view the fact that the site in question was available for allotment to
the petitioner, the BDA were directed to execute a Lease-cum-Sale
Agreement in favour of the petitioner without reference to the
Order of Cancellation dated 24.4.2002. Accordingly, three months'
time was granted to the petitioner to deposit the balance sital value
with interest at 24% per annum. It was also held that in case if the
petitioner did not deposit the aforesaid amount in time, the Order
of Cancellation would stand and becomes operational and till such
time, it would remain in abeyance. It was further directed that on
receipt of the said amount within two months from the date of
deposit of the balance sital value with interest, the BDA to execute
Lease-cum-Sale Deed in favour of the petitioner without reference
to the Order of Cancellation. Thereby the present writ appeal is
filed by the BDA.
Writ Appeal No.111/2020 arising out of the order dated 7.2.2019
passed by the learned Single Judge in Writ Petition No.2000/2017
6. The original petitioner belonging to scheduled caste had
applied for allotment of site measuring 20 x 30 sq. ft. and
accordingly, on 12.4.2000, the BDA allotted a site bearing No.126,
measuring 20 x 30 situated at Gnanabharathi Layout, Valagerehalli,
Block-I in his favour. As per the rules, he had to deposit the sital
value within three years from the date of communication of
allotment letter. Due to ill-health and financial difficulty, he could
not deposit the amount in time. After mobilizing the amount, on
16.10.2003, he had deposited the entire site value of Rs.33,490/-
through D.D. and requested the BDA to accept the same and
execute the Sale Deed in respect of the site allotted. The BDA
having received the entire sital value from him, has issued the
cancellation order to cancel the site allotted on the ground of non-
payment of sital value within the time stipulated on 13.10.2004.
Thereafter on 18.11.2015, the BDA issued a Circular to accept the
balance sital value from the allottees, who have not deposited the
amount in time by accepting 21% interest per annum. Accordingly,
on 30.12.2010, the petitioner made representation to the BDA to
accept the sital value with interest at 21% per annum and execute
the Sale Deed for the site allotted. The said representation was not
considered. Thereby, the petitioner filed Writ Petition
No.2672/2015 before this Court and this Court, allowed the writ
petition on 18.12.2015 and directed the BDA to consider the
representation of the petitioner, without being influenced by the
cancellation order, within a period of four months from the date of
the order. Since the case of the petitioner was not considered by
the BDA, he filed a contempt petition i.e., CCC No. 694/2016. In
the said contempt petition, the BDA issued an endorsement stating
that the request of the petitioner's is rejected on the ground that he
had not deposited the sital value on or before 31.12.2010 as per
the Circular dated 18.11.2015 issued by the BDA. He further
contended that in identical cases and in similar circumstances, this
Court had directed the BDA to consider and accept the entire sital
value with 21% interest per annum and execute the Sale Deed in
favour of the allottees. Therefore, the petitioner made one more
representation but the same was not considered. Thereby, he filed
a writ petition to quash the Cancellation Order dated 30.10.2004
and the Endorsement dated 22.10.2016 and issue a writ of
mandamus directing the BDA to consider his representations dated
10.12.2010, 6.8.2012 and 2.4.2014 to accept the balance sital
value with 21% interest per annum and to execute the Sale Deed in
terms of the Circular issued by the BDA.
7. After hearing both parties, the learned Single Judge by
the impugned order dated 7th February, 2019 disposed of the writ
petition on the statement made by the BDA that a particular site
has already been allotted which the petitioner has to see, so that,
further steps would be taken for allotment of the same, subject to
legally admissible terms. Based on the said statement and
recording the statement made by the BDA, two months time was
granted for allotment of site and registration of conveyance.
Aggrieved by the said order, the BDA filed Review Petition
No.303/2019 which came to be dismissed on 24th October, 2019.
Hence, the present writ appeal is filed by the BDA.
Writ Appeal No.618/2021 arising out of the order dated
23.12.2020 passed by the learned Single Judge of this Court in
Writ Petition No. 15452/2020
8. It is the case of the original petitioner - Smt. H.
Vimalabai that she belongs to Scheduled Caste and her husband Sri
M.K. Omprakash had filed an application for allotment of site
measuring 15 x 24 sq. mts., on 19.10.2001. Considering his
application, the husband of the petitioner was allotted site bearing
No 182, situated at 7th Block, Banashankari, 6th Stage, Bengaluru
and allotment letter was issued on 13.3.2002. As per the
allotment letter, the total cost of the site was Rs.5,46,300/- and at
the time of filing the application, the petitioner had paid the initial
deposit of Rs.28,600/-. After receiving the allotment letter,
petitioner's husband paid a sum of Rs.30,000/- on 19.5.2002, a
copy of the remittance challenged is produced as per Annexure-D to
the writ petition. Due to his ill health, he could not pay the balance
sale consideration within the stipulated period. Thereafter, BDA
issued a show cause notice calling upon him to pay the balance sale
consideration, to which he filed an application seeking extension of
time to pay the balance sale consideration. Without considering his
application, the BDA issued Cancellation Order on 15.11.2002,
cancelling the allotment and her husband died on 14.4.2003 as per
the death certificate Annexure-F to the writ petition. Thereafter,
the petitioner made representation for transfer of the above said
allotted site in her favour and permit her to pay the remaining
balance sale consideration. Without considering the said
representation, BDA issued an endorsement dated 25.4.2019
stating that already Cancellation Order has been issued for non-
payment of sital value and hence there is no ground to consider her
request again. She further stated that in similar circumstances one
Sri Puttu Rao was allotted a site bearing No.219 measuring 15 x 24
sq. mts., at Arkavathi, 5th Block. He died due to his ill health after
allotment was made and due to financial difficulties, he could not
pay the balance sale consideration. As such, his wife Smt. P.
Nirmala filed an application for transfer of the above allotted site in
her favour and she was permitted to pay the balance sale
consideration and the said site was allotted in her favour. A copy of
the office proceedings, possession certificate and Lease-cum-Sale
Agreement executed in her favour were produced as Annexures-J, K
and L respectively to the writ petition.
9. The petitioner further submitted that even after
receiving an endorsement, she also made one more representation
on 8.9.2019 requesting the BDA to revoke the Cancellation Order
and permit her to pay the balance sale consideration with interest
at the rate of 21% per annum for the belated period as she could
not pay the balance sale consideration within the stipulated period
as her husband had died before paying the entire sital value. Since
BDA did not take any action, she approached this Court by filing
writ petition to quash the endorsement dated 25.4.2019 and the
Cancellation Order dated 15.11.2002 and writ of mandamus
directing the BDA to consider her representation dated 8.3.2019.
10. The learned Single Judge after hearing both the parties,
by the order dated 23rd December, 2020 relying upon the order
passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R. , allowed the
writ petition and quashed the Cancellation Order and the
endorsement; granted four weeks' time to the petitioner to pay
balance sital value together with interest 21% per annum to the
BDA and upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.874/2021 arising out of the order dated
26.11.2020 passed by the learned Single Judge of this Court in
Writ Petition No. 51458/2017
11. It is the case of the original petitioner - Smt. S. Thara
that BDA allotted a site measuring 20 x 30 sq. ft., in her favour
under the category of Economically Weaker Section. As the
allotment letter was not communicated to her, she could not
deposit the amount within the time stipulated. The BDA without
communicating the allotment letter, issued cancellation order
within three years from the date of allotment which is contrary to
the BDA Allotment of Site Rules, 1984 and the said cancellation
order was passed by the respondent without issuing show cause
notice and without giving an opportunity for the petitioner to
deposit the amount.
12. It was further contended that the BDA had taken a
decision in Subject No.213/2004 providing an opportunity for the
allottees, who have not received the allotment letter for payment of
sital value. On the basis of the said decision, she gave
representations on 19.4.2017 and 22.5.2017. Since BDA did not
take any action, she approached this Court by filing writ petition to
quash the endorsement dated 18.12.2014 and the Cancellation
Order dated 16.5.2000 and issue a writ of mandamus directing the
BDA to consider her representations dated 19.4.2017 and
22.5.2017.
13. The learned Single Judge after hearing both the parties,
by the order dated 26th November, 2020 relying upon the order
passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R. , allowed the
writ petition and quashed the Cancellation Order dated 16.5.2000
and the Endorsement dated 18.12.2014 issued by the BDA; granted
four weeks' time to the petitioner to pay balance sital value
together with 21% interest per annum to the BDA and upon such
balance payment, the BDA was directed to take necessary steps to
allot the subject site or an alternative site in favour of the petitioner
within a period of three months from the date of such payment.
Hence, the present writ appeal is filed by the BDA.
Writ Appeal No.899/2021 arising out of the order dated
19.11.2020 passed by the learned Single Judge of this Court in
Writ Petition No. 40786/2019
14. It is the case of the original petitioner that she filed an
application for allotment of a site measuring 30 x 40 sq. ft. under
General Category. After number of attempts, the BDA allotted the
site bearing No.64, measuring 30 x 40 sq. ft., situated at Block-8,
Banashankari 6th Stage as per the allotment letter dated 13.3.2002
issued by the BDA for the total value of Rs.1,71,700/-. After
deducting the initial deposit amount of Rs.21,500/-, the petitioner
was required to pay the balance sital value of Rs.1,50,500/- within
the stipulated time. After allotment of the site, the petitioner
incurred huge medical expenses towards his mother as she was
suffering from cancer. After prolonged illness, she died on
10.6.2002. Hence, he could not deposit the balance sital value
within the stipulated time. Annexures-B and C are the discharge
summary and death certificate produced in the writ petition. After
his mother's death, the petitioner gave a representation before the
BDA stating that due to his mother's death, he could not deposit
the balance sital value within time stipulated and was ready to
deposit the balance sital value and to accept the same by executing
the Sale Deed in respect of the site allotted. The respondent
without issuing any notice to him, by its order dated 23.4.2003
cancelled the allotment of site in his favour for non-payment of
balance sital value in time. After mobilizing the amount, the
petitioner deposited the entire sital value of Rs.1,50,500/- through
Demand Draft bearing No.338353 dated 20.1.2004 drawn on Indian
Overseas Bank, J.P.Nagar Branch, Bengaluru, in favour of the BDA.
Along with the demand draft, the petitioner also addressed a letter
dated 20.1.2004 requesting the BDA to accept the same and to
execute the Sale Deed in respect of the site allotted and along with
that, he had also furnished a copy of the discharge summary and
death certificate of his mother. Having accepted the D.D., the BDA
failed to execute the Sale Deed of the site in his favour. As such,
he filed one more representation dated 4.1.2007 requesting to
accept the balance site value and to execute the Sale Deed in
respect of the site allotted.
15. It was submitted by the petitioner that in the year 2007
and 2010, the BDA had issued Circulars dated 18.10.2007 and
18.11.2010 stating the allottess of small site measuring 20 x 30
and 30 x 40 who have not deposited the balance sital value within
the time stipulated, have been extended an opportunity for
payment of balance sital value with 21% interest per annum.
Based on the said Circulars, the petitioner made one more
representation with a request to accept the balance sital value with
21% interest per annum and to execute the Sale Deed in respect of
the site allotted, but the same was not considered. He further
stated that in similar circumstances, the BDA had accepted the
balance sital value with 21% interest per annum from the allottees,
who had not deposited the balance sale value in time. Since BDA
did not take any action, he approached this Court by filing writ
petition to quash the Cancellation Order dated 23.4.2003 and writ
of mandamus directing the BDA to consider his representations.
16. The learned Single Judge after hearing both the parties,
by the order dated 19th November, 2020 relying upon the order
passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R. , allowed the
writ petition and quashed the Cancellation Order dated 23.4.2003
and directed the BDA to consider and pass appropriate orders and
execute necessary documents pursuant to the representations
made by the petitioner in accordance with law in the light of the
observations made in the order within a period of three months
from the date of receipt of a copy of that order. Hence, the present
writ appeal is filed by the BDA.
Writ Appeal No. 924/2021 arising out of the order dated
8.12.2020 passed by the learned Single Judge of this Court in Writ
Petition No. 14219/2020
17. The petitioner filed an application for allotment of site
measuring 30 x 40 sq. ft., to the BDA and had been filing
applications from 1982 to 1987 and after having completed 8
attempts, the BDA allotted a site bearing No.1275 situated at
Nagarabhavi, 2nd Stage, 9th Block, Bengaluru measuring 30 x 40 sq.
ft., by issuing an allotment letter dated 15.3.1990. After receiving
the allotment letter, when the petitioner went to the spot to verify
the allotted site, he came to know that the above allotted site was
not suitable to construct house as it was in ditch and was adjacent
to gutter. The dimension of the site is less than 30 x 40 feet.
Hence, he made representation to the BDA to verify the above
allotted site. The Assistant Executive Engineer conducted the
survey and submitted a report stating that the sites bearing
Nos.1274-1275 and 1276 are situated in low lying area and were
not suitable to construct house and for residence. The dimensions
of those sites were less than 30 x 40 sq. ft. and therefore, those
sites could be converted into 20 x 30 sq. ft. and a copy of the
report issued by the Assistant Executive Engineer was produced as
Annexure-C. Due to the abovesaid reasons, the petitioner could not
pay the balance amount within the stipulated period. This fact was
brought to the notice of the BDA by the petitioner requesting to
allot alternative site. No action was taken by the authorities.
Hence, he paid the entire sital value of Rs.21,825/- on 3.2.1995
under protest. After receiving the entire sital value, the BDA issued
Cancellation Order on 29.11.1996 for termination of the above
allotted site on the ground that he had not paid the sital amount
within a stipulated period, but has paid after the lapse of six years.
Therefore, he made representation on 22.2.2003 stating that he
had been regularly submitting applications as and when called for
and on repeated visits, he was told that the above site has been
allotted to two persons and he has to wait for some time to know
the actual allotment. He was asked to remit the sital amount and
accordingly, he remitted Rs.21,085/- through Demand Draft
No.25744 on 3.2.1995 and requested to look into the matter at the
earliest by the representation dated 22.2.2003. Since the BDA has
not taken any action, he made one more representation on
28.4.2003. It was the contention of the petitioner that since he is
aged about 80 years and still he does not have any site or house in
Bengaluru, he requested the BDA to allot an alternative site
considering his age and attempts made by him. He had also agreed
to pay interest at the rate of 21% on the sital value for the belated
period. It was the contention of the petitioner that there is a delay
in filing the writ petition as he is a Government employee and was
being transferred from one place to another, he could not file the
writ petition in time. In the writ petition he sought to quash the
cancellation order dated 29.11.1996 and for a writ of mandamus
directing the BDA to consider his representation dated 28.4.2003
and allot an alternative site by issuing allotment letter and to
execute the absolute Sale Deed by receiving the interest at 21% for
the belated period.
18. The learned Single Judge after hearing both the parties,
by the impugned order dated 8th December, 2020 relying upon the
order passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R., allowed the
writ petition and quashed the Cancellation Order dated 29.11.1996
and the endorsement dated 30.6.2003; granted four weeks' time to
the petitioner to pay balance sital value together with interest 21%
per annum to the BDA and upon such balance payment, the BDA
was directed to take necessary steps to allot the subject site or an
alternative site in favour of the petitioner within a period of three
months from the date of such payment. Hence, the present writ
appeal is filed by the BDA.
Writ Appeal No.956/2021 arising out of the order dated
6.11.2020 passed by the learned Single Judge of this Court in Writ
Petition No. 22681/2015
19. It is the case of the original petitioner that she filed an
application for allotment of a site measuring 30 x 40 ft. under
Backward Community. Considering her application, the BDA
allotted the site bearing No.330 measuring 30 x 40 sq. ft. at
Banashankari Layout, 6th Stage, 9th Block, Bangalore after six
attempts and issued an allotment letter dated 13.3.2002 specifying
that the balance amount is required to be paid within three years
from the date of receipt of allotment letter. After receiving
allotment letter, when the petitioner went to the spot to verify the
site, she came to know that it was not suitable for residence as
there was a stream. Hence, she immediately gave a representation
to the BDA on 26.4.2002 requesting for allotment of alternative
site. Instead of taking action on the representation made by the
petitioner, the BDA straightaway issued show cause notice on
22.8.2002 as to why allotment of site should not be cancelled on
the ground that she had not paid the balance amount within the
stipulated period. In turn, the petitioner gave a reply to the said
show cause notice stating that without considering objection and
without giving an opportunity of being heard, allotment of site
cannot be cancelled as the same is in violation of Articles 14 and 21
of the Constitution of India. It was further contended that in
identical circumstances with respect to similarly placed persons, this
Court had allowed the writ petition Nos.13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, Writ Petition
No.22681/2015 was filed seeking to quash the Cancellation Order
dated 29.1.2003 and a writ of mandamus directing the BDA to
consider his representation dated 25.4.2013 and allot an alternative
site by issuing allotment letter.
20. The learned Single Judge after hearing both the parties,
by the impugned order dated 6th November, 2020 relying upon the
order passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R., allowed the
writ petition and quashed the Cancellation Order dated 29.1.2003;
granted four weeks' time to the petitioner to pay balance sital value
together with 21% interest per annum to the BDA and upon such
balance payment, the BDA was directed to take necessary steps to
allot the subject site or an alternative site in favour of the petitioner
within a period of three months from the date of such payment.
Hence, the present writ appeal is filed by the BDA.
Writ Appeal No.985/2021 arising out of the order dated
21.12.2020 passed by the learned Single Judge of this Court in
Writ Petition No. 15169/2020
21. It is the case of the original petitioner that he filed an
application before the Commissioner, BDA for allotment of 20 x 30
site under Scheduled Caste category. Accordingly, the BDA issued
an allotment letter dated: 10-04-2000 allotting the site bearing No.
128, measuring 20 x 30, situated at Gnanabharathi Layout,
Valagerahalli, Block-2, Bangalore under SC category in his favour.
The total cost of the site was Rs.33,600/- and after deducting the
initial deposit amount and clearance charges, he was required to
deposit balance amount of Rs.33,490/ within the stipulated time. As
per the BDA Allotment of Site Rules, 1984, if an allottee belongs to
SC/ST category, he has to deposit balance sital value within 3 years
from the date of communication of the allotment letter. The
petitioner could not deposit the balance sital value within 3 years,
due to financial difficulty and medical expenses incurred as his
mother was suffering from ill-health. After mobilizing the amount,
he deposited the entire balance sital value of Rs.33,490/- through
Demand Draft No. 134427, dated 18-10-2003 drawn in favour of
the BDA along with the representation requesting to accept the
same and to execute the Sale Deed in respect of the site allotted.
Since the respondent failed to consider his two representations for
allotment of site, the petitioner once again made a representation
dated 12-10-2004. But the BDA after receiving the demand draft
filed by him, by the order dated 12.10.2004 cancelled the site
allotted in his favour for non payment of amount in time, without
giving notice and without hearing him and as such, the same is
contrary to the BDA rules.
22. It is the further case of the petitioner that, in the year
2007 and 2010, the BDA had issued a circular to accept the balance
sital value with 21% interest from the allottees, who have been
allotted a small site measuring 20 x 30 Sq. ft. and 30 x 40 sq. ft.
and have not deposited the sital value within the stipulated time.
But in terms of the Circulars, dated: 18-10-2007 and 18-11-2010
issued by the BDA, the petitioner gave a representation dated: 13-
09.2017 with a request to accept the balance sital value with 21%
interest and to execute the Sale Deed in respect of the site allotted
or in alternative, if the site is not available, to allot an alternative
site in his favour which was not considered by the BDA.
23. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed the writ petition Nos.13568/2015, 19093/2012, 38258/
2013 and 5150/2019. Therefore, Writ Petition No.15169/2020 was
filed seeking to quash the Cancellation Order dated 12.10.2004 and
a writ of mandamus directing the BDA to consider his
representations dated 12.10.2004 and 13.9.2017 to accept the
balance sital value with 21% interest from the date of allotment as
per the Circulars, dated 18.10.2007 and 18.11.2010 issued by the
BDA and allot an alternative site by issuing allotment letter.
24. The learned Single Judge after hearing both the parties,
by the impugned order dated 21st December, 2020 relying upon
the order passed in similar circumstances in the case of Sri
Jayakumar Shetty, Kempamma, Mohan Kumar and Manjunath R.,
allowed the writ petition and quashed the Cancellation Order dated
12.10.2004; granted four weeks' time to the petitioner to pay
balance sital value together with interest 21% per annum to the
BDA and upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.1015/2021 arising out of the order dated
21.12.2020 passed by the learned Single Judge of this Court in
Writ Petition No. 15232/2020
25. It is the case of the original petitioner that he filed an
application for allotment of a site measuring 9 x 12 sq. mts. under
Backward Tribe Category-1. Taking into consideration his
application and five attempts made him, the BDA allotted a site
bearing No. 433, measuring 9 x 12 sq. mtrs., situated at J.P. Nagar,
9th Phase, Bangalore in his favour and issued an allotment letter in
his favour. The total cost of the site was Rs.1,77,250/- and after
deducting the initial deposit amount and clearance charge, he was
required to deposit balance amount of Rs. 1,68,600/- within the
stipulated time.
26. It is the further case of the petitioner that due to
financial difficulty and ill health, he could not deposit the balance
sital value. As such, he made a representation with a request to
grant some more time for depositing the amount. However, the
respondent without issuing notice and without hearing him passed a
Cancellation Order, dated 8-10-2004 cancelling the site allotted in
his favour for non-payment of amount in time which is contrary to
BDA Allotment Site Rules, 1984. After cancellation, the petitioner
repeatedly approached the respondent with a request to reconsider
the cancellation order and to accept the amount deposited by him
and to execute Sale Deed in respect of the site allotted. It is further
submitted that, in the year 2007 and 2010 the BDA issued a
Circulars, dated 18-10-2007 and 18-11-2010 to accept the balance
sital value with 21% interest from the allottees, who have been
allotted a small site measuring 20 x 30 feet and 30 x 40 feet and
have not deposited the sital value within the stipulated time. As
such, he filed a representation with a request to accept the balance
sital value with 21% interest and to execute the Sale Deed in
respect of the site allotted. Thereafter, the matter has been placed
before the Law Officer for legal opinion. The Law Officer opined that
the site allotted in favour of the person belongs to Backward Tribe
and in an identical cases, the authority accepted 21% interest per
annum from the allottees and executed sale deed, the same
principle is also applicable to the allottees in this case also and
hence, the request of the petitioner can be considered for allotment
of site by accepting 21% interest. In the circumstances, he once
again made representations, dated 28-02 2016 and 05-06-2016
with a request to accept the balance sital value with 21% interest
per annum and to execute sale deed in respect of the site allotted.
27. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed the writ petition Nos.13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, he filed Writ Petition
No.15232/2020 seeking to quash the cancellation order dated
8.10.2004 and a writ of mandamus directing the BDA to consider
his representations dated 28.2.2016 and 5.3.2016 to accept the
balance sital value with 21% interest from the date of allotment as
per the Circulars issued by the BDA dated 18.10.2007 and
18.11.2010 and allot an alternative site in case the said site is not
available by issuing allotment letter.
28. The learned Single Judge after hearing both the parties,
by the impugned order dated 21st December, 2020 relying upon
the order passed in similar circumstances in the case of Sri
Jayakumar Shetty, Kempamma, Mohan Kumar and Manjunath R.,
allowed the writ petition and quashed the Cancellation Order dated
8.10.2004; granted four weeks' time to the petitioner to pay
balance sital value together with 21% interest per annum to the
BDA and upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.1031/2021 arising out of the order dated
21.12.2020 passed by the learned Single Judge in Writ Petition
No.15240/2020
29. It is the case of the petitioner that he filed an
application before the BDA for allotment of 30 x 40 sq. ft. site under
General Category. Taking into consideration of number of attempts
made by him, the BDA allotted the site bearing No.1607/45
measuring 30 x 40 sq.ft., situated at 5th Block, Sir M.V. Layout, as
per allotment letter, dated 16-04-2003. The total cost of the site
was Rs.1,71,700/- and after deducting the initial amount of
Rs.21,500/- deposited by him, the balance amount of Rs.1,50,500/-
was required to be deposited within the stipulated time. After
receiving the allotment letter, he deposited Rs.50,000/- being the
part of the sital value through Demand Draft dated 29-11-2003,
drawn on Indian Bank, Basavanagudi Branch, and due to ill health
and financial difficulty he could not deposit the balance sital value
within the stipulated time. After mobilizing the amount, he
deposited the entire sital value of Rs.1,50,500/- through Demand
Draft dated: 19-05-2004 drawn on Indian Bank, Basavanagudi
Branch, Bengaluru and submitted the same along with a
representation to accept the same and execute the Sale Deed in
respect of the site allotted. After receiving the amount, the BDA
issued the Cancellation Order, dated 25-02-2004 cancelling the site
allotment in his favour for non-payment of sital value in time.
30. It is the further case of the petitioner that in the year
2007 and 2010 the BDA issued a Circulars, dated 18-10-2007 and
18-11-2010 to accept the balance sital value with 21% interest
from the allottees, who have been allotted a small site measuring
20 x 30 feet and 30 x 40 feet and have not deposited the sital value
within the stipulated time. Therefore, he filed a representation
dated 25.10.2007 before the BDA with a request to accept balance
sital value with 21% interest and to execute sale deed in respect of
the site allotted. The said representation has not been considered
by the BDA. Even though he repeatedly approached the BDA with a
request to accept the balance sital value with 21% interest per
annum and to execute sale deed in respect of the site allotted by
considering the Circulars, the said representations dated: 06-08-
2012 and 02-04-2014 have not been considered by the respondent.
31. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed the writ petition Nos.13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, he filed Writ Petition
No.15240/2020 seeking to quash the Cancellation Order dated
25.2.2004 and a writ of mandamus directing the BDA to consider
his representations dated 25.10.2007, 6.8.2012 and 2.4.2014 to
accept the balance sital value with 21% interest from the date of
allotment as per the Circulars dated 18.10.2007 and 18.11.2010
issued by the BDA and allot an alternative site in case the said site
is not available by issuing allotment letter.
32. The learned Single Judge after hearing both the parties,
by the impugned order dated 21st December, 2020 relying upon
the order passed in similar circumstances in the case of Sri
Jayakumar Shetty, Kempamma, Mohan Kumar and Manjunath R.,
allowed the writ petition and quashed the Cancellation Order dated
25.2.2004; granted four weeks' time to the petitioner to pay
balance sital value together with 21% interest per annum to the
BDA and upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.1056/2021 arising out of the order dated
19.11.2020 passed by the learned Single Judge in Writ Petition
No.45165/2019
33. It is the case of the petitioner that she filed an
application before the respondent for allotment of 30 x 40 site
under Schedule Caste Category and had made eight (8) attempts
for allotment of sites. Taking into consideration of number of
attempts made by her, BDA allotted the Site bearing No.500,
measuring 30 x 40 feet, situated at Banashankari, 5th Stage,
Bengaluru and an allotment letter dated 21-2-2000 was issued in
her favour, but the same was not communicated to her. As per the
allotment letter, the total cost of the site was Rs.1,77,250/- and
after deducting the initial amount of Rs.8,862, she was required to
deposit the balance sital value of Rs.1,68,338/- within three years
from the date of communication of the allotment letter. Since the
site allotted in her favour was utilised for formation of the road and
an alternative site was allotted to her in the year 2008, she could
not deposit the balance sital value within stipulated time. The
respondent without considering the fact that the site allotted in her
favour was utilised for formation of road and no alternative site was
allotted in her favour, by the order dated 25.8.2003, cancelled the
site allotted in her favour for non-payment of sital value in time.
34. After mobilizing the amount, the petitioner deposited
the entire sital value of Rs. 1,68,338/- through Demand Draft
bearing No.050518, dated: 27-03-2008, drawn on State Bank of
Mysore, CBAB Complex Branch, Bangalore, in favour of
Commissioner, BDA with a request to accept the same and execute
Sale Deed in respect of the site allotted. The Principle Secretary,
Government of Karnataka Urban Development Department
addressed a letter, dated 02-11 2009 to the BDA, to accord
permission and to accept the balance sital value with interest from
the allottees of the small sites measuring 20 x 30 and 30 x 40, who
have not deposited the entire sital value in time.
35. It is the further case of the petitioner that in the year
2007 and 2010, the BDA issued a Circulars, dated 18-10-2007
and 18-11-2010 to accept the balance sital value with 21%
interest per annum from the allottees, who have been allotted a
small site measuring 20 x 30 feet and 30 x 40 feet and have not
deposited the sital value within the stipulated time. Therefore, she
filed a representation dated 15.12.2009 before the BDA with a
request to accept balance sital value with 21% interest per annum
and to execute Sale Deed in respect of the site allotted. The said
representation has not been considered by the BDA. Even though
she repeatedly approached the BDA with a request to accept the
balance sital value with 21% interest and to execute Sale Deed in
respect of the site allotted by considering the Circulars, the said
representations dated 15.12.2009 and 26.6.2014 were not
considered by the respondent.
36. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed the writ petition Nos.13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, she filed Writ Petition
No.15240/2020 seeking to quash the Cancellation Order dated
25.8.2003 and the endorsement dated 6.3.2010 issued by the BDA
and a writ of mandamus directing the BDA to consider his
representations dated 15.12.2009 and 26.6.2014 by accepting the
balance sital value with 21% interest from the date of allotment as
per the Circulars dated 18.10.2007 and 18.11.2010 issued by the
BDA and allot an alternative site, in case the said site is not
available by issuing allotment letter.
37. The learned Single Judge after hearing both the parties,
by the impugned order dated 21st December, 2020 relying upon
the order passed in similar circumstances in the case of Sri
Jayakumar Shetty, Kempamma, Mohan Kumar and Manjunath R.,
allowed the writ petition and quashed the Cancellation Order dated
25.2.2004; granted four weeks' time to the petitioner to pay
balance sital value together with interest 21% per annum to the
BDA and upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.1057/2021 arising out of the order dated
3.11.2020 passed by the learned Single Judge in Writ Petition
No.14143/2015
38. It is the case of the petitioner that her husband had
applied for allotment of a site measuring 30 x 40 feet under the
Scheduled Caste category to the BDA and the BDA allotted site No.
1094, measuring 30 x 40 sq. feet situated at Banashankari Layout,
6th Stage, 6th Block, Bangalore as per the Allotment Letter dated
13.03.2002. As per the terms of allotment, the total cost of the
allotment was Rs.1,71,700/- out of which, after deducting the initial
deposit amount, the petitioner had to pay balance amount
Rs.1,63,400/- but failed to deposit the balance amount. The BDA
issued Show Cause Notice dated 24.08.2002 as to why the
allotment should not be cancelled as the balance amount had not
been paid. The petitioner gave representations dated 24.08.2002
and 18.11.2002 seeking for extension time to pay the balance
amount. As he failed to pay the balance amount within time, the
allotment was cancelled vide Cancellation Order dated 10.12.2002.
It is further case of the petitioner that the BDA issued a Circulars on
09.03.2007 & 18.11.2010 for receiving balance sital value with
21% Interest per annum. Therefore, he made a representation
dated 09.07.2010 seeking permission to pay the balance amount
and sent a banker's cheque for Rs.50,000/. He further made
representations dated 05.03.2012 requesting to accept the balance
amount with 21% interest per annum of the sital value in the light
of the Circulars issued by the BDA and to execute the Sale Deed.
39. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed writ petition Nos. 13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, he filed Writ Petition
No.14143/2015 seeking to quash the Cancellation Order dated
10.12.2002 issued by the BDA and a writ of mandamus directing
the BDA to consider his representation dated 5.3.2012 and accept
the balance sital value with 21% interest from the date of allotment
as per the Circulars dated 18.10.2007 and 18.11.2010 issued by
the BDA and allot an alternative site in case the said site is not
available by issuing allotment letter.
40. The learned Single Judge after hearing both the parties,
by the impugned order dated 3rd November, 2020 relying upon the
order passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R., allowed the
writ petition and quashed the Cancellation Order dated 10.12.2002
and Endorsement dated 22.9.2003; granted four weeks' time to the
petitioner to pay balance sital value together with interest at 21%
per annum to the BDA and upon such balance payment, the BDA
was directed to take necessary steps to allot the subject site or an
alternative site in favour of the petitioner within a period of three
months from the date of such payment. Hence, the present writ
appeal is filed by the BDA.
Writ Appeal No.1172/2021 arising out of the order dated
21.12.2020 passed the learned Single Judge in Writ Petition
No.15238/2020
41. It is the case of the petitioner that his wife had applied
for allotment of a site measuring 20 x 30 sq.ft., to the BDA under
category of Economically Weaker Section and was allotted site No.
312, Block-4, measuring 20 x 30 in Anjanapura layout, under EWS
Category by the Allotment Letter dated 07.07.2001. As per the
allotment letter, the total cost of the site was Rs. 38,100/- and
after deducting the initial deposit amount of Rs.1,900/- and the
remaining balance required to be deposited was Rs.36,500/-. After
the allotment, the BDA had issued No Objection Certificate in favour
of the petitioner to raise loan from the Nationalised Bank for
mortgaging the site and to meet the cost of the sital value. The
entire sital value had to be paid within a period of 30 days without
interest and a further period of 60 days with interest for delayed
payment. The petitioner had paid only Rs. 1,900/- and failed to
pay the balance sital amount. It is the further case of the petitioner
that due to financial difficulty and ill health of his wife, he could not
deposit the sital value in time as she was suffering from cancer
during the relevant period and had spent huge amount for medical
expenses and she died on 13.2.2003. A copy of the death
certificate of the allottee Smt. Sharadamma R., was also produced
as Annexure-C to the writ petition. After the death of original
allottee, the petitioner being her husband was not able to deposit
the balance sital value in time. After mobilizing the amount, he
deposited the entire sital value through Demand Draft dated
7.10.2004 bearing No.79402 for Rs.36,500/- in favour of the BDA.
Having received the amount, the BDA has issued the Cancellation
Order dated 8.10.2004 cancelling the allotment of site on the
ground that the allottee has not deposited the amount within the
stipulated time, which is contrary as he had not been issued any
notice and without hearing him, the said order is passed against the
dead person. Therefore, he approached the respondent with a
request to reconsider the Cancellation Order and to accept the
amount deposited by him and execute the Sale Deed in respect of
the site allotted. Thereafter, the BDA issued an endorsement dated
2.2.2005 stating that the amount deposited by the petitioner
through demand draft dated 7.10.2004 for Rs.36,500/- has been
returned.
42. It is the further case of the petitioner that in the year
2007 and 2010, the BDA issued Circulars, dated 18-10-2007
and 18-11-2010 to accept the balance sital value with 21% interest
from the allottees, who have been allotted a small site measuring
20 x 30 feet and 30 x 40 sq.ft., and have not deposited the sital
value within the stipulated time. Therefore, he submitted
representations dated 25.2.2011 and 19.12.2018 before the BDA
with a request to accept balance sital value with 21% interest and
to execute Sale Deed in respect of the site allotted. The said
representations have not been considered by the BDA. Even
though he repeatedly approached the BDA with a request to accept
the balance sital value with 21% interest and to execute sale deed
in respect of the site allotted by considering the Circulars, the
representations, dated 25.2.2011 and 19.12.2018 have not been
considered by the BDA.
43. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed the writ petition Nos.13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, he filed Writ Petition
No.15238/2020 seeking to quash the Cancellation Order dated
8.10.2004 and a writ of mandamus directing the BDA to consider
his representations, dated 25.2.2011 and 19.12.2018 to accept
the balance sital value with 21% interest per annum from the date
of allotment as per the Circulars dated 18.10.2007 and 18.11.2010
issued by the BDA and allot an alternative site in case the said site
is not available by issuing allotment letter.
44. The learned Single Judge after hearing both the parties,
by the impugned order dated 21st December, 2020 relying upon
the order passed in similar circumstances in the case of Sri
Jayakumar Shetty, Kempamma, Mohan Kumar and Manjunath R.,
allowed the writ petition and quashed the Cancellation Order dated
8.10.2004; granted four weeks' time to the petitioner to pay
balance sital value together with interest 21% per annum to the
BDA and upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.1191/2021 arising out of the order dated
26.11.2020 passed the learned Single Judge in Writ Petition
No.5983/2018
45. It is the case of the petitioner that her mother had
applied for allotment of a site measuring 20 x 30 sq. ft., to the BDA
under the category of Scheduled Caste and was allotted site No.
264, Gnanabharati Layout, (Valagerahalli Block No.1), Bengaluru
measuring 20x30 ft. by the Allotment Letter dated 12.4.2000. As
per the allotment letter, the total cost of the site was Rs. 33,600/-
and after deducting the initial deposit amount, the remaining
balance required to be deposited was Rs.33,490/-. The entire
sital value had to be paid within a period of 3 years from the date of
communication of allotment letter, but the petitioner was not
communicated with the allotment letter and hence, she could not
deposit the balance sital value. The BDA issued the Cancellation
Order dated 5.7.2008 cancelling the allotment of site on the ground
that the allottee has not deposited the amount within the stipulated
time, which is contrary to the BDA Allotment Rules as the said
allotment letter was sent to the address furnished by the allottee
and the same was returned with a shara that the addressee not
found in the said address. It is the further case of the petitioner
that her mother was suffering from Cancer and after prolonged
illness, she expired on 16.8.2008. After her death, her daughter
filed an application dated 7.9.2011 to reconsider the cancellation
order and to allot the site in her favour stating that the allotment
was not communicated to her mother by the BDA. As such, the
balance sital value was not deposited. She had also stated that she
had no shelter to live and being the only female child of her
mother, she needed the site which was allotted to her mother under
Ambedkar Scheme and was ready to pay the entire sital value with
interest. Since no action was taken by the BDA, she made several
representations dated 9.12.2013, 17.12.2013 and 22.11.2013 to
the BDA and issued legal notice through her Counsel to the BDA not
to re-allot the site in question to any third person, till the disposal
of her application pending before the BDA. She also produced the
Voters ID Card and Aadhar Card to show that she is residing in the
same address which was earlier furnished by her mother while filing
the application for allotment of site. She also filed an application
for transferring of site allotted in favour of her mother along with
Death Certificate of her mother.
46. It is the further case of the petitioner that in the year
2007 and 2010, the BDA issued Circulars, dated 18-10-2007
and 18-11-2010 to accept the balance sital value with 21%
interest per annum from the allottees, who have been allotted a
small site measuring 20 x 30 sq. ft., and 30 x 40 sq. ft., and have
not deposited the sital value within the stipulated time. Therefore,
he submitted representations dated 25.2.2011 and 19.12.2018
before the BDA with a request to accept balance sital value with
21% interest and to execute Sale Deed in respect of the site
allotted, but the said representations were not considered by the
BDA. Even though she repeatedly approached the BDA with a
request to accept the balance sital value with 21% interest and to
execute Sale Deed in respect of the site allotted by considering the
Circulars, her representations were not been considered by the
BDA.
47. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
had allowed the writ petition Nos.13568/2015, 19093/2012,
38258/2013 and 5150/2019. Therefore, he filed Writ Petition
No.15238/2020 seeking to quash the cancellation order dated
5.7.2008 and a writ of mandamus directing the BDA to consider his
representations, dated 7.9.2011, 19.12.2018 and 17.12.2013 to
accept the balance sital value with 21% interest per annum from
the date of allotment as per the Circulars dated 18.10.2007 and
18.11.2010 issued by the BDA and allot an alternative site in case
the said site is not available by issuing allotment letter.
48. The learned Single Judge after hearing both the parties,
by the impugned order dated 26th November, 2020 relying upon
the order passed in similar circumstances in the case of Sri
Jayakumar Shetty, Kempamma, Mohan Kumar and Manjunath R.,
allowed the writ petition and quashed the Cancellation Order dated
5.7.2008; granted four weeks' time to the petitioner to pay balance
sital value together with interest at 21% per annum to the BDA and
upon such balance payment, the BDA was directed to take
necessary steps to allot the subject site or an alternative site in
favour of the petitioner within a period of three months from the
date of such payment. Hence, the present writ appeal is filed by
the BDA.
Writ Appeal No.53/2022 arising out of the order dated 8.12.2020
passed by the learned Single Judge in Writ Petition
No.14303/2020
49. It is the case of the petitioner that he had applied for
allotment of a site measuring 20 x 30 sq.ft., to the BDA under
Scheduled Caste category and was allotted site No.129,
Gnanabharathi Layout, Valagerahalli Block No.2, Bengaluru
measuring 20 x 30 sq.ft. by the Allotment Letter dated 10.4.2000.
As per the allotment letter, the total cost of the site was Rs.
33,600/- and after deducting the initial deposit amount, the
remaining balance required to be deposited was Rs.33,490/-.
The entire sital value had to be paid within a period of 3 years from
the date of communication of allotment letter, but the petitioner
was not communicated with the allotment and hence he could not
deposit the balance sital value. The BDA has issued the Cancellation
Order dated 11.7.2008 cancelling the allotment of site on the
ground that the allottee had not deposited the amount within the
stipulated time, which is contrary as the said allotment letter was
sent to the address furnished by the allottee and the same was
returned with a shara that such person is not residing in the said
address. Thereafter, a paper publication was also published in this
regard, but there was no reply from the allottee and as the allottee
did not contact the BDA, the allotment made in his favour was
cancelled.
50. It is the further case of the petitioner that in the year
2007 and 2010, the BDA issued Circulars, dated 18-10-2007
and 18-11-2010 to accept the balance sital value with 21%
interest from the allottees, who have been allotted a small site
measuring 20 x 30 sq. ft. and 30 x 40 sq.ft., and have not
deposited the sital value within the stipulated time. Therefore, she
made several representation dated 20.12.2010, 18.12.2014 and
19.8.2018 to the BDA with a request to accept balance sital value
with 21% interest and to execute Sale Deed in respect of the site
allotted by considering the Circulars, but her representations were
not considered by the BDA.
51. It is the further case of the petitioner that in identical
circumstances with regard to similarly placed persons, this Court
allowed writ petition Nos.13568/2015, 19093/2012, 38258/2013
and 5150/2019. Therefore, he filed Writ Petition No.14303/2020
seeking to quash the cancellation order dated 11.7.2008 and for a
writ of mandamus directing the BDA to consider his
representations, dated 18.12.2014, 20.12.2010 and 19.8.2018 by
accepting the balance sital value with 21% interest from the date of
allotment as per the Circulars dated 18.10.2007 and 18.11.2010
issued by the BDA and allot an alternative site in case the said site
is not available by issuing allotment letter.
52. The learned Single Judge after hearing both the parties,
by the impugned order dated 8th December, 2020 relying upon the
order passed in similar circumstances in the case of Sri Jayakumar
Shetty, Kempamma, Mohan Kumar and Manjunath R., allowed the
writ petition and quashed the Cancellation Order dated 11.7.2008;
granted four weeks' time to the petitioner to pay balance sital value
together with interest at 21% per annum to the BDA and upon such
balance payment, the BDA was directed to take necessary steps to
allot the subject site or an alternative site in favour of the petitioner
within a period of three months from the date of such payment.
Hence, the present writ appeal is filed by the BDA.
53. We have heard the learned counsel for the parties.
II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE
APPELLANT-BENGALURU DEVELOPMENT AUTHORITY
54. Sri K.G.Raghavan, learned Senior Counsel along with
Sri B.Vachan, learned counsel for the Bengaluru Development
Authority contended that Rule 13 of the Bengaluru Development
Authority (Allotment of Sites) Rules, 1982, does not make any
difference in allotment, on the basis of dimension of sites. He
further contended that the directions of the
Government/proceedings dated 23.07.2007 applies only to sites
with dimensions of 20 ft. x 30 ft. and 30 ft. x 40 ft. In obedience to
the proceedings of the Government, the Bengaluru Development
Authority issued Circulars dated 18.10.2007 and 18.11.2010
providing for payment of balance amount beyond the stipulated
time under Rule 13 stated supra. The relief sought for by the writ
petitioners is against the Circulars dated 18.10.2007 and
18.11.2010 issued by the Bengaluru Development Authority.
Therefore, writ of mandamus sought was not maintainable.
55. Learned Senior Counsel further contended that an
identical issue is pending before the Hon'ble Apex Court. Having
regard to the language of Rule 13, there cannot be any allotment
and allotment if any, is in violation of mandatory Rules. Thereby,
the very impugned Orders passed by the learned single Judge
quashing the cancellation of allotment and permitting the
petitioners to pay the balance sital value with 21% interest within
four weeks and directing the Bengaluru Development Authority to
accept the same and allot the site or alternative site is erroneous
and contrary to the provisions of the Bengaluru Development
Authority(Allotment of Sites) Rules, 1982. Thereby, the impugned
Order cannot be sustained.
56. Learned Senior Counsel further contended that the
Government Circulars lost sanctity in the eye of law, in view of the
provisions of Section 65 of the Bengaluru Development Authority
Act. The Resolutions of the Bengaluru Development Authority
dated 03.09.2007 and 29.04.2010 relied upon by the petitioners
are not applicable to the case of the petitioners. He further
contended that Circular dated 18.10.2007 issued by the Bengaluru
Development Authority applies only to the sites with dimensions 30
ft. x 40 ft and 20 ft. x 30 ft. and resolution is applicable only to
portion of the value of site, apart from the initial deposit made by
the applicants. Admittedly in the present case, all the applicants
have only made initial deposit. They have not paid any portion of
the amount, in time. Therefore, Rule 13 of the Bengaluru
Development Authority(Allotment of Sites) Rules, 1982, is not
applicable as alleged by the applicants.
57. Learned Senior Counsel made reference to Annexure-B
in W.P.No.22681/2015 to contend that the allotment letter dated
13.03.2002 clearly depicts that only initial deposit of `21,500/- was
made and not any portion of value of the property paid. Thereby,
no mandamus can be issued in the absence of any statutorily
enforceable right. Thereby, the learned single Judge is not justified
in issuing a writ of mandamus.
58. Learned Senior Counsel further contended that the
learned single Judges of this Court, while passing the impugned
Orders in different writ petitions have not considered the fact that
there was inordinate delay in approaching the Court.
59. In support of his contentions, with regard to Rule 13 of
the Bengaluru Development Authority (Allotment of Sites) Rules,
1982, learned Senior Counsel relied upon the following dictums of
the Hon'ble Supreme Court.
(i) Maharshi Dayanand University vs. Surjeet
Kaur reported in (2010)11 SCC 159,
paragraphs 11, 12, 18, 19.
(ii) Chingleput Bottlers vs. Majestic Bottling
Company reported in (1984)3 SCC 258.
(iii) Chandigarh Admn. vs. Jagjit Singh, reported
in (1995)1 SCC 745
(iv) Chameli Singh vs. State of U.P., reported in
(1996)2 SCC 549
(v) State of Haryana vs. Ram Kumar Mann,
reported in (1997)3 SCC 321
(vi) Vishal Properties (P) Ltd., vs. State of Uttar
Pradesh and others reported in (2007) 11 SCC
172, paragraphs 13 to 18.
(vii) Basawaraj and another vs. Special Land
Acquisition Officer reported in (2013)14 SCC
81, paragraph 8.
(viii) Major E.G. Barsay vs. State of Bombay,
reported in AIR 1961 SC 1762, paragraph 25
(ix) Crawford Bayley & Co. v. Union of India,
reported in (2006)6 SCC 25, paragraph-20.
(x) Ritesh Tewari v. State of U.P., reported in
(2010)10 SCC 677, paragraph-26,
60. With regard to delay in filing the Writ Petitions, learned
Senior Counsel relied upon the following dictums of the Hon'ble
Supreme Court.
(i) Shankara Cooperative Housing Society
Limited vs. M.Prabhakar and others reported
in (2011)5 SCC 607, paragraphs 46, 48, 50, 51,
52, 54.
(ii) Smt.H.B.Premakumari vs. State of Karnataka
and another reported in (2013)5 KLJ 279
(Division Bench) paragraphs 2 to 6 (Rule 13 of
the Bengaluru Development Authority (Allotment
of Sites) Rules, 1984.
(iii) Bangalore Development Authority and others
vs. R.Hanumaiah and others reported in
(2005)12 SCC 508, paragraphs 28, 34, 54
(Section 65)
(iv) Telecom Employees Co-operative Housing
Society Ltd. Vs. Scheduled Castes, Scheduled
Tribes, Minority Communities and Backward
Classes Improvement Centre reported in ILR
1990 KAR 3320, paragraph 28.
(v) State of Karnataka and others vs. Saveen
Kumar Shetty reported in (2002)3 SCC 426,
paragraphs-8, 9, 11, 12, 13 to 17.
(vi) The Bangalore Development Authority vs.
Gundappa R in Civil Appeal No.2884/2022,
DD-11.04.2022 filed against the Judgment dated
10.11.2020 passed in W.A.No.45/2020.
(vii) Nasiruddin and others vs. Sita Ram Agarwal
reported in (2003)2 SCC 577.
(viii) Sangram Singh vs. Election Tribunal, reported
in AIR 1955 SC 425, paragraphs 10, 12, 13
(ix) Union of India vs. Pritilata Nanda, reported in
(2010)11 SCC 674 paragraph-30.
Therefore, he sought to allow the Appeals.
61. Sri K.Krishna, learned counsel for the appellant in
W.A.No.518/2016, while adopting the arguments advanced by Sri
K.G.Raghavan, learned Senior Counsel, relied upon the dictum of
this Court in the case of M.N.Ramesh vs. State of Karnataka,
reported in ILR 2014 KAR 3079, paragraph 30.
III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL
FOR THE RESPONDENTS-WRIT PETITIONERS
62. Per contra, Sri N.Devadas, learned Senior Counsel for
some of the respondents/writ petitioners contended that the
Bengaluru Development Authority Act, 1976 (Karnataka Act 12 of
1976) came into force with effect from 05.02.1976 with an object
to have a common Authority for the development of metropolitan
city. The Act was enacted to provide for the establishment of an
Authority for the development of the City of Bengaluru and areas
adjacent thereto and for matters connected therewith. Bengaluru
City with its population is a Metropolitan City. Different authorities
like the City of Bengaluru Municipal Corporation, the City
Improvement Trust Board, the Karnataka Industrial Area
Development Board, the Housing Board and Bengaluru City
Planning Authority are exercising jurisdiction over the area. Some
of the functions of these authorities like development, planning etc.
are overlapping, creating thereby avoidable confusion, besides
hampering coordinated development. It is, therefore, considered
necessary to set-up a single authority like the Delhi Development
Authority for the city areas adjacent to it which in course of time
become part of the city.
Accordingly, the Bengaluru Development Authority Act was
enacted for speedy implementation of the said objects and also the
20 point programme and, for establishing a co-ordinating Central
Authority, urgent action was called for. Moreover, the haphazard
and irregular growth would continue unless checked by the
Development Authority and it may not be possible to rectify or
correct mistakes in future. Thereby, the Bengaluru Development
Authority Act, 1976 was enacted.
63. Learned Senior Counsel for the respondents/writ
petitioners further contended that under Section 2(a) of the
Bengaluru Development Authority Act, 1976, 'Authority' means the
Bengaluru Development Authority constituted under Section 3;
Section 2(h) defines 'Chairman' means the chairman of the
Authority; Section 3 of the Act stipulates the constitution and
incorporation of the Authority. Section 8 contemplates Meetings of
the Authority. Section 8(4) contemplates that, all questions which
come up before any meeting of the Authority shall be decided by a
majority of the votes of the members present and voting and in the
event of an equality of votes, the Chairman or in his absence, the
person presiding, shall have and exercise a second or casting vote.
Section 12 stipulates the appointment of Commissioner, Section 13
(2)(a) contemplates 'carry into effect the resolutions of the
Authority'. He further contended that the proceedings of the
resolution dated 23.07.2007 issued by the Bengaluru Development
Authority refers to sites with dimensions 20 ft. x 30 ft, 30 ft. x 40
ft. and not 40 ft. x 60 ft. or 50 ft. x 80ft.
64. Learned Senior Counsel further contended that the
resolution dated 03.09.2007 in Subject Number 106/2007 referred
to the Circular dated 18.10.2007 and it refers to sites measuring 20
ft. x 30 ft and 30 ft.x 40 ft. He further contended that resolution
dated 29.04.2010 issued by the Bengaluru Development Authority
refers to Circular dated 18.11.2010 which stipulates that payment
should be made on or before 31.12.2020. The provisions of Section
65B of the Bengaluru Development Act came into force with effect
from 06.06.1986. He further contended that the statement of
objections filed in the present writ appeals narrates how
applicants/original petitioners are entitled to sites by paying
remaining balance sital value with 21% interest as has been done
to the similarly placed persons by the Bengaluru Development
Authority either through Court Order or by the BDA itself and that
about 300 sites have been allotted. The same is produced as per
Annexure-R2 along with statement of objections. Annexure-R3
series depicts sale deeds of the year 2015.
65. The respondent filed statement of objections in W.A.No.
956/2021 contending that the Commissioner, Bengaluru
Development Authority, in his affidavit dated 27.09.2021 and the
endorsement dated 24.09.2021 has suppressed the material facts
and has made misrepresentation. It is further contended that the
Writ Appeal cannot be entertained, as the same is filed beyond the
prescribed period of 30 days as provided under the Karnataka High
Court Act. It is further contended that the learned single Judge by
the Order dated 06.11.2020 disposed off W.P.No.22681/2015 based
on the decisions made in the following writ petitions, viz.,
(i) W.P.No.13658/2015 dated 07.04.2016
(Jayakumar Shetty vs. The Commissioner, BDA);
(ii) W.P.No.19093/2012 dated 06.06.2013
(Kempamma vs. The Commissioner, BDA); and
(iii) W.P.No.38258/2013 dated 02.11.2013 (Mohan
Kumar vs. The Commissioner, BDA).
It is further contended that the Bengaluru Development Authority
has not filed any Appeals challenging the Orders passed by the
learned single Judge in the aforementioned three writ petitions. On
the other hand, BDA has complied with the directions issued in the
said writ petitions and has made allotment of alternative sites in
favour of the writ petitioners therein. It is further contended that,
in first writ petition i.e., (i)W.P.No.13658/2015, the petitioner
deposited the balance amount after the time limit prescribed by the
Court. The BDA allotted the same site after lapse of three months
from the time frame fixed by the Court. In the second writ petition
i.e., W.P.No.19093/2012, the petitioner has deposited the balance
amount as per the directions in the writ petition and thereafter,
BDA executed the sale deed in her favour. In the third writ petition
i.e., W.P.No.38258/2013, petitioner paid the amount after the time
permitted by the Court. However, BDA executed the sale deed in
favour of the writ petitioner.
66. It is further contended that, in the cases on hand,
inspite of the directions issued by this Court, BDA has rejected the
request for allotment of alternative site, mainly on the ground that
the interest amount is not paid by the respondent/applicants within
the time permitted, though the balance sital value is paid and
received by the BDA. It is further contended that though the
applicants had requested the BDA to calculate the interest at 21%
on the said amount payable by the applicants, the BDA failed to
furnish the amount of interest to be paid.
67. It is further contended that in addition to the matters
stated supra, similar directions are issued by this Court in nearly
100 writ petitions. In nearly 30 writ petitions, BDA has accepted
the Orders of the Court and no Writ Appeals have been filed against
the said Orders. The respondent has furnished the list of 39 writ
petitions as per Annexure-R2 wherein, the BDA has made allotment
of alternative sites to the writ petitioners therein. Thereby, conduct
of the BDA can be assessed. The BDA has filed Writ Appeals in
certain cases with a malafide intention only for the reason that the
petitioners therein could not raise to the unlawful expectations of
the Officers of BDA. It is further contended that taking advantage
of the directions issued by this Court in nearly 100 writ petitions,
BDA Officers on their own have made re-allotment of sites to many
people who were allotted sites during the year 2000 and have
cancelled the allotment of sites from 2002 and onwards. The
respondent has furnished the details of persons in whose favour re-
allotment is made by the BDA, and the same is extracted, as under:
Sl Names Date of Cancellation Date of re- Execute of
No allotment of date allotment of sale deed
site alternative date
site
1 Sri Poojari 31.05.2000 02.11.2000 11.02.2016 29.02.2016
2 Sri K.Narasaiah 18.12.2001 08.10.2004 12.06.2015 05.11.2015
3 Smt.Anuja 26.12.2000 08.10.2004 28.03.2016 04.05.2016
4 Gangaiah HC 10.04.2000 17.02.2016 17.11.2016 13.10.2017
5 R.Dakshayanamma 26.08.1998 25.09.2000 11.02.2016 25.04.2016
6 Padmavathi M 07.04.2000 09.05.2004 08.03.2016 28.04.2016
7 Sheela 21.02.2000 09.05.2004 01.03.2016 21.06.2016
8 Dasappa 20.01.1998 02.04.2008 21.04.2016 26.09.2016
9 V.Venkataramanaiah 15.05.1999 29.11.2004 13.11.2015 17.11.2016
Shetty
10 Lakshminarayan P 21.02.2000 08.10.2004 24.11.2015 03.02.2018
68. It is further contended that, in view of the repeated
complaints of citizens against the Officers of the Bengaluru
Development Authority about their corrupt practices adopted and
followed in respect of the affairs of the BDA such as, allotment and
re-allotment of sites, execution of sale deeds, plan approvals, the
Anti Corruption Bureau raided the Office of BDA on 19.11.2021 and
on subsequent dates and unearthed the large scale irregularities
and corruption by officials during acquisition and allotment of lands
in residential layouts. During the said raids, the preliminary
estimates pegged the fraud at over `100 crores. The Secretary of
the Bengaluru Development Authority did not issue any statement
either on the raid or on the initial findings of the Anti Corruption
Bureau. However, the Chairman of BDA admitted a large scale
corruption indulged in by the Officers/officials of the Bengaluru
Development Authority from top to bottom and his efforts to
cleanse the BDA from corruption could not succeed so far.
69. It is further contended that W.A.No.49/2022 filed is not
in good faith. The contention of the appellant/BDA that, 'the
learned single Judge ought to have taken note of Rule 13 of the of
the Bengaluru Development Authority (Allotment of Sites) Rules,
1982, and since the validity of the said Rule was not challenged, a
direction cannot be issued by the Court in violation of the Rule and
direction could not have been issued to allot an alternative site after
a lapse of long time', are untenable and such contentions are unfair
and unreasonable. Though BDA has accepted and implemented the
directions of this Court in hundreds of writ petitions, till recently,
but filing Writ Appeals only in respect of certain cases depicts that
BDA lacks bonafides and as such the very conduct of BDA as
observed by the Division Bench by the Orders dated 24.08.2021
and 16.09.2021 passed in CCC No.455/2021 has to be seriously
taken note of. It is further contended that BDA has issued the
Circular in the year 2010 authorising to accept the sital value with
21% interest from the allottees. Immediately after coming to know
about the said Circular, a representation was filed to accept the
balance sital value with 21% interest. Since the BDA failed to
consider the representation, the respondent is left with no other
option but to approach this Court for necessary relief. Hence there
is no delay in approaching this Court.
70. It is further contended in the statement of objections
that, the BDA has suppressed the material and relevant facts that
the Appeals filed earlier by BDA are dismissed by this Court. Writ
Appeal No.3079/2019 filed by the BDA against the directions issued
in W.P.No.9092/2015 dated 11.03.2019 came to be dismissed by
the Division Bench by the Order dated 17.02.2021. The said Order
when challenged in Special Leave to Appeal (C) No.13861/2021 the
Hon'ble Supreme Court, dismissed the same by the Order dated
27.09.2021. So also, W.A.No.45/2020 and W.A.No.110/2020 filed
by the BDA came to be dismissed by the Order dated 10.11.2020.
There are many such appeals filed by the BDA which are already
dismissed by the Division Bench. With regard to the contention of
the BDA relating to the application of Rule 13 undermining the two
Circulars issued by the BDA at the instance of the State
Government, the respondent contended that both the State
Government and the BDA were aware of the existence of Rule 13 of
the Rules but on the face of it, they have issued Circulars as a
matter of policy to help the economically weaker sections who had
lost their sites due to their inability to pay the allotment price within
time. It is further contended that the contention urged by the BDA
which is noted in the Order dated 01.10.2021 that in any case the
learned single Judge should have directed to allot the alternative
site on the prevalent rate which is subject to availability of
alternative site, is wholly arbitrary, unjust and unreasonable. BDA
has not stipulated such terms and conditions for similarly placed
allottees who have secured directions from this Court.
71. It is further contended that the conduct of the BDA
amounts to hoodwinking the orders of the Division Bench in
Contempt Petition, by filing the present Writ Appeal to escape from
the contempt proceedings. It is further contended that BDA is not
fair in adopting the policy of 'pick and choose' in filing writ appeals
and, justice and fair play does not permit a statutory authority to
indulge in dubious methods depriving a citizen of weaker section, of
his/her legitimate right to secure allotment of a site taking benefit
of BDA's own circulars issued de-horse Rule 13, discriminating
between allottees who are similarly placed, which is violative of
Article 14 of the Constitution of India and the action of the BDA
amounts to violation of Right to Life guaranteed under Article 21 of
the Constitution by discriminating between the beneficiaries of the
Circulars of the BDA in securing sites/alternative sites to a person
of weaker section. The Court ought to have directed to allot
alternative sites on the prevalent rate, which virtually defeats the
right of such allottee due to her weak economic position. Thereby,
sought to dismiss the Writ Appeals.
72. Learned Senior Counsel further contended that the
allotment letter dated 13.03.2002 issued by the Bengaluru
Development Authority produced as per Annexure-B in
W.A.No.956/2021 clearly depicts that the price of the site
measuring 9 mtrs x 12 mtrs is `1,71,700/-. The initial deposit
made by the allottee is `21,500/- and the balance payable is
`1,50,500/- No Objection Certificate dated 13.03.2002 issued by
the Bengaluru Development Authority depicts that the Sale Deed
will be executed and possession of the site will be handed over to
the allottee on completion of all formalities. The Bengaluru
Development Authority has no objection to mortgage the property
by the allottee in favour of LIC/HDFC/HUDCO/IDBI/BOB/
Nationalized Banks/ Scheduled Banks/ Citi Bank/ ICICI Bank/ Co-
op. Banks for the purpose of raising loan to meet the cost of the
site. The letter dated 26.04.2002 produced as per Annexure-D to
W.A.No.956/2021 depicts that the respondent-Shanthamma has
addressed a letter to the Commissioner, Bengaluru Development
Authority, stating that she has received the Allotment Letter in
respect of Site No.330, 9th Block, 6th Stage, Banashankari Layout
and when she inspected the site, it was found that there was a
ditch(halla) in the allotted site and as she is aged and not owning
any house, sought for allotment of alternative site and that she is
ready to pay the sital value. Annexure-E is the Show Cause Notice
dated 22.08.2002 issued by the BDA asking as to why the allotment
should not be cancelled as the respondent failed to pay the balance
sale consideration amount and Annexure-F is the copy of the
envelop which depicts that the show cause notice is not served on
the allottee. The BDA, by the Order dated 29.01.2003 as per
Annexure-G, cancelled the allotment. The Annexures-H and J are
Circulars dated 18.10.2007 and 18.11.2010. Again, the respondent
made representations dated 03.06.2004 and 25.04.2013 as per
Annexures-K and L for allotment of site. Annexure-M is the
representation dated 12.03.2007 addressed to the Hon'ble Chief
Minister, by the respondent, praying for allotment of site. Learned
Senior Counsel also referred to the Order dated 06.06.2013 passed
in W.P.No.19093/2012 produced as per Annexure-P, wherein, the
learned single Judge of this Court directed the BDA to consider the
prayer of the petitioner therein for allotment of site in the light of
the Circular dated 18.11.2010 issued by the BDA.
73. Learned Senior Counsel further contended that,
Annexure-R1-copy of the note sheet produced along with statement
of objections by the respondent, at paragraph 62 depicts regarding
the Order passed by this Court in W.P.No.22681/2015 dated
06.11.2020 and the endorsement at paragraph 65 regarding the
decision taken to transmit the file to the legal department to take
legal opinion in the matter. Paragraph 72 of the said note sheet
depicts that the Law Officer has given his opinion to take suitable
decision to inform the petitioner to make payment of balance
amount along with interest and on making payment, steps can be
taken to allot an alternate site in her favour and further that there
are no sufficient grounds to prefer Writ Appeal and the same is also
accepted by the Commissioner. In spite of the same, the present
Commissioner who took charge on 30.04.2021, at paragraph 90 of
the note sheet, on 10.05.2021, directed to file Writ Appeal,
immediately. In view of the above, learned Senior Counsel
contended that the Writ Appeal filed by the BDA is not
maintainable. He contended that the State should act like Public
Trustee and sought to dismiss the Writ Appeals.
74. In support of his contentions, Sri Devadas, learned
Senior Counsel relied upon the dictum of the Hon'ble Supreme
Court in the case of:-
(i) M/s Shantistar Builders vs. Narayan
Khimalal Totame and others reported in
(1990)1 SCC 520 to contend that right to
shelter is a fundamental right guaranteed under
Articles 19 and 21 of the Constitution of India.
(ii) State of Karnataka and others vs. Narasimha
Murthy and others reported in (1995)5 SCC
524, to contend that right to reasonable residence
is fundamental right guaranteed under Article 21
of the Constitution of India.
(iii) Chameli Singh and others vs. State of U.P
and another reported in (1996)2 SCC 549,
paragraphs-8, 9 to 14, to contend that right to
shelter, does not mean a mere right to a roof over
one's head but right to all the infrastructure
necessary to enable them to live and develop as a
human being. Right to shelter when used as an
essential requisite to the right to live should be
deemed to have been guaranteed as a
fundamental right.
(iv) People's Union for Civil Liberties vs. Union of
India and others reported in (2014)15 SCC
327, paragraphs 1 to 3.
(v) National Legal Services Authority vs. Union
of India and others reported in (2014)5 SCC
438, paragraphs- 99, 104, 123, 131, to contend
that the concept of equality in Article 14 so also
the meaning of the words "life", "liberty" and
"law" in Article 21 have been considerably
enlarged by judicial decisions. Anything which is
not "reasonable, just and fair" is not treated to be
equal and is, therefore, violative of Article 14.
(vi) Ashok Kumar Kalra vs. Wing CDR. Surendra
Agnihotri and others reported in (2020)2 SCC
394 (Three Judges Bench).
75. Sri B.V.Shankaranarayana Rao, learned Senior Counsel
for Sri T.A.Chandrashekar, learned counsel for the respondent in
W.A.No.518/2106 contended that no third party rights have been
created. In support of his contention, learned Senior Counsel relied
upon the dictum of this Court in the case of M.N.Umesh vs. State
of Karnataka, rep. by its Under Secretary, Urban
Development Department, Bengaluru and others reported in
ILR 2014 KAR 3079, wherein, at paragraph 31, it is held as
under:
"31. In the instant case, the facts are otherwise. When
the appellants made their respective applications for
allotment of sites, they were well aware that after the
allotment, the balance sital value had to be deposited
within the stipulated time. If they did not do so, they
were liable to pay interest and if the time stipulated for
payment of the balance sital value with interest also
expired, the allotment was deemed to be cancelled.
Thus, an express order of cancellation of allotment was
not required. But in these cases, there has also been an
express cancellation of allotment. But the appellants did
not choose to assail the same at the earliest point of
time, in case they had a grievance about the
cancellation of the allotment. That apart, if these
appellants were a part of 317 persons, who formed a
class of persons who had failed to pay the balance sital
value in time, they could have sought relief at an earlier
point of time in terms of the Government Orders dated
27/12/2005 and 04/03/2008, in case the said orders
were applicable to them. However, these appellants
approached this Court after the issuance of Circular
dated 04/02/2011 by the Government directing MUDA
to abide by Rule 19 of the Allotment of Sites Rules,
1991 and after the affidavit being filed to that effect in
W.A. No. 499/2011 before this Court. Thus, these
appellants remained mute spectators when several legal
proceedings were being pursued by other allottees.
They were not inclined to approach this Court at the
earliest point of time to seek a direction against MUDA,
assuming that such a direction could have been issued
with regard to payment of balance sital value with
interest. Probably, these appellants were complacent
and thought that even without approaching this Court,
the orders of cancellation of their allotment would be
revoked and they would be benefited in terms of the
earlier orders of the State Government. Plausibly, these
appellants were under the impression that in view of
the judgment of the Division Bench of this Court in W.A.
No. 499/2011, they would be entitled to re-allotment of
their cancelled sites. But that was an incorrect
impression, particularly having regard to the Circular
dated 04/02/2011 and the affidavit filed before this
Court. Relief was granted to the allottees in that appeal
based on the premise that as a one time measure 91+4
persons could be re-allotted the sites. This Court also
held in that appeal that the doctrine of desuetude did
not apply to Rule 19 of the Allotment of Sites Rules,
1991. In that view of the matter, Learned Single Judge
was right in dismissing the writ petitions not only on
merits but also on the ground of delay and laches."
76. He further contended that Writ Appeal No.2940/2012
filed by one Ravindran against the BDA came to be allowed by the
Judgment dated 10.09.2012. Further, W.A.No.35/2020 filed by the
BDA came to be dismissed on 11.01.2021. When the said
Judgment was challenged in Special Leave to Appeal (C)
No.6786/2021, the Hon'ble Supreme Court (3 Judges Bench) by the
Order dated 01.07.2021 confirmed the Judgment passed by the
Division Bench of this Court. The BDA has not challenged the
execution order passed by the State or its resolution. Against the
orders passed in Writ Petitions, no Writ Appeals have been
preferred by the BDA. Thereby, delay in approaching the Court
would not arise. Therefore, sought to dismiss the Writ Appeals.
77. Sri H.T.Vasanth Kumar, learned counsel for the
respondent in W.A.No.618/2021, adopted the arguments of Sri
N.Devadas, learned Senior Counsel. He submitted that the
respondent belongs to scheduled caste and scheduled tribe and site
measuring 60 ft. x 40 ft. was allotted to the respondent.
IV. POINTS FOR DETERMINATION
78. In view of the afore said rival contentions urged by the
learned counsel for the parties, the points that would arise for our
consideration are:
(i) Whether the BDA has made out a case to
interfere with the impugned Orders of the learned
single Judge directing the BDA to allot alternative
sites after receipt of remaining sale consideration
with 21% interest, in terms of the Circulars issued
by the BDA?
(ii) Whether the respondents/allottees are entitled to
the relief sought for in the writ petitions, in view
of Articles 14 and 21 of the Constitution of India?
79. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material on record, carefully.
V. CONSIDERATION
80. It is undisputed fact that all the respondents herein are
the applicants for allotment of sites under various categories,
applied as per the applications invited by the BDA. Some of the
applicants belong to SC/ST, backward community, general category
and to the weaker Sections of the Society. Most of them have
applied for site measuring 20 ft. x 30 ft., 30 ft. x 40 ft. Only two
applicants have applied for site measuring 60 ft. x 40 ft. It is also
not in dispute that after number of attempts i.e., about 7 to 8
attempts, BDA allotted the sites fixing the price after receiving
initial deposit made by the applicants.
81. It is also not in dispute that some of the applicants
made part payment to the BDA. Some of the applicants who could
not make payment, sought for extension of time, and in terms of
the BDA (Allotment of Sites) Rules, for the applicants belonging to
scheduled caste and scheduled tribe, three years time was granted
to pay the amount. In respect of some of the applicants, even
before the expiry of three years, BDA cancelled the allotment. In
some of the cases there was delay in making payment of the
balance sital value either due to the death of the applicants
themselves or due to the death of their kith and kin in the family.
82. It is also not in dispute that large number of allottees
made representation stating that they could not pay the entire sital
value within the time stipulated. Therefore, the State Government
initiated proceedings and based on the said proceedings, BDA
issued two Circulars dated 18.10.2007 and 18.11.2010 permitting
the persons who could not pay the remaining balance amount to
pay the said amount with 21% interest as a policy decision to
ensure allotment of sites to weaker sections of the Society. The
said Circulars were issued in respect of sites measuring 20 ft. x 30
ft. and 30 ft. x 40 ft. The last date fixed for payment of the balance
amount was 31.03.2008.
83. It is also not in dispute that in pursuance of the said
Circulars, as a scheme to provide an opportunity to the weaker
section of the Society, the learned single Judge issued directions for
allotment of sites measuring 20 ft. x 30 ft. and 30 ft. x 40 ft.
Alternative sites have already been allotted to some of the
allottees, and allotment is made as mentioned in the statement of
objections, as per Annexure-R2, as under:
Measur Details of
Sl. Name of the Date of Date of ement amount
No. allottee allotment Cancellation Category of Site Writ petition number deposited
Full amount
General W.P.No.38405/2018 deposited after
1 P. Gayathri 2001 01-10-2004 Category 40x60 22-04-2019 prescribed period
Full amount
Schedule W.P.No.6724/2014 deposited after
2 N. Kishore 2001 26-12-2005 Caste 20x30 15-10-2014 prescribed period
Schedule W.P.No.18181/2014 Initial amount
3 M. Mariyappa 31-05-2000 29-09-2004 Caste 30x40 03-07-2014 deposited
M. Schedule W.P.No.32184/2014 Partial Amount
4 Ramakrishnappa 21-02-2000 29-09-2004 Caste 20x30 31-10-2014 deposited
Full amount
Mohammed Backward W.P.No.38916/2013 deposited after
5 Nazarulla Tippu 2001 04-06-2004 Community 30x40 07-10-2013 prescribed period
Schedule W.P.No.8058/2019 Initial amount
6 R. Vanaja 27-05-1998 Caste 20x30 25-02-2019 deposited
Full amount
M.H. W.P.No.22164/2009 deposited after
7 Shanmukappa 01-02-2004 05-11-2004 50x80 19-10-2011 prescribed period
Full amount
Schedule W.P.No.56592/2013 deposited after
8 N.R. Nagaraj 20-08-1997 Caste 20x30 07-10-2014 prescribed period
Schedule W.P.No.11946/2014 Initial amount
9 Suradeep B 2001 29-04-2004 Caste 20x30 31-07-2014 deposited
Schedule W.P.No.31096/2013 Initial amount
10 M.S. Manjula 2000 30-09-1996 Caste 20x30 30-06-2014 deposited
Schedule W.P.No.9773/2016 Initial amount
11 Y. Narayan 23-08-1997 28-09-2014 Caste 40x60 08-01-2019 deposited
General W.P.No.13658/2015 Initial amount
12 Jayakumar Shetty 2003 20-09-2004 Category 30x40 07-04-2016 deposited
Full amount
Gangadhar General W.P.No.29796/2013 deposited after
13 Sanganavar 17-02-2004 01-10-2004 Category 30x40 07-10-2013 prescribed period
General W.P.No.17076/2017 Initial amount
14 R. Ravikumar 13-12-2001 04-04-2008 Category 30x40 14-10-2019 deposited
Full amount
Backward W.P.No. 27954/2014 deposited after
15 Sundramma P.N. 12-09-2000 08-03-2004 Community 30x40 21-10-2014 prescribed period
Full amount
W.P. No. 38540/2013 deposited after
16 Saroja 10-04-2003 08-10-2004 EWS 20x30 03-12-2013 prescribed period
General W.P. No. 46065/2013 Initial amount
17 Jesentha Mary 13-03-2002 09-04-2003 Category 20x30 07-10-2013 deposited
Schedule W.P. No. 13141/2013 Partial Amount
18 P. Lakshman 12-01-1998 May, 2002 Caste 20x30 26-08-2013 deposited
Full amount
Schedule W.P. No. 15645/2013 deposited after
19 K. Natarajan 10-04-2020 Caste 20x30 06-08-2013 prescribed period
Full amount
W.P. No. 51635/2017 deposited after
20 H.V. Kariyappa 07-07-2001 20-08-2004 EWS 20x30 07-02-2019 prescribed period
W.P. No. 10062/2014 Partial Amount
21 Shashikumar M 24-06-2006 29-06-2011 EWS 20x30 06-06-2014 deposited
Full amount
Schedule W.P. No. 5076/2006 deposited after
22 K.V. Padmavathi 21-02-2020 29-09-2004 Caste 20x30 27-11-2006 prescribed period
Full amount
General W.P. No. 22284/2009 deposited after
23 Sindu R. Kulkarni 03-02-2004 09-10-2004 Category 20x30 17-08-2009 prescribed period
Full amount
General W.P. No. 18550/2014 deposited after
24 Riazur Rehman 21-10-2003 01-07-2008 Category 30x40 23-06-2014 prescribed period
Full amount
Schedule W.P. No. 31163/2014 deposited after
25 Muniyellamma 2000/01 14-08-2003 Caste 20x30 10-10-2014 prescribed period
Full amount
W.P. No. 15898/2011 deposited after
26 D.V. Sujatha 07-02-2004 28-07-2005 30x40 23-01-2012 prescribed period
Schedule W.P. No. 9773/2016 Partial Amount
27 Y. Narayan 23-08-1997 28-09-2014 Caste 40x60 08-01-2019 deposited
Schedule W.P. No. 36787/2011 Initial amount
28 Govindaraju 21-02-2000 12-10-2004 Caste 20x30 07-12-2011 deposited
Full amount
Schedule W.P. No. 19093/2012 deposited after
29 Kempamma 17-04-2000 30-09-2004 Caste 20x30 06-06-2013 prescribed period
W.P. No. 38258/2013 Initial amount
30 Mohan Kumar 2000 30-09-2004 30x40 21-11-2013 deposited
Full amount
Schedule W.P. No. 2672/2015 deposited after
31 Poojigappa 12-04-2000 30-10-2004 Caste 20x30 18-12-2015 prescribed period
Schedule W.P. No. 14304/2013 Partial Amount
32 Sunandamma 21-02-2000 30-09-2004 Caste 20x30 06-06-2013 deposited
Full amount
Schedule W.P. No. 5794/2008 deposited after
33 Topamma 21-02-2000 20-02-2008 Caste 20x30 01-10-2008 prescribed period
Schedule W.P. No. 9056/2014 Initial amount
34 C.T. Varalakshmi 1995 12-03-1996 Caste 20x30 15-07-2014 deposited
Schedule W.P. No. 17093/2013 Initial amount
35 Govindaraju Y 16-04-2003 19-11-2003 Caste 30x40 17-09-2013 deposited
Schedule W.P. No. 12845/2013 Initial amount
36 Bhageerathi 04-07-2001 27-04-2002 Caste 40x60 22-08-2013 deposited
Schedule W.P. No. 17629/2014 Initial amount
37 Chandraveni C 11-04-2000 31-12-2015 Caste 20x30 13-10-2014 deposited
Schedule W.P. No. 15726/2013 Partial Amount
38 M. Ramachandran 31-05-2000 Caste 20x30 21-06-2013 deposited
Full amount
Schedule W.P. No. 49557/2014 deposited after
39 Ashok B.L. 24-04-2000 30-10-2004 Caste 20x30 23-11-2015 prescribed period
84. It is also not in dispute that, the learned single Judge by the
Order dated 06.11.2020 disposed off W.P.No.22681/2015 directing
for allotment of site or alternative site, by following the decisions
made in the following writ petitions, viz.,
(i) W.P.No.13658/2015 dated 07.04.2016 (Jayakumar
Shetty vs. The Commissioner, BDA);
(ii) W.P.No.19093/2012 dated 06.06.2013 (Kempamma vs.
The Commissioner, BDA); and
(iii) W.P.No.38258/2013 dated 02.11.2013 (Mohan Kumar
vs. The Commissioner, BDA).
(iv) W.P.No.5150/2019 dated 21.10.2019 (Manjunath R. vs.
BDA)
The petitioners in the above writ petitions have been reallotted with
alternative sites and the said orders passed by the learned single
Judge have reached finality.
85. The respondents/applicants who applied for allotment of
sites measuring 30 ft. x 40 ft., 20 ft. x 30 ft. belong to weaker
section of the Society and after more than eight attempts, they got
allotment. Though allotment was made, the allottees were unable
to pay the balance sital amount within the time stipulated therein.
On large number of representations being made, the Government
initiated proceedings and based on the proceedings of the
Government, BDA issued Circulars dated 18.10.2007 and
18.11.2010 holding that relief should be granted to the allottees
after receipt of remaining amount with 21% interest on delay
before cut off date and the allottees approached this Court with
great expectations that judiciary is the repository of public faith. It
is the trustee of the people. It is the last hope of the people. After
every knock at all the doors, failed people approach the judiciary as
last resort. It is the only temple worshipped by every citizen of this
nation, regardless of religion, caste, sex or place of birth.
86. The public authorities acting under the BDA Act are
under constitutional duty coupled with power. Every public servant
is a trustee of the society and in all facets of public administration,
every public servant has to exhibit honesty, integrity, sincerity and
faithfulness in implementation of the political, social, economic and
constitutional policies to integrate the nation, to achieve excellence
and efficiency in the public administration. A public servant
entrusted with duty and power to implement constitutional policy
under Articles 14, 21 and 300 and all inter-related directive
principles of State Policy under the Constitution, should exhibit
transparency in implementation and are accountable for due
effectuation of Constitutional goals.
87. It is also not in dispute that the allottee filed
W.A.No.2940/2012 against the Order dated 10.04.2012 passed in
W.P.No.39831/2010. The Division Bench of this Court, by the
Judgment dated 10.09.2012, allowed the Writ Appeal and at
paragraphs 3, 4 and 5 recorded the finding as under:
"3. xxx In the present case, however, it transpires
that the Bangalore Development Authority has in its
resolution No.1996/2007 in its meeting held on
03.09.2007 has taken a decision that in respect of sites
measuring 20 ft.x30 ft./ 30ft.x40ft., since the applicants
belonged to the economically weaker sections of
society, a relaxation of the time frame in the payment
of balance sital value was necessary. Keeping in view
the relative penury of these applicants, a strict
approach i.e., cancellation of allotment was abjured and
instead the delay was to be condoned and any other
alternate site was to be allotted in any other layout of
the Bangalore Development Authority provided interest
at the rate of 21% per annum fro the delayed period
was paid. It is also for this reason, we find that the
decision in Banda Development Authority, Banda
vs. Motilal Agarwal and others reported in (2011)5
SCC 394, is not applicable for the reason that the
petitioner is not disentitled from taking advantage of
the ameliorative decision of Bangalore Development
Authority itself passed on 03.09.2007. By present
standards, payment of interest to the demand or receipt
of interest at the rate of 21% p.a. is nothing but
punitive in nature.
4. It bears repetition that the initial sum of
`21,500/- has not been tendered back by Bangalore
Development Authority to the appellant/petitioner. It
also needs to be emphasized that the balance sital
value stood deposited in favour of the Bangalore
Development Authority in the Indian Overseas Bank,
Bangalore, as far back as on 23.05.2002. This amount
also has not been refunded or re-tendered. Therefore
the issue continued to be alive and was certainly
resurrected in September 2007, when the very salutary
decision of the Bangalore Development Authority came
to be taken.
5. We are of the view that the appellant/petitioner
should be allowed to take advantage of the decision of
the Bangalore Development Authority taken on
03.09.2007. Accordingly, upon the appellant/petitioner
making good the payment of the interest at the rate of
21% p.a. on the balance sital amount within four weeks
from today, the Bangalore Development Authority shall
allot a site measuring 30 ft. x 40 ft. in any of its
layouts, wherever such a site is available in Anjanapura,
or any other area. Interest shall be calculated with
effect from the day after the last date the amount was
due till 23.05.2002, which is the date on which the
entire sital value was deposited by the
appellant/petitioner. Appeal is allowed in the aforesaid
terms."
88. The Commissioner, Bengaluru Development Authority,
filed Writ Appeal No.35/2020 challenging the Order dated
08.04.2019 passed in W.P.No.58482/2015, and the Division Bench
of this Court, by the Judgment dated 11.01.2021, dismissed the
Writ Appeal, wherein, at paragraphs 9, 10 and 11, it is observed as
under:
"9. Even on merits, we find that the learned single
Judge has found that there was a unilateral decision
taken by the appellant/ authority in canceling the
allotment without providing any opportunity of hearing.
In the circumstances, learned single Judge directed the
BDA to allot an alternative site of the same/reasonable
dimension in the same layout or in any other layout,
regard being made to all competing equities with
applicable sital value as per the allotment price as on
the date of the impugned order with interest at 24%
per annum from the date of allotment till the date of
deposit.
10. Learned counsel for the respondent also states
that the respondent will abide by the conditions
imposed by the learned single Judge.
11. We find no merit in the appeal. The appeal is
hence dismissed both on the aspect of delay as well as
on merits."
89. The aforesaid Judgment passed in W.A.No.35/2020 was
challenged by the Commissioner, Bengaluru Development
Authority, before the Hon'ble Supreme Court in Petition for Special
Leave to Appeal(c) No.6786/2021, and the three Judges Bench, by
the Order dated 01.07.2021, dismissed the petition confirming the
Judgment passed in the Writ Appeal, wherein, it is observed as
under:
"The Court is convened through Video
Conferencing.
Having heard learned counsel appearing for the
petitioner and carefully perusing the material available
on record, we see no reason to interfere with the
impugned Order passed by the High Court of Karnataka
at Bengaluru.
The Special leave Petition is, accordingly,
dismissed on merits."
90. At this stage, it is relevant to read the Circular dated
18.10.2007 issued by the Commissioner, Bengaluru Development
Authority, which reads as under:
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91. Further, the Circular dated 18.11.2010, issued by the
Commissioner, Bengaluru Development Authority, reads as under:
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ªÀiË®åªÀ£ÀÄß ¥ÁªÀw¹PÉƼÀÄîªÀ ¥ÀæQæAiÉÄAiÀÄ£ÀÄß ¢£ÁAPÀ: 31/12/2010 gÉƼÀUÉ
¥ÀÆtðUÉƽ¸À®Ä ¤tð¬Ä¹gÀÄvÀÛzÉ.
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ªÀÄvÀÄÛ G¥À-PÁAiÀÄðzÀ²ð-4 gÀªÀgÀ£ÀÄß M¼ÀUÉÆAqÀ vÀAqÀªÀ£ÀÄß gÀa¸ÀÄvÁÛ ¸ÀzÀj
vÀAqÀzÀªÀgÀÄ ¢£ÁAPÀ: 1.1.2000QÌAvÀ ªÀÄÄAavÀªÁV C¢ü¸ÀÆZÀ£É ªÀiÁr
¢£ÁAPÀ: 1.1.2000 gÀ £ÀAvÀgÀ ºÀAaPÉAiÀiÁVgÀĪÀ 20'x30' ªÀÄvÀÄÛ 30'x40'
C¼ÀvÉAiÀÄ JµÀÄÖ ¥ÀæPÀgÀtUÀ¼À°è ¤UÀ¢üvÀ ¸ÀªÀÄAiÀÄzÀ°è ¨sÁUÀ±À: ¤ªÉñÀ£À
ªÀiË®åªÀ£ÀÄß ¥ÁªÀw¹gÀÄvÁÛgÉ ªÀÄvÀÄÛ JµÀÄÖ ¥ÀæPÀgÀtUÀ¼À°è ¨ÁQ ¤ªÉñÀ£À
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dgÀÄV¸ÀĪÀAvÉ ¸ÀÆa¸À¯ÁVzÉ.
ªÀÄÄAzÀĪÀgÉzÀÄ, ¥Áæ¢üPÁgÀzÀ ¸À¨ÉsAiÀÄ ¤tðAiÀÄ ºÁUÀÆ ¸ÀPÁðgÀzÀ
DzÉñÀzÀ£ÀéAiÀÄ:-
1. ¢£ÁAPÀ: 1.1.2000PÀÆÌ ªÀÄÄAZÉ ¤ªÉñÀ£À ºÀAaPÉUÁV C¢ü¸ÀÆZÀ£É
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¥ÀvÀæªÀ£ÀÄß ©qÀÄUÀqÉ ªÀiÁrgÀĪÀ 20'x30' ªÀÄvÀÄÛ 30'x40' Cr
C¼ÀvÉAiÀÄ ¥ÀæPÀgÀtUÀ¼À°è ºÀAaPÉzÁgÀgÀÄ ¥ÁægÀA©üPÀ oÉêÀtÂAiÀÄ£ÀÄß
ºÉÆgÀvÀÄ¥Àr¹ ¨sÁUÀ±À: ªÀiË®åªÀ£ÀÄß ¥ÁªÀw¹gÀĪÀ ¥ÀæPÀgÀtUÀ¼À
¤ªÉñÀ£ÀUÀ½UÉ ªÀiÁvÀæ C£ÀéAiÀĪÁUÀĪÀAvÉ «¼ÀA§ ªÀÄ£Áß ªÀiÁqÀĪÀ
§UÉÎ ºÁUÀÆ «¼ÀA§ ªÀÄ£Áß ªÀiÁqÀĪÀAvÉ ¸À°è¸ÀĪÀ : ¸À°è¹gÀĪÀ
PÉÆÃjPÉUÀ¼À ¥ÀæPÀgÀtUÀ¼À£ÀÄß ªÀiÁvÀæ ¥ÀjUÀt¸À®Ä
2. «¼ÀA§ ªÀÄ£Áß ¥ÀjUÀt¹zÀÝ°è ªÀÄvÀÄÛ »AzÉ ºÀAaPÉAiÀiÁVzÀÝ
¤ªÉñÀ£ÀªÀÅ ¨ÉÃgÉAiÀĪÀjUÉ ºÀAaPÉAiÀiÁV ®¨sÀå«®èªÁzÀ°è CxÀªÁ
EvÀgÉ PÁgÀtUÀ½AzÀ ®¨sÀå«®èªÁzÀ°è £ÀAvÀgÀzÀ°è gÀavÀªÁzÀ
§qÁªÀuÉAiÀÄ°è ªÀiÁvÀæ §zÀ° ¤ªÉñÀ£À ºÀAaPÉ ªÀiÁqÀ®Ä
3. «¼ÀA§ PÁ¯ÁªÀ¢üUÉ ªÁ¶ðPÀ ±ÉÃ.21 gÀµÀÄÖ §rØ ºÀt «¢ü¸À®Ä
4. ¢£ÁAPÀ 31/12/2010 gÉÆüÀUÉ ¤ªÉñÀ£ÀzÀ ¨ÁQ ºÀtªÀ£ÀÄß ¸ÀAzÁAiÀÄ
ªÀiÁr¹PÉÆAqÀÄ UÀÄwÛUÉ ºÁUÀÆ ªÀiÁgÁl M¥ÀàAzÀ ¥ÀvÀæªÀ£ÄÀ ß
£ÉÆÃAzÁ¬Ä¹ ¸Áé¢üãÀ ¥ÀvÀæ ¤ÃqÀ®Ä
ªÉÄîÌAqÀ wêÀiÁð£À ºÁUÀÆ ªÀiÁUÀð¸ÀÆaAiÀÄAvÉ CUÀvÀå PÀæªÀÄ PÉÊUÉÆAqÀÄ
¨ÁQ ªÀiË®å ¥ÁªÀw¹PÉƼÀÄîªÀ PÁAiÀÄðªÀ£ÀÄß ªÉÄð£ÀAvÉ ¤UÀ¢¥Àr¹gÀĪÀ
¢£ÁAPÀzÀ CªÀ¢üAiÉƼÀUÉ ¥ÀÆtðUÉƽ¸ÀĪÀAvÉ F ªÀÄÆ®PÀ J¯Áè G¥À-
PÁAiÀÄðzÀ²ðUÀ½UÉ ¸ÀÆa¸À¯ÁVzÉ.
92. Admittedly, the scheme introduced by the State
Government was implemented by the Bengaluru Development
Authority, by issuing the Circulars stated supra and admittedly, till
today, neither the scheme nor the Circulars which are beneficial
schemes have been withdrawn. Thereby, the Bengaluru
Development Authority cannot contend that the allottees are not
entitled to writ of mandamus, since illegality is committed by the
State Government and the Bengaluru Development Authority. Once
the State Government and the Bengaluru Development Authority
introduced the scheme for the benefit of people belonging to
Scheduled Castes, Scheduled Tribes, backward community and
weaker sections of the Society and, when almost all such similarly
placed persons have been allotted sites by the Bengaluru
Development Authority, as stated supra, there cannot be any
discrimination between similarly placed persons.
93. It is not in dispute that the proceedings dated
23.07.2007 passed by the Bengaluru Development Authority refers
to sites with dimensions 20 ft. x 30 ft. and 30 ft. x 40 ft., and not
40 ft. x 60 ft. and 50 ft. x 80 ft. It is also not in dispute that the
nearly 300 similarly placed persons like that of petitioners have
already been allotted with sites by the Bengaluru Development
Authority by receiving the balance sital value with 21% interest , as
directed by the learned single Judge, in several writ petitions, as
stated supra. It is also relevant to refer to the Site Confirmation
Letter dated 12.06.2015 produced as per Annexure-R3 to the
Statement of Objections in W.A.No.956/2021, which reads as
under:
"ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ²æà PÉ £ÀgÀ¸ÀAiÀÄå, DzÀ ¤ªÀÄUÉ
¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ¢AzÀ §£À±ÀAPÀj 5£Éà ºÀAvÀ §qÁªÀuÉ ¸ÀªÉð
£ÀA.85&86, GvÀÛgÀºÀ½î 30x40 Cr C¼ÀvÉAiÀÄ ¤ªÉñÀ£À ¸ÀASÉå:300£ÀÄß ºÀAaPÉ
ªÀiÁrzÀÄÝ, vÁªÀÅUÀ¼ÀÄ ¤UÀ¢vÀ CªÀ¢üAiÀÄ°è £ÀªÉñÀ£À ªÀiË®å gÀÆ(DgÀA©üPÀ
oÉêÀt PÀ¼ÉzÀÄ)1,77,500/-UÀ¼À£ÀÄß ªÀiÁvÀæ ¸ÀAzÁ¬Ä¸À¨ÉÃPÁVzÀÄÝ, ºÀtªÀ£ÄÀ ß
¥ÁªÀw¸ÀzÀ PÁgÀt, ¤ªÉñÀ£ÀªÀ£ÀÄß ¢£ÁAPÀ 08.10.2004 gÀzÀÄÝ¥Àr¸À¯ÁVvÀÄÛ.
ªÉÄîÌAqÀ G¯ÉèÃSÁ£ÀĸÁgÀªÁV §£À±ÀAPÀj 5£Éà ºÀAvÀ §qÁªÀuÉ
¸ÀªÉð £ÀA.85 & 86, GvÀÛgÀºÀ½î 30x40 Cr C¼ÀvÉAiÀÄ ¤ªÉñÀ£À ¸ÀASÉå:
300PÉÌ F »AzÉ ºÉÆgÀr¸À¯ÁVzÀÝ gÀzÀÝw DzÉñÀªÀ£ÀÄß »A¥ÀqÉAiÀįÁVgÀÄvÀÛzÉ.
DzÀÄzÀjAzÀ DyðPÀ «¨sÁUÀzÀªÀgÀÄ «¢ü¸ÀĪÀ ªÀiË®å/§rØ ¥ÁªÀw¸ÀĪÀ
µÀgÀwÛUÉƼÀ¥Àr¹, ¸ÀzÀj ¤ªÉñÀ£ÀªÀ£ÀÄß ²æà PÉ. £ÀgÀ¸ÀAiÀÄå DzÀ ¤ªÀÄä ºÉ¸ÀjUÉ
¹ÜjÃPÀj¸À¯ÁVzÉ JAzÀÄ F ªÀÄÆ®PÀ w½AiÀÄ¥Àr¸À¯ÁVzÉ."
94. The learned single Judge of this Court directed the
Bengaluru Development Authority to allot sites to the petitioners,
after receiving the balance sital value with 21% interest. The
Orders passed by this Court in W.P.No.13658/2015 dated
07.04.2016 in the case of Jayakumar Shetty vs. Commissioner,
Bengaluru Development Authority, has reached finality. The
Bengaluru Development Authority, though belatedly, has already
implemented the Orders passed by this Court and executed the sale
deeds.
95. It is also not in dispute that the Bengaluru Development
Authority has made re-allotment in favour of the writ petitioners in
nearly 30 writ petitions. The claim of the writ petitioners has been
accepted by the Bengaluru Development Authority and allotment is
made to the writ petitioners as per the orders passed by the
learned single Judge and no Writ Appeals have been filed by the
Bengaluru Development Authority challenging the Orders passed in
the writ petitions. Thereby, the conduct and attitude of the
Bengaluru Development Authority amounts to wilful discrimination
among the citizens who are similarly placed. The statement of
objections filed by the respondent/writ petitioner in W.A.
No.956/2021 clearly depicts that details of persons in whose favour
re-allotment was made by the Bengaluru Development Authority, as
extracted above.
96. It is further contended that, in view of the repeated
complaints of the applicants against the Officers of the Bengaluru
Development Authority about their corrupt practices adopted and
followed in respect of the affairs of the BDA such as, allotment and
re-allotment of sites, execution of sale deeds, plan approvals, the
Anti Corruption Bureau raided the Officers of BDA on 19.11.2021
and on subsequent dates, and unearthed the large scale
irregularities and corruption by officials during acquisition and
allotment of lands in residential layouts. During the said raids, the
preliminary estimates pegged the fraud at over `100 crores.
97. It is also not in dispute that the Bengaluru Development
Authority filed W.A.No.3079/2019 against the directions issued in
W.P.No.9092/2015 dated 11.03.2019 which came to be dismissed
by the Judgment dated 17.02.2021, wherein, at paragraphs 5, 6
and 7 it is held as under:
"5. This Court has carefully gone through the aforesaid
judgment. The learned Single Judge in the aforesaid
case also granted the relief to the person who was
claiming site. Paragraph-5 of the said judgment, reads
as under:-
"5. It is no doubt true that the petitioner did
not attempt to pay sital value once again
after 10.04.2008 pursuant to the Circular
dated 18.11.2010. But the fact remains that
the petitioner had mad representation and
attempted to pay sital value in the year
2008 itself. Since the Circulars at
Annexures-D and E are issued by the BDA
in order to help poor people who are
allotted site measuring smaller dimensions,
ie., 20'x30' and 30'x40'; and as the
petitioner was ready to pay sital value in
the month of April 2008 itself, he may be
shown leniency. Accordingly, the following
order is made."
6. In the considered opinion of this Court, the learned
Single Judge was justified in allowing the writ petition,
especially keeping in view the fact that the respondent
has deposited the entire sale consideration on
17.03.2004 and no amount was due. However, the
respondent has been directed to pay interest at 21%
pa. from the due date till the date of depositing the
entire amount.
7. Resultantly, this Court does not find any reason to
interfere with the order passed by the learned Single
Judge. The writ appeal is dismissed."
98. When the said Judgment was challenged by the BDA in
SLP No.13861/2021, the Hon'ble Supreme Court, by the Order
dated 27.09.2021, dismissed the Special Leave Petition, which
reads as under:
"Heard the learned Counsel for the petitioner.
We do not find any good ground to interfere with the
judgment and order passed by the High Court.
The special Leave Petition is dismissed.
Pending application(s) shall stand disposed of.
However, the question of law is kept open.
Thus, the Order passed by this Court has reached finality.
99. It is also not in dispute that the State Government and
the Bengaluru Development Authority, knowingfully well the
provisions of Section 65 of the Bengaluru Development Authority
Act, 1976 and Rule 13 of the BDA (Allotment of Sites) Rules, 1982,
issued Circulars as a matter of policy to facilitate economically
weaker sections of the Society who lost the sites due to their
inability to pay the sital vale within the time stipulated by the
Bengaluru Development Authority. When that is the case, it is not
fair on the part of the Bengaluru Development Authority to adopt
the policy of "pick and chose" and filing Writ Appeals in some cases
and not filing in some other cases and thereby depriving weaker
sections of the Society which amounts to willful discrimination and
violation of Articles 14 and 21 of the Constitution of India.
100. At this stage, it is relevant to extract Section 65 of the
Bangalore Development Authority Act, 1976, which reads as under:
"65. Government's power to give directions to the
Authority - The Government may give such directions
to the authority as in its opinion are necessary or
expedient for carrying out the purposes of this Act, and
it shall be the duty of the authority to comply with such
directions."
The aforesaid provision empowers the State Government to issue
general directions to the Bengaluru Development Authority and
Government to give such directions to the Authority as in its opinion
are necessary or expedient for carrying out the purpose of the Act,
which shall be the duty of the Authority to comply with such
directions.
101. The contention raised by the learned Senior Counsel for
BDA in the present Writ Appeals that directions issued by the State
Government and the Circulars issued by the Bengaluru
Development Authority are irregular, cannot be accepted. The
Government can issue directions, which, in its opinion, are
necessary or expedient for carrying out the purpose of the Act.
Such directions have to be implemented which is the objective of
the Act and the BDA cannot act contrary to the provisions of the Act
and Rules.
102. Admittedly, in the present cases, based on the
directions issued by the State Government, Circulars came to be
issued and the BDA precipitated for allotment of sites on payment
of 21% interest on the balance sital value. It was a 'policy decision'
taken by the State Government and accordingly, the Bengaluru
Development Authority issued Circulars. Admittedly, the direction
issued by the State Government under Section 65 of the Bengaluru
Development Authority Act has not been withdrawn till today, so
also the Circulars issued by the Bengaluru Development Authority
to allot sites by receiving 21% interest on the balance sital value is
also not withdrawn.
103. Though learned Senior Counsel for the BDA contended
that Rule 13 of the Bengaluru Development Authority (Allotment of
Sites) Rules, 1982, does not make any difference on the basis of
dimension of sites and it applies to all allotments, the said
contention cannot be accepted, as the proceedings issued by the
Government dated 23.07.2007 applies only in respect of sites
measuring 20 ft. x 30 ft. and 30 ft. x 40 ft. and, in obedience of the
said proceedings, two Circulars dated 18.10.2007 and 18.11.2010
came to be issued by the BDA precipitating the applicants to pay
the balance sital value beyond the time stipulated under Rule 13 of
the Bengaluru Development Authority (Allotment of Sites) Rules,
1982. It is also not in dispute that in similar circumstances, on the
directions issued by the learned single Judge of this Court
confirmed by the Division Bench and the Hon'ble Supreme Court,
now the BDA cannot contend that the writ petitioners cannot claim
equity in illegality, in violation of Rule 13 of the Bengaluru
Development Authority (Allotment of Sites) Rules, 1982.
104. It is not the case of the BDA that after realising the
mistake, they have rectified the same. In the absence of such
rectification, the contention of the learned Senior Counsel for the
BDA that mandamus cannot be issued, cannot be accepted as it
was a 'policy decision' of the State Government and the same was
obeyed by issuing Circulars by the BDA and no contention was
raised by the BDA before the learned single Judge with regard to
issuance of Circulars in violation of Section 65 of the BDA Act and
Rule 13 of the Bengaluru Development Authority (Allotment of
Sites) Rules, 1982. The same cannot be permitted to be agitated
for the first time in the present Writ Appeals.
105. It is also not in dispute that the resolution passed by
the BDA dated 03.09.2007 in subject No.106/2007 lead to issuance
of Circular dated 18.10.2007 and it refers to sites measuring 20 ft.
x 30 ft. and 30 ft.x 40 ft. Even the original file maintained by the
BDA depicts that the proceedings terminated into Circular and
paragraph 72 of the note sheet depicts that the Law Officer gave
his opinion to take suitable decision to inform the allottee to make
payment of balance amount along with interest and on making
payment, to take steps to allot an alternate site. It was also noted
that there are no sufficient grounds to prefer Writ Appeal and the
same was also accepted by the Commissioner. In spite of the
same, the present Commissioner who took charge on 30.04.2021,
at paragraph 90 of the note sheet, on 10.05.2021, directed to file
Writ Appeal, forthwith.
106. The State Government, as well as the BDA who act as
public trustee and custodian of citizens of the State like the present
writ petitioners who filed applications for allotment of sites and
after more than 7 to 8 attempts, ultimately got the allotment letters
in respect of small sites measuring 20 ft. x 30 ft. and 30 ft. x 40 ft.,
cannot take step-motherly attitude in alloting sites. Therefore, the
learned single Judge was justified in issuing mandamus to the BDA
and granting time to the petitioners therein to pay balance sital
value with 21% interest and upon making such payment, BDA to
take necessary steps to allot alternative sites in favour of the
petitioners. The same is in accordance with law.
107. The Order dated 11.04.2022 passed in Civil Appeal
No.2884/2022 relied upon the learned Senior Counsel for the BDA
is a case where, the allottee had made number of attempts for
allotment of a site and finally, on 07.04.2003, a site measuring 40
ft. x 60 ft. was allotted by the BDA. However, the notice sent by
the BDA was not served on the petitioner since he was not residing
in the address shown in the application on account of his transfer to
some other. Therefore, the allotment was cancelled. He
approached the High Court after lapse of 13 years, in
W.P.No.53206/2016 challenging the cancellation Order dated
17.12.2003. The learned single Judge allowed writ petition, which
order was confirmed by the Division Bench. When the BDA
approached the Hon'ble Supreme Court in the aforesaid Civil Appeal
No.2884/2022, the same was allowed, dismissing the order passed
by the learned single Judge of this Court, holding that Rule 13 of
the Bengaluru Development Authority (Allotment of Sites) Rules,
1982, mandates the allottee to deposit the sital value after
deducting initial deposit and the petitioner failed to deposit the said
amount and there is no corresponding application to allot
alternative site. Admittedly, the facts and circumstances of the said
case is different. In the present cases, except two petitioners, all
other petitioners are claiming for allotment of small sites measuring
20 ft. x 30 ft. and 30 ft. x 40 ft. and the facts are entirely different.
108. In the cases on hand, the Bengaluru Development
Authority has passed two resolutions and issued two Circulars. The
representation made by the BDA is acted upon by the petitioners
honestly believing the promise made by the BDA and when the
Commissioner, BDA, failed to carry out the effect of the resolutions,
petitioners approached this Court for the reliefs sought for with
great expectations treating the Court as temple of justice. Once
the resolutions are passed by the BDA on the basis of the directions
issued by the State Government as contemplated under Section 65
of the Act, admittedly, when the said resolutions are still existing,
the BDA is estopped to contend that the resolutions are not binding
on the BDA and therefore, the said contention cannot be accepted.
109. The Hon'ble Supreme Court, in the case of M/s
Shantistar Builders vs. Narayan Khimalal Totame and others
reported in (1990)1 SCC 520 held that right to shelter is
fundamental right guaranteed under Articles 19(1) and 21 of the
Constitution of India and at paragraphs 9 and 12, it is held as
under:
9. Basic needs of man have traditionally been
accepted to be three -- food, clothing and shelter. The
right to life is guaranteed in any civilized society. That
would take within its sweep the right to food, the right
to clothing, the right to decent environment and a
reasonable accommodation to live in. The difference
between the need of an animal and a human being for
shelter has to be kept in view. For the animal it is the
bare protection of the body; for a human being it has to
be a suitable accommodation which would allow him to
grow in every aspect -- physical, mental and
intellectual. The Constitution aims at ensuring fuller
development of every child. That would be possible only
if the child is in a proper home. It is not necessary that
every citizen must be ensured of living in a well-built
comfortable house but a reasonable home particularly
for people in India can even be mud-built thatched
house or a mud-built fire-proof accommodation.
12. Members of the Scheduled Castes and Scheduled
Tribes have ordinarily been accepted as belonging to
the weaker sections. Attempt to bring in the test of
economic means has often been tried but no guideline
has been evolved. Undoubtedly, apart from the
members of the Scheduled Castes and Scheduled
Tribes, there would be millions of other citizens who
would also belong to the weaker sections. The
Constitution-makers intended all citizens of India
belonging to the weaker sections to be benefited when
Article 46 was incorporated in the Constitution.
Parliament in adopting the same language in Section 21
of the Act also intended people of all weaker sections to
have the advantage. It is, there- fore, appropriate that
the Central Government should come forward with an
appropriate guideline to indicate who would be included
within weaker sections of the society.
110. The Hon'ble Supreme court, in the case of state of
Karnataka and others vs. Narasimha Murthy and others
reported in (1995)5 SCC 524, at paragraph 7, held as under:
"7. Right to shelter is a fundamental right under
Article 19(1) of the Constitution. To make the right
meaningful to the poor, the State has to provide
facilities and opportunity to build a house. Acquisition of
the land to provide house sites to the poor houseless is
a public purpose as it is a constitutional duty of the
State to provide house sites to the poor. Admittedly,
final notification under sub-section (4) of Section 3 did
contain the name of the first respondent."
111. The Hon'ble Supreme Court in the case of Chameli
Singh and others vs. State of U.P and another reported in
(1996)2 SCC 549, at paragraphs-8, held as under:
"8. In any organised society, right to live as a
human being is not ensured by meeting only the animal
needs of man. It is secured only when he is assured of
all facilities to develop himself and is freed from
restrictions which inhibit his growth. All human rights
are designed to achieve this object. Right to live
guaranteed in any civilised society implies the right to
food, water, decent environment, education, medical
care and shelter. These are basic human rights known
to any civilised society. All civil, political, social and
cultural rights enshrined in the Universal Declaration of
Human Rights and Convention or under the Constitution
of India cannot be exercised without these basic human
rights. Shelter for a human being, therefore, is not a
mere protection of his life and limb. It is home where he
has opportunities to grow physically, mentally,
intellectually and spiritually. Right to shelter, therefore,
includes adequate living space, safe and decent
structure, clean and decent surroundings, sufficient
light, pure air and water, electricity, sanitation and
other civic amenities like roads etc. so as to have easy
access to his daily avocation. The right to shelter,
therefore, does not mean a mere right to a roof over
one's head but right to all the infrastructure necessary
to enable them to live and develop as a human being.
Right to shelter when used as an essential requisite to
the right to live should be deemed to have been
guaranteed as a fundamental right. As is enjoined in the
Directive Principles, the State should be deemed to be
under an obligation to secure it for its citizens, of course
subject to its economic budgeting. In a democratic
society as a member of the organised civic community
one should have permanent shelter so as to physically,
mentally and intellectually equip oneself to improve his
excellence as a useful citizen as enjoined in the
Fundamental Duties and to be a useful citizen and equal
participant in democracy. The ultimate object of making
a man equipped with a right to dignity of person and
equality of status is to enable him to develop himself
into a cultured being. Want of decent residence,
therefore, frustrates the very object of the
constitutional animation of right to equality, economic
justice, fundamental right to residence, dignity of
person and right to live itself. To bring the Dalits and
Tribes into the mainstream of national life, providing
these facilities and opportunities to them is the duty of
the State as fundamental to their basic human and
constitutional rights."
112. The Hon'ble Supreme Court in the case of People's
Union for Civil Liberties vs. Union of India and others
reported in (2014)15 SCC 327, paragraphs 1 to 6, held as under:
"1. Article 21 of the Constitution states that no
person should be deprived of his life or personal liberty
except according to the procedure established by the
law. Over the years, this Court's jurisprudence has
added significant meaning and depth to the right to life.
A large number of judgments interpreting Article 21 of
the Constitution have laid down that right to shelter is
included in right to life.
2. In Francis Coralie Mullin v. UT of Delhi [Francis
Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 : 1981
SCC (Cri) 212] Bhagwati, J. stated that: (SCC pp. 618-
19, para 8)
"8. ... the right to life includes the right to
live with human dignity and all that goes
along with it, namely, the bare necessaries
of life such as adequate nutrition, clothing
and shelter and facilities for reading, writing
and expressing oneself in diverse forms,
freely moving about and mixing and
commingling with fellow human beings. Of
course, the magnitude and content of the
components of this right would depend upon
the extent of the economic development of
the country, but it must, in any view of the
matter, include the right to the basic
necessities of life and also the right to carry
on such functions and activities as
constitute the bare minimum expression of
the human-self."
3. In Chameli Singh v. State of U.P. [Chameli
Singh v. State of U.P., (1996) 2 SCC 549] this Court
interpreted Article 21 in the following words: (SCC p.
555, para 8)
"8. ... Right to live guaranteed in any
civilised society implies the right to food,
water, decent environment, education,
medical care and shelter. These are basic
human rights known to any civilised society.
All civil, political, social and cultural rights
enshrined in the Universal Declaration of
Human Rights and Convention or under the
Constitution of India cannot be exercised
without these basic human rights. Shelter
for a human being, therefore, is not a mere
protection of his life and limb."
4. In CESC Ltd. v. Subhash Chandra Bose [CESC
Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441 :
1992 SCC (L&S) 313] this Court held that right to social
and economic justice is a fundamental right. Right to
health of a worker is a fundamental right. Therefore,
right to life enshrined in Article 21 means something
more than mere survival or animal existence. The right
to live with human dignity with minimum sustenance
and shelter and all those rights and aspects of life which
would go to make a man's life complete and worth
living, would form part of the right to life. Enjoyment of
life and its attainment--social, cultural and intellectual--
without which life cannot be meaningful, would embrace
the protection and preservation of life guaranteed by
Article 21.
5. The State owes to the homeless people to ensure
at least minimum shelter as part of the State obligation
under Article 21.
6. In Parmanand Katara v. Union of India
[Parmanand Katara v. Union of India, (1989) 4 SCC 286
: 1989 SCC (Cri) 721] this Court observed that Article
21 casts the obligation on the State to preserve life
which is the paramount duty of the State according to
the Constitution.
113. The Hon'ble Supreme Court, in the case of National
Legal Services Authority vs. Union of India and others
reported in (2014)5 SCC 438, at paragraph-99 to 104, held as
under:
"99. The concept of equality in Article 14 so also the
meaning of the words "life", "liberty" and "law" in Article
21 have been considerably enlarged by judicial
decisions. Anything which is not "reasonable, just and
fair" is not treated to be equal and is, therefore,
violative of Article 14.
100. Speaking for the vision of our Founding
Fathers, in State of Karnataka v. Ranganatha
Reddy [(1977) 4 SCC 471 : AIR 1978 SC 215] , this
Court speaking through Krishna Iyer, J. observed :
(SCC p. 496, paras 44-45)
"44. The social philosophy of the
Constitution shapes creative judicial vision
and orientation. Our nation has, as its
dynamic doctrine, economic
democracy sans which political democracy is
chimerical. We say so because our
Constitution, in Parts III and IV and
elsewhere, ensouls such a value system,
and the debate in this case puts precisely
this soul in peril.
45. ... Our thesis is that the dialectics of
social justice should not be missed if the
synthesis of Part III and Part IV is to
influence State action and court
pronouncements. Constitutional problems
cannot be studied in a socio-economic
vacuum, since socio-cultural changes are
the source of the new values, and sloughing
off old legal thought is part of the process of
the new equity-loaded legality. A Judge is a
social scientist in his role as constitutional
invigilator and fails functionally if he forgets
this dimension in his complex duties."
(emphasis in original)
101. While interpreting Article 21, this Court has
comprehended such diverse aspects as children in jail
entitled to special treatment (Sheela Barse v. Union of
India [(1986) 3 SCC 596 : 1986 SCC (Cri) 337] );
health hazard due to pollution (M.C. Mehta v. Union of
India [(1987) 4 SCC 463] ); beggars' interest in
housing (Kali Dass v. State of J&K [(1987) 3 SCC 430]
); health hazard from harmful drugs (Vincent
Panikurlangara v. Union of India [(1987) 2 SCC 165 :
1987 SCC (Cri) 329] ); right to speedy trial (Raghubir
Singh v. State of Bihar [(1986) 4 SCC 481 : 1986 SCC
(Cri) 511] ); handcuffing of prisoners (Aeltemesh
Rein v. Union of India [(1988) 4 SCC 54 : 1988 SCC
(Cri) 900 : AIR 1988 SC 1768] ); delay in execution of
death sentence; immediate medical aid to injured
persons (Parmanand Katara v. Union of India [(1989) 4
SCC 286 : 1989 SCC (Cri) 721] ); starvation deaths
(Kishen Pattnayak v. State of Orissa [1989 Supp (1)
SCC 258 : AIR 1989 SC 677] ); the right to know
[Reliance Petrochemicals Ltd. v. Indian Express
Newspapers Bombay (P) Ltd. [(1988) 4 SCC 592 : AIR
1989 SC 190] ]; right to open trial (Kehar
Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 : 1988
SCC (Cri) 711 : AIR 1988 SC 1883] and inhuman
conditions in after-care home (Vikram Deo Singh
Tomar v. State of Bihar [1988 Supp SCC 734 : 1989
SCC (Cri) 66 : AIR 1988 SC 1782] ).
102. The most remarkable feature of this expansion
of Article 21 is that many of the non-justiciable directive
principles embodied in Part IV of the Constitution have
now been resurrected as enforceable fundamental
rights by the magic wand of judicial activism, playing on
Article 21 e.g.:
(a) Right to pollution-free water and air
(Subhash Kumar v. State of Bihar [(1991) 1
SCC 598 : AIR 1991 SC 420] ).
(b) Right to a reasonable residence
(Shantistar Builders v. Narayan Khimalal
Totame [(1990) 1 SCC 520 : AIR 1990 SC
630] ).
(c) Right to food, clothing, decent
environment; and even protection of
cultural heritage (Ramsharan
Autyanuprasi v. Union of India [1989 Supp
(1) SCC 251 : AIR 1989 SC 549] ).
(d) Right of every child to a full
development (Shantistar
Builders v. Narayan Khimalal
Totame [(1990) 1 SCC 520 : AIR 1990 SC
630] ).
(e) Right of residents of hilly areas to
access to roads (State of H.P. v. Umed Ram
Sharma [(1986) 2 SCC 68] ).
(f) Right to education (Mohini
Jain v. State of Karnataka [(1992) 3 SCC
666] ), but not for a professional degree
(Unni Krishnan, J.P. v. State of A.P. [(1993)
1 SCC 645] ).
103. A corollary of this development is that while so
long the negative language of Article 21 and use of the
word "deprived" was supposed to impose upon the
State the negative duty not to interfere with the life or
liberty of an individual without the sanction of law, the
width and amplitude of this provision has now imposed
a positive obligation (Vincent Panikurlangara v. Union of
India [(1987) 2 SCC 165 : 1987 SCC (Cri) 329] ) upon
the State to take steps for ensuring to the individual a
better enjoyment of his life and dignity e.g.:
(i) Maintenance and improvement of
public health (Vincent
Panikurlangara v. Union of India [(1987) 2
SCC 165 : 1987 SCC (Cri) 329] ).
(ii) Elimination of water and air pollution
(M.C. Mehta v. Union of India [(1987) 4
SCC 463] ).
(iii) Improvement of means of
communication (State of H.P. v. Umed Ram
Sharma [(1986) 2 SCC 68] ).
(iv) Rehabilitation of bonded labourers
(Bandhua Mukti Morcha v. Union of
India [(1984) 3 SCC 161 : 1984 SCC (L&S)
389] ).
(v) Providing human conditions in prisons
(Sher Singh v. State of Punjab [(1983) 2
SCC 344 : 1983 SCC (Cri) 461 : AIR 1983
SC 465] ) and protective homes (Sheela
Barse v. Union of India [(1986) 3 SCC 596 :
1986 SCC (Cri) 337] ).
(vi) Providing hygienic condition in a
slaughterhouse (Buffalo Traders Welfare
Assn. v. Maneka Gandhi [1994 Supp (3)
SCC 448] ).
104. The common golden thread which passes
through all these pronouncements is that Article 21
guarantees enjoyment of life by all citizens of this
country with dignity, viewing this human right in terms
of human development.
114. The Hon'ble Supreme Court, in the case of Ashok
Kumar Kalra vs. Wing CDR. Surendra Agnihotri and others
reported in (2020)2 SCC 394 (Three Judges Bench), at
paragraph-50, held as under:
50. It is well settled that procedural rules should not
be interpreted so as to defeat justice, rather than
furthering it. This is because procedural law is not
meant to serve as a tyrant against justice, but to act as
a lubricant in its administration. Thus, when courts set
out to do justice, they should not lose sight of the end
goal amidst technicalities. In some cases, this means
that rules that have traditionally been treated as
mandatory, may be moulded so that their object and
substantive justice is not obstructed. It would be
apposite to remember that equity and justice should be
the foremost considerations while construing procedural
rules, without nullifying the object of the legislature in
totality. Thus, rules under the Limitation Act which may
allow for filing of a belated counterclaim up to a long
period of time, should not be used to defeat the ends of
justice.
115. The Hon'ble Supreme Court, in the case of Varinder
Kumar vs. State of Himachal Pradesh, reported in LAWS(SC)-
2019-2-39, at paragraph 13 held as under:
"13. Law has to cater to wide variety of situations as
appear in society. Law being dynamic, the certainty of
the legislation appears rigid at times whenever a
circumstance (set of facts) appears which is not catered
for explicitly. Expediency then dictates that the higher
judiciary, while interpreting the law, considers such
exception(s) as are called for without disturbing the pith
and substance and the original intention of the
legislature. This is required primarily for the reason to
help strike a balance between competing forces--justice
being the end--and also because the process of fresh
legislation could take a long time, which would mean
failure of justice, and with it erosion of public confidence
and trust in the justice delivery system."
116. While considering the provisions of Article 300A and 21
of the Constitution of India, the Hon'ble Supreme Court, in the case
of Vidya Devi vs. State of Himachal Pradesh and others
reported in (2020)2 SCC 569 at paragraphs 12.10, 12.12 and
12.13, held as under:
12.10. This Court in State of Haryana v. Mukesh
Kumar [State of Haryana v. Mukesh Kumar, (2011) 10
SCC 404 : (2012) 3 SCC (Civ) 769] held that the right
to property is now considered to be not only a
constitutional or statutory right, but also a human right.
Human rights have been considered in the realm of
individual rights such as right to shelter, livelihood,
health, employment, etc. Human rights have gained a
multi-faceted dimension.
12.12. The contention advanced by the State of
delay and laches of the appellant in moving the Court is
also liable to be rejected. Delay and laches cannot be
raised in a case of a continuing cause of action, or if the
circumstances shock the judicial conscience of the
Court. Condonation of delay is a matter of judicial
discretion, which must be exercised judiciously and
reasonably in the facts and circumstances of a case. It
will depend upon the breach of fundamental rights, and
the remedy claimed, and when and how the delay
arose. There is no period of limitation prescribed for the
courts to exercise their constitutional jurisdiction to do
substantial justice.
12.13. In a case where the demand for justice is so
compelling, a constitutional court would exercise its
jurisdiction with a view to promote justice, and not
defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975)
1 SCC 152 : 1975 SCC (L&S) 22]
117. While considering the provisions of Article 14 of the
Constitution of India, the Hon'ble Supreme Court, in the case of
Vetindia Pharmaceuticals Ltd. Vs. State of Uttar Pradesh and
another reported in AIR 2020 SC 5753 at paragraph 14, held as
under:
"14. That brings us to the question of delay. There is
no doubt that the High Court in its discretionary
jurisdiction may decline to exercise the discretionary
writ jurisdiction on the ground of delay in approaching
the court. But it is only a rule of discretion by exercise
of self-restraint evolved by the court in exercise of the
discretionary equitable jurisdiction and not a mandatory
requirement that every delayed petition must be
dismissed on the ground of delay. The Limitation
Act stricto sensu does not apply to the writ jurisdiction.
The discretion vested in the court under Article 226 of
the Constitution therefore has to be a judicious exercise
of the discretion after considering all pros and cons of
the matter, including the nature of the dispute, the
explanation for the delay, whether any third-party
rights have intervened, etc. The jurisdiction under
Article 226 being equitable in nature, questions of
proportionality in considering whether the impugned
order merits interference or not in exercise of the
discretionary jurisdiction will also arise. This Court
in Basanti Prasadv. Bihar School Examination
Board [Basanti Prasad v. Bihar School Examination
Board, (2009) 6 SCC 791 : (2009) 2 SCC (L&S) 252] ,
after referring to Moon Mills Ltd. v. M.R. Meher [Moon
Mills Ltd. v. M.R.Meher, AIR 1967 SC 1450],
Maharashtra SRTC v. Balwant Regular Motor
Service [Maharashtra SRTC v. Balwant Regular Motor
Service, (1969) 1 SCR 808 : AIR 1969 SC 329]
and State of M.P. v. Nandlal Jaiswal [State of
M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566] , held that if
the delay is properly explained and no third-party rights
are being affected, the writ court under Article 226 of
the Constitution may condone the delay, holding as
follows : (Basanti Prasad case [Basanti Prasad v. Bihar
School Examination Board, (2009) 6 SCC 791 : (2009)
2 SCC (L&S) 252] , SCC p. 796, para 18)
"18. In the normal course, we would not
have taken exception to the order passed by
the High Court. They are justified in saying
that a delinquent employee should not be
permitted to revive the stale claim and the
High Court in exercise of its discretion would
not ordinarily assist the tardy and indolent
person. This is the traditional view and is well
supported by a plethora of decisions of this
Court. This Court also has taken the view that
there is no inviolable rule, that, whenever
there is delay the Court must refuse to
entertain a petition. This Court has stated that
the writ court in exercise of its extraordinary
jurisdiction under Article 226 of the
Constitution may condone the delay in filing
the petition, if the delay is satisfactorily
explained."
118. Though a contention was raised by the learned Senior
Counsel for the BDA that the writ petitions are filed at a belated
stage and therefore, they are liable to be dismissed on the ground
of delay and laches, the fact remains that the petitioners were
made to run pillar to post for allotment of site. The BDA
discriminated the cases of the petitioners and when similarly placed
persons have already been allotted alternative sites, the writ
petitioners approached the Court for the relief sought for based on
the scheme introduced by the State Government. The BDA in
almost all cases after 7 to 9 attempts made by the applicants issued
allotment letters. Thereby, there cannot be any delay in filing the
writ petitions as alleged by the BDA.
119. It is well settled that, when substantial justice and
technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side
cannot claim to have vested right in injustice being done because of
a non-deliberate delay. It must be grasped that judiciary is
respected not on account of its power to legalize injustice on
technical grounds but because it is capable of removing injustice
and is expected to do so.
120. Learned Senior counsel for BDA relied upon the
judgment of the Hon'ble Supreme Court in the case of Maharshi
Dayanand University vs. Surjeet Kaur reported in (2010)11
SCC 159, to contend that, no Court has competence to issue
direction contrary to law nor can direct an authority to act in
contravention of statutory provisions. Admittedly, in the present
intra Court Appeals, the orders passed in the writ petitions are on
the basis of the scheme formulated by the State Government and
Resolutions passed by BDA permitting the allottees to pay balance
sital value together with 21% interest and the BDA was directed to
take steps to allot the subject sites or alternative sites. Thereby,
the learned single Judge has neither issued any direction contrary
to law nor directed the BDA to act in contravention of statutory
provisions, but, has directed to act in accordance with the scheme
issued by State Government. Thereby, the said Judgment has no
application to the facts and circumstances of the present case.
121. Learned Senior Counsel for BDA relied upon the
Judgment of the Hon'ble Supreme Court in the case of Chingleput
Bottlers vs. Majestic Bottling Company reported in (1984)3
SCC 258 to the effect that the High Court has no power to issue
mandamus granting licence to the respondent therein i.e., Majestic
Bottling Company and the High Court has no jurisdiction to issue a
writ of mandamus directing the Commissioner to grant licence, and
it must be shown under the Act and Rules framed thereunder that
there was a legal duty imposed on the Commissioner to issue a
licence. Thereby no mandamus lies where the duty sought to be
enforced is of a discretionary nature nor will a mandamus issue to
compel the performance by public body or authority of an act
contrary to law. Admittedly in the present intra Court Appeals,
mandamus has been issued by learned single Judge directing the
BDA to allot the sites in favour of the applicants on receiving the
balance sale consideration amount along with 21% interest. On the
basis of the scheme of the State Government and resolution of the
BDA, admittedly, BDA has allotted sites to large number of similarly
placed persons, accepting 21% interest on the remaining sital
value. Thereby there cannot be any discrimination among
respondents and other persons in whose favour already sites have
been allotted on the basis of the mandamus issued by this Court.
When there are notifications and resolutions passed by BDA to allot
sites by accepting the remaining sital value with 21% interest, the
judgment relied upon by the learned Senior Counsel has no
application to the facts and circumstances of the present cases.
122 Learned Senior Counsel for the BDA contended that the
Hon'ble Supreme Court, in the case of Chameli Singh vs. State of
U.P., reported in (1996)2 SCC 549, held that right to shelter,
does not mean a mere right to a roof over one's head but right to
all the infrastructure necessary to enable them to live and develop
as a human being. Right to shelter when used as an essential
requisite to the right to live should be deemed to have been
guaranteed as a fundamental right. As is enjoined in the Directive
Principles, the State should be deemed to be under an obligation to
secure it for its citizens, of course subject to its economic
budgeting. In fact, this judgment is in favour of the respondents
and will no way help the appellants/BDA.
123. The learned senior counsel for appellants/BDA also
relied upon the dictum of the Hon'ble Supreme Court in the case of
State of Haryana vs. Ram Kumar Mann reported in (1997)3
SCC 321, to contend that, the petitioner must have an enforceable
right; relief wrongly given to others cannot be claimed; unless there
is an enforceable right, plea of discrimination could not be validly
raised. In the present intra Court Appeals, though there is delay in
filing the writ petitions based on the scheme introduced by State
Government as well as resolution passed by the BDA, it is not the
case of the BDA that the orders issued by State Government and
circulars issued thereon by the BDA are in violation of Section 65 of
the BDA Act and Rule 13 of the Bengaluru Development
Authority(Allotment of Sites) Rules, 1982. The enforceable right to
the petitioners have been provided by the State Government and
the BDA by introducing the scheme to allot sites by receiving 21%
interest on the remaining sital value. It is to be noted at this
juncture that, Article 14 would apply only when invidious
discrimination is meted out to equals and similarly circumstanced
without any rational basis or relationship in that behalf. Thereby
the said judgment has no application to the facts and circumstances
of the present intra Court Appeals.
124. Learned Senior counsel further relied upon the dictum
of the Hon'ble Supreme Court in the case of Vishal Properties (P)
Ltd., vs. State of Uttar Pradesh and others reported in (2007)
11 SCC 172, wherein the Hon'ble Supreme Court held that, Article
14 of the Constitution of India is not meant to perpetuate an
illegality. It provides for positive equality and not negative
equality. Any action/order passed contrary to law does not confer
any right upon any person for similar treatment. In the present
intra Court Appeals, except two petitioners, all the other petitioners
belong to weaker sections of the society and applied for allotment
of sites measuring 20 ft. x 30 ft. and 30 ft. x 40 ft. and after 8 to
10 attempts and, at last, they were allotted the sites. As the value
of the allotment was not made within the time, allotment in respect
of large number of applicants came to be cancelled. And in
pursuance of the representations made by the allottees to the State
Government, the State Government introduced the scheme and
based on the said scheme, the BDA passed resolutions to accept
21% interest on the remaining balance sital value and allot the sites
or alternative sites, as one time settlement, and almost all the
applicants have utilized the said scheme and got benefited.
Admittedly the said scheme or the circular issued by State
Government or BDA has not been withdrawn till today. Thereby,
the present respondents sought writ of mandamus based on the
positive equality. Thereby, the said judgment has no application to
the facts and circumstances of the intra Court Appeals on hand.
125. The other judgment with similar preposition is in the
case of Basawaraj and another vs. Special Land Acquisition
Officer reported in (2013)14 SCC 81, the Hon'ble Supreme Court,
while considering Article 14 of the Constitution of India, held that
Article 14 is not meant to perpetuate illegality or fraud even by
extending wrong decisions made in other cases. Article 14 has only
positive aspects and negative equality is not envisaged thereunder.
This Court has no quarrel with the law laid down by the Hon'ble
Supreme Court. But, when the scheme has been introduced by
State Government for the benefit of economically backward classes
and till today the said scheme has not been withdrawn, the
petitioners who approached this Court on positive aspects cannot be
deprived of the relief given to similarly placed persons. Therefore,
the said judgment has no application to the facts and circumstances
of the present intra Court Appeals.
126. Learned Senior Counsel for the BDA further relied upon
the judgment of the Hon'ble Supreme Court in the case of Major
E.G.Barsay vs. State of Bombay, reported in AIR 1961 SC
1762, to contend that, where the evidence establishes that the
order was made by Deputy Secretary on behalf of the Central
Government in exercise of the power conferred on him under the
rules delegating such power to him the order cannot be questioned.
Admittedly in the present intra Court Appeals, the State
Government voluntarily came forward to introduce the scheme in
order to protect the people belonging to backward classes as they
could not pay the amount within the time due to their economical
disability. Thereby all the respondents are entitled to the benefit of
the scheme. Therefore, said judgment has no application to the
facts and circumstances of the present intra Court Appeals.
127. Learned Senior counsel for the appellants also relied
upon the dictum of the Hon'ble Supreme Court in the case of
Shankara Cooperative Housing Society Limited vs.
M.Prabhakar and others reported in (2011)5 SCC 607
regarding delay in filing writ petitions. It is true that delay and
laches is one of the factors that requires to be borne in mind by the
High Courts when they exercise their discretionary power under
Article 226 of the Constitution of India. The High Court may refuse
to invoke its extraordinary powers, if there is such negligence or
omission on the part of the applicant to assert his rights taken in
conjunction with the lapse of time and other circumstances. In the
present intra Court Appeals, the State Government introduced the
scheme and based on the said scheme, BDA passed the resolutions
for allotment of sites, as the applicants belong to backward
community or scheduled castes/ scheduled tribes and were unable
to pay the sital value within the time prescribed. When some of the
applicants approached the Court and succeeded, there was some
delay for the present petitioners in approaching the Court. As delay
is not fatal to the case, in order to do complete justice and in the
interest of both the parties, the High Courts can exercise
discretionary power under Article 226 of the Constitution of India to
condone the delay. It is relevant to state at this stage that, when
substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred for
the other side cannot claim to have vested right in injustice being
done because of a non-deliberate delay. It must be grasped that
judiciary is respected not on account of its power to legalise
injustice on technical grounds but because it is capable of
removing injustice and is expected to do so. Thereby, only on the
ground of delay, writ petitions cannot be dismissed as there is a
reasonable explanation for the delay, as the Court should not harm
innocent parties if their rights had emerged by the delay on the part
of the petitioners. Thereby, the said judgment has no application to
the facts and circumstances of the present intra Court Appeals.
128. Another judgment relied upon by the learned Senior
Counsel for the BDA in the case of Smt.H.B.Premakumari vs.
State of Karnataka and another reported in (2013)5 KLJ 279,
rendered by the coordinate Bench of this Court, was a case where,
while considering Rule 13 of the Bengaluru Development
Authority(Allotment of Sites) Rules, 1984 it was held that, in terms
of the Rules, even if time is to be extended, the same can be
extended upto 90+60+150 i.e., about 300 days, that too by paying
appropriate interest. However, the coordinate Bench, while
dismissing Appeal permitted the appellant to make fresh application
seeking fresh allotment from BDA. Therefore, the said judgment
has no application to the facts and circumstances of the present
intra Court Appeals.
129. The Division Bench of this Court in the case of Telecom
Employees Co-operative Housing Society Ltd. Vs. Scheduled
Castes, Scheduled Tribes, Minority Communities and
Backward Classes Improvement Centre reported in ILR 1990
KAR 3320 held that, the question as to whether the Government
has power to issue directions to make bulk allotment under Section
65 of the BDA Act, answered that under the said Section,
Government is enabled to give directions to the BDA 'as are
necessary or expedient' for carrying out the purposes of the Act.
Section 65 is not subject to any restrictions while Section 38 is so
subjected, and it is merely an administrative order. The said
judgment has no application to the facts and circumstances of the
present intra Court Appeals.
130. Learned Senior Counsel relied upon the judgment in the
case of State of Karnataka and others vs. Saveen Kumar
Shetty reported in (2002)3 SCC 426, wherein, the Hon'ble
Supreme Court has dealt with the consequence of failure to execute
the lease agreement provided by Rule 18 of the Karnataka Excise
(Lease of the Right of Retail Vend of Liquors) Rules 1969. In the
present intra Court Appeals, the cause of action arose for all the
allottees when the scheme came to be introduced by the State
Government and BDA issued resolutions to that effect and allotted
sites and alternative sites to several persons who belong to
economically weaker section, on the basis of the scheme and when
the State Government issued the scheme, same was followed by
the BDA by passing resolutions to implement the scheme.
Naturally, the parties i.e., the State Government and BDA should
act like public trustees in order to fulfil the mandatory provisions of
Articles 14, 21 and 300 of the Constitution of India. The State
Government and authorities like Bengaluru Development Authority
are under constitutional duty coupled with power. Every public
servant is a trustee of the society and in all facets of public
administration, every public servant has to exhibit honesty,
integrity, sincerity and faithfulness in implementation of the
political, social, economic and constitutional policies to integrate the
nation, to achieve excellence and efficiency in the public
administration. Thereby the said judgment has no application to
the facts and circumstances of the present intra Court Appeals.
131. The Order dated 11.04.2022 passed in Civil Appeal
No.2884/2022 relied upon the learned Senior Counsel for the BDA
is a case where, the allottee had made number of attempts for
allotment of a site and finally, on 07.04.2003, a site measuring 40
ft. x 60 ft. was allotted by the BDA. However, the notice sent by
the BDA was not served on the petitioner since he was not residing
in the address shown in the application on account of his transfer to
some other. Therefore, the allotment was cancelled. He
approached the High Court after lapse of 13 years, in W.P.
No.53206/2016 challenging the cancellation Order dated
17.12.2003. The learned single Judge allowed writ petition, which
order was confirmed by the Division Bench. When the BDA
approached the Hon'ble Supreme Court in the aforesaid Civil Appeal
No.2884/2022, the same was allowed, dismissing the order passed
by the learned single Judge of this Court, holding that Rule 13 of
the Bengaluru Development Authority (Allotment of Sites) Rules,
1982, mandates the allottee to deposit the sital value after
deducting initial deposit and the petitioner failed to deposit the said
amount and there is no corresponding application to allot
alternative site. Admittedly, the facts and circumstances of the said
case is different. In the present cases, except two petitioners, all
other petitioners are claiming for allotment of small sites measuring
20 ft. x 30 ft. and 30 ft. x 40 ft. and the facts are entirely different.
132. The other judgment relied upon by the learned Senior
counsel for the BDA in the case of Nasiruddin and others vs. Sita
Ram Agarwal reported in (2003)2 SCC 577, and the judgment
in the case of Sangram Singh vs. Election Tribunal, reported in
AIR 1955 SC 425, and other judgments are not applicable to the
facts and circumstances of the present intra Court Appeals.
133. For the reasons stated above, the first point raised for
consideration in the present intra Court Appeals has to be answered
in the negative holding that BDA has not made out any case to
interfere with the impugned orders passed by the learned single
Judge directing BDA to allot alternative site after receipt of
remaining sital value with 21% interest in terms of circular issued
by the BDA. Accordingly the second point is answered in the
affirmative holding respondents/ allottees are entitled to the relief
sought for in the writ petitions as contemplated under Articles 14
and 21 of Constitution of India, in view of the specific scheme
introduced by the State Government and resolution passed by the
BDA as one time settlement.
134. On meticulous reading of the pleadings, documents, this
Court is of the considered opinion that BDA/appellants have not
made out any ground to interfere with the impugned orders of the
learned single Judge in exercise of appellate powers under Section
4 of the High Court Act, as the scope of the Intra Court Appeal is
very limited.
135. In view of the above we pass following:
VI. ORDER/RESULT
(i) The Intra Court Appeals filed by Bengaluru
Development Authority are hereby dismissed.
(ii) The orders passed by the learned single Judge
allowing the writ petitions in terms of the
decisions in the cases of Jayakumar Shetty,
Kempamma, Mohan Kumar, Manjunath R, in
W.P.No.13568/2015, W.P.No.19093/2012,
W.P.No.38258/13 and W.P.No.5150/2019,
respectively, directing the Bengaluru
Development Authority to take necessary steps to
allot the subject sites or alternative sites in favour
of the respondents/writ petitioners, within a
period of three months from the date of payment
of the remaining sital value with 21% interest, are
hereby confirmed.
(iii) The time for compliance of the order of the
learned single Judge is three months from the
date of such payment made by the
respondents/writ petitioners.
Ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
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