Karnataka High Court
The Bangalore Development ... vs Sri D Goutham on 12 July, 2023
Bench: Chief Justice, M.G.S. Kamal
-1-
NC: 2023:KHC:24019-DB
WA No. 879 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT APPEAL NO. 879 OF 2022 (BDA)
BETWEEN:
1. THE BANGALORE DEVELOPMENT AUTHORITY
REP. BY ITS COMMISSIONER
T. CHOWDAIAH ROAD
BENGALURU - 560 020.
REP. BY DEPUTY SECRETARY-1
Digitally 2. THE DEPUTY SECRETARY -1
signed by BANGALORE DEVELOPMENT AUTHORITY
SUMA B N
T. CHOWDAIAH ROAD
Location: BENGALURU - 560 020.
High Court
of ...APPELLANTS
Karnataka
(BY SRI. MURALI N., ADVOCATE)
AND:
SRI D. GOUTHAM
S/O D. GOPALAKRISHNA MURTHY
AGED ABOUT 36 YEARS
R/AT 867, 38TH CROSS
-2-
NC: 2023:KHC:24019-DB
WA No. 879 of 2022
9TH 'T' BLOCK, JAYANAGAR
BANGALURU - 560 041.
...RESPONDENT
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO 1.SET ASIDE THE
ORDER DATED:14/06/2022 PASSED BY THE HON'BLE LEARNED
SINGLE JUDGE IN W.P.NO.18095/2021.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE., DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for appellants.
2. Learned counsel for appellants submit that
learned Single Judge of this Court in the order dated
14.06.2022 in W.P.No.18095/2021(BDA) while allowing
the writ petition and issuing mandamus to the appellants
in this appeal failed to appreciate certain provisions and as
such the appellants are before this Court.
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WA No. 879 of 2022
3. The necessary facts of the matter can be stated
as follows:
The petitioner submitted application time and again
to the appellants/respondent BDA for grant/allotment of a
site pursuant to the notification issued by respondent BDA
itself. Ultimately the last attempt seems to have been
fruitful as petitioner was allotted a site ad measuring
15x24 meters on 11.10.2018 in a area known as "Nada
Prabhu Kempegowda Layout". Petitioner found that there
are certain issues in respect of the site and as said site is
unutilizable he again approached the
appellants/respondent BDA with a request for allotment of
a alternative site. This request was allowed by
appellant/respondent BDA with allotment of a alternate
site on 03.06.2019.
(Emphasis supplied by us)
4. Pursuant to this allotment, petitioner was called
upon to make payment to the tune of 84,79,010/- the
petitioner immediately remitted the major sum against the
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WA No. 879 of 2022
demand i.e., the amount to the tune of Rs.83,87,135/- on
04.06.2019. It was a reasonable expectation of the
petitioner as allotment in his favour pursuant to demand
the amount is also deposited by him the
appellants/respondent BDA would comply its obligation of
execution of lease cum sale agreement and as such he
awaited for this action by BDA. The petitioner also
submitted all necessary documents along with his covering
letter to BDA on 07.09.2019. Nearly after one year BDA
informed the petitioner vide communication dated
18.08.2020 that there is delay in payment of amount and
allotment made in favour of the petitioner would be
cancelled and the amount deposited by the petitioner
would be forfeited. The petitioner immediately within one
week replied to the said letter by his counter
communication dated 27.08.2020 giving details of
payment being made by the petitioner. Subsequently
there was no movement at the end of the
appellants/respondent BDA. As such the petitioner
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WA No. 879 of 2022
approached this Court by filing writ petition seeking
mandamus.
5. Learned Single Judge considering all these
necessary facts including the submission on behalf of
respondent BDA that there is a delay in payment and
provisions particularly Rule 13 of the Bangalore
Development Allotment of Site Rules, 1984 permits
respondent-BDA to cancel the allotment and forfeit the
amount on account of delay, found that the action of the
respondent-BDA being not justified the petitioner made
out a case and accordingly petition was allowed with
issuance of mandamus.
6. Learned counsel for appellants submit before us
that as the site initially allotted to the petitioner was
habitable and there was a report of the Engineer certifying
land of the petitioner being habitable and petitioner failed
to deposit the amount within stipulated period and as
there is delay Rule 13 would come into play.
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WA No. 879 of 2022
Learned counsel for appellants also placed heavy reliance
on the Judgment of the Hon'ble Apex Court in Civil Appeal
No.2884/2022(unreported) in the case of The Bangalore
Development Authority Vs Gundappa R..
7. On perusal of the material placed on record
particularly the order of the learned Single Judge, in our
opinion the appeal is devoid of any merit. Though the
proposition of law reflected in the judgment of the Hon'ble
Apex Court cannot be disputed, in view of the facts of the
present matter we respectfully state that the Judgment of
the Hon'ble Apex Court is not applicable to the present
case. The counsel submitted that the Apex Court approved
the action of the respondent-BDA in the similar
circumstances in the matter of The Bangalore
Development Authority Vs Gundappa R.
8. We are unable to accept these submissions of the
learned counsel for appellants at the cost of repetition we
state that the case of petitioner was not of the first and
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only allotment which was the case in the matter of BDA Vs
Gundappa R., supra. The case before the learned Single
Judge was of a peculiar nature namely the first allotment
in favour of the petitioner was not accepted by the
petitioner and petitioner requested BDA for allotment of a
alternate site. This request was made by the petitioner
and respondent-BDA granted the request by allotment of
alternate site on 03.06.2019. If it was the stand of BDA
that first allotment of site to the petitioner was habitable
at that point of time itself respondent-BDA ought to have
turned down the request of the petitioner for allotment of
alternate site. The appellant/respondent-BDA without
doing so happily accepted the request of the petitioner
allotted alternate site to the petitioner and accepted major
sum of the amount sought for and then after one year
waking up from deep slumber thought it fit to take
recourse to Rule 13(1) and issued communication to the
petitioner. This entire exercise of respondent-BDA as such
was considered by learned Single Judge with strong words
of displeasure stating that contention on the part of the
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respondent is malafide. In view of these peculiar facts
learned Single Judge allowed the petition and issued a
mandamus and in our opinion rightly so as we are unable
to find any error in the Judgment and order passed by the
learned Single Judge. Appeal thus being devoid of any
merit deserves to be dismissed and same is accordingly
dismissed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
SBN
