Karnataka High Court
The Bangalore Development Authority vs Gundappa R on 10 November, 2020
Bench: B.V.Nagarathna, N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
WRIT APPEAL No.45/2020
C/W
WRIT APPEAL No.110/2020 (BDA)
W.A. No.45/2020
BETWEEN:
THE BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020.
REP. BY ITS COMMISSIONER. ... APPELLANT
(BY SRI AJAYKUMAR M., ADVOCATE (THROUGH V/C))
AND:
GUNDAPPA .R
S/O. LATE RAMAIAH .T,
AGED ABOUT 80 YEARS,
NO.5, UTTARAHALLI MAIN ROAD,
KONANAKUNTE CROSS,
BENGALURU - 560 010. ... RESPONDENT
(BY SRI THARESHA K.N., ADVOCATE SRI SUPRITH K.H.,
ADVOCATE (THROUGH V/C))
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE
WRIT APPEAL AND SET ASIDE THE ORDER DATED 15/07/2019
PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.53206/2016 AND FURTHER BE PLEASED TO DISMISS
THE WRIT PETITION.
W.A. No.110/2020
BETWEEN:
SRI GUNDAPPA
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S/O. LATE RAMAIAH .T
AGED ABOUT 76 YEARS,
NO.5, UTTARAHALLI MAIN ROAD,
KONANKUNTE CROSS,
BANGALORE - 560 010. ... APPELLANT
(BY SRI VASANTH KUMAR H.T., ADVOCATE)
AND:
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH RAOD,
BANGALORE - 560 020.
REP. BY ITS COMMISSIONER. ... RESPONDENT
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE
WRIT APPEAL AND MODIFY THE ORDER DATED 15/07/2019
PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.53206/2016.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING
THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
Though there is a delay of 176 days in filing W.A.No.110/2020, nevertheless, we have heard learned counsel for the respective parties on merits of the appeals.
2. These appeals are directed against the order of the learned single Judge dated 15/07/2019, in W.P.No.53206/2016. W.A.No.45/2020 is filed by the Bangalore Development Authority (hereinafter referred to as "the BDA" for the sake of convenience), while W.A.No.110/2020 is filed by the writ petitioner. -3-
3. Briefly stated, the facts are, that the petitioner had filed an application on 19/10/1984 to the BDA seeking allotment of a site measuring 40 ft. x 60 ft. On 07/04/2003, the BDA allotted a site bearing No.918, measuring 40 ft. x 60 ft. at Sir M. Vishveshwaraiah Layout, 4th Block, Bengaluru (hereinafter referred to as "the site in question" for short). The petitioner had initially paid a part of the sital value and he had to pay the balance sital value of Rs.3,01,450/-. Admittedly, the petitioner did not pay the balance sital value. Hence, show-cause notice was issued by the BDA on 01/08/2003 requesting the petitioner to show-cause as to why the balance sital value was not paid. It is the case of the petitioner that the show-cause notice was not served on him as he was by then transferred to Mysuru during the said period. However, after coming to know of the issuance of show-cause notice, petitioner is stated to have replied to the same on 28/09/2005 vide Annexure - F. In fact, the petitioner made a request for refund of the initial deposit of Rs.43,000/- made to the respondent/BDA and a cheque was sent to the very same address of the petitioner which was available with the BDA, but the same has been returned unserved. Thereafter, the petitioner filed a writ -4- petition in the year 2016 (W.P.No.53206/2016). In the interregnum, the BDA cancelled the allotment vide order dated 17/12/2003. Thereafter, on 20/07/2015, that is nearly twelve years subsequent there to, petitioner made a representation for allotment of an alternative site of reasonable dimension in the same layout or in any other layout. The said representation not being considered, the petitioner filed the aforesaid writ petition assailing the order of cancellation dated 17/12/2003 and sought for a direction to consider his representation dated 20/07/2015 vide Annexure - G.
4. Learned single Judge on hearing the respective parties, directed the petitioner to pay interest at the rate of 24% per annum from the date of allotment till the date of deposit on the balance sital value and on such payment being made, the BDA shall consider the representation of the petitioner and shall allot an alternative site in the same layout (Sir M.Vishveshwaraiah) or in any other layout keeping in mind the competing equities. Being aggrieved, both the BDA and the petitioner have preferred these appeals.
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5. We have heard learned counsel for the respective parties.
6. Learned counsel for the BDA contended that the learned single Judge ought not to have granted the relief to the petitioner as he did not bother to pay the balance sital value to the BDA in time. Consequently, the BDA cancelled the allotment on 17/12/2003. Thereafter, the site allotted to the petitioner has been allotted to a third party and therefore, the petitioner had lost all his rights to seek any allotment from the BDA. Therefore, the direction issued by the learned single Judge to allot an alternative site to the petitioner on payment of interest at the rate of 24% per annum on the balance sital value is not just and proper. He contended that the impugned order may be set aside and the cancellation of the allotment of the site to the petitioner may be sustained.
7. Per contra, learned counsel for the petitioner contended that the directions issued by the learned single Judge are just and proper. However, the reason as to why the appeal has been filed by the petitioner is on account of the fact that the learned single Judge did not quash the cancellation of the order of allotment of site dated -6- 17/12/2003 and hence the petitioner is aggrieved by only that aspect of the matter.
8. Having heard learned counsel for the parties, we find that the controversy in the appeal is in narrow compass. It is not in dispute that site measuring 40ft.x 60 ft. was allotted in Sir M.Vishveshwaraiah Layout, Bengaluru, to the petitioner, the total sital value is Rs.3,01,450/-. Admittedly, the initial deposit made by the petitioner was only Rs.43,000/- and the balance sital value of Rs.3,97,150/- had to be paid pursuant to the allotment which admittedly was not paid by the petitioner. In the circumstances, the BDA issued show-cause notice to the petitioner as to why the allotment ought not to be cancelled. The said show-cause notice was not served on the petitioner since he was not residing at the address given by him to the BDA and had been transferred to Mysuru. In the circumstances, on cancellation of the allotment by order dated 17/12/2003, the BDA has allotted the site in question to a third party. The cancellation was made in the year 2003, but it is only in the year 2015, the petitioner filed representation dated 20/07/2015 seeking for re-allotment of an alternative site and thereafter, filed the writ petition assailing the order or cancellation dated -7- 17/12/2003 and for consideration of the said representation. Admittedly, the show-cause notice issued to the petitioner on 01/08/2003 was not served on the petitioner as he was not residing at the address which was available with the BDA. Therefore, the petitioner was not aware of the cancellation of the allotment. In the circumstances, the petitioner sought for allotment of an alternative site.
9. Learned single Judge, while considering the aforesaid aspects of the matter has balanced the equities between the parties by not setting aside the order of cancellation dated 17/12/2003 inasmuch as subsequent to the said order of cancellation, the site has been allotted to a third party, which is on the strength of the order of cancellation and an innocent third party has paid the consideration to the BDA and is now the owner of the site in question. Therefore, the only relief that could have been granted to the petitioner was, by directing the BDA to allot an alternative site to the petitioner on payment of sale consideration inclusive of interest at the rate of 24% per annum from the date of allotment (07/04/2003) till the date of deposit. The said allotment of an alternative site could be either in Sir M.Vishveshwaraiah Layout or in any -8- other layout and a comparable dimension. We note that the petitioner had filed an application for allotment of a site as early as 19/10/1984 and thereafter, he had made nine attempts to get the site allotted from the BDA and it was in the ninth attempt the site in question was allotted to him. In the circumstances, we find that the learned single Judge has balanced the equities between the parties even though order of cancellation has not been set aside. Therefore, the BDA is directed to accept interest at the rate of 24% per annum on the balance sital value from the date of order of cancellation (17/12/2003) till the date of payment. On such payment being made, the BDA shall allot an alternative site to the petitioner within a period of three months from the date of payment of the amount.
10. In the circumstances, both the appeals are dismissed as being without any merit.
Parties to bear their respective costs.
In view of the dismissal of the appeals, pending applications also stand dismissed.
Sd/-
JUDGE Sd/-
JUDGE S*