Karnataka High Court
The Bangalore Development Authority, ... vs Smt. Sumitradevi on 23 February, 2005
Equivalent citations: ILR2005KAR1386, 2005(3)KARLJ67, AIR 2005 (NOC) 230 (KAR), 2005 AIR KAR R 801, 2005 AIR - KANT. H. C. R. 801, (2005) 3 KANT LJ 67, 2005 A I H C 1863, (2005) 1 KCCR 669
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
JUDGMENT S.R. Nayak, J.
1. This writ appeal preferred by the Bangalore Development Authority (for short, BDA) is directed against the Order of a learned single Judge of this Court dated 19.12.2001 passed in Writ Petition No.28479 of 1999.
2. The facts of the case, in brief, are:
In response to an application made by the respondent herein, she was allotted a site bearing No.2268/C admeasuring 30'X40' in HAL II stage, Bangalore, by the Chairman of the BDA on 28.01.1978. The respondent paid the value of the site and thereafter, lease-cum-sale agreement was executed on 26.02.1979. The respondent was put in possession of the site vide possession certificate dated 07.03.1979 marked as Annexure-C. The respondent has been paying assessment after she was put in possession of the site. In support of it, the respondent has produced a certificate dated 19.06.1981 marked as Annexure-D issued by the Revenue Officer, BDA, Bangalore. After the respondent was put in possession of the site, she moblished funds and put up construction after getting the plan approved by Bangalore Mahanagara Palike (BMP). The construction of the ground floor was completed in the year 1983. Subsequently, she constructed first floor after obtaining permission and getting the plan sanctioned. It is stated that the respondent had spent more than Rs. 28,00,000/- towards the cost of construction of the house.
3. When the matter stood thus, in the year 1996, the Deputy Secretary, BDA issued a show-cause notice marked as Annexure-L dated 12.04.1996 to the respondent alleging that the respondent has suppressed the fact that her husband had applied for a site and he was also allotted a site and this fact was not disclosed in her application made to the Chairman of the BDA for allotment of a site. It was pointed out that the respondent ought to have disclosed that fact in her application as required under the provisions of the Bangalore Development Authority (Allotment of Site) Rules, 1984 (for short, 'the Rules). In response to that show-cause notice, the respondent submitted her reply on 30th April, 1996 stating that at the time she made the application to the Chairman of the BDA she was not living with her husband due to certain serious difference between the two and she was staying with her parents. She also contended that she was not aware of the application made by her husband to the BDA nor the fact of allotment of a site to her husband. She also contended that her husband was not supporting her on the date when she made the application to BDA for allotment of site and she was not a dependent on her husband.
The BDA did not take any immediate action after the receipt of the reply of the respondent to the show-cause notice dated 12.04.1996. According to the respondent, she believed that the BDA being convinced by the explanation offered by her in her reply dated 30.04.1996, dropped the proceedings. When the matter stood thus, the respondent received the Order of the BDA dated nil, on 23.07.1999, marked as Annexure-N cancelling the allotment made in favour of the respondent and directing her to handover the possession of the site alongwith the building constructed thereon.
4. The respondent being aggrieved by the Order of the BDA, Annexure-N, preferred Writ Petition No.28479 of 1999. In the Writ Petition, it was contended that the Rules are not applicable to the facts of the case inasmuch as the allotment was made under the provisions of the City of Bangalore Improvement (Allotment of sites) Rules, 1972 and, therefore, only those Rules would apply; that the respondent did not suppress any material particulars required to be disclosed by her when she made application for allotment of a site and that she was not aware of her husband also making an application to the Chairman of the BDA or the Chairman of the BDA allotting a separate site to him and, therefore, Clause(9) of Rule 13 of the Rules has no application; that the respondent at the time of making application to the BDA was not staying with her husband nor she could be regarded as a dependent on him inasmuch as she was staying with her parents and dependent upon their income and, therefore, she could not have been regarded as a member of the family of her husband as defined under Clause(e) of Rule 2 of the Rules; that the impugned Order is otherwise illegal for violation of principles of natural justice inasmuch as she was not given any opportunity to have her say in the matter; that the impugned action was initiated after a lapse of 20 years and, therefore, only on that ground the impugned action is liable to be quashed.
5. The Writ Petition was opposed by the BDA by filing statement of objections. In the statement of objections, it was contended that the respondent intentionally and deliberately suppressed the fact that her husband was also allotted a site; that the respondent and her husband made applications the same day to the Chairman of the BDA and both of them were allotted separate sites adjacent to each other the same day; that lease-cum-sale agreements in both cases were executed on the same day and even the possession certificates were issued to the respondent and her husband the same day and therefore, the say of the respondent that when she made the application for allotment of site, there was a strained relationship between herself and her husband and that she was staying separately with her parents and therefore, she was not aware of her husband making application to the Chairman of the BDA and getting a site allotted is highly incredible.
6. Although these are the contentions raised by the parties in the pleadings, the learned single Judge, only on the ground of unreasonable delay on the part of the BDA in initiating the action and passing the impugned Order Annexure-N, took exception to the impugned Order of the BDA and consequently by his Order dated 19.12.2001 allowed the Writ Petition and quashed the impugned Order Annexure-N. Hence this writ appeal by the aggrieved BDA.
7. We have heard Smt Sujatha, learned standing counsel for the BDA and Sri M.Ram Bhat, learned senior counsel for the respondent.
8. Smt Sujatha would submit that the fact that the respondent and her husband applied for the site separately and both of them were allotted separate sites is not disputed and if that is the admitted fact, cancellation of the site made in favour of the respondent in terms of Clause(9) of Rule 13 of the Rules cannot be faulted. Clause(9) of Rule 13 provides that if the particulars furnished by the applicant in the prescribed application for allotment of site are found to incorrect or false, sital value deposited shall be forfeited and the site shall be resumed by the BDA. Smt. Sujatha would highlight that at the time of making the application, respondent was a member of the family of her husband and that position cannot be disputed. If it is so, the Order made by the BDA impugned in the Writ Petition is in accordance with law and in terms of legal authority conferred on the BDA under the statutory Rules.
9. Sri. M.Ram Bhat, per contra, while reiterating the contentions raised by his client in the Writ Petition, would strenuously contend that even assuming the fact of his client's husband making application to the BDA and getting allotted a separate site was not disclosed as required in the prescribed application and, therefore, a case is made out to cancel the allotment of site in terms of Clause(9) of Rule 13 of the Rules, even then, the unreasonable delay on the part of the BDA in initiating the proceeding for cancellation of the allotment of the site would not justify the impugned action. Sri Ram Bhat would point out that the Courts have held that though a power to undo a thing is conferred in terms of law, the authority who has been conferred with such power, is required to initiate proceedings within a reasonable time and such power cannot be invoked at a distant point of time to unsettle matter. In support of his submission, the learned senior counsel would place reliance on the judgment of the Supreme Court in the case of MANSARAM v. S. RPATHAK AND ORS., and a judgment of this Court in VENKATAGIRIYAPPA v. THE STATE OF KARNATAKA, REVENUE DEPARTMENT, .
10. Having heard the learned counsel for the parties, the question that arises for decision is whether any substantive and weighty ground is made out for us to interfere with the discretionary Order made by the learned single Judge of this Court in peculiar fact situation of this case?
11. At the threshold, it needs to be noticed that when the respondent prepared her application for allotment of the site to be submitted to the Chairman of the BDA on 28.04,1978, it could not be said that she had known that her husband was allotted a site. It is true that the records would disclose that the respondent and her husband were allotted separate sites by the Chairman of the BDA the same day by two separate Orders. Nevertheless, the question to be considered is whether it could be said that the respondent ought to have disclosed the fact of allotment of site in favour of her husband even before making the application. It is the case of the BDA that both of them made applications to the Chairman of the BDA, the same day i.e., 28.04.1978. If we go by the version of the BDA, it cannot be said that there was a deliberate and intentional omission on the part of the respondent in not disclosing the fact of allotment of site in favour of her husband. But, it is a fact that subsequently, the respondent had filed her sworn affidavit which is in the prescribed form, in which, it is stated that none of the named relatives therein have been allotted site or own a site. Here again, it is the case of the respondent that she was not aware of the Order made by the Chairman on the application of her husband allotting a site to him. Clause (9) of Rule 13 enables the BDA to forfeit the sital value deposited and to resume the site only if the particulars furnished by the applicant in the "prescribed application form" for allotment of site are found to be incorrect or false. Be that as it may, if the Courts were to find that the respondent even on the date of filing sworn affidavit was aware of the fact of allotment of a site made in favour of her husband by the Chairman of the BDA, it was expected of her to disclose that fact. Having gone through the records carefully, we do not find any convincing material to show that when she filed the application on 28.04.1978 before the Chairman of the BDA or subsequently when the sworn affidavit was filed by her, she was staying with her husband and she was aware of the allotment of site made in favour of her husband. Nevertheless, having regard to the laudable objective behind the prescription that more than one member of a family shall not be allotted a site, allotment of site in favour of the husband as well as in favour of the wife could not be countenanced. But, we find considerable force in the submission of Sri Ram Bhat that though the power of the BDA under Clause (9) of Rule 13 to forfeit the sital value deposited and to resume the site for non-disclosure of relevant particulars cannot be questioned, the impugned action taken by the BDA after a long lapse of 18 years could not be sustained on the ground of unreasonableness. Further, after having issued show-cause notice on 12.04.1996 and received the reply of the respondent to the show-cause notice on 30.04.1996, the BDA did not take prompt action nearly for three years.
12. There can be no doubt that where no power of limitation is prescribed by an Act or the Rules made thereunder for the exercise of the suo moto statutory power, the exercise of that power cannot be impugned on the ground that it is barred by limitation. No period of limitation can be imposed otherwise than by statute or the Rules made thereunder. But, nonetheless, the power vested in an authority to revise the Orders of the subordinate authorities or to take any adverse action against a person suo moto, has to be exercised within a reasonable time. In our view, in cases where no period of limitation is prescribed under the Statute or the Rules made thereunder for exercise of powers suo moto, the question for consideration is not whether the exercise of the power is barred by limitation for in the absence of a period of limitation prescribed under the Act, the question of bar of limitation cannot arise, but, it is a question of reasonable period within which that power should be exercised. What is reasonable period within which the statutory suo moto power could be exercised would undoubtedly be dependent upon the facts and circumstances of each case.
13. The Supreme Court in the case of MANSARAM' (SUPRA) in para 12 stated the principle thus:
"....where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of powers inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha . In that case Commissioner exercised suo moto revisional jurisdiction under Section 221 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the Order which was sought to be revised. The High Court set aside the Order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding interalia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of Clause 22(2)."
That principle has been reiterated by the Apex Court in large number of pronouncements in subsequent judgments also.
14. The Supreme Court in STATE OF GUJARAT v. PATEL RAGHAV NATHA AND ORS., AIR 1979 SC 1297 held that although there is no period of limitation prescribed under Section 211 of the Bombay Land Revenue Code their power of the Commissioner to revise under Section 65 of the said Act must be exercised within a reasonable time and the question whether the Commissioner has sought to revise the Order under Section 65 within a reasonable time or not must be determined by the facts of individual case and nature of the Order which is being revised. The Apex Court in para 11 of the Judgment held as under:
"The question arises whether the Commissioner can revise an Order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the Order which is being revised."
15. In A. KODANDA RAO v. GOVERNMENT OF ANDHRA PRADESH, 1981 (2) ALT 280 - 1981 (2) APLJ 158 a Division Bench of Andhra Pradesh High Court dealt with the power vested in the Director of Settlement under Section 52 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948. The Andhra Pradesh High Court held that the suo moto power of the revision vested in the Director of Settlement should be exercised within a reasonable time, though there is no limitation prescribed for exercising suo moto power of revision. In that case, the Director of Settlement had exercised the revisional power suo moto after a lapse of 12 years. The Andhra Pradesh High Court condemned such action of the Director of Settlement as illegal and bad.
16. In Order to know whether the impugned action of the BDA has to be condemned on the ground of unreasonable delay in initiating the action, it becomes necessary for us to take into account all the attending facts and circumstances of the case and also the subsequent developments made by the respondent allottee. We have perused the records placed before us. The respondent had constructed a residential house investing more than Rs. 28,00,000/ - in those days. The value of the construction of the building in the present day context would be manifolds. After the allotment of the site, she did everything under the nose of the BDA. She had to seek several clearance certificates, permissions from various statutory authorities for the purpose of construction of the house and obtained permissions for civic amenities like water, electricity and sanitation etc. At no stage, any objection was taken by the BDA or any other statutory authorities like the BMP or other authorities. There is also some force in the contention of Sri Ram Bhat that it cannot be said that the BDA was not aware of what the respondent did after the allotment of site and she was put in actual possession of the site. On the other hand, the fact stated by the BDA in its statement of objections would indicate that they were aware of the allotment of site in favour of the respondent well before it issued the show-cause notice. The BDA has not disclosed in the statement of objections as to when it detected the non-disclosure made by the respondent and came to know the fact that her husband was also allotted a site by the Chairman of the BDA on 28.04.1978.
17. In these peculiar facts and circumstances of the case, we do not find any justification to interfere with the discretionary Order made by the learned single Judge. Even assuming that another plausible view is possible, the Division Bench cannot lightly interfere with the discretionary Order made by the learned single Judge. Having bestowed our thought on the issue and taking into account the totality of the circumstances as well as the equities of the case, we are convinced that this is not a fit case where we should interfere with the Order of the learned single Judge. In the result and for the foregoing reasons, we dismiss the writ appeal, however, with no Order as to costs.