Karnataka High Court
Sri.T.Gopalakrishna Shetty vs The Commissioner on 10 November, 2020
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10 TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 35952 OF 2017 (BDA)
BETWEEN:
SRI.T.GOPALAKRISHNA SHETTY
SINCE DECEASED
REPESENTED BY LEGAL REPRESENTATIVES
1(A) SMT. N. VIJAYALAKSHMI
W/O LATE T. GOPALAKRISHNA SETTY
AGED ABOUT 59 YEARS
R/AT NO.82/4, FLAT NO.4
1ST FLOOR, 1ST MAIN, 1ST CROSS
G.D. PARK EXTENSION, VYALIKAVAL.
BENGALURU - 560 003.
1(B) SRI.G. NAVEEN
S/O LATE T. GOPALAKISHNA SETTY
AGED ABOUT 35 YEARS
R/AT NO.82/4, FLAT NO.4
1ST FLOOR, 1ST MAIN, 1ST CROSS
G.D. PARK EXTENSION, VYALIKAVAL.
BENGALURU - 560 003.
1(C) SMT.G. GEETHA
W/O SRI.P. CHETHAN
D/O LATE T. GOPALAKRISHNA SETTY
AGED ABOUT 33 YEARS
RESIDING AT NO.9, ABHIJITH APATMENT
1ST FLOOR, 7TH CROSS, AECS LAYOUT
BENGALURU - 560 094.
(AMENDED AS COURT ORDER DATED: 08.08.2019)
...PETITIONERS
(BY SRI.Y. HARIPRASAD, ADVOCATE)
AND:
THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY
2
KUMARAPARK WEST, SANKEY ROAD
BENGALURU-560 020.
...RESPONDENT
(BY SRI. ASHWIN S HALADY, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT
DATED 10.7.2017 AT ANNEX-J ISSUED BY RESPONDENT AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING B GROUP
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In this petition, petitioners have sought for the following reliefs:-
" a) Issue writ of certiorari quashing the order dated: 28.01.2016 No. BDA: DS -
3:01/KST/1677/2015-16 at Annexure- G and also quash the endorsement dated: 10.07.2017 Sl.No. DS-III/01/KST/2017-18 at Annexure- J issued by the Respondent;
b) Issue writ of mandamus directing the Respondent to fix the pice of maginal land should be fixed at the rate at which the purchaser the main site as per the original sale deed or at 1 1/2 times the BDA allotment rate whichever is higher;
c) Allow the writ petition with cost;
d) Grant any relief/reliefs as this Hon'ble deems fit in the circumstances of the case."
2. Heard the learned counsel for petitioners and learned counsel for the respondent and perused the material on record.
33. Learned counsel for the petitioner in addition to reiterating the various contentions urged in the petition and referring to the documents produced by the petitioner invites my attention to the decision of this Court in the case of Bhaskara Reddy vs. Bangalore Development Authority and Another - ILR 2009 KAR 2882, wherein it is held as under:-
"7. Resolution dated 11.12.1996/13.12.1996 (Subject No. 249/1996) passed by BDA reads thus:--
i) If the applicant is the first or subsequent purchaser of a BDA site from the original allottee, the cost of the marginal land should be fixed at the rate at which he purchased the site, (as evidenced by the sale deed) or at 1½ times the BDA's current allotment rate, whichever is higher;
ii) If the applicant is the first or subsequent purchaser of a BDA auction site from the original auction purchaser, the cost of marginal land should be fixed at the rate at which he purchased the site or the auction rate at which the site was originally disposed of in auction by BDA or 1 ½ times the current allotment rate whichever is the higher;
iii) If the marginal land allotted is by itself a corner site, its cost should be fixed at the average auction 4 rate as per Rule 5 in the BDA (Disposal of Corner Sites and Commercial Sites) Rules, 1984 or at the rate at which the applicant purchased his site, whichever is higher.
From the above resolution, it is amply clear that the cost of marginal land should be fixed at the rate at which the applicant purchased the site. (As evidenced by the sale deed) or at 1½ times the BDA's allotment rate whichever is higher. If the marginal site itself is a corner site, its cost should be fixed as per Rule 5 of the Rules. Another resolution is passed by BDA dated 23.3.2001 (Subject No. 45/2001), which also reveals the procedure to value the marginal land, which is a corner site. Thus, separate resolutions are passed by the BDA to value purely a marginal land and the marginal land-cum- corner site. The resolution dated 13.10.2005 (Subject No. 13 5/2005) relied upon by Sri. K. Krishna, Learned Counsel appearing on behalf of BDA deals with the imposition of penalty in case if the allottee or the purchaser encroaches upon the marginal land. Hence, the petitioner has to pay penalty as per the said resolution, inasmuch as the petitioner has encroached upon the marginal land and constructed the house much prior to the allotment of marginal land. But the said resolution dated 13-10-2005 does not deal with the fixation of value of marginal land, which is a corner site. Since the property in question neither the corner site nor the commercial site, aforementioned Rule 5 of the Rules cannot be made 5 applicable to the case on hand. Thus, the BDA has to determine the value of the marginal land + penalty in accordance with the Resolution dated 11.12.1996/13.12.1996 (Subject No. 249/1996) and the resolution dated 13.10.2005 (Subject No. 135/2005). It has to be made clear here itself that in case if the BDA has passed any subsequent resolution touching the question regarding valuation of the marginal land (not being the commercial site or corner site), prior to 4.8.2006 (date of allotment of marginal site in favour of the petitioner), the said resolution shall also be taken into consideration.
In view of the above, the intimation letter dated 4.8.2006, passed by the BDA vide Annexure-C is liable to be quashed and accordingly the same is quashed. Consequently, the subsequent endorsements vide Annexures-B and A, dated 3.1.2007 and 27.2.2007 respectively, also stand quashed.
Writ petition is disposed of accordingly with the direction to the BDA to determine the market value and the penalty in respect of the marginal land as stated above.
4. Per contra, learned counsel for the respondent-
BDA submits that there is no merit in the petition and sought for dismissal of the petition.
65. In view of the aforesaid facts and circumstances and in the light of the decision of this Court in Bhaskara Reddy's case (supra), I am of the considered opinion that even this petition deserves to be disposed of in terms of the aforesaid decision.
6. In the result, I pass the following:
ORDER
(i) Petition is hereby disposed of in terms of the decision of this Court in Bhaskara Reddy's case (supra);
(ii) The impugned Endorsements at Annexures - G and J issued by the respondent are hereby quashed.
(iii) The respondent is directed to determine and fix the marginal value and penalty in respect of the subject marginal land in the light of the directions issued above in accordance with law within a period of three months from the date of receipt of a copy of this order.
No costs.
Sd/-
JUDGE Srl.