Karnataka High Court
Bangalore Development Authority vs Sri B L Ramakrishna on 23 September, 2022
Author: B.Veerappa
Bench: B.Veerappa
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.
16
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 17 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 18 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 19 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 20 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 21 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 22 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 23 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.
24
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 25 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 26 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 27 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 28 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.
29
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, 30 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 31 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 32 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.
33Writ 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 34 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 35 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 36 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 37 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 38 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 39 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.
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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 41 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 42 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 43 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. 44
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 45 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 46 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 47 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 48 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 49 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 50 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.
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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 52 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 53 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 54 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 55 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 56 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 57 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 58 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 59 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 60 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 61 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 62 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 63 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.
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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 65 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 66 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 67 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 68 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.
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(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 70
(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 71 (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 72
(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 73 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.
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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.
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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 76 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 77 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% 78 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: 79
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 80 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 81 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 10.11.2020.82
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 83 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 84 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 85 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 86 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:-
87
(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 88 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).
89
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 90 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 91 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 92 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? 93
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 94 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 95 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
96
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
97
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., 98
(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 99 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.
100
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 101 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 102 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% 103 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 104 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:
"ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ w½¸ÀĪÀÅzÉãÉAzÀgÉ, ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀzÀ ªÀw¬ÄAzÀ d£ÀªÀj 2000gÀ £ÀAvÀgÀ ºÀAaPÉ ªÀiÁqÀ¯ÁzÀ ¤ªÉñÀ£À ºÀAaPÉ ¥ÀæPÀgÀtUÀ¼À°è ºÀAaPÉzÁgÀgÀÄUÀ¼ÀÄ ¤UÀ¢vÀ ¸ÀªÀÄAiÀÄzÀ £ÀAvÀgÀ ¨ÁQ ªÀiË®åªÀ£ÀÄß ¥ÁªÀw ªÀiÁqÀ®Ä «¥sÀ®gÁzÀ ¥ÀæPÀgÀtUÀ¼À°è gÀzÀÝwAiÀiÁzÉñÀªÀ£ÀÄß ºÉÆgÀr¹zÀÄÝ, CAvÀºÀ ºÀAaPÉzÁgÀgÀÄUÀ¼ÀÄ ¥ÀzÉà ¥ÀzÉà ªÉÄïÁ¢üPÁjUÀ¼À£ÀÄß ¸ÀA¥ÀQð¹ ¨ÁQ ªÀiË®åªÀ£ÀÄß M¦àPÉÆAqÀÄ gÀzÀÝwAiÀiÁzÉñÀªÀ£ÀÄß »AvÉUÉzÀÄPÉƼÀÄîªÀAvÉ PÉÆÃjgÀÄvÁÛgÉ. DzÀgÉ EAvÀºÀ ¥ÀæPÀgÀtUÀ¼À°è ¨ÁQ ªÀiË®åªÀ£ÀÄß M¦àPÉƼÀî®Ä ¤AiÀĪÀÄUÀ¼À°è CªÀPÁ±À«®èzÀ PÁgÀt, F §UÉÎ ¸ÀPÁðgÀzÀ £ÀUÀgÁ©üªÀÈ¢Þ E¯ÁSÉAiÀÄ ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ðUÀ¼À CzsÀåPÀëvÉAiÀÄ°è ¢£ÁAPÀ 28.07.2007gÀAzÀÄ MAzÀÄ ¸À¨ÉsAiÀÄ£ÀÄß PÀgÉzÄÀ PɼÀPÀAqÀAvÉ wêÀiÁð¤¸À¯ÁVzÉ.
1) EAvÀºÀ ¥ÀæPÀgÀtªÀ£ÀÄß ¥ÀjUÀt¸ÀĪÁUÀ FUÁUÀ¯Éà CfðzÁgÀjUÉ ºÀAazÉAiÀiÁzÀ §qÁªÀuÉAiÀÄ°è£À £ÀªÉñÀ£ÀzÀ ®¨sÀåvÉ CxÀªÁ vÀzÀ £ÀAvÀgÀ gÀƦvÀªÁzÀ §qÁªÀuÉUÀ¼À ¤ªÉñÀ£ÀUÀ¼À 105 ®¨sÀåvÉAiÀÄ£ÀÄß DzsÀj¹ CfðzÁgÀgÀ PÉÆÃjPÉAiÀÄ£ÀÄß ¥ÀjUÀt¸ÀĪÀÅzÀÄ.
2) ºÀAaPÉzÁgÀgÀÄ ¨ÁQ ªÉÆvÀÛªÀ£ÀÄß ¥Áæ¢üPÁgÀPÉÌ ¥ÁªÀw¸ÀĪÀÅzÀ®èzÉà ¥ÁªÀw¸À¨ÉÃPÁzÀ ¨ÁQ ªÉÆvÀÛzÀ ªÉÄÃ¯É ¤UÀ¢vÀ CªÀ¢ü «ÄÃjzÀ £ÀAvÀgÀzÀ CªÀ¢üUÉ ±ÉÃ.21gÀµÀÄÖ §rØAiÀÄ£ÀÄß «¢ü¸ÀĪÀÅzÀÄ.
3) PÉêÀ® 20x30 ºÁUÀÄ 30x40gÀ ¤ªÉñÀ£ÀUÀ½UÉ ªÀiÁvÀæ F ªÀiÁ£ÀzÀAqÀªÀ£ÀÄß C£Àé¬Ä¹ «¼ÀA§ ªÀÄ£Áß ¥ÀæPÀgÀtªÀ£ÀÄß ¥ÀjUÀt¸ÀĪÀÅzÀÄ.
GzÉÝòvÀ ªÀiÁ£ÀzÀAqÀUÀ¼ÀÄ £ÁåAiÀiÁ®AiÀĪÀÅ FUÁUÀ¯Éà ¤zÉÃð±À£À ¤ÃrgÀĪÀ EAvÀºÀ ¥ÀæPÀgÀtUÀ½UÉ C£Àé¬Ä¸ÀvÀPÀÌzÀÝ®è. 20x30 ªÀÄvÀÄÛ 30x40 ¤ªÉñÀ£ÀUÀ½UÉ ¸ÀA§A¢ü¹zÀAvÉ GzÉÝòvÀ ªÀiÁ£ÀzÀAqÀªÀ£ÀÄß C¼ÀªÀr¹ «¼ÀA§ ªÀÄ£Áß ªÀiÁqÀĪÀ «µÀAiÀĪÀ£ÀÄß ¥Áæ¢üPÁgÀzÀ ¸À¨ÉsAiÀÄ ªÀÄÄA¢lÄÖ ¸ÀÆPÀÛ ¤tðAiÀÄ vÉUÉzÀÄPÉƼÀî®Ä wêÀiÁð¤¸À¯ÁVzÉ ºÁUÀÆ F ªÀiÁ£ÀzÀAqÀzÀ ªÁå¦ÛAiÀÄ°è §gÀzÉà EgÀĪÀ ¥ÀæPÀgÀtUÀ¼À°è «£Á¬ÄwAiÀÄ£ÀÄß PÉÆÃj ¥Áæ¢üPÁgÀªÅÀ ¸ÀPÁðgÀPÉÌ AiÀiÁªÀÅzÉà ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ²¥sÁgÀ¸ÀÄì ªÀiÁqÀĪÀAw®èªÉAzÀÄ ¸ÀºÁ wêÀiÁð¤¸À¯ÁVzÉ.
¸ÀzÀj ¸À¨sÉAiÀÄ°è wêÀiÁð¤¹zÀAvÉ «µÀAiÀĪÀ£ÀÄß ¢£ÁAPÀ 03.09.2007gÀAzÀÄ dgÀÄVzÀ ¥Áæ¢üPÁgÀzÀ ¸À¨ÉsAiÀÄ «µÀAiÀÄ ¸ÀASÉå 196/07gÀ°è ªÀÄAr¹zÀÄÝ, PɼÀPÀAqÀAvÉ wêÀiÁð¤¸À¯Á¬ÄvÀÄ. 106 C) ºÀAaPÉAiÀiÁVzÀÝ ¤ªÉñÀ£ÀPÉÌ ºÀAaPÉzÁgÀgÀÄ ¥ÁægÀA©üPÀ oÉêÀtÂAiÀÄ£ÀÄß ºÉÆgÀvÀÄ ¥Àr¹ ¨sÁUÁ±À: ªÀiË®åªÀ£ÀÄß ¥ÁªÀw¹gÀĪÀ 20x30 ªÀÄvÀÄÛ 30x40 C¼ÀvÉAiÀÄ ¤ªÉñÀ£ÀUÀ½UÉ ªÀiÁvÀæ C£Àé¬Ä¸ÀĪÀAvÉ «¼ÀA§ ªÀÄ£Áß ªÀiÁqÀĪÀ §UÉÎ ºÁUÀÆ «¼ÀA§ ªÀÄ£Áß ªÀiÁqÀĪÀAvÉ ¸À°è¸ÀĪÀ/¸À°è¹gÀĪÀ PÉÆÃjPÉUÀ¼À ¥ÀæPÀgÀtUÀ¼À£ÀÄß ªÀiÁvÀæ ¥ÀjUÀt¸À®Ä. D) ºÀ¼ÉAiÀÄ ¥ÀæPÀgÀtUÀ¼À£É߯Áè ¥ÀjUÀt¹zÀ°è §ºÀ¼À UÉÆAzÀ®ªÀÄAiÀÄ ºÁUÀÆ vÀÄA¨Á »A¢£À ªÀµÀðUÀ¼À ¥ÀæPÀgÀtUÀ¼À®Æè «¼ÀA§ ªÀÄ£Áß ªÀiÁqÀ¨ÉÃPÉAzÀÄ PÉÆÃjPÉUÀ¼ÀÄ §gÀĪÀ CªÀPÁ±ÀUÀ¼ÀÄ ºÉZÁÑVgÀĪÀÅzÀjAzÀ ªÀÄvÀÄÛ ¨sÀƸÁé¢üãÀ ¥ÀæQæAiÉÄAiÀÄ°è GAmÁVgÀĪÀ ¯ÉÆÃ¥ÀzÉÆõÀ ºÁUÀÆ ¨sÀƪÀiÁ°ÃPÀgÀÄ £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉUÀ¼À£ÀÄß ºÀÆr vÀqÉAiÀiÁYÉÕ ¥ÀqÉ¢gÀĪÀ »£É߯ÉAiÀÄ°è ¤ªÉñÀ£ÀUÀ¼À ®¨sÀåvÉAiÀÄ CªÀPÁ±ÀUÀ¼ÀÄ §ºÀ¼À PÀrªÉÄ EgÀĪÀÅzÀjAzÀ 1-1-2000£Éà ªÀµÀðzÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ £ÀAvÀgÀzÀ ¥ÀæPÀgÀtUÀ¼ÀÄ£ÀÄß ¥ÀjUÀt¸À®Ä.
E) «¼ÀA§ ªÀÄ£Áß ¥ÀjUÀt¹zÀ°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. F) «¼ÀA§ PÁ¯ÁªÀ¢üUÉ ªÁ¶ðPÀ ±ÉÃ.21gÀµÀÄÖ §rØ UÀt «¢ü¸À®Ä. G) CPÁðªÀwAiÀÄ §qÁªÀuÉAiÀÄ C¢ü¸ÀÆZÀ£ÉAiÀÄ £ÀAvÀgÀ UÀÄwÛUÉ CªÀ¢üAiÀÄ£ÀÄß «¢ü¸ÀÄwÛgÀĪÀÅzÀjAzÀ ªÀÄvÀÄÛ ©r ¤ªÉñÀ£ÀUÀ½UÀÆ UÀÄwÛUÉ CªÀ¢ü «¢ü¸ÀÄwÛgÀĪÀÅzÀjAzÀ EAvÀºÀ ¥ÀæPÀgÀtUÀ¼À°è gÀzÀÄÝ ¥Àr¸À¯ÁVzÀÝ 107 DzÉñÀªÀ£ÀÄß »AvÉUÉzÀÄPÉÆAqÀÄ UÀÄwÛUÉ CªÀ¢üAiÀÄ µÀgÀvÀÛ£ÀÄß «¢ü¹ ¨ÁQ ºÀtªÀ£ÀÄß ¸ÀAzÁAiÀÄ ªÀiÁr¹PÉƼÀÄîªÀ ªÀÄvÀÄÛ ¨ÁQ ºÀt ¸ÀAzÁAiÀÄ ªÀiÁqÀ®Ä ¤¢ðµÀÖ CªÀ¢üAiÀÄ£ÀÄß ¤UÀ¢¥Àr¸À®Ä.
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91. Further, the Circular dated 18.11.2010, issued by the Commissioner, Bengaluru Development Authority, reads as under:
"¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ¢AzÀ F »AzÉ DyðPÀªÁV »AzÀĽzÀ ¥ÀæªÀUÀðzÀr ¤ªÉñÀ£À ºÀAaPÉAiÀiÁVzÀÄÝ ¤UÀ¢üvÀ CªÀ¢üAiÀÄ°è ¤ªÉñÀ£À ªÀiË®å ¥ÁªÀw¸ÀzÀ ºÀ®ªÁgÀÄ ¥ÀæPÀgÀtUÀ¼À°è ºÀAaPÉAiÀÄ£ÀÄß gÀzÀÄÝ¥Àr¸À¯ÁVzÀÄÝ CAvÀºÀ PÉ®ªÀÅ ¥ÀæPÀgÀtUÀ¼À°è ¤ªÉñÀ£À ºÀAaPÉ ¥ÀqÉzÀ CfðzÁgÀgÀÄUÀ¼ÀÄ ¥Áæ¢üPÁgÀPÉÌ ªÀÄvÀÄÛ ¸ÀPÁðgÀPÉÌ ªÀÄ£À«UÀ¼À£ÀÄß ¸À°è¸ÀÄvÁÛ, vÁªÀÅ DyðPÀªÁV »AzÀĽ¢gÀĪÀÅzÁV, ««zsÀ PÁgÀtUÀ¼À ªÀÄvÀÄÛ ¸À¤ßªÉñÀUÀ¼ »£À߯ÉAiÀÄ°è ¤ªÉñÀ£À ªÀiË®å ¥ÁªÀw¸À®Ä ¸ÁzsÀåªÁVzÀ°®èªÉAzÀÄ, FUÀ vÁªÀÅ ¤ªÉñÀ£À ªÀiË®åªÀ£ÀÄß §rØAiÉÆA¢UÉ ¸ÀAzÁAiÀÄ ªÀiÁqÀ®Ä ¹zÀÝjgÀĪÀÅzÁV w½¸ÀÄvÁÛ vÀªÀÄUÉ ºÀAaPÉ ªÀiÁqÀ¯ÁzÀ ¤ªÉñÀ£À ªÀiË®åªÀ£ÄÀ ß §rØAiÉÆA¢UÉ ¸ÀAzÁAiÀÄ ªÀiÁqÀ®Ä ¹zÀÝjgÀĪÀÅzÁV w½¸ÀÄvÁÛ vÀªÀÄUÉ ºÀAaPÉ ªÀiÁqÀ¯ÁzÀ ¤ªÉñÀ£ÀzÀ ºÀAaPÉAiÀÄ£ÀÄß H½¹PÉÆlÄÖ ¹ÜjÃPÀj¹ zÁR¯ÉUÀ¼À£ÄÀ ß £ÉÆAzÁ¬Ä¹ ¸Áé¢üãÀ ¥ÀvÀæªÀ£ÀÄß ¤ÃqÀĪÀAvÉ PÉÆÃgÀÄwÛgÀÄvÁÛgÉ.108
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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 111 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 112 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.
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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 113 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 114 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, 115 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.116
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. 117
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. 118 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 119 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 120 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.
121
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 122 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 123 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 124 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 125 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 126 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 127 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 128 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 129 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 130 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:
131
"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 132 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 133 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 134 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 135 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] ).136
(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 137 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."138
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 139 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.140
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) 141 "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 142 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 143 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 144 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. 145
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 146 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 147 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. 148
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 149 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 150 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 151 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.
152
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 153 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. 154
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 155 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 156 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, 157 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.
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