Karnataka High Court
Sri K Chandrashekar Shetty vs The Bangalore Development Authority on 27 November, 2012
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.40687/2011 (BDA-)
BETWEEN:
Sri K.Chandrashekar Shetty
Aged about 65 years
S/o late Sanjeeva Shetty
r/at No.AL35, NITK Campus,
Srinivasnagar, Surathkal Post,
Mangalore, D.K.District. ... PETITIONER
(By Sri R.V.Jayaprakash & Sri G.M.Nataraj, Advs. for
Sri N.Gangadhar, Adv.)
AND:
1. The Bangalore Development Authority,
T.Chowdaiah Road,
Kumara Park West,
Bangalore-20,
Rep.by its Commissioner.
2. The Deputy Secretary-2
Bangalore Development Authority,
Kumara Park West,
Bangalore-20. ... RESPONDENTS
(By Sri K.Vasanth, Adv. for Sri K.Krishna, Adv.)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the impugned order
dated 23.9.2011 vide Annexure-L and etc.
This petition coming on for preliminary hearing-B group
this day, the Court made the following:
2
ORDER
1. In this writ petition, petitioner is calling in question the communication issued by the Bangalore Development Authority (for short, 'BDA') on 23.09.2011 informing the petitioner that the allotment of site made in his favour by the BDA has been cancelled as he had not paid the value of the site as per the allotment letter. He has also sought for a direction to the respondents to execute the absolute sale deed and hand over possession of the schedule site by collecting the balance sital value as per the notified value of Rs.58,000/- from the petitioner.
2. The undisputed facts are, that the BDA has formed a layout known as J.P.Nagar 8th Stage Layout. Pursuant to the notification issued by the BDA calling for applications from the intending allottees for allotment of sites at J.P.Nagar 8th Stage Layout, petitioner had applied for allotment of a site measuring 40' x 60'. He was allotted Site No.347 on 07.07.1998 vide allotment letter at Annexure-C. As per the allotment letter, petitioner was called upon to pay the balance consideration of Rs.2,83,025/- within 90 days. 3
3. The case of the petitioner is that at the time when the notification was issued called for applications from the intending allottees, the BDA had notified the value of the sites measuring 40' x 60' at Rs.58,000/- and after a lapse nearly 10 years, respondents had issued the intimation of allotment informing the petitioner about the allotment of site, but by asking him to pay the escalated value in a sum of Rs.2,83,025/- apart from the initial deposit of Rs.6,875/-.
4. The contention of the petitioner is that the value fixed by the respondents is most unreasonable and arbitrary. It is further contended by the petitioner that several similarly situated allottees had challenged the arbitrary fixation of value by the respondents by filing writ petitions and the said grievance made by the similarly placed persons was accepted by the Division Bench vide order dated 30.08.2001 passed in W.A.Nos.1849-1916/1989 relying upon the decision reported in E.R.Manjaiah and Others Vs Bangalore Development Authority - ILR 1997(2) KAR 1025, and that the review petitions filed against the said order in the writ appeal also came to be dismissed. Therefore, it is contended by the 4 learned Counsel for the petitioners that the impugned action of the respondent-BDA in cancelling the allotment on the ground that the petitioners failed to pay the revised and escalated value of the site is unsustainable.
5. The respondent-BDA has filed statement of objections. It is brought to the notice of the Court that the petitioner had filed writ petition (W.P.No.29693/1998) and the same came to be dismissed on 14.12.1998, but on the request made by the petitioner, this Court had granted six months time to deposit the sital value which had expired on 13.06.1999 and therefore, as the said order passed by this Court has attained finality in so far as the petitioner is concerned and as the petitioner had failed to deposit the sital value despite issuing reminder notice on 01.03.1999, the allotment had been rightly cancelled. It is further contended in the statement of objections that the order passed in W.A.No.1849-1916/1989 in the case of R.Jayakumar & Others Vs The Bangalore Development Authority and the order passed in the review petition have no application to the case of the petitioner as the petitioner is not the allottee pursuant to the notification 5 issued as per Annexure-B produced along with the writ petition.
6. Learned counsel for the petitioner Sri. R.V.Jayaprakash brings to the notice of the Court the judgment in the case of U.P.POLLUTION CONTROL BOARD AND OTHERS vs. M/S.KANORIA INDUSTRIAL LIMITED AND ANOTHER - AIR 2001 SC 787 to contend that in such circumstances, the Division Bench has laid down that the revision of sital value of the sites allotted by the BDA with reference to Hennur- Banaswadi Layout was illegal and unsustainable and as similar situated persons to that of the petitioner have got such a benefit the same benefit ought to have been extended to the petitioner by the BDA.
7. Learned counsel for the respondent-BDA resists this contention stating that the matter is pending before the Supreme Court. Petitioner cannot as of right claim the same benefit. He further points out that the layout in question where the petitioner is allotted the site is different from the one in respect whereof the Division Bench has rendered the judgment declaring that the revision of sital value was illegal. 6
8. At this stage, learned counsel for the petitioner submits that the petitioner had never refused to pay the amount as demanded but had only made representation to the BDA requesting to consider his case on par with the other allottees who had filed the writ appeal and succeeded before this Court. He further stating that the petitioner may be given an opportunity to pay the amount along with interest at 6% having regard to the facts and circumstances of the case.
9. Upon hearing the learned Counsel for the parties and on careful perusal of the entire materials on record, I find that the petitioner had approached this Court earlier by filing W.P.No.29693/1998 making similar grievance against the order of allotment, wherein the petitioner was called upon to pay the revised sital value at the rate of Rs.2,90,000/- including the initial deposit amount. The said writ petition has been dismissed. While dismissing the said writ petition, this Court had granted six months time to the petitioner to deposit the sital value. The said order has attained finality. 7 Petitioner has failed to deposit the sital value despite the order passed by this Court. It is in this background, the BDA has cancelled the allotment made by issuing the impugned communication.
10. As rightly contended by the BDA, the order passed in the writ appeal and the review petition on which reliance is placed was in respect of a different layout of which the petitioner is not concerned. At any rate, as the petitioner's grievance has been already considered by this Court and is negatived, petitioner cannot be permitted to approach this Court again challenging the revision of sital value.
11. However, I find considerable force in the contention urged and the request made on behalf of the petitioner that he may be permitted to pay the remaining sital value as revised by the BDA along with interest by setting aside the order passed by the BDA cancelling the allotment of the site. The omission on the part of the petitioner to pay the revised sital value cannot be characterized as deliberate negligent act on his part but is the result of the later development that took place whereunder in respect of another layout namely 8 Hennur-Banaswadi layout where a revision of sital value was resorted to by the BDA, the Division Bench of this Court has found that such revision was unsustainable. It is this development that made the petitioner to give representation to the BDA to receive the value of the site as per the original allotment order and not as per the revision made.
12. It is not in dispute that the BDA has not yet allotted the site in question to any third party because of the pendency of this writ petition and also in view of the interim order granted in this writ petition. Hence, keeping in mind the facts and circumstances of the case, the ends of justice and the conduct of the petitioner in offering to pay the revised sital value along with reasonable interest, I am of the view that the impugned order cancelling the allotment deserves to be set aside with a direction to the BDA to execute a registered sale deed in favour of the petitioner by collecting the revised sital value along with interest at the rate of 12% per annum on the amount payable towards the revised sital value with effect from 14.06.1999 till the date of payment. The petitioner is given six weeks time from the date 9 of receipt of copy of this order to make the payment along with interest as ordered above, whereupon the BDA shall execute the registered sale deed in favour of the petitioner within a period of three months thereafter.
The writ petition is accordingly disposed of.
Sd/-
JUDGE KK 10 BSPJ: W.P.No.40687/2011 29.11.2012 ORDER ON BEING SPOKEN TO No further order is necessary.
Sd/-
JUDGE VP