Karnataka High Court
Smt. K Pankaja Prabhudev @ vs The Bangalore Development Authority, on 12 August, 2011
Equivalent citations: 2012 (1) AIR KAR R 865, AIR 2012 (NOC) (SUPP) 1298 (KAR.), (2012) 1 KANT LJ 241, AIR 2012 (NOC) (SUPP) 1102 (KAR), 2012 (4) KCCR SN 248 (KAR)
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
: a oe IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 1274 DAY OF AUGUST, 2011 oo , ( BIEP ORE : W.P.NO.7396/2011 (BDA) BETWEEN: SMT. K PANKAJA PRABHUDEV ©. PANKAJA PRABHLUDEV. W/O LATE PRABHUDEV>.. AGED 52 YEARS . R/AT R.T. NAGAR. BANGALORE, © ny Ew, a oO PETITIONER (By Sri. K CHANDRASHEKAR. ADV) ~~ AND THE BANGALOREDEVELOPMENT AUTHORITY, CHOWDAIAH ROAR, BANGALORE-29 7" -. BYTES COMMISSIONER, Me, ... RESPONDENT "By: Sris BV SHANKARANARAYANA RAO, ADV) THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE = "RESPONDENT TO TRANSFER THE KATHA IN RESPECT OF SITE NO.U774 IN HBR LAYOUT, IST STAGE, V BLOCK, BANGALORE- 45, ALLOVTED IN THE NAME OF HER LATS HUSBAND SRI B.N_H. PRABHUDEV VIDE ANNEXURE-B. Be bo This petition coming on for Preliminary Hearing in "D' Group this day, the court made the following: ORDER
in this writ petition, the petitioner, at the first instance has sought a direction to the respondent to transfer ti le in respect of site No.L774 in HBR Layout, 1° Stage, 5% Block. Bangalore-43, allotted in the name of: her: husband Sri.B.N.Prabhudev to" her . name: - : Subsequently, an application has been made. seeking qitashing of order dated 1b.B.201 1, (Annexure 1).
2. "The "petitions? hes averréd since that her deceased husband had : nade a, . application io the respondent authority seeking allotment of a residential site in Bangalore. Aller necessary 'registration, her husband was allotted ihe aforementioned site. In fact. applications were invited for 'allotment ef sites. li is stated thal the petitioners husband was unsuccessful in eight attempts, bul in the 9 attempt, the site in question was allotted by a communication dated "27 .5.1988 (Armexure-A}). He was directed to deposit the value and the same had been done. Subsequently, lease-
omu-sale deed was executed on 28.6.199] [Annexure-D) and the possession of the site In question was also given to the petitioner's husband. He died on 3.4.2007 leaving behind the petitioner and his daughter. Subsequently, the petitioner made an application for transfer of the said site in. and thereby made a representation and the sarive WHS FOL altended to. However, the petitioner was shecked to receive .
a notice dated 3.7.2010 stating that the petitioner's: husband f was already in ownersbs p and pess S101] of a site and thereiore, he was not _enttitied to 'any allotment by the Bangalore Development Authority (hereinafter referred lo as 'the BDA) and te Show-datise os to. why the allotment made by BDA should not be carivelled." A copy of the show-cause notice is produced as Annexure-J . The petitioner submitted her reply te. the same oni 24.7.2010. a copy of which is mS produced as Annexure-K. Since there was no action taken 7 . 'by the BDA oi 'the representations made by the petitioner this-writ 'petition is filed seeking a direction to the BDA to 7 transfer the site in the namie of the petitioner. During the pendency of this writ petition, the respondent-BDA has cancelled the allotment of site in question by issuance of a ""éancellation order dated 115.2011 which is produced as Armexure-L, The same is also assailed in this writ petition.
AL
3. In response to the writ petition, learned counsel for the BDA has filed staternent of objection admitting the fact that ihe site in question was allotted in the name of petitioner's nusband. However, in application Form No.2-at SiNo 18, ; the applicant has answered the questi n sta ted, therein in the negative and thereby the re has been a sisppréssioii of. material facts in the appli sation form since the petitioner's husband was already in possession of a. Site. 'The BDA could not have been allotted asite in his name, Therefore, the same has been cancelled rahtly: 1 is also stated that the petitioner's husband has supp resked the fact that he was the owner of site' Noa? at Amarajyot Layou t. which he obtained by virtue of a Git Deed daied 25.2. 1997. Therefore, he was ineligible to apply for acsite and that there has been an erroneous allotinent of site. Therefore, invoking nile 13(10} of BDA 'Aliotrent of Sites Rides, 1984,cancelled the site in 'question and: the sital value was forfeiled and it was stated thai.ihe site would be resumed by the authority.
4, : tT have heard the learned counsel for the petitioner and Uhe learned counsel for the respondent-authority.
petitioners husband was allotted a sife on 27.5.1958.
be, Thereafter, there had been an execution of ihe lease-cum- sale avreement and possession of the site in question was also handed over to him. He died on 3.4.2007 aad therefore:
di was al that stage, on the representation. nade 'by the petitioner, on the basis of.some infoi mation aven 'by a stranger, the appli sation form filed hy the petitioner's husband for allotmen: of a cite was, scrutinised and on the basis of the information that the petitioner's husband was in possession of "site 7 loa? at "Amarjyoti Layout, the represeniation of the petitioner was not considered and subsequently..the site in' question has also been cancelled. He submits that the cancellation of the said site was on the premise that there, 1as bee m suppression of material facts by o TR é » petitioner's CRusband at the time of making an . application and that he was ineligible to apply for a site from PDA wh eh is not correct. That the provision applied by the respondent -auth orily is not correct having regard to the facts of ce case since the petitioners husband was not allotted any site by any of the authoritics stated in column No.18 of the application form or by any house building society. He was a beneliciary of site No.4y at Amarivoll Layout by virtue of a gift deed executed by his laie mother. Therefore, it is
-fe petitioners husband. Therefore. the respondent-authority was not right in canceling the allotrnent of the: site a question to the petitioner's husband. He, thetefore, would . submit that the said cancellation has. to: be quashed. and a direction may be issued te _the "respondent-auithority to :
register the site in question in the mame of the petitioner.
6. Per contra. leartied counsel for ifie respondent-BDA, while making -velerence Mo the, statement of objections contended that column No 18 of the application form, a copy of which is-producec at Anrexure-RI, specifically relates to any carlier allotment ofa site by any of the statutory bodies mentioned therein or house building co-operative society to the-applicant: ln answer to the said column, the petitioner's mo husband LAS stated "No". This is @& suppression and OS misrepresen tation made io the BDA since the petitioner's husband was owning a site alloted by Amarjfyvoti House os Building Co-operative Society. Therefore, he was mot eligibie : LO niake any application in terms of Rule 10 of the Bangalore Development Authority {Allotment of Sites} Rules, 196 (hereinafter referred to as 'the Rules') and therefore, invoking Ride S10}, the BDA has righily cameeled the site and ec for resumption of hee * bet Pa "aaa beg ' es, posal pin ita & Pe.
om, forfeited the sital value and site in question which order does not call for ally interference since the material information which has been ; sought in column 18 of the application form is directly: relatable: to. was not entitled even to apply for a. site. - . He, therefore, would submit that the writ petition is devoid of merits and . Hable to be dismissed. In support of his Submission. he placed reliance on the. order ; passed. by this eourt in W.P.No,6106/2009 dated 21.1. 2010.
7. Having heard. the learned counsel for the parties, the point that arise for my consideration is, Whether the. "respondent-BDA was
- justified in canceling the site in question? fy not: whether the petitioner is entitled to transfer of the site in question to her name?
'$8... Frata the material on record, it is not in dispute that on 10.9.1987, petitioner's husband had made an application
-. for allounent of a site. It is also not in dispute that in response to the information sought in column No. 18 of fhe »..8aid form, the petitioner's husband had answered in the negative. The question is as to whether the petitioner's nusband was disentitled to make an application for
8. allotment of a site and as to whether there has been ary suppression of material facts which would entitle t he B DA to cancel the site allotted to him. As narrated 'in 7 the. facts, pursuant to Annexure-Ri, the BDA allotted the site, in question to the petitioner's husband 'om 27/5.1998 .and subsequently, lease-cum-sale deed - was--executed on. 28.6.1991 and possession of.site was also given to the petitioner's husband. He died on 3.42907. It is also not in dispute that the petitioner was the-benéficiary of site No.47 at Amariyothi bayout, which site was allotted to petitioner's husband's elder sister who had in turn bequeathed the said site to petitio ners fist and's mother who had in turn gifted the said site to the peiitione coh usband. It is. no doubt, true that the ain deed is prior to the making of an application for allotmeni t of the -site.to the BDA. However, on the factual ahatrix of the case what has to be considered is, whether the petitioner's lute husband was disentitled or ineligible from making an application for allotment of site. In this COPLEXT, Taue 10 reads as follows:
"10. Eligibility - No person -
fij iwoho is a minor i1-Aj xxx x x} Ly.
xem (2) who is not a domicile of Karnatalca for riot less than [fifteen years limmediately prior to the ~ date of registration. ancl (Ol iwho er any dependent member oF whose» family, owns a site or a house Orr as. been allotted a site or a house by ihe. Bangalore -
Development Authority or a' Co- "operative _ Society registered~ under the. Rarnaicka 7 Co-operative Societies ACI, 195S. (Karnak Act ] ll of 1959) Or ery St he other Atithiority ivithiin the Bangalore Me vopoltian Area or has been allotied ch. sile.or a house in cir ny part in the State 2 Pye any other Urban. "Development AWIOF iti. or ihe. Karnatake housing Board or such other "Agenry oF 'ihe Government. shall be eligibie foe appl u. for allotment of c site.] Provided that the requirement of [fifteen years] domicile may be relaxed:
fe LEE (iD IND xxx xx! mn the case of persons who are domiciled "in the State of Karnataka bur being in the armed forces of the Union and . servicing outside the State of Karnataka:
in the case of persons who are domiciled in he State of Karnataka but have gone outside the State for femployrnent or higher studies} and who borne. fide iniend fo reside in the Bangaiore Metropotiian Area ce 4
(iv) in the case of officers belonging to All India Service, whose serv ices aie alotted to the Karnataka State. Cate and domiciled in the State of Karnatake for not less than {0 year "Ss immediately ~ prior to the date of registration: . | fu) in ihe case of serving soldiers he. are.
etther serving in-the State or Outside ihe State of Karnaiake |° Q. Column No.18 in Fern: Nog (Anmexure-R1) reads as follows:
"Do "you SS or your Ww ife / Husband or your deperitte rat child reit.or your dependent parents or your de nerident Brothers or Sisters oun site or a house irl the Bangalore Metropolitan area or have been , allotted a stile or a house in the BangaloreMetrépolitan area by the erstiuhile mo . CLTB 3, the B.D.A., K.H.B., H.B.C.S., or any other cuith Lore ue indicate Yes or No. ff yes firmish details."
On a reading of the said Rule as well as the information sought at Column No.18, it becomes clear that if a dependent member of the family of the applicant owns a site or house or has been allotted 4 site or a house by (1) DA or (2) a co-operative Society registered under the a Fate ee
-}i-
Karnataka Co-operative Societies Act. 1959 or (3) any such other authority within the Bangalore Metropolitan Area or. {4) any other authority in any part of such area of anyother:
urban development authority or (5) Karnataka Housing -. Board or (6} such other agency of the Government, would be ineligible to apply or allotment of a site. The efore, fan applicant comes into ownership of a site or has been allotted a site in any manner apart 'rom what-has been expressly stated in Sub-Rule (3) of Rule 10 it would not be a bar for making an appulr 1 tion. Neithier woul di ii make such an applicant ineligible for seeking ain allotment ol a site from the BDA, The object of the Stub-Rule'ts to ensure that a person is not a beneliciary. of allotment from agencies which are stated there! n awvice. "Therefore. any allotment made by any oF the sta butory bodies referred to in Sub-Rule (3) or by any house building eo-operative society would disentitle such a person to "once again seek an allotment of a site from the BDA. ; The "object is to erisure that no person who has : already been in ownership of site or has been allotted a site is not again enriched by allotment of a site from the BDA. The object of the said Rule is fo ensure thal when jargess is distributed by the State through siatutery aulhorilies or by the house-bullding co-operative societies, no person wou amongst groups of people re:
1
Pa receive a double benefit. Therefore. the said Rule is only in the context of distribution or allotment of sites by statutory Sane Cie bodies or house building-operative societies. Th nol take into consideration acquisition of house -sites OF house in any other manner known to law pe riicularlyunder private transactions.
OQ. The said Rule is in the context of Article 29 of the Directive Principles of State Policy and particularly, Clause 'D and 'ce' which stute that (he owhership and control of the material resources of thé commmanity must be so distributed as best to subserve the eormmon good and that the operation of the économie sy S fem would not result in the concentration of wealth and means of production to the cormmion detriment as well as Article G8 which states that the State shall secure "social order for the promotion of welfare of the people in whic justice, social, economic and political, shall inform all institutions 'of national life and the State shall strive to
-fidnimise the inequalities in income, status, facilities and opportunities. mol only amongst | i but also ged in different vocations. It is in that context that Sub-
£8 Rule (3) makes a person ineligible lo apply for allctinent of a [a site i he has been a beneliciary or has acquired a site as a beneticiary from any of the statutory bodies or .house building co-operative societies stated therein. The Sub-Rule.
does not state that if a person has come inte ownership of ae. house or a site in any other manner known to law. . chen, in that event also he would be ineligible to apply for allotment ° of a site. In fact, a person van come into owite fship of a site or a house by virtue of a private saie, ait _exchange or in any other manner recognized in law such as -by inheritance, succession, stitleinent ete: Sut sas : manner of gaining ownership 'of a howse ota site would not disentitle a person rthe BDA. In the absence of there for allotme nt 2 i a " ay express provision stating that if a person has we over ofa site bya sale or a gift etc., or in any other mafia er known to daw, the BDA cannot contend that such patego ry of persons also would become ineligible io apply for a site, "41. Tre reason for issuance of a show-cause notice or for has to be within yuu cancellation of the allotment is ore, whicr tne four corners of the Rule. Such a rule would require < strict interpretation since if entails adverse consequences resulting in cancellation of an allotment. On a= strict 4 ,
-|d-
person has come to ownership of a house or a site by any winriner mot stated in the Sub-Rule would not dise ntitle suc ia] a person nor would make him ineligible to apply | Column i8 in the application orm is not hing , by t an Z information being sought on the basis of Ss ibe Rule (3) of Rule
10. In the instant case. the, petitiosier's hush and "anewere do the said column in the 'negative' since he was neither the owner of a site or house nor was allotted-one from any of the entities stated therein.
12. The RDA's 'contention is that 'ihe said answer is suppression of Tnatesial fect. © Since the petitioners iate husband was already. 'in, ownership of site No.47 of Amari voli Layou b which was allotted from a House Building copes Soe iety and therefore, he was not entitled to i ny alle timer 7 'The tacts of the present case would have to } ~ be hoi Be ino mind before accepting such a contention. Site No47 at Amarjyoti Layout was not allotted to the petitioner's ~usband at all. We was nol even a member of the said Soe He had become the owner of the said site under a gilt deed executed by his niother who had inherited the said site under a Will executed by her daughter who is none other than the petitioner's elder sister and who was the owner of A ihe said site No.47. A benelit under a gift deed cannot be A ets ee
-|8- construed to be a benefit which has been received directly from the house. building society Le., Amarjyoti, "House Building Society, merely because the said site was origirially allotted by the said society in the name of the-petitioner's"
elder sister. It is also not the case of the petitioner what any dependent member of the petitioner's h usband . or the"
petitioner was allotted a site "by " of ihe authorities mentioned in Sub- Rule 8) cf Rule. 30 30. in the absene e OF there being any material ° show ne the: petitioner was allotted a site By, any'. of: 'the statutory. authorities or any nouse-butiding society as "mentioned in Sub-Rule (8) of Rule 10, the invocat fon: of Sub- Bitte (10} of Rute 1S stating that the re has. been inisrepresentation or suppression of material fats OF that there has been incorrect or false ON formation given. by the petitioners husband in the a 'application "form for allotment of site is erroneous. As alven dy 'Stated: placing rellance on something which is not me ntioned or stated in the Rules and thereby canceling the
-alioemeni is, instance of arbitrary exercise of power apart / irom there being non-application of mind. Therefore, show-
"cause notice as well as order of cancellation Annexures-J JN have io be quashed. At:
-16-
IG. Learned counsel for BDA has placed reliance on the order dated 25.1.2010 by this court. The facts of the. said case are that the applicant for allotment had net stated that her husband was an allottee of site by CITB. Non-diselosure of the said fact would clearly come Within Sub-Rindle 420) or Ruje 13 of the Rules and the appli rant inerein had also no eligibility to apply for a site. It is under those circumstances, the cancellation of the allotment of the Site was upheld and in exercise af discretion, this court directed the BDA to refund the sital value. "The facts of the said case are quite distinct from the fact wf thie! present vase. Hence, the same is not applicable Henve, Aimexures J and N are quashed.
i4. In the result, the writ petition is allowed. Since the » only:
a hot "been 'accepted by this court. the respondent-BDA is directed to axesute absolute sale deed in the name of the __ petitioner within a period of two months from the date of "receipt of the certified copy of this order. Parties to bear Fa ... their own costs, : Sad f= JUDGE