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Karnataka High Court

Sri Saleem B vs Bangalore Development Authority on 26 July, 2024

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

                                                -1-
                                                           NC: 2024:KHC:29577
                                                        WP No. 25886 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 26TH DAY OF JULY, 2024

                                              BEFORE
                             THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                               WRIT PETITION NO. 25886 OF 2023 (BDA)


                      BETWEEN:

                      MR. SALEEM .B.
                      SON OF ABDUL SUBHAN,
                      AGED AOBUT 62 YEARS,
                      NO.71, 1ST MAIN ROAD,
                      BHEL LAYOUT,
                      BYRASANDRA, BANGALORE-560 011.
                                                                ...PETITIONER
                      (BY SMT. ANUPARNA BORDOLOI, ADVOCATE)

                      AND:

                      1.     BANGALORE DEVELOPMENT AUTHORITY,
                             REPRESENTED BY ITS COMMISSIONER,
                             KUMAR KRUPA WEST,
                             T.CHOWDAIAH ROAD, BANGALORE-560 020.
Digitally signed by
KIRAN KUMAR R
                      2.   DEPUTY SECRETARY-1;
Location: High
Court of                   BANGALORE DEVELOPMENT AUTHORITY
Karnataka
                           KUMARA KRUPA WEST,
                           T.CHOWDAIAH ROAD, BANGALORE-560 020.
                                                            ...RESPONDENTS
                      (BY SRI.GOWTHAMDEV.C.ULLAL, ADVOCATE)

                           THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                      AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
                      ISSUE DIRECTION TO THE RESPONDENTS TO CONSIDER THE
                      REPRESENTATIONS ISSUED BY THE PETITIONER TO THE R-1
                      AND R-2 BOTH DATED 09.10.2023 AT ANNEXURE- A AND B,
                      ETC.
                              -2-
                                              NC: 2024:KHC:29577
                                        WP No. 25886 of 2023




     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR   ORDERS    ON   05.07.2024, COMING  ON   FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING

CORAM:   HON'BLE MR JUSTICE N S SANJAY GOWDA


                        ORAL ORDER

1. Initially, this petition was filed seeking a direction to respondents 1 and 2 to consider the petitioner's representation dated 09.10.2023, in addition to seeking a direction to allot site bearing No.1573/A situated in Sector-I of HSR Layout, Bengaluru and execute a sale deed in that regard.

2. Subsequently, during the pendency of this writ petition, an endorsement was issued on 15.06.2024 rejecting the representation of the petitioner for allotment of site bearing No.1573/A and as a consequence, the petitioner amended the prayer in the writ petition and sought quashing of said endorsement.

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NC: 2024:KHC:29577 WP No. 25886 of 2023

3. The facts leading to filing of the present petition are as follows:

4. On 10.11.1987, one V. R. Siva Ramakrishnan was allotted a site bearing No.818 measuring 40' X 60' in 1st stage, 4th Block of HBR Layout. However, since there was some dispute in relation to said site, V. R. Siva Ramakrishnan was allotted an alternative site bearing No.545 also situated in 1st stage, 4th Block of HBR Layout vide allotment letter dated 30.06.1989. A lease-cum-sale agreement was also executed in his favour on 28.12.1989.

5. The said V. R. Siva Ramakrishnan passed away on 29.06.1991 and on his death, the BDA transferred the site in favour of his wife-Jayalakshmi and his daughter-Veena under the transfer agreement executed on 05.09.1995.

6. On 31.03.2000, a sale deed was also executed by the BDA in favour of Jayalakshmi and Veena -- the legal heirs of the original allottee V. R. Siva Ramakrishnan. -4-

NC: 2024:KHC:29577 WP No. 25886 of 2023

7. Thus, in respect of the site allotted in the year 1987, an alternative site was allotted in the year 1989 and a sale deed was accordingly executed in the year 2000 i.e., after a period of 13 years. Unfortunately, with the registration of the sale deed, the problems of the allottee did not end and, in fact, the problems only commenced thereafter.

8. It appears that there was litigation in respect of this alternative site No.545 also, in respect of which a sale deed had been executed and one Sannappa had made a claim on said site. Consequently, Jayalakshmi and her daughter-Veena submitted a representation on 03.07.2008 seeking allotment of yet another alternative site. This request of Jayalakshmi and Veena was acceded to and an allotment letter was issued on 06.08.2015 allotting site No.749 situated in 1st stage, III Block of HBR Layout. A sale deed was also executed in respect of said site on 20.08.2015 and a possession certificate was also issued on 25.08.2015. Since there were some errors in the -5- NC: 2024:KHC:29577 WP No. 25886 of 2023 sale deed, a rectification deed was also executed on 28.07.2016.

9. Jayalakshmi and Veena thereafter conveyed the property in favour of the present petitioner under a registered sale deed dated 07.12.2016 for a consideration of Rs.1,42,20,000/-. After the petitioner purchased the property, he submitted an application seeking approval of his plan for constructing a building. He was informed that the plan could not be sanctioned since said site was situated near a 'Nala' and as a consequence, the petitioner sought allotment of an alternative site.

10. Thus, in respect of a site which was conveyed in the year 2015, objections were raised regarding the construction of a building in the year 2017 by the BDA and the BBMP, which forced the petitioner to seek allotment of an alternative site.

11. This request of the petitioner was processed, and the Committee resolved to allot an alternative site to the -6- NC: 2024:KHC:29577 WP No. 25886 of 2023 petitioner. In these proceedings (produced at Annexure- A9), it has been acknowledged that no building could be constructed in site No.749 since said site was situated within the buffer zone. This would thus indicate that the BDA had formed a site in an area which could not be utilized for construction of a residential building, and which was, in fact, within the buffer zone.

12. The petitioner, thereafter, continued his request for allotment of an alternative site and having gained knowledge that site No.1573/A in the 1st Sector of HSR Laybout was available, he requested vide his representation dated 12.07.2019 that said site be allotted to him.

13. In the file noting produced at Annexure-AJ, it was stated that the Authority, after verifying whether said site had not been allotted to anybody and if there was pending litigation, could take steps to process the request of the petitioner upon securing an opinion from the Legal Department.

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NC: 2024:KHC:29577 WP No. 25886 of 2023

14. Following this event, it appears that doubts arose as to whether site No.749 allotted earlier could be used for construction and consequently, the BDA addressed a letter to the Assistant Director, Town Planning of the BBMP for his opinion. The said Assistant Director by his reply dated 25.06.2023 confirmed that the entire site fell within the buffer zone, and it would thus not be possible for sanctioning the building plan.

15. Thereafter, as per the file noting, the Officials of the BDA noticed that site No.1573/A was on also on 150' outer ring road and it was not clear whether said site was a residential or commercial site. Ultimately, it was found that site No.1573/A was abutting the road in front of the mutation corridor, as per revised Master Plan of 2015.

16. Thereafter, during the pendency of this writ petition, on 15.06.2024, the BDA has proceeded to reject the request of the petitioner for allotment of an alternative site in the following terms:

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¸ÀASÉå:¨ÉA.C.¥Áæ:DAiÀÄÄPÀÛgÀÄ:GPÁ-1/387/2024-25. ¢£ÁAPÀ:15.6.24 »A§gÀºÀ «µÀAiÀÄ: ºÉZï.©.Dgï.1£Éà ºÀAvÀ 3£Éà ¨ÁèPï §qÁªÀuÉAiÀÄ 12*18 «ÄÃ. C¼ÀvÉAiÀÄ ¤ªÉñÀ£À ¸ÀASÉå:749 PÉÌ §zÀ° ¤ªÉñÀ£ÀªÀ£ÀÄß ºÀAaPÉ ªÀiÁrPÉÆÃqÀĪÀAvÉ PÉÆÃjgÀĪÀ §UÉÎ.
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DzÀÄzÀjAzÀ, ¸Àgï.JA.«±ÉéñÀégÀAiÀÄå 1£Éà ¨ÁèPï §qÁªÀtÂAiÀÄ (gÁªÀĸÀAzÀæ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.29/3) 12*18 «ÄÃ. C¼ÀvÉAiÀÄ ¤ªÉñÀ£À ¸ÀASÉå:3363 ªÁådågÀ»vÀªÁVzÀÄÝ, ¸ÀzÀj ¤ªÉñÀ£ÀªÀ£ÀÄß §zÀ° ¤ªÉ±À£ÀªÀ£ÁßV ºÀAaPÉ ªÀiÁqÀ®Ä PÀæªÀĪÀ»¸À¯ÁUÀĪÀÅzÉAzÀÄ F ªÀÄÆ®PÀ vÀªÀÄUÉ w½AiÀÄ¥Àr¸À¯ÁVzÉ".

17. As could be seen from said endorsement, the request of the petitioner for allotment of site bearing No.1573/A has been rejected by the BDA on the ground that as per the revised Master Plan of 2015 as well as the Zoning Regulations, the said site was within the mutation corridor and as per the Rules, the same could not be allotted as an alternative site and would have to necessarily be auctioned.

18. It may be pertinent to state here that during the pendency of this petition and before the issuance of impugned endorsement, an affidavit was filed by the Deputy Secretary on 03.04.2024 stating that site

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NC: 2024:KHC:29577 WP No. 25886 of 2023 No.1573/A was a commercial site and hence, could not be allotted as an alternative site. It was further stated that the site (being a commercial site) would fetch a huge value if sold through public auction.

19. It was also stated that though efforts were made to secure an alternative site in HBR layout, the BDA was unable to locate one. It was stated that the BDA was willing to allot the site bearing No.3363 in Sir M. Visweshwaraiah Layout.

20. Pursuant to the affidavit filed by the BDA, the petitioner responded with a memo stating that the average auction value of a site in 1st Sector of HSR Layout was Rs.1,83,834/- per sq. mtr. as against Rs.98,000/- per sq. mtr., SR value of a site in 1st stage of HBR layout. A statement was also made by the counsel for the petitioner that the petitioner was prepared to pay the average auction value at Rs.1,83,834/- per sq. mtr. in respect of site No.1573/A. Thus, notwithstanding the fact that the petitioner had already paid Rs.1,42,20,000/- to the wife

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NC: 2024:KHC:29577 WP No. 25886 of 2023 and daughter of the original allottee while purchasing site No.749, he offered to pay a further sum of Rs.3,86,43,745/- (210.21 sq. mtr. X Rs.1,83,834/-).

21. The BDA also filed a memo on 05.04.2024 stating that the average rate per sq. mtr. in HSR Layout is Rs.3,66,000/.

22. Thereafter, the BDA proceeded to issue the impugned endorsement on 15.06.2024 rejecting the claim of the petitioner to allot site bearing No.1573/A as an alternative site. Thus, it is clear that though the petitioner (in addition to the sale consideration that he had paid to the original allottees) offered to pay a further sum of Rs.3,86,43,745/- to the BDA, the BDA (though had allotted site No.818 to the original allottee and was unable to ensure that the original allottee or his successor-in- interest was able to enjoy the site for nearly 37 years) rejected the claim of the petitioner in the year 2024. In other words, the allotment made in the year 1987 did not fructify even after 37 years, despite the allottees'

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NC: 2024:KHC:29577 WP No. 25886 of 2023 successor-in-interest offering to pay a sum of Rs.3,86,43,745/- to the BDA.

23. In light of the stand now taken by the BDA, the next question that arises for consideration in this petition is:

Whether the BDA can refuse to allot an alternative site to the petitioner on the ground that the site identified was a commercial site included in the mutation corridor and could be disposed off only by way of a public auction.

24. The allotment of sites by the BDA is governed by the BDA (Allotment of Sites) Rules, 1984 ("the Allotment Rules"). Under these Rules, an applicant, if found eligible, would be entitled for allotment of a site and if it is found that the Authorities were unable to hand over possession of a site due to stay orders or any other reasons, the authority is required to allot an alternative site to the allottees under Rule 11A of the Allotment Rules. Thus, if

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NC: 2024:KHC:29577 WP No. 25886 of 2023 the allotment of a site has not fructified and the allottee has not succeeded in securing possession, there is an obligation on the part of the BDA to allot an alternative site.

25. It may be pertinent to state here that the order passed by this Court in the case of M. S. Panchaksharappa1 has held that the BDA can dispose of stray sites in the manner specified in Rule 5 of the Allotment Rules only after the claims for allotment of alternative sites in that layout has been considered and fulfilled. This Court has also held that it is the fundamental duty of the BDA to ensure that the allotment made to an allottee is concluded in all respects and until that is done, the entitlement of the BDA to dispose of the sites which had been surrendered or cancelled by treating them as a stray site cannot be exercised.

1 M. S. Panchaksharappa v. the Commissioner, BDA in W.P. No.25223 of 2023 disposed on 28.06.2024 at Bangalore.

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NC: 2024:KHC:29577 WP No. 25886 of 2023

26. The contention that the site bearing No.1573/A is situated within the mutation corridor and has thus become a commercial site which is required only to be auctioned, will have to be considered in light of the Rules framed under the BDA Act for the disposal of the sites formed by the BDA since the BDA can dispose off the sites in the manner prescribed i.e., in accordance with the Rules framed under the provisions of the Act.

27. The BDA (Disposal of Corner Sites, Intermediate Sites, Commercial Sites and Other Auctionable Sites) Rules, 1984 ("the Disposal of Site Rules"), as the name suggests, provides for the manner in which a corner / intermediate / commercial / auctionable site is required to be disposed of.

28. Rule 3 of the said Rules mandates that corner sites, intermediate sites, commercial sites and other auctionable sites are to be disposed of by auction in accordance with those rules. A "Commercial Site" has been defined in the said Rules under Rule 2(c) as follows:

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NC: 2024:KHC:29577 WP No. 25886 of 2023 "2(c) "Commercial Site" means any site formed in any extension or layout earmarked for locating a cinema theatre, a hotel or restaurant, a shopping centre, a shop, a market area and includes sites for locating any business or commercial enterprises or undertaking but does not include any site earmarked for the location of any factory or any industry."

29. As could be seen from the above definition, only if a site is earmarked in the layout plan for locating a cinema theatre, a hotel/restaurant, a shopping centre, a shop, a market area (including for locating any business or commercial enterprises), would it be a commercial site.

30. It is not in dispute that when site No.1573/A was formed, it was earmarked as a residential site. The formation of the HSR Layout in which Site no 1573/A is situated was in 1984, obviously much before the applicability of the Zoning of Land Use and Regulations approved on 22.06.2007 by the Government, when the Revised master Plan was formulated.

31. If site No.1573/A was not earmarked as a commercial site in the approved layout plan of HSR layout,

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NC: 2024:KHC:29577 WP No. 25886 of 2023 the question of the BDA contending that it was a commercial site as defined under the Disposal of Site Rules and that it was required to be auctioned, would be legally flawed and cannot be accepted.

32. It may be pertinent to state here that the mutation corridor created under the revised Master Plan of 2015 can obviously be applicable in respect of a layout formed after 2007 and they cannot control the use of sites which had been formed earlier. In fact, the 3rd paragraph of Regulation 1.1 of Chapter 1 of the Zoning of Land Use and Regulations (which is a part of the Revised Master Plan, 2015) clearly states as follows:

1.1 Spatial extent of land use zoning regulations ***** ***** The provisions of this document are to be read along with the relevant planning district plans of Revised Master Plan, 2015, applicable to various areas of the city. The zone delineation and the permissible land uses within zone and respective regulations for
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NC: 2024:KHC:29577 WP No. 25886 of 2023 land use are properly co-related to achieve orderly growth.

33. It is thus unmistakably clear that the creation of a mutation corridor and the permissible use of land, in respect of the lands coming within the purview of the mutation corridor under the Regulations, can only be after the Zoning of Land Use and Regulations were approved by the State on 22.06.2007.

34. The Zoning Regulations relied upon basically states that the main land use of the lands within the mutation corridor can only be under 'C4' i.e., for commercial purposes. In fact, the permissible uses for the C4 category would be for sale of second-hand junk goods, junk yards, warehouses and storage areas for goods, wholesale and trading apart from all the other uses under 'C1', 'C2' and 'C3'.

35. It may also be pertinent to state here that the other permissible land uses for lands falling with the mutation corridor include the use of the lands for residential

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NC: 2024:KHC:29577 WP No. 25886 of 2023 purposes. Thus, even if a property is situated in the mutation corridor, the use of that property for residential purposes is permissible under the Zoning Regulations.

36. The contention of the BDA, therefore, that every property in the mutation corridor becomes a commercial site and will have to be treated only as a commercial site would have to be auctioned, is thoroughly misconceived.

37. To reiterate, a subsequent land use created under the Zoning of Land Use and Regulations under the Revised Master Plan of 2015 cannot control the use of a site which had been created earlier.

38. Thus, as site No.1573/A cannot be considered as a commercial site and the Zoning Regulations upon which reliance was placed by the BDA also permits the use of said site for residential purpose, the stand taken by the BDA that it cannot allot site No.1573/A, which was considered for allotment to the petitioner, cannot be accepted.

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NC: 2024:KHC:29577 WP No. 25886 of 2023

39. An argument is also sought to be advanced that subsequently, it has been noticed that the restriction to use site No.749 because it was within the buffer zone would not be applicable since the site had been formed prior to the order of the NGT. The petitioner has, in fact, pointed out in his objections that said site is also subject matter of O.S.No.698/2015 and in addition, there was another suit in O.S.No.25847/2019, in which the petitioner was arraigned as the 1st defendant and there was also an interim order granted by the Trial Court. In light of these facts, the argument that the petitioner could still utilize site No.749 would have to be rejected.

40. Another argument advanced by the BDA is that it is prepared to allot site No.3363 in Sir M. Visweshwaraiah Layout, to which the petitioner responded that there was an appeal in W.A.No.2873/2013 pending in respect of said property. It is therefore clear that even the alternative site offered by the BDA is under litigation.

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NC: 2024:KHC:29577 WP No. 25886 of 2023

41. It is to be stated here that the BDA had allotted a site originally in HBR layout which, as of today, is a prime layout and the alternative site proposed is in HSR layout i.e., a subsequently formed layout, and the say of the BDA that is is prepared to allot a site in a relatively newly formed layout is principally unfair. The BDA, in fact, is attempting to make a virtue of its vice in being unable to ensure that it allots a litigation-free site to the allottee to enjoy the same.

42. Another important factor to be noticed is that the BDA allotted site No.818 to the original allottee in the year 1987, but since there was some litigation, an alternative site bearing No.545 was allotted, in respect of which a lease-cum-sale deed was executed in the year 2000. Even this site allotted in the alternative was found to be in litigation and in 2015, site No.749 was allotted to the original allottee and a sale deed was also executed. The petitioner purchased this site in the year 2016 and since said site was situated in the buffer zone, the Authority had

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NC: 2024:KHC:29577 WP No. 25886 of 2023 initiated process for allotting another alternative site and ultimately, in the year 2017, site No.1573/A was identified. Thus, the allotment process which was initiated in the year 1987 has remained inconclusive though 37 years have elapsed. In the background of this fact, it would be necessary to ensure that the prolonged allotment process reaches finality at least 37 years after it was initiated. It is hence necessary that the BDA should be directed to convey site No.1573/A in favour of the petitioner immediately.

43. In this case, since the petitioner has voluntarily come forward to pay the average auction value as indicated by him in his memo dated 18.04.2024 at the rate of Rs.1,83,834/- per sq. mtr. in order to ensure that the BDA is also not financially prejudiced, the petitioner shall pay Rs.3,86,43,745/- (210.21 sq. mtrs. X Rs.1,83,834/-) to the BDA within a period of one month from today.

44. It is to be stated here that, legally and also technically, the petitioner would not be required to pay

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NC: 2024:KHC:29577 WP No. 25886 of 2023 said sum since he is required to be allotted an alternative site without the payment of any further sale consideration. It is also to be noticed here that the petitioner has already paid the sale consideration of Rs.1,42,20,000/- to the family of the original allottee when he purchased site No. 749, which was an alternative site granted to the original allottee. But since the BDA has raised the plea that it would be financially prejudiced and the petitioner has voluntarily stated that he would pay the average auction value of Rs. 1,83,834/- per sq. mtr., the BDA would have to be directed to convey site No. 1573/A in HSR 1st Sector to the petitioner.

45. The argument that said site would fetch a higher value cannot be accepted as either fit or moral, since the primary duty of the BDA is to ensure that a site that it has allotted is enjoyed by the allottee, and it is not objective of the Act or the Rules that the BDA has been created to be a commercial entity with the sole objective of creating

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NC: 2024:KHC:29577 WP No. 25886 of 2023 wealth to the State by auctioning sites which have been formed out of public money.

46. It is to be stated here that the petitioner by offering the aforesaid sum is actually doing the BDA a favour and the BDA, which was required to ensure that allotment which was started in the year 1987 was concluded, is actually being enriched by this amount. It may be kept in mind that the BDA received the value of the site which it had allotted way back in the year 1987, and the value of the money that it had received in the year 1987 and which it had used for 37 years is also be taken into consideration while directing the BDA to accept the amount offered by the petitioner.

47. In the result, I pass the following:

ORDER
i) This writ petition is allowed.
ii) The petitioner is directed to pay a sum of Rs.3,86,43,745/- (210.21 sq. mtrs. X
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NC: 2024:KHC:29577 WP No. 25886 of 2023 Rs.1,83,834/-) to the BDA within a period of one month from today.

      iii)   The   BDA   is    directed    to    convey   site
     No.1573/A      in   1st   Sector     of    HSR   Layout,

Bengaluru, measuring 210.21 sq. mtr. to the petitioner within a month of the petitioner paying the aforesaid amount.

Sd/-

(N S SANJAY GOWDA) JUDGE PKS List No.: 1 Sl No.: 53