IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.15966 OF 2017 *(BDA) AND WRIT PETITION NO.16684 OF 2017 BETWEEN:
Mr. Gollahalli Vijay, S/o Shri. G.K. Raman, Aged bout 55 years, R/at No.95, Flat No.101, Renaissance Regalia, 6th Main Road, Malleshwaram, Bengaluru – 560 003.
(By Sri.Vikhar Ahmed B, Advocate) AND:
1. State of Karnataka, Reptd by the Principal Secretary, Urban Development Department, Vikas Soudha, Bengaluru – 560 001.
2. The Commissioner, Bangalore Development Authority, Chowdaiah Road, Kumar Park West, Bengaluru – 560 020.
(By Sri. E.S. Indresh, AGA for R1; Sri. B.S. Sachin, Advocate for Smt. M.V. Adithi, Advocate for R2) *DELETED AS PER COURT ORDER DTD. 11-02-2019.
…Petitioner …Respondents These Writ Petitions are filed under Articles 226 and 227 of Constitution of India praying to direct respondents to consider the representation dated 02.08.2016 and 25.10.2016 in terms of the Annexure-Q and R and direct the R-2 to refund the sum of `75,48,900/- illegally collected from the petitioner in the garb of allotment/development charges.
These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:
ORDER Petitioner has sought for a direction to the respondents to consider the representations dated 02.08.2016 and 25.10.2016 (Annexures-Q and R) and for a further direction to the 2nd respondent to refund a sum of `75,48,900/- collected by way of developmental charges.
2. I have heard arguments of Sri. Vikhar Ahmed B, learned counsel appearing for petitioner and Sri. B.S. Sachin, learned counsel appearing on behalf of Smt. M.V. Adithi, for respondent No.2.
3. Petitioner has purchased two sites bearing Nos.28 and 29 totally measuring 90 ft x 60 ft carved out of Sy.Nos.41/1B, 41/2A, 41/2B, 41/3 of Ranchenahalli Village, Defence Enclave II Phase, Arkavathi Layout, Bengaluru South Taluk, under a registered sale deed dated 14.03.2001 (Annexure-A). Said sites were the subject matter of acquisition, which had reached finality by virtue of judgment of this Court rendered in W.A.No.2624/2005 and connected matters on 25.11.2005 and as affirmed/clarified by Hon’ble Apex Court in the case of Bondu Ramaswamy & Ors vs. Bangalore Development Authority reported in (2010) 7 SCC 129.
4. Pursuant to same, 2nd respondent on 16.05.2012 (Annexure-D) resolved to allot said sites to petitioner purchased by himself and accordingly, by allotment letter dated 19.03.2014 (Annexure-E), allotted the sites in favour of petitioner and directed the petitioner to pay a sum of Rs.84,07,500/- within 60 days from the date of receipt of allotment letter. Accordingly, petitioner has deposited said amount on 21.07.2014 (Annexure-F).
5. Pursuant to allotment, 2nd respondent-BDA executed sale deed in favour of petitioner on 01.10.2014 (Annexure-G) and possession also came to be delivered on 10.10.2014 vide Annexure-H. Thereafter, khata of said site was also mutated in the name of the petitioner as evident from khata certificate issued by 2nd respondent (Annexure- J) dated 17.10.2014.
6. Grievance of petitioner is that in respect of similarly placed persons, who were also allotted with sites in the very same survey numbers pursuant to very same resolution passed by BDA i.e., dated 16.05.2012, allotment letter came to be issued on 19.03.2014 (Annexures-L and N) in favour of Sri. G.K. Raman and Sri. Ramesh Gollarahalli raising a demand for payment of `66,10,500/- each and subsequently, it was reduced to `7,66,200/- as per Annexures-M and P respectively and yet 2nd respondent without any justifiable cause has demanded and recovered or collected a sum of `84,10,500/- from petitioner vide allotment letter dated 19.03.2014 (Annexure-E), which has since been paid by petitioner on 21.07.2014 (Annexure-F). Hence, assailing indiscriminate collection of development charges, petitioner is before this Court contending that representation submitted by petitioner to 2nd respondent seeking refund of excess amount collected has not been considered and as such, petitioner prays for a writ of mandamus being issued to 2nd respondent. He would also rely upon judgments of Co-ordinate Bench of this Court in W.P.50190/2013 disposed of on 09.12.2004 which has also been followed in W.P.49255/2014 on 09.01.2015 (Annexure-S).
7. Having heard the learned Advocates appearing for parties and after bestowing my careful consideration to the contentions raised, this Court is of the view that claim made by the petitioner in present writ petition is justifiable and prayer sought for deserves to be granted for the reasons indicated herein below.
(i) When there is no dispute to the fact that 2nd respondent having allotted site to the petitioner and similarly placed persons by virtue of resolution dated 16.05.2012 (Annexure-D) by issuing allotment letters to the respective owners of sites, 2nd respondent was not justified in reducing its claim on developmental charges to be paid by such allottees by use of pick and choose method, namely, insofar as allotment made in favour of Sri.
G.K. Raman and Sri. Ramesh Gollarahalli, BDA has directed them to pay as sum of `159/-per sq.ft. as against demand made against petitioner to pay `1557.50/- per sq.ft., which is wholly unjustified and without any basis.
(ii) In fact, allotment letters issued in favour of similarly placed persons, which are at Annexures-L and N, would clearly disclose that said sites are also situated in same survey numbers as well as in same village and in same area. Hence, there cannot be any different yardstick insofar as collection of development charges are concerned in respect of similarly placed persons. In fact Co-ordinate Bench of this Court under identical circumstances in W.P.No.50190/2003 and W.P.No.49255/2014 disposed of on 09.12.2004 and 09.01.2015 respectively, had accepted similar contentions raised by petitioner therein as raised by the present writ petitioner and had directed the respondent-BDA therein to consider representation keeping in mind the observations made therein.
(iii) Petitioner being similarly placed person as that of petitioner in above referred petitions and as observed hereinabove, 2nd respondent having raised a demand for `7,66,200/- in favour of similarly placed persons, after having allotted site to them pursuant to resolution dated 16.05.2012 (Annexure-D), petitioner herein cannot be deprived of similar benefit to be extended to petitioner by 2nd respondent.
8. In light of the above stated facts, I pass the following:
ORDER (i) Writ Petitions are hereby allowed.
(ii) 2nd respondent is directed to consider the representation of petitioner dated 02.08.2016 (Annexure-Q) and 25.10.2016 (Annexure-R) expeditiously at any rate within thirty days from the date of receipt of certified copy of this order. In the event of 2nd respondent-BDA arriving at a conclusion that petitioner is entitled for refund of excess amount, it shall refund the excess amount, if any collected with interest at 6% p.a. from date of payment till date of refund expeditiously and at any rate within three months from date of such determination.
(iii) In the event of 2nd respondent arriving at a conclusion that petitioner would not be entitled for such refund, it shall intimate the same to the petitioner by issuing appropriate endorsement and it is needless to state that petitioner would be at liberty to challenge the same in accordance with law.
SD/- JUDGE Mds/HA