IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE Mr. JUSTICE P.B. BAJANTHRI WRIT PETITION No.17029/2017(BDA) BETWEEN SMT. H.M. SHIVAMURTHA W/O. SRI M.V. THIMMAIAH, AGED ABOUT 66 YEARS, R/AT NO.153/E, 17TH MAIN ROAD, VIJAYANAGARA, BANGALORE-560040.
... PETITIONER (BY SRI V.K. NARAYANA SWAMY, ADVOCATE) AND 1. THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, 4TH FLOOR, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE-560001.
2. THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, B.D.A. HEAD OFFICE, SANKEY ROAD, BANGALORE-560021.
3. THE DEPUTY SECRETARY B.D.A. HEAD OFFICE, SANKEY ROAD, BANGALORE-560021.
4. THE SECRETARY B.D.A. HEAD OFFICE, SANKEY ROAD, BANGALORE-560021.
... RESPONDENTS (BY SRI E.S. INDIRESH, AGA FOR R1;
SRI M.N. SUNDER HEGDE, ADVOCATE FOR R2 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 06.04.2017 AT ANNEX-D AND THE ENDORSEMENT DATED 28.02.2017 AT ANNEX-H DEMANDING ENHANCED RATE AT RS.24,100/- PER SQUARE METER ISSUED BY R2 AND R3 RESPECTIVELY AS ILLEGAL, DISCRIMINATORY AND CONTRARY TO LAW, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING;
O R D E R In the instant petition, the petitioner has prayed for the following reliefs:
A) Issue a writ of certiorari quashing the impugned order dated 06.04.2017 bearing No. B.D.A./UKA – 1 / ALLOT/ T.84/2017-18 at Annexure-D and the endorsement dated 28.02.2017 at Annexure-H demanding enhanced rate at Rs.24,100/- per square meters issued by respondent No.2 and respondent No.3 respectively, as illegal, discriminatory and contrary to law;
B) Issue a writ of mandamus, directing respondent No.2 to permit the petitioner to pay the consideration of the allottee site No.2181 in ARKAVATHI LAYOUT measuring 50’ x 80’ at the rate of Rs.2,100/- per square meter on par with allottees of site No.2215 and site No.40 mentioned in Annexures- F and F1 and in compliance/accordance with the legal opinion furnished by its department; vide Anenxure-F2; and C) Issue such other order or writ or direction as this Hon’ble Court may deem fit and proper, including awarding compensatory costs for the sufferings of the petitioner at the cost of the Respondents; in the interest of justice and equity.
2. Pursuant to the notification Annexure-A, petitioner had applied for a site in dimensions 15.00 x 24.00 meters in Arkavathi II Block, Survey No.14/3 Sampigehalli. She was allotted site No.2181 on 03.06.2016 by demanding a sum of Rs.24,219/- square meter. Petitioner was aggrieved against the fixation of rate per square meter at Rs.24,219/-, since in the advertisement proposed rate is mentioned as Rs.2,100/- per square meter. Further, in respect of similarly situated allottees, in the same layout, under the same notification, for the same dimension sites, the rate has been fixed at Rs.2,100/- per square meter. Thus, there is discrimination. In this regard learned counsel for the petitioner has produced Annexures - F and F1, wherein respondent - BDA has demanded a sum of Rs.2,100/- per square meter from other allottees pursuant to the same notification.
3. The Law Officer had opined that there is discrimination in demanding a sum of Rs.24,219/- per square meter and it was approved by the then Commissioner as in the note-sheet. In this background, the petitioner has also obtained information under Right to Information Act as to what was the criteria for fixation of Rs.24,219/- per square meter. The concerned authority has issued an endorsement on 04.10.2016 stating that there is no criteria so also Government Order or Circular or any Resolution passed by the BDA. It is further contended that in respect of Scheduled Castes and Scheduled Tribes, certain relaxation has been provided under Sub-Rule (2) of Rule-11 of Bangalore Development Authority (Allotment of Sites) Rules. On these grounds the impugned endorsement is liable to be set aside. Further, the petitioner is entitled for fixation of rate at Rs.2,100/- per square meter similar to that of allottees at Annexures-F and F1, dated 03.02.2016 and 24.06.2016, respectively.
4. Per contra, learned HCGP for the 1st respondent and the learned counsel for the BDA resisted the petitioner’s contention and submitted that there is no infirmity in fixing the rate at Rs.24,219/- per square meter. Having regard to the applications for allotment of sites is concerned, the petitioner has made a total number of three attempts for allotment of a site. The learned HCGP for the 1st respondent and the learned counsel for the BDA have relied on Annexure-R1 to demonstrate that in respect of Scheduled Castes persons who had applied for allotment of sites are entitled to sites measuring 50’ x 80’ only. Therefore, respondent-BDA has rightly demanded Rs.24,219/- per square meter and there is no infirmity.
5. Heard the learned counsel for the parties.
6. Crux of the matter in the present petition is, in view of Annexure-A whether the respondents-BDA can demand Rs.24,219/- per square meter from the petitioner or not?
7. The undisputed facts are that the petitioner belonging to Scheduled Caste Category, made an application pursuant to Annexure-A seeking for allotment of site measuring 24 x 15 square meters at the rate of Rs.2,100/- per square meter such as the allottees at Annexures - F and F1. On the other hand the petitioner has to pay at Rs.24,219/- per square meter or not? The respondents’ contention that in terms of Annexure-R1 in respect of Schedule Castes’ applicants, the petition is entitled for allotment of site if it was the 3rd attempt. Annexure-R1 is not an authenticated document so as to verify whether Annexure-R1 is applicable pursuant to Annexure-A notification issued way back on 21.04.2000. That apart, assuming that if the allotment of the site to the petitioner is contrary to Annexure-R1, no attempts have been made by the respondents - BDA for cancellation of the allotment at Annexure-B dated 03.06.2016. Further by means of statement in this petition respondents cannot improve the impugned decision. Supreme Court in the case of Mohinder Singh Gill and another, Appellants v. The Chief Election Commissioner, New Delhi and Others, Respondents – AIR 1978 SUPREME COURT 851 at Para 8 has held as under:
“The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16)(at p 18):
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older.”
8. On the other hand, Sub-Rule (2) of Rule 11 of Bangalore Development Authority (Allotment of Sites) Rules, 1984, provides for exemption in respect of Scheduled Castes/Scheduled Tribes. Further, the Law Officer has opined that there is discrimination regarding fixing the rate of site at Rs.24,219/- per square meter, since, as on the date of application, the similarly situated allottees has to pay Rs.2,100/- per square meter. The respondents have failed to apprise this Court under what circumstances Rs.24,219/- per square meter has been arrived, as is evident from the information provided under Right to Information Act furnished to the petitioner at Annexure-G dated 04.10.2016 which reads as under:
“¤ÃªÀÅ PÉÆÃjgÀĪÀ ªÀiÁ»w §UÉÎ ¥Àj²Ã°¸À¯ÁV, CPÁðªÀw §qÁªÀuÉUÉ ¸ÀA§A¢ü¹zÀAvÉ ¥Àæw ZÀ.«ÄÃ.UÉ gÀÆ.24,100/-
¤UÀ¢¥Àr¹gÀĪÀ §UÉÎ AiÀiÁªÀÅzÉà ¸ÀPÁðj DzÉñÀ CxÀªÁ ¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ oÁgÀªÀÅ EgÀĪÀÅ¢®è.”
9. In view of these facts and circumstances, Annexures - D and H are hereby set aside. The respondent - BDA is directed to fix Rs.2,100/- per square meter on par with Annexures – F and F1. Further proceedings shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
SBS* Sd/- JUDGE