IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.1825 OF 2012 (BDA) BETWEEN:
M/S.MARUTHI ENGINEERING WORKS A PARTNERSHIP FIRM HAVING PRINCIPAL PLACE OF BUSINESS AT NO.112, 2ND MAIN ROAD, INDUSTRIAL TOWN, RAJAJINAGAR, BENGALURU-560 044 REPRESENTED BY ITS MANAGING PARTNER SRI H. SREENIVAS AGED 49 YEARS. .. APPELLANT (BY SRI. K SHASHIKIRAN SHETTY, ADVOCATE) AND:
THE BANGALORE DEVELOPMENT AUTHORITY K P WEST EXTENSION T CHOWDAIAH ROAD, BENGALURU-560 020 REPRESENTED BY ITS COMMISSIONER ..RESPONDENT (BY SRI. C R GOPALASWAMY, ADVOCATE AND SRI B V SHANKARNARAYANA RAO, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 1501 OF 2011 DATED 29.03.2012.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, ASHOK S.KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 29.3.2012 passed by the learned Single Judge in dismissing the writ petition No.1501 of 2011, the petitioner has come up in appeal.
2. Parties are referred to as per the rank of the parties in the writ petition.
3. Brief facts of the case are as under :
The petitioner is a partnership firm registered under the Indian Partnership Act, 1932. The petitioner had applied for allotment of site shown in schedule A of the memorandum of the writ petition. That the respondent-Bangalore Development Authority (BDA) has allotted schedule ‘A’ site on lease-cum-sale basis and executed a lease/sale agreement dated 2.11.1972 and delivered physical possession of schedule ‘A’ site and the total area of the said site is 3803 sq.ft. Further the petitioner alleged that he is in possession of the property to the extent of 5118 sq.ft. and a portion measuring 4882 sq. ft. lies under the high tension electrical cables that run overhead from north to south. As such, the said portion has to be left open to sky and no construction is permissible and that the petitioner is using the said portion for storing the materials.
That on 16.2.1983 the respondent-BDA issued a notice to the petitioner calling upon it not to put up any construction in the site, alleged to bear No.112-A. Then it transpired that the respondent had created the alleged site bearing No.112-A from out of schedule ‘A’ site on its south and adjacent to the site bearing No.113 and had allotted the alleged site bearing No.112A which is shown in schedule ‘B’ to one Sri.Puttarange Gowda. As the act of the respondent was a direct interference to the right of the petitioner in respect of the schedule ‘A’ property, the appellant filed W.P.No.3946 of 1983 before this court. In the meanwhile, Puttarangegowda instituted O.S.No.289 of 1983 in the court of the Additional City Civil Judge, Bengaluru seeking permanent injunction against the petitioner from interfering with his alleged possession over the schedule ‘A’ site. This court disposed of W.P.No.3946 of 1963 by directing the respondent not to act on the notice till the disposal of the said suit.
That Sri.Puttarangegowda applied to the respondent for allotment of alternative site instead of schedule ‘B’ site, thereby compelling the petitioner to initiate contempt proceedings in C.C.C No.73 of 1984 before this Court. In the said proceedings, the respondent has given an undertaking before this Court and the contempt proceedings were dropped.
The suit filed by Puttarangegowda was decreed and hence, R.F.A.No.1552 of 2003 was filed in this Court by the petitioner. During the pendency of the said appeal, Sri.Puttarangegowda who had declared that he had not got into possession of the schedule ‘B’ site though the respondent had allotted it to him, got an alternative site allotted by the respondent and in view of the said development, this Court disposed of the appeal on 24.1.2019 by observing as under :
“The learned counsel for the appellants submits that alternative site has been allotted to the respondent No.1 plaintiff. She has also produced copy of the order dated 3-7-2006 passed in CCC (Civil) No. 12/1996. In view of this, the claim of the plaintiff stands forfeited in terms of the decree passed in O.S. No. 289/1983.
Accordingly, the appeal is disposed of.”
That, on 13.10.2006, the petitioner made a representation to the respondent seeking regularization of the schedule ‘B’ site in its favour since schedule ‘B’ site was created out of schedule ‘A’ site which has been in its possession. The respondent did not take any action on the representation given by the petitioner. Hence, the petitioner approached this Court in W.P.No.18619 of 2007 seeking a direction to the respondent to consider his representation for regularization on schedule ‘B’ site. By order dt.1.6.2009, this Court directed the respondent to consider the representation of the appellant in a proper perspective as expeditiously as possible but not later than the outer limit of four months from the date of receipt of the order. As there was no compliance, the petitioner thereafter filed a contempt before this Court in C.C.C.No.448 of 2010. After initiation of the above said contempt, the respondent issued an endorsement dated 21.5.2010 to the petitioner stating that schedule ‘B’ site is a separate site and that the extent of the said site is double the extent of the site allotted to the petitioner and hence, could not be allotted under the prevailing provisions of the law. The petitioner being aggrieved by the endorsement issued by the respondent preferred a W.P.1501 of 2011 before this Court. The learned Single Judge dismissed the writ petition on 29.3.2012. The petitioner being aggrieved by the order passed in the above said writ petition disposed of on 29.3.2012 has filed this appeal.
3. Heard learned counsels for the parties.
4. It is apparent that the petitioner/appellant has no right to claim site No.112-A as there is no agreement between the petitioner/appellant and the respondent. The schedule ‘B’ property was an independent site and the same was allotted in favour of Puttarangegowda as back as on 1.1.1993 itself. The said site measures 70 x 29 ft. which means that the said site is bigger than the site No.112. The site No.112-A cannot be said to a marginal land but it is an independent site. The allotment letter produced by the petitioner does not reveal the boundaries. It reveals the extent of site allotted to the petitioner/appellant. It also reveals the number of site specifically. Merely because the boundaries mentioned in the possession certificate (Annexure-B), towards the southern side which has been shown as site No.113, the same cannot be taken advantage by the petitioner/appellant and also it does not get any right over the schedule ‘B’ property i.e. site No.112A. Further, there is no privity of contract between the petitioner/appellant and the respondent in regard to site No.112A. That the contention of the petitioner/appellant that it is a marginal land cannot be accepted and his request for allotment of the said site cannot be accepted for the simple reason that the site No.112A is an independent site and moreover, the extent of the said site is more than the site which was allotted to the petitioner/appellant.
5. That site No.112-A earlier was allotted to Puttarangegowda and he filed suit in O.S.No.289 of 1983. The said suit came to be decreed. Appeal was filed. During pendency of appeal, the respondent has allotted alternative site to Puttarangegowda. The appeal was disposed off by forfeiting the decree passed in O.S.No.289 of 1983. The said site falls within the definition of ‘stray sites” as per Rule 2(j) of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 which reads as follows :
“2(j) “Stray sites” means a site which was once allotted but subsequently the allotment was either cancelled by the Authority or surrendered by the allottee or a site which has been formed on account of readjustment in the plan subsequent to the issue of notification inviting applications for allotment of sites.”
6. As discussed above, the said site was allotted to Puttarangegowda and subsequently cancelled the same and alternative site was allotted to him. Hence, we hold that site No.112-A falls within the definition of ‘stray site’.
7. Rule 5 of the Rules, reads as under :
Allotment of stray sites-
“(1) Notwithstanding anything contained in these rules, allotment of stray sites shall be in accordance with the provisions hereinafter provided.
(2) The authority shall at least once in a year cause to be prepared a list of stray sites, giving details of layouts and dimension of sites and offer any or all the sites for allotment under this rule to persons eligible for allotment.
(3) Due publicity shall be given in respect of sites offered for allotment specifying their location, number, last date for submission of application and such other particulars as the Commissioner may consider necessary, by affixing a notice on the notice board of the office and website of the authority and any other office as the Commissioner may decide and by publication in not less than two daily newspapers published in City of Bangalore in English and Kannada, having wide circulation in the city.
(4) Sites shall be allotted among different categories as follows:
Category Description Percentage A Disposal by auction 30 B Persons who have recognition in 10 the field of sports at International /National Level C Persons who have won special 15 recognition in the field of Art, Painting, Sculpture, Music, Dance, Drama, Films, Science, Literature, Education, Medicine, Press and Electronic media and Public Administration at the National/ International Level and sitting or former members of Higher Judiciary D Ex-Military personnel or military 05 personnel E Freedom fighters who are residents of 05 Bangalore Metropolitan Area for a period of not less than ten years F Dependents of Karnataka Government 05 Servants who died while on duty G Persons in public life 30 Explanation- For the purpose of Category “G”, “Persons in public life” means persons who are serving the public or available to the people for service as a whole and involved in the affairs of the Community in different capacities and includes persons who are or were elected or nominated to the Parliament or the State Legislature.
(5) Allotment through auction under Category ‘A’ shall be made only to a person if:-
(i) he is not a minor; and (ii) he is a citizen of India.
(6) Allotment to any person falling under Categories ‘B’ to ‘G’ shall be made only if-
(i) he is not a minor (ii) he is a domicile of Karnataka for not les than fifteen years;
(iii) he or any member of his family does not own a site or a house in the Bangalore Metropolitan Area and has not been allotted a site or house by the Bangalore Development Authority or any other Authority within the Bangalore Metropolitan Area; and (iv) he satisfies the Authority that he is in a reasonable position to put up a building on the site allotted, within a period of three years from the date of handing over possession of the site:
Provided that requirement of fifteen years domicile may be relaxed by the Authority-
(i) in case of persons who are domiciled in the State of Karnataka but are in the Armed Forces of the Union and serving outside the State of Karnataka;
(ii) in the case of persons who are domiciled in the State of Karnataka but have gone outside the State for employment, business, studies or training and who bona fide intend to reside in the Bangalore Metropolitan Area; and (iii) in the case of persons belonging to Categories ‘B’ and ‘C’ with the prior permission of the Government.
(7) Sites earmarked for disposal under Category ‘A’ shall be allotted by the Authority based on the result of auction.
(8) Sites to persons falling under Categories ‘B’ to ‘F’ (both inclusive) shall be allotted by the Authority on the recommendation of a committee constituted by it.
(9) In the case of persons falling under Category ‘G’, the Authority shall scrutinize all applications received and submit them to the Government for approval and after getting the approval allot the sites to such persons.
(10) Value of sites to be allotted to persons falling under Categories ‘B’ to ‘G’ shall be fixed at ten per cent above the current value of sites which are allotted under Rule 11.
(11) The provisions of Rules 7,8,9,13,14 and 15 shall apply for allotment made under this rule in respect of Categories ‘B’ to ‘G’.
8. As per the definition of ‘stray site’ in Rule 2(j) of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 to mean that a site which was once allotted, but subsequently, allotment was either cancelled by the authority or surrendered by the Board or a site which has been formed on account of re- adjustment and subsequent to the issue of the notification inviting applications for allotment of sites, to submit that the site in question bearing No.112A is one of those sites which is formed on re-adjustment, as the said site was earlier allotted to Puttarangegowda and subsequently it was cancelled and alternative site was allotted to him. If that is so, then the site in question being a stray site, question of falling within the definition of the said term under Rule 2(j) of the Rules, its allotment must comply with Rule 5 relating to the allotment of stray sites in accordance with the guidelines issued by the Government. There is no dispute that the circular No.UDD 129 MNJ 97, Bengaluru, dated 6.8.1997 provides for revised guidelines for allotment of stray sites by the BDA whereunder, the 7 categories of persons to whom the stray site could be allotted does not disclose an allotment by way of an alternative site in favour of the petitioner/appellant. Keeping in mind the fact that there is neither a site called a ‘marginal land’ nor a law relating to allotment of marginal land, the fact that the site in question is a stray site could be allotted only in terms of the guidelines as provided in the circular. The petitioner/appellant is disentitled to a direction to the BDA to consider allotting the alleged marginal land on the southern side of the petitioner’s/appellant’s property.
10. In view of the above said discussion, we are of the view that the order dated 29.3.2012 passed by the learned Single Judge in W.P.No.1501 of 2011 is just and proper and it does not call for any interference.
Hence, we pass the following :
ORDER The writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE rs