IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF JANUARY,2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 9773 OF 2016 (BDA) BETWEEN:
SRI. Y NARAYANA S/O Y HANUMANTHAPPA AGED ABOUT 69 YEARS (NOT CLAIM) NO.149, 2ND MAIN ROAD RAJYOTSAVA NAGAR KUMARASWAMY LAYOUT, 2ND STAGE BANGALORE – 560 078 ... PETITIONER (BY SRI. B. V. SHANKARANARYANA, ADVOCATE) AND:
1. THE BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIDH ROAD KUMARA PARK WEST BANGALORE – 560 020. REPRESENTED BY ITS COMMISSIONER 2. THE DEPUTY SECRETARY-2 BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIDH ROAD KUMARA PARK WEST BANGALORE – 560 020.
... RESPONDENTS (BY SRI. KESHAV R AGNIHOTRI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE SITE CANCELLATION ORDER DATED 28.09.2014 (ANNEX-F) IN RESPECT OF RESIDENTIAL SITE BEARING NO.2587/C SITUTATED AT KUMARASWAMY LAYOUT, 2ND STAGE, BANGALORE AND GRANT ALL CONSEQUENTIAL RELIEFS THERETO AND ETC.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner a member of Scheduled Caste is before this Court assailing the order dated 28.09.2014 issued by the respondent-BDA at Annexure-F, whereby the allotment of the site in question made vide letter dated 23.08.1997, has been cancelled on the ground that he failed to pay the site value within the prescribed period and therefore the BDA assumed that the petitioner did not have interest to have the site with him.
2. The respondent-BDA having entered appearance through its counsel Shri Keshava Agnihotri submits that the impugned order of cancellation of allotment of site cannot be found fault with; it is issued perfectly in terms of Rule 13(1) of B.D.A. (Allotment of Sites) Rules, 1984; he further submits that these Rules by their very text exclude any prior notice being issued to the allottee before effecting cancellation, for non-payment of the price of the site.
3. The learned counsel for the petitioner, Mr. Rao in reply submits that the BDA has promulgated certain Circulars and one of them is dated 18.11.2010 at Annexure-G keeping in view the best interest of the depressed classes of the society wherein some relaxation has been afforded; he also submits that in a number of judgments of this Court the said Circular has been kept in view in granting relief to the allottees who have suffered forfeiture and cancellation of allotment and that a copy of one such judgment is dated 04.09.2007 made by a Co- ordinate Bench of this Court in W.P.No.15878/2005. He also banks upon another judgment dated 18.02.2016 rendered by another Co-ordinate Bench of this Court in W.P.No.55909/2015 wherein in almost similar circumstances relief has been granted to the litigant subject to certain riders.
4. The learned counsel for the petitioner vehemently contends that the text of Sub-Rule (1) of Rule 13 does not completely exclude the principles of natural justice which are held to be part of Article 14 of the Constitution of India; in any event nothing prevented the respondent-BDA from issuing a notice before effecting the cancellation calling upon the petitioner to make the payment of remainder of the site value; and lastly the BDA being the statutory authority having retained almost 2/3rd of the site value admittedly paid by the petitioner ie., Rs.2 lakh (the total price being Rs.2,90,000/-), the petitioner should not be denied the relief.
4a. Lastly the learned counsel points out from the impugned order and also the contentions in the Objection Statement that there is not even a whisper from the side of the respondent-BDA about it’s intention to refund of the amount to the petitioner.
5. I have heard the learned counsel for the petitioner and the learned panel counsel for the respondent. I had the benefit of assistance graciously rendered by Prof. Lakmeesh Rao who again happens to be a Senior Panel Counsel of the respondent-BDA. I have perused the writ petition papers and the judgment of this Court pressed into service.
6. The site ad measuring 40X60 sq.ft. was allotted to the petitioner inter alia on the ground that he is a member belonging to the Scheduled Caste, way back in the year 1997; admittedly the petitioner has paid a little more than 2/3rds of the site value ie., Rs. 2 lakh, the price being Rs.2.90 lakh; the impugned cancellation of the allotment is not preceded by any opportunity of hearing even post cancellation as held by the Apex Court in the case of MANEKA GANDHI vs. UNION OF INDIA, 1978 (1) SCC 248, if there was any impediment for issuing a prior notice.
6a. The petitioner’s amount of Rs.2 lakh has been retained with the BDA without whispering anything about the refund of the same either in the impugned order or in the Statement of Objections; even in the argument also nothing was stated about this; now that the site in question having been admittedly allotted to some other person, the said site does not avail for re-allotment in favour of the petitioner; however that would be too feeble a ground for denying an alternate site of some reasonable dimension if not of the same dimension in the same layout or in any other. Regard being had to all the competing equities, some reasonable relief needs to be granted to the petitioner.
7. In view of the above, this writ petition succeeds in part; a Writ of Mandamus issues to the respondent-BDA to allot a site of equal or some reasonable dimension in the same or proximate layout at an allotment price that obtained as on the date of the impugned order, time for compliance is three months.
Sd/- JUDGE Snb/