Writ Petition No. 15007 of 2021 · The High Court
Case Details
- 1 - NC: 2025:KHC:6806 WP No. 15007 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 15007 OF 2021 (BDA) BETWEEN: SRI NANJE GOWDA @ NANJAIAH S/O LATE K SANNAIAH AGED ABOUT 63 YEARS, RESIDING AT NO.63/71, 6TH "A" MAIN ROAD KARISANDRA. 24TH CROSS, BANASHANKARI, 2ND STAGE BENGALURU-560 070. (BY SRI. VENKATESH H N.,ADVOCATE) …PETITIONER AND: 1. THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK EAST T CHOWDAIAH ROAD BENGALURU-560 020. 2. ADDITIONAL DEPUTY SECRETARY AND ADDITIONAL LAND ACQUISITION OFFICER BDA, R.C ROAD BENGALURU-560 020. 3. DEPUTY SECRETARY-2 BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK EAST T CHOWDAIAH ROAD BENGALURU-560 020. (BY SRI. B. VACHAN.,ADVOCATE FOR R1 TO R3) …RESPONDENTS Digitally signed by SUMA B N Location: High Court of Karnataka - 2 - NC: 2025:KHC:6806 WP No. 15007 of 2021 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS RELATING TO ALLOTMENT OF SITE NO.313 OF LATE SMT KAMALAMMA WIFE OF PETITIONER INCLUDING PROCEEDINGS OF BDA IN RESPECT OF THE SITE IN QUESTION AND ALSO ORDER DATED 06.02.2021 PASSED BY THE R3 COMMUNICATED TO THE PETITIONER UNDER COVERING LETTER DATED 03.03.2021 OF R1 VIDE ANNEXURE-T AND ETC. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner is before this Court seeking following reliefs;
Legal Reasoning
"(i) Call for entire records relating to allotment of site No. 313 of late Smt. Kamalamma wife of petitioner including proceedings of BDA in respect of the site in question and also order dated. 06-02- 2021 of bearing No. BDA/Commissioner/Allotment- 2020-21, Bengaluru 3rd Respondent, communicated to the Petitioner under covering letter dtd. 03-03-2021 of 1st respondent vide Annexure-T. passed the by (ii) Issue a Writ of Certiorari or any other appropriate Writ by quashing the order dtd. 06-02- 2021 passed by the 3rd respondent communicated by the 1st respondents office on 03-03-2021 vide Annexure-T, in so far as it relates to rejection of request to allot alternative site to the petitioner, as illegal, arbitrary and unconstitutional. (iii) Issue a Writ of Mandamus directing the respondents to provide an alternative site to the petitioner lieu of allotted site No. 313, Manjunatha Colony, BSK III Stage, Bengaluru in - 3 - NC: 2025:KHC:6806 WP No. 15007 of 2021 made in favour of his deceased wife, Kamalamma on 09-07-1994, without further delay and; the respondents as deemed (iv) pass such other order/orders/ issue direction fit under to circumstances of the case and allow this Writ Petition with cost in the interest of justice and equity." 2. Case of the petitioner is that; (a) One Kamalamma wife of the petitioner was allotted a site measuring 20ft. X 30 ft. situated at 313 at Manjunatha Colony, Banashankari 3rd stage, Bangalore, by the respondent -BDA in terms of resolution bearing No. 421 dated 31.10.1992. A letter of allotment was issued. She had also made the payment to the sital value in a sum of Rs.8,523/-. The said allotment was in terms of Bangalore Development Authority (Allotment Sites) Rules 1984 under the economically weaker section category. (b). That a lease-cum-sale agreement dated 12.09.1996 was executed by the respondent -BDA in favour of said Kamalamma along with that a possession certificate was also issued. That katha of the said property was also effected in her name. When said Kamalamma - 4 - NC: 2025:KHC:6806 WP No. 15007 of 2021 being desirous of construction of residential house on the said site, applied for licence and approval plan from respondent -BDA, the same was issued on 09.06.1997. In the meanwhile, the area in which the site located was transferred to the jurisdiction of Bruhath Bengaluru Mahanagara Palike which also issued katha in the name of Kamalamma. When the said Kamalamma prepared to put up construction, there was obstructions by certain unknown persons contending that there is a suit pending in respect of property of which the site allotted to petitioner was formed part of. (c) A complaint in this regard was filed by said Kamalamma bringing to the notice of the respondent -BDA about the aforesaid aspect of the matter, to which she was asked to wait as the respondent -BDA was holding certain enquiry. Subsequent follow up by the said Kamalamma requesting the respondent -BDA to remove the obstruction, resulted in response given by the respondent -BDA that the very same site had been allotted to one - 5 - NC: 2025:KHC:6806 WP No. 15007 of 2021 Chandramma and said Kamalamma was assured of an alternate site. (d) In the meanwhile, said Kamalamma reported to have passed away on 29.10.1999. Petitioner being her husband continued to pursue the matter and requested the respondent -BDA to set right the mistake in not handing over the actual possession of the property. Allegations of collusion made against the Officers of respondent -BDA, a Police compliant in this regard was also filed, who had apparently filed a report stating that one Pushpa had put-up construction on the site which was allotted to Kamalamma upon permission issued by the respondent -BDA. (e) It is further alleged that though the site was allotted, deed of sale was executed, katha was registered and permission to put up construction was issued, the respondent -BDA did not discharge its duty in safeguarding the interest of the petitioner while allotting the very same site to somebody else. - 6 - NC: 2025:KHC:6806 WP No. 15007 of 2021 (f) Petitioner under these circumstances had approached this Court by filing a writ petition in W.P.No.3214/2017 seeking direction to the respondent - BDA to allot an alternate site. The said petition was
Decision
disposed of by an order dated 18.06.2019 to consider the representation of the petitioner. Accordingly, the petitioner had made a representation on 01.07.2019 which was not considered by the respondent -BDA. However, respondent No.3 by impugned order dated 03.03.2021 without referring to the factual aspect of the matter and without application of mind rejected the representation and contended that respondent -BDA was not responsible for the encroachment made by the third party as the site and possession of the same had been handed over to Kamalamma-allottee as far back as on 1992- 1996 and it was the responsibility of the allottee to have protected and preserved the site so allotted. Being aggrieved by the same, petitioner is before this Court. - 7 - NC: 2025:KHC:6806 WP No. 15007 of 2021 3. Sri. H.N.Venkatesh, learned counsel for the petitioner apart from reiterating the averments and grounds urged in the petition vehemently submitted that; (a) the possession was handed over only on paper while no actual physical possession was handed over to the petitioner. He refers to a suit in O.S.No.2226/1995 that had been filed by one Dalappa against the respondent -BDA in respect of the land bearing katha No.10 measuring 300 X 50ft. Than an interim order of status quo had been granted in the said suit on 31.03.1995. Referring to the same, learned counsel for the petitioner submits that the suit and interim order that was granted in the said suit was in respect of land within which the site which was allotted in favour of Kamalamma was located. (b). Referring to the date of interim order and date of allotment of the site and subsequent execution of deed of sale, learned counsel for the petitioner submits that actual physical possession was never handed over and could not have been handed over in view of the interim - 8 - NC: 2025:KHC:6806 WP No. 15007 of 2021 order that was granted by the Trial Court. He submits this aspect of the matter has been appreciated by none other than the respondent -BDA. In this regard he refers to the office notes maintained by the respondent -BDA wherein, at paragraphs 60 to 64 page 103 of the additional document, the BDA and representatives had adverted to the pendency of the suit causing impediment in handing over the physical possession to the petitioner. (c) He also refers to the statement that was given by the petitioner before the Task Force with regard to encroachment by the third party produced at Annrexure- R5 to contend that wife of the petitioner and after her demise of petitioner has been relentlessly following up the matter untill they were constrained to approach this Court on two occasion by filing writ petition. Thus, referring to these documents and factual circumstances learned counsel for the petitioner submits that the reasons assigned by the respondent -BDA in the impugned order declining to consider the representation of the petitioner - 9 - NC: 2025:KHC:6806 WP No. 15007 of 2021 on the premise that in terms of Rule 11A of the BDA (Allotment of sites) Rules 1984 to contend that respondent -BDA cannot take shelter under Rule 11A of the BDA (Allotment of sites)Rules, 1984, inasmuch as, the undisputed facts of respondent -BDA not being able to hand over the physical possession of the site as emanating from the records. Therefore, he submits that petitioner is entitled for relief as sought for and seeks for direction in the matter to be issued to the respondent -BDA. 4. In response, Sri. B.Vachan, learned counsel for the respondent -BDA submits that; (a) once the possession is handed over it was the responsibility of the wife of the petitioner and of the petitioner thereafter to have protected and preserved the property. If a third party encroacher occupies the site which is allotted, the respondent -BDA cannot be held responsible for the same. (b) He vehemently submits that original allotment was made in favour of Kamalamma wife of the petitioner - 10 - NC: 2025:KHC:6806 WP No. 15007 of 2021 in terms of letter of allotment dated 09.07.1994. That a lease-cum-sale agreement was executed in the year 1996, possession was handed over on 13.11.1996, whereas present petition is filed in the year 2021. (c) He also submits that it is beyond the comprehension as to the fact that, if the site was encroached upon by someone else, why did the petitioner wait for more than 15 years to approach this Court seeking redressal of his grievance. He submits that petition is liable to be dismissed on the ground of delay and laches. (d) That in the absence of any explanation being provided by the petitioner and in the light of provisions contained under Rule 11A of the BDA, the petitioner is not entitled to the remedy invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Hence, seeks for dismissal of the petition. 7. Heard. Perused the records. - 11 - NC: 2025:KHC:6806 WP No. 15007 of 2021 8. The narration of the facts right from passing of the resolution dated 31.10.1992 and till filing of the present petition extracted hereinabove would indicate that wife of the petitioner and petitioner thereafter have been approaching the respondent -BDA and thereafter this Court on the one or the other grounds. While the petitioner is not disputing the fact that allotment of site, execution of lease-cum-sale agreement and issuance of possession certificate and grant of sanction for construction of house, the grievance is when they actually visited the site to put up construction, they encountered resistance from the third party. The resistance has not occurred in the year 1997. The genesis of resistance apparently in filing of the suit in O.S.No.2226/1995. 9. Perusal of the order sheet and plaint produced by the petitioner would indicate that upon filing of the said suit by one Dalappa as against the respondent -BDA the Civil Court had granted an interim order of status quo. It is not in dispute that suit that is filed and interim order - 12 - NC: 2025:KHC:6806 WP No. 15007 of 2021 granted is in respect of property within which the site allotted to the petitioner is located. May be there was no impediment for respondent -BDA to have issued documents in the nature of lease-cum-sale agreement and the possession certificate. But the fact that requires to be ascertained is whether the BDA was capable, in the light of interim order granted by the Civil Court in the aforesaid suit, of delivering physical possession of the property?. The answer is no. 10. It is appropriate to refer to Rule 11A of the Bangalore Development (Allotment of sites) Rules, 1984. "11-A. Allotment of alternative site. Where the Authority is unable to hand over possession of a site allotted under these rules to any allottee, due to stay orders of the Courts or for any other reason, the Authority may allot an alternative site to such allottee, subject following conditions.- the to (i) An alternative site may be allotted only where the mistake was on the part of the Authority while making the allotment of sites or where possession of the sites allotted originally could not be given to the allottees due to stay orders of the Courts or due to other disputes. (ii) Subject to clause (i), and the availability of sites, alternative sites may be allotted by the Authority in the same layout in which sites were - 13 - NC: 2025:KHC:6806 WP No. 15007 of 2021 originally allotted or in the layouts formed by the Authority subsequent to the formation of the layout in which the sites were originally allotted. (iii) Alternative sites shall not be allotted in layouts formed prior to the layout in which sites were originally allotted, even if sites are physically available in the layout/s formed prior to the layout in which original allotment was made. (iv) While allotting alternative sites, sites bigger in dimension than the sites originally allotted shall not be considered for allotment. How-ever, an alternative site upto ten per cent over and above the area of the originally allotted site may be allotted and in such cases for the extra sital area involved, additional sital value applicable in that layout for that site shall be collected by the Authority in addition to the difference in sital value to be collected: (v) Provided that extension of time of three months may be given to collect additional sital value in cases where it is applicable. (vi) While allotting alternative sites eligibility of the applicant shall be verified in accordance with these rules." 11. A plain language of the aforesaid Rule suggests that respondent -BDA would not be responsible for allotment of alternate site if the allottee could not retain the possession for his own inability. It pre-supposes two factors are; firstly, handing over actual physical possession by the respondent-BDA and secondly, inability - 14 - NC: 2025:KHC:6806 WP No. 15007 of 2021 of the allottee to protect the same. Material produced in this petition, more particularly, the order sheet and the plaint and the note sheet of the respondent -BDA at paragraph 60 to 65 referred to above would categorically indicate that the interim order granted by the Civil Court against the respondent -BDA is an undisputed fact legally preventing the respondent -BDA to handing over the possession. This clearly false within the ambit of Rule 11A(i) which is extracted above. 12. Therefore, as rightly contended by the learned counsel for the petitioner execution of lease-cum-sale deed and possession certificate in the light of the subsistence interim order cannot be construed as physical possession has been given to the petitioner. Therefore, reasons assigned in the impugned endorsement relying upon the provisions of Rule 11A is inapplicable to the facts situation of the matter. In other words, when the possession itself is not given the respondent -BDA cannot deny its obligation for allotment of an alternate site to the - 15 - NC: 2025:KHC:6806 WP No. 15007 of 2021 petitioner, which is what envisaged and contemplated under the aforesaid Rule. That condition fully being satisfied, this Court do not see any reason not to allow the petition. 13. Yet another contention raised by the respondent -BDA with regard to the delay on the part of the petitioner or allottee, original allottee Kamalamma was allotted a site in the year 1996 passed away in the year 1999. Kamalamma herself during her life time had given representation in the year 1998 bringing to the notice of the respondent -BDA regarding encroachment. Thereafter, the petitioner who is the husband of the Kamalamma has pursued the matter by giving fresh representation on and after the year 2003 including giving statement before the jurisdictional police. Therefore, it cannot be said that there is any delay and laches on the part of petitioner in pursuing the remedy. Facts beyond doubt indicate that the petitioner and his deceased wife during her lifetime relentlessly and persistently following up the matter. - 16 - NC: 2025:KHC:6806 WP No. 15007 of 2021 Grounds urged to reject the petition for delay and laches also cannot be countenanced. 14. For the aforesaid reasons, following; ORDER (i) Petition is allowed. (ii) Impugned Communication dated 03.03.2021 as per Annexure-T issued by the respondent No.1-BDA is quashed. (iii) Respondent -BDA is directed to allot an alternate site to the petitioner in lieu of site No. 313 at Manjunatha Colony, Banashankari 3rd stage, Bangalore that had been allotted in favour of wife of the petitioner. (iv) Such exercise shall be undertaken within an outer limit of eight (8) weeks from the date of receipt of certified copy of this order. - 17 - NC: 2025:KHC:6806 WP No. 15007 of 2021 (v) Any delay thereafter would invite payment of cost of Rs.2000/- per day of delay personally payable by the concerned official in the matter. Sd/- (M.G.S. KAMAL) JUDGE RU, List No.: 1 Sl No.: 20