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2001 DIGILAW 621 (KAR)

N. R. SRIDHAR v. BANGALORE DEVELOPMENT AUTHORITY

2001-08-07

M.P.CHINNAPPA

body2001
M. P. CHINNAPPA, J. ( 1 ) THE admitted facts are that the BDA had originally allotted the land to the Legislators Housing Co-operative Society under Section 38-B of the Bangalore Development Authority Act, 1976 (for short 'the Act'), with a direction to allot to its members. Accordingly, the safety formed a layout and allotted one site to G. P. Nanjayyana Math who in turn sold the same to Smt. B. S. Lakshmi Devi by registered sale deed dated 15-2-1996 as per Annexure-B and subsequently khata was changed to the name of Smt. B. S Lakshmi Devi as per Annexure-C. Thus Smt. B. S. Lakshmi Devi became the absolute owner of the property. Encumbrance certificate to that effect is produced as per Annexure-D. Lakshmi Devi died on 21-1-1999 and her death certificate is produced as per Annexure-E. The petitioner and her 3 daughters (i. e. , the sisters of the petitioner) are the only legal heirs of Lakshmi Devi. The petitioner's sisters waived their right over this property as per the copy of the affidavit filed in this case as per Annexure-F. The plan as per Annexure-G was sanctioned in favour of the purchaser. However, the construction work could not be taken up as Writ Petition No. 31227 of 1996 (PIL) (S. Vasudeva v Government of Karnataka and Others1) was pending before this Court. Virtually, the said writ petition came to be allowed by this Court with necessary directions. The said order was questioned before the Hon'ble supreme Court in Civil Appeal Nos. 456 to 458 of 2000 (Commissioner, bangalore Development Authority v S. Vasudeva and Others2) and their lordships of the Supreme Court allowed the civil appeal as per Annexure-H, the copy of order dated 18-1-2000. Thereafter the 1st respondent sent a letter dated 27/28-10-1995 to the 2nd respondent in No. BDA/a/315/95-96 as per the direction of the Apex Court to pass an order enabling the 1st respondent to regularise the sites purchased by the third parties from the original allottees on the strength of the order passed by the 2nd respondent. A copy of the same is produced as per annexure-J. Subsequent to the quashing of the order passed by the High court in Writ Petition No. 31227 of 1996 by the Apex Court, the petitioner had obtained house building loan of Rs. 4. A copy of the same is produced as per annexure-J. Subsequent to the quashing of the order passed by the High court in Writ Petition No. 31227 of 1996 by the Apex Court, the petitioner had obtained house building loan of Rs. 4. 00 lakhs from the KSFC in which Corporation the petitioner is working as Deputy General Manager and also got released a sum of Rs. 70,000/- from his P. F. account to commence construction work in the petition schedule property after revalidating the sanctioned plan as per Annexure-G and khata also was changed in his name. He has produced the copy of the house building advance sanctioned on 24-5-2000 and P. F. withdrawal order dated 1-4-2000 as per Annexures-K and L respectively. In the meantime, the respondent issued a notice dated 21-8-2000 in No. BDA/ds/adm/24/2000-01 as per Annexure-A. The petitioner has questioned the same in this writ petition. Therefore, the petitioner seeks for the following reliefs: (a) Issue a writ in the nature of certiorari to quash the notice dated 21-8-2000 received on 21-9-2000 issued in No. BDA/ds/adm/24/2000-01 by the first respondent as in annexure-A; issue a writ in the nature of mandamus directing the 1st respondent to permit the petitioner to put up construction in the petition schedule property by following the due process of law and for such other reliefs. ( 2 ) THOUGH sufficient time was granted to the respondents; none of the respondents filed any objection in this petition. However, the learned Advocates appearing for the respective respondents vehemently argued opposing this petition. ( 3 ) SRI D. S. Joshi, the learned Counsel for the petitioner has vehemently argued that the petition schedule site which is the subject-matter of sale deed dated 15-2-1996 as per Annexure-B was one of the 11 sites for which the 1st respondent made recommendation under Rule 14 (3) of the BDA Allotment of Sites Rules, 1982 (for short 'the Rules') to the 2nd respondent who in turn approved and sanctioned on various dates, recommendation was accepted and sanction was communicated as per Annexure-J, dated 28-10-1995. This was not the subject-matter of the challenge in Writ Petition No. 31227 of 1996 before this Court. This was not the subject-matter of the challenge in Writ Petition No. 31227 of 1996 before this Court. The hon'ble Supreme Court did not pass any orders in respect of these 11 persons detailed in Annexure-J. The order of the Supreme Court was confined to only 13 members of the society in whose case permission was directly given by the 2nd respondent without having any recommendation from the 1st respondent as envisaged in Rule 14 (3) of the Rules. The Hon'ble Supreme Court directed to recover 25% of the sital value from the 13 purchasers authorising the 1st respondent to issue notices within 8 weeks from the date of order viz. , 18-1-2000 to these persons. It was received by the 1st respondent on or before 8-2-2000. Therefore, the notice dated 21-8-2000 as per Annexure-A is contrary to the order passed by the Hon'ble Supreme Court in Civil Appeal Nos. 456 to 458 of 2000 and is liable to be quashed. The steps taken by the 1st respondent on incongruous advice is without jurisdiction. Therefore, the steps taken by the 1st respondent is without the authority of law and jurisdiction offending Article 14 of the Constitution. Inclusion of the name of the purchaser and 10 others in the letter dated 27/28-10-1995 as in Annexure-J along with 13 others to whom permission was given by the 2nd respondent to purchase sites ignoring the existence of the 1st respondent will not give authority to the 1st respondent to modify the judgment of the Apex Court order dated 18-1-2000. Therefore, Annexure-A is bad in law and is not sustainable. The Apex Court concluded that in the matter of according permission to sell the site is a case of usurping the power of authority established under a statute. Therefore, it is argued that it is not a case in respect of 11 persons including the petitioner. Such being the finding of the Supreme Court directing the petitioners to pay a sum of Rs. 5,35,000/- within a time frame is illegal and opposed to the rule of law . Petitioner also contends that the notice itself is illegal having not been issued within the time frame fixed in the operative portion of the order of the Apex Court dated 18-1-2000. Petitioner is not liable to pay as the recovery of such amount is not permissible in law. Petitioner also contends that the notice itself is illegal having not been issued within the time frame fixed in the operative portion of the order of the Apex Court dated 18-1-2000. Petitioner is not liable to pay as the recovery of such amount is not permissible in law. Therefore, he submitted that the notice, Annexure-A be quashed. ( 4 ) THE Counsel for respondent 1, Sri K. V. Narasimhan submitted that the notice issued was in conformity with the direction of the Supreme Court. Though the petitioner was not a party in the order passed by the Supreme Court, the law declared by the Supreme Court is binding on all the persons including the petitioner. Therefore, the notice issued was in conformity with the direction issued by the Supreme court. Hence, the notice is valid in the eye of law and does not call for interference. ( 5 ) GOVERNMENT Advocate also fully supported the order which is impugned in this case. ( 6 ) AFTER verifying the pleadings and hearing the arguments on both sides, the question that is involved in this petition is the application of the order of the Supreme Court. Their Lordships of the Supreme Court in Civil Appeal Nos. 456 to 458 of 2000 have considered the judgment of the Division Bench of this Court and set aside the same holding that the directions issued by this Court are not in conformity with the prayer of the petitioner and held that:"as we read the above section, the Government has no power to issue any directions which are in conflict with the provisions of the act and, by necessary implication, in conflict with the rules framed under the said Act. The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14 as it stood, in the year 1994-95, did not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the bda, the Government could not have permitted or directed the said land to be sold or transferred. When Rule 14 as it stood, in the year 1994-95, did not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the bda, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 such ex-Legislators and ex-Ministers who were members of the respondent-Society, and whose names are included in the BDA's letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing and Urban development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside". Their Lordships have also considered the scope and purport of Rule 14 as then amended by notification dated 6th February, 1998 and further held:"as a result of the rules as they now stand where there has been alienation of site in contravention of sub-rule (2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25% of the sital value determined at the rates specified by the State Government from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of, the provisions of sub-rule (2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in sub-rule (2-A ). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by sub-rule (3)". ( 7 ) IN view of the categorical findings by their Lordships in regard to Section 65 of the Act and also the subsequent amendment of Rule 14, it is abundantly clear that the alienation was held to be invalid. Because of Rule 14 of the Rules the said alienation can be legalised only if 25% value of the property is paid. Because of Rule 14 of the Rules the said alienation can be legalised only if 25% value of the property is paid. That being the case, the argument of the learned Counsel for the petitioner that in the writ petition filed by the petitioner therein, the transfer made by the vendor of the petitioner was not invalidated and therefore, the petitioner herein who is the purchaser of the site before the filing of the writ petition is not liable to pay the said amount cannot be accepted. The vendor of the petitioner obtained the order to sell the property by letter dated 27/28-10-1995 wherein the Government has granted permission among others the vendor of the petitioner to alienate the property. That also was held to be invalid by their Lordships of the Supreme Court. Therefore, notwithstanding the fact that the vendors therein were not parties and their alienation was not specifically questioned in the writ petitions before this Court, which was set aside by the Supreme Court, the order under which the permission was accorded was set aside holding that the Government had no power to grant such permission to alienate the property. That being so, the Rule 14 is made applicable and therefore, their Lordships have held that only if the purchasers paid 25% of the value of the site, then the regularisation could be granted. In pursuance of this order, rightly the bda has issued a notice dated 21-8-2000, Annexure-A to the petitioner which is in consonance with the order passed by the Lordships of the supreme Court. ( 8 ) IT is also not open to the petitioner to argue that the steps taken on incongruous advice are without jurisdiction and offends Article 14 of the Constitution, etc. The further argument that notice is illegal having not been issued within the time frame fixed by the Supreme Court dated 18-1-2000 is also unsustainable. It is for the petitioner to pay the amount as per Rule 14 of the Act which was interpreted by the Supreme court and it is a concession given to the purchasers to pay 25% of the market value as the transfer was prohibited under Section 65 of the Act as aforesaid. If the petitioner does not pay the amount in view of the judgment of the Supreme Court, the property will stand resumed to the bda. If the petitioner does not pay the amount in view of the judgment of the Supreme Court, the property will stand resumed to the bda. Hence, the petitioner cannot plead that the notice is illegal as it was not within the time stipulated. Therefore, I am of the considered view that this petition has no merit and the argument advanced by the learned Counsel for the petitioner is liable to be rejected. Accordingly, the petition is dismissed. --- *** --- .