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2002 DIGILAW 337 (KAR)

U. C. Malimath v. Bangalore Development Authority

2002-05-31

R.GURURAJAN

body2002
ORDER R. Gururajan, J.--Petitioner-Malimath is seeking for the following prayers: 1) Issue a writ of mandamus or any other writ or order directing the Respondents to allot him a house site measuring 40 feet x 60 feet against his application bearing No. 15514 dated 22.3.2000 with Registration No. 51146 and grant such other and further reliefs as are just. 2) Direct the Respondents to pay the cost of this petition. 2. The Petitioner is a resident of Bangalore. The Petitioner is working in Reserve Bank of India for a long time. He is in need of a house site for putting up a construction. He registered his name under General Public Category and applied on several occasions. He has given the details in para 3. He sought for allotment of a site measuring 30' x 40' in all his eight applications. The first Respondent called further application for allotment of sites in terms of an advertisement dated 16.3.2000. The Petitioner's need has increased by that time. In those circumstances, the Petitioner applied for a bigger site measuring 40' x 60'. According to the petition averments his previous eight attempts ought to have been taken note of at the time of allotment. The Petitioner paid the initial deposit towards allotment. The Petitioner registered for 40' x 60' site. The Petitioner made two applications one for 30' x 40' site and another for 40' x 60' site. The Petitioner received an allotment letter dated 31.5.2000 stating that he has been allotted a site measuring 30' x 40' and he was asked to comply with other requirements. The Petitioner verified the facts and came to know that his application for allotment of 40' x 60' is shown as the first attempt. He approached the Respondent. He made a representation in terms of Annexure 'E'. Annexure 'E' is subsequently followed by Annexures 'F', 'G', 'H', 'J' and 'K'. The Respondent did not take any action. 3. The Petitioner also refers to another allotment in favour of one Sri Ronald B.V. Sequeira. With these facts, the Petitioner has sought for various prayers as mentioned earlier. 4. The Respondents have entered appearance. They have filed an affidavit opposing the prayers. They say that the Petitioner was allotted a site No. 796 measuring 30' x 40' in Gnanabharathi Layout, I Block in terms of an allotment letter dated 31.5.2000. With these facts, the Petitioner has sought for various prayers as mentioned earlier. 4. The Respondents have entered appearance. They have filed an affidavit opposing the prayers. They say that the Petitioner was allotted a site No. 796 measuring 30' x 40' in Gnanabharathi Layout, I Block in terms of an allotment letter dated 31.5.2000. The Petitioner applied for a site measuring 30' x 40' in all his previous eight applications. The Petitioner's case could not be considered on account of his not coming within the eligibility zone. Subsequently, another advertisement was issued on 16.3.2000. The Petitioner submitted two applications one for 30' x 40' and another for 40' x 60'. The Petitioner was allotted a site No. 6 measuring 30' x 40'. The Respondent refers to BDA rules to contend that the Petitioner has no right in law for allotment of 40' x 60' site. In so far as Ronald B.V. Sequeira is concerned, he applied in response to another notification. 5. Heard the Counsels. 6. Sri Mahale, learned Senior Counsel contends that the Respondents are wrong in not considering the case of the Petitioner for allotment of a site measuring 40' x 60'. He refers to Annexure 'A' and also the clarification issued by the Respondents. He says that in the light of the same his client ought to have been granted 40' x 60' site in the light of Clause 2 of the Public Notice. His previous attempts are vital factors in the matter of allotment, according to the Counsel. He also refers to me the rules to contend that injustice has been done to his client. A complaint of discrimination is also made by the Petitioner by comparing himself with Ronald B.V. Sequeira. 7. Per contra, the Counsel for BDA invites my attention to various material facts to contend that no case is made out. 8. After hearing the Counsel, I have carefully perused the material on record. It is seen from the material on record that pursuant to Annexure 'A', the Petitioner did made two applications. He has also deposited the amount. He has been granted 30' x 40' by the Respondents. In so far as his claim of 40' x 60' is concerned, the Respondents say that he is not eligible in the light of the Rules as applicable to the facts of this case. He has also deposited the amount. He has been granted 30' x 40' by the Respondents. In so far as his claim of 40' x 60' is concerned, the Respondents say that he is not eligible in the light of the Rules as applicable to the facts of this case. The Petitioner strongly relies on Rule 11 in support of his contention. Rule 11 of the Rules provide for principles of selection of applications for allotment of sites and reservation of sites. Several contingencies have been taken note of by BDA in the matter of allotment. The Petitioner strongly relies on 11(2) in support of his case. Rule 11(2) reads as under: The authority shall consider the case of each application on its merits and shall have regard to the following principles in making section: i) The marital status of the applicant, that is, whether he is married or single and has dependent children, ii) The income of the applicant and his capacity to purchase a site and build a house thereon for his residence: Provided that this condition shall not be considered in the case of applicants belonging to Scheduled Castes, Scheduled Tribes and Backward Tribes. iii) the number of times the applicant had applied for allotment of a site and the fact that he did not secure a site earlier though he was eligible and had applied for a site; iv) the fact that the land belonging to the applicant has been acquired by the authority for the formation of the layout for which he has applied. 9. A careful reading of the same would show that BDA has to consider the case of all those applicants in respect of categories 'A' to 'H' on its merits. After consideration, the principles requiring allotment is noticed in Rule 11(2). The principles are the marital status and the income of the applicants and his capacity to purchase a site and build a house thereon for residential purpose. This principle is a laudable one in providing a site for those who are siteless. It is only to encourage housing activities by the deserving applicants. Rule 11(2)(iii) states that the principles of consideration of the number of time the applicant applied for the allotment of site in the matter of allotment. This principle is a laudable one in providing a site for those who are siteless. It is only to encourage housing activities by the deserving applicants. Rule 11(2)(iii) states that the principles of consideration of the number of time the applicant applied for the allotment of site in the matter of allotment. Taking a clue from Rule 11(2)(iii), the Counsel says that Annexure 'A' is to be read as meaning that the previous attempts in respect of different dimensions is to be considered for the purpose of allotment. Prima facie, the said argument looks attractive. But on a careful reading of the Rule would show that Rule 11(2)(iii) refers to a site. In the case on hand, the Petitioner opted for 30' x 40' site on eight occasions. Taking note of the previous attempts, the Respondents have allotted 30' x 40' site to the Petitioner. What the Petitioner now wants is that he should be granted 40' x 60' site in the light of his previous attempts of 30' x 40' site. This argument cannot be accepted. A harmonious reading of Rule 11(2)(iii) and Annexure 'A' would show that what is required to be considered is that the earlier attempts in respect of different dimension is also a fact that would require consideration. That does not mean that the Petitioner is to be granted 40' x 60' site as a matter of right. In these circumstances, I am not able to accept the argument of the Counsel that his earlier attempts of 30' x 40' site has to be taken note of for a grant of 40' x 60' site. Even otherwise, Clause 2 would show that those applicants who registered with 30' x 40' and those who intend to apply for 40' x 60' are required to register afresh and their previous attempts in respect of different dimensions will be considered for allotment under this notification. It has to be read for the purpose of registration afresh. Annexure 'A' is only a clarification. It also cannot be forgotten that in the case on hand, the Petitioner has applied in response to an advertisement dated 16.3.2000 whereas Annexure 'A' is a public notice dated 29.7.1999 with reference to a notification dated 6.7.1999 assuming that there is some consent in favour of the Petitioner. Annexure 'A' is only a clarification. It also cannot be forgotten that in the case on hand, the Petitioner has applied in response to an advertisement dated 16.3.2000 whereas Annexure 'A' is a public notice dated 29.7.1999 with reference to a notification dated 6.7.1999 assuming that there is some consent in favour of the Petitioner. The same cannot be made applicable since the clarification in terms of Rule 2 is applicable only in response to 1999 notification. A doubtful clarification cannot override a Statutory Rule. No rules are shown to me providing for a higher dimension as a matter of right. In these circumstances, I am not able to accept the arguments of the Petitioner. 10. The Petitioner however argues that there are other sites available and that could be allotted in his favour. That may not be possible since this clarification is only for the purpose of the notification dated 29.7.1999. It cannot be stretched to any other notification. Moreover, the consideration in terms of Annexure 'A' dated 4.8.1999 has to be read along with other principles of the matter. The Petitioner merely by referring to the clarification cannot seek a higher dimension as a matter of right without satisfying regarding the other principles in terms of the Statute. 11. The Petitioner however refers to the allotment in favour of one Mr. Ronald. That has been clarified by the Board, by saying that Ronald has complied in response to a notification issued on 6.7.1999 and not in response to advertisement dated 16.3.2000. Moreover, an error committed cannot give a right in favour of the Petitioner. Looking from any angle, no acceptable ground is made over by the Petitioner requiring my interference. 12. It appears that the Petitioner has not paid the entire consideration in respect of the 30' x 40' site allotted to him. This Court also had granted interim order in his favour. It is needless for me to say that the Petitioner is entitled for 30' x 40' site in terms of the allotment. Petitioner is given sixty days time to pay all pending arrears for the purpose of allotment of 30' x 40' site in terms of the notification. 13. Petition stands dismissed. Parties to bear their respective costs.