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2008 DIGILAW 457 (KAR)

Surabhi Seva Sangha v. State of Karnataka

2008-08-29

H.G.RAMESH

body2008
ORDER Huluvadi G. Ramesh, J. Petitioners are before this Court praying for a writ of certiorai to quash the resolution dated 7-11-2006 in subject No. 67/2006, letter of allotment dated 16.4.2007 and the sale deeds dated 23.11.2007 and 20.12.2005; and for a mandamus declaring the impugned resolution dated 7-11-2006 and 16.4.2007 and also the sale deed executed in favour of the 5th and 6th respondent are rather void and illegal and in contravention of the Bulk allotment Rules. Sy. No. 28 of Ramasandra Village measuring 22 acres was originally belonging to one Bhadramma and Nanjamma. According to the petitioners, on the application made by them, there is a conversion order being passed and thus, it was later sub-divided into Sy.No. 28/1A and 28/3. There was also a partition in the family and mutation was also duly effected. also the entries have been carried out in the revenue records. One Shivanna, Nanjapa and Basavaiah who are the sons of Bhadramma and relatives in favour of B.C. Mudduramappa wherein these petitioners in all are said to have got executed a sale deed in their favour each site measuring 30x40 ft and they were said to be in possession and enjoyment. Further, there was a notification issued by the BDA for formation of Vishweswaraya Layout but, prior to that these petitioners were allotted site by one B.C. Mudduramappa in view of the power of attorney held by him and he also had formed in association in the name ot Surabhi Niveshanadarara Singha, which has also filed W.P. Pursuant to the acquisition proceedings issued by the BDA challenging the notification dated 14.12.2001 and 31.10.2002 in various filed by these petitioners, this Court while disposing the petitions, referring to the decision reported in ILR 2005 Kar 608-Junjamma and Others Vs. Bangalore Development Authority and Others had directed them to file representation. However, according to the petitioners, there was a direction issued to consider the case of the petitioners for allotment of sites as per Junjamma’s case, but that has not been considered. Apart from that, it is contended the respondent Kanakashri House Building Co-operative Society who had no right as such, in whose favour there was bulk allotment made by the BDA to the extent of 10 acres of land under the BDA (Bulk Allotment) Rules, 1995. Apart from that, it is contended the respondent Kanakashri House Building Co-operative Society who had no right as such, in whose favour there was bulk allotment made by the BDA to the extent of 10 acres of land under the BDA (Bulk Allotment) Rules, 1995. The same has been challenged in these petitions on the ground that they have not been allotted sites pursuant to the representation gives by them and also the Bulk Allotment made in favour of the respondent - Housing Society, stating that it is in violation of the BDA Rules. Hence, these petitions. According to the petitioners there was a bulk allotment made in favour of Kanakashri House Building Co-operative Society in violation of S. 65 and also under S. 38(b) read with the Rules for Bulk allotment. There is not land as such available. In fact, the petitioner Society has formed sites and many of the members of the society have already built the house. The allotment made in favour of the respondent Society is in violation of the Rules. Petitioner is seeking to make available the land already deveoped by them by re-notifying the land which comes under the Green Belt. The Society had filed WP 2376/06 and as it was not maintainable, the said writ petitions was withdrawn and as per the endorsement issued by the BDA, no work order is issued nor there is approval of the plan. Accordingly, they have sought for allowing the petitions. Per Contra, it is the argument of the Counsel representing the BDA that while disposing of Junjamma’ case, this Court has imposed several conditions wherein the applicants were the members of the society. As per the conditions, those persons who lands/sites were acquired, before such acquisitio if they had owned the properties in their names, such persons could makeing allotment of 30x40 ft. sites either in Visweswaraya Layout or any other layout and such of the applicants who have filed applications for allotment of site, their cases are pending considerations. As per the direction of the Government, respondent BDA exercising power under S. 38(b) r/w the Rules of Bulk Allotment, allotted land in favour of the respondent society. The contention of the petitioners that the property which is allotted in favour of the respondent society is already developed by the petitioner Society by putting up houses, is not correct. As per the direction of the Government, respondent BDA exercising power under S. 38(b) r/w the Rules of Bulk Allotment, allotted land in favour of the respondent society. The contention of the petitioners that the property which is allotted in favour of the respondent society is already developed by the petitioner Society by putting up houses, is not correct. The mahaxar drawn produced along with the statement of objections depicts that there is no development as such, possession is taken after the property was duly notified for acquisition and the respondent society has not made any application before the BDA but, as per the government direction to make bulk allotment, it has made bulk allotment and there is no ground made out in the petitions challenging the government order by the petitioners in making bulk allotment in favour of the respondent society. Government Advovcate has submitted that, as per S.65 of the BDA Act, government has exercised power and passed the order to make bulk allotment in favour of the society which cannot be called either illegal or without the statutory the authority of law. Counsel representing the Kanakashri House Building Co-operative Society submitted that there is a notification made by the BDA during 2001 December and final notification was made in October 2002. Petitioners in two of the petitions are only site purchasers. The society cannot maintain such an application. The petitioner society had not made any such application nor the other petitioners paid any fees, the BDA would scruitinise the applications if any and also prayer of the petitioners cannot be allowed to consider the sale deed made in favour of the respondent, in a writ proceeding. Accordingly, learned Counsel relied upon the Division Bench decision of this Court in WA 428/2006 decided on 21.6.2006. Further, it is submitted that petitioners have established serveral societies like Surabhi Seva Sangha, Surabhi Kshemabhivruddhi Sanga, etc., petitioners had developed unauthorised layout in the Green Belt Area and accordingly, submitted that petitioners have no locu standi to challenge the allotment made in favour of the respondent society. Learned Counsel for the petitioners has relied upon a decision reported in AIR 1991 SC 1902 - Bangalore Medical Trust Vs. S. Muddappa & Ors. Learned Counsel for the petitioners has relied upon a decision reported in AIR 1991 SC 1902 - Bangalore Medical Trust Vs. S. Muddappa & Ors. and referring to para 20 and 51, contended that although it is for the BDA to carry out the direction of the Government, it cannot take a decision as directed by the Executive contrary to the legal position and also relied upon a decision in the case of S.N. Chandrashekhar and Anr. Vs. State of Karnataka & Ors.-2003 (6) SCC 208 to contend that the executive cannot direct the implementation in violation of law. Accordingly, it is contended that if the Government has directed the BDA to make bulk allotment in favour of Kanakashri House Building Society, it is in violation of S. 65 and 38(b) of the Act and also the Rules of Bulk Allotment regulations.. Learned Counsel also relied upon one more decision of the Apex Court in Bangalore Authority Vs. R. Hanumaiah & Ors. - (2005) 12 SCC 508 regarding power of the government to give direction to the BDA wherein referring to S. 65 of the BDA Act, it is state that it is not extended to give direction contrary to the provisions of the Act. It is the submission of the Sr. Counsel representing the respondent that the case of the petitioner falls under clause 2(a) of Junjamma’s case directly and not under clause (3). Accordingly, it is submission of the petitioner’s Counsel that the allotment made in favour of the respondent society by way of bulk allotment is illegal and non-est. In the light of the arguments advanced, let me consider whether the allotment made in favour of the respondent society by the BDA is bad in law and as such, it requires to be quashed and whether the petitioners are entitled for the relief as sought for. In WP 4198/2008, petitioners are said to be the members of the petitioner society in WP 8366/2008. They have questioned the allotment made in favour of the respondent society. According to the petitioners, the BDA had issued NOC through the Special Land Acquisition Officer stating that the land in Sy.No. 28 of Ramasandra Village of Kengeri Hobli has not been notified for acquisition and also obtained an order of conversion of land in respect of Sy.No. 28. They have questioned the allotment made in favour of the respondent society. According to the petitioners, the BDA had issued NOC through the Special Land Acquisition Officer stating that the land in Sy.No. 28 of Ramasandra Village of Kengeri Hobli has not been notified for acquisition and also obtained an order of conversion of land in respect of Sy.No. 28. However, according to the petitiones, they have obtained the approval plan by the Gram Panchayat. It is noted, as per the notification the said property falls under the Green Belt. The final notificaiton was during October 2002. It is the contention of the petitioners that the order of acquisition was much prior to the notification made by the respondent BDA for the formation of Visweswaraya Layout. While dealing with the case of acquisitions for the formation of Visweswaraya Layout, this Court in the decision reported in Junjamma’s case, has rejected the petitions filed challenging the acquisitions while upholding the acquisition made. It has noted that the persons who were owners of the sites shall register themselves for allotment under BDA (Allotment of Sites) Rules, 1984 within the stipulated period if sufficient cause is shown if there is delay, the time to be extended. It has also stated that they are not entitled for compensation and they need not pay the initial deposit fixed (in respect of persons whose sites are acquired) and they only have to pay the registration fees. In that view of the matter, if the petitioners’ sites in these cases, are acquired for the formation of Viswswaraya Layout, they can only file application for registration for allotment of alternative sites and such of the persons who have applied, they are entitled for allotment of 30 x 40 ft. sites in Visweswaraya Layout or any other nearby layout in Bangalore at the prevailing allotment price, as per the Rules. Thus, clause (d) of the order of the said case makes it clear that such of those persons whose sites have been acquired are entitled for allotment of alternative site of 30 x 40 ft. dimension in Visweswaraya Layout or elsewhere in Bangalore. Thus, clause (d) of the order of the said case makes it clear that such of those persons whose sites have been acquired are entitled for allotment of alternative site of 30 x 40 ft. dimension in Visweswaraya Layout or elsewhere in Bangalore. As such, petitions filed by the petitioners in WP 4198/2008 and 6244/2008 except petitioners 16, 19 and 22, would be entitiled for 30 x 40 ft, dimension sites by making such application by registering themselves as per the directions as contained in direction (a) (b) (c) (d) of the order in Junjamma’s case. Since memo has been filed for petitioners in respect of petitioners 16, 19 and 22, their petitions are dismissed as withdrawn. In so far as petitioners society i WP 8366/2008 is concerned, as per the direction of this Court, and of course it is the specific contention of the petitioners Sr. Counsel, that this clause 2(a) of the judgment in Junjamma’s case applies wherein the Society is the land owner and is seeking for dropping of the acquisition proceedings. Clause 2(a) reads as regards their respective lands are concerned, on the ground that through the lands are situate within the Green Belt area, they are totally built up and converted for non-agricultural use and other conditions, they are permitted to make appropriate application to the authorities seeking such exclusion and exemption on producing documents to substantiate their contentions, within three months from the date of their judgment. It is the specific contention of the petitioners that the land is developed. But, as per the mahazar report filed by the BDA, there is no such developmnet taken place. Moreover, it has said to be in green belt and unauthorised as such, considering the case of the petitioner society does not arise. The members of the society who have purchased the sites and got it registered prior to the initiation of the acquisition proceedings, at the most, would be entitled for making an application before the BDA as per clauses (c) and (d) of Junjamma’s case and their cases could be considered in accordance with law. The members of the society who have purchased the sites and got it registered prior to the initiation of the acquisition proceedings, at the most, would be entitled for making an application before the BDA as per clauses (c) and (d) of Junjamma’s case and their cases could be considered in accordance with law. In so far as case of the respondent Society is concerned, it is relevant to extract S. 65 of the BDA Act and S.38 B of the Act which provides for bulk allotment which reads: S. 65 Governement’s power to give directions to the Authority: The Government may give such directions to the Authority as in its opinion are necessary or expedient for carrying out the purposes of this Act and it shall be the duty of the Authority to comply with such directions. S. 38B. Power of Authority to make Bulk Allotment: Notwithstanding anything contained in this Act or development scheme sanctioned under this Act, the authority may, subject to any restriction, condition and limitation as may be prescribed, make bulk allotment by way of sale, lease or othewise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme: 1. ................ 2. ................ 3. ............... 4. to any housing co-operative society registered under the Karnataka Co-operative Societies Act, 1959. 5. ................. 6. ................ As per the BDA (Bulk Allotment) Rules, 1995, the power of the BDA is only to make bulk allotment of 5 acres. In exercise of power under S. 38(b) if bulk allotment is to be made for more than 5 acres, it is the power of the Government. Since exercising power under S.38(b) the government has directed the BDA to allot 10 acres in favour of the respondent society as is provided under the rules framed under the Act, the allotment so made by the BDA on the direction of the Government cannot be held to the illegal. Moreover, the respondent society is said to have made an application to the government and the government in turn having considered the application of the society, has ordered for making allotment. Moreover, the respondent society is said to have made an application to the government and the government in turn having considered the application of the society, has ordered for making allotment. In this context, I may prefer to the judgment of the Apex Court in Bangalore Medical Trust case cited supra, the Apex Court has held with regard to exercising of power under S. 65 of the BDA Act that the section authorises the government to issue directions to the BDA to ensure that the provisions of the law are obeyed and not empower itself to proceed contrary to law. It appears the petitioners having failed in their attempt in challenging the acquisition made by the BDA. These petitions have been filed once again assailing order made by the BDA in making bulk allotment which is challenge such bulk allotment as in the first round of writ petitions filed by them in WP 47917/2003 and others which came to be disposed of on 16.12.2005 wherein this Court while dismissing the petitions in so far as the challenge made by them as to the acquisition proceedings initiated by the BDA holding that already the acquisition has been upheld in Junjamma’s case cited supra with a direction to the petitioners to give representation and which the BDA shall consider in accordance with law. Learned Counsel for the petitioner submitted that although a resolution has been passed by the BDA to allot land in favour of the respondent society to the extent of 10 acres in Sy.No. 28 and other survey numbers, still the work order and the plan has not been approved and accordingly, he has sought for quashing the allotment made in favour the respondent society on the ground of illegality and also on the ground that the society has not formed the layout and also on the ground that the governmetn has exercised power beyond the authority of law. However, a reading of S.65 and S.38(b) of the Bulk Allotment Rules of the BDA makes it clear that there is no illegality in the order passed by the govenment directing the BDA to make bulk allotment of 10 acres. That apart, the ground raised by the petiioners that the allotment made in favour of the respondent Society is illegal cannot be accepted. With the above observation/diretion, all the petitions filed by the petitioners and petitioner Society are dismissed.