Judgment 1. Since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed of by this common order. 2. In W.P.No. 11102/2008, the petition contends that he is the absolute owner of the site bearing No.11-A, 5th Sector, HSR Layout, Bangalore, measuring 50 ft. x 80 ft. formed by the Bangalore Development Authority (‘BDA’ for short). Originally, the site was allotted by the BDA is favour of S. Kumar Bangarappa on 20.6.2007. BDA executed a sale deed in respect of the said site in his favour, a copy of which is produced at Annexure ‘B’ Possession of the site was delivered to him on the same day as per the possession certificate at Annexure ‘C’. He sold the site in favour of Madhu Dhondiba Babar through a sale deed at Annexure ‘E’ dated 23.6.2007. Madhu Dhondiba Babar sold the said site as per the sale deed at Annexure ‘G’ dated 7.11.2007 in favour of the petitioner. Subsequently, katha of the property was transferred in his favour by the Bruhat Bangalore Mahanagara Palike. 3. It is further contended that BDA has advertised in the newspaper announcing the sale of a corner site No.12 in Sector 5 of HSR layout, which is adjacent to the site purchased by the petitioner. The petitioner, who was interested in the adjacent site, participated in the bid. He is the highest bidder and the bid amount was `1,50,96,640/-. After receiving the entire bid amount, the BDA executed the sale deed dated 2.5.2008 in favour of the petitioner in respect of the said site. Thus, the petitioner is the owner of site bearing No. 11A and corner site bearing No.12 in Sector 5 of HSR Layout. 4. It is further contended that when this is the state of affairs, the petitioner came to know that a notice was issued by the BDA to S.Kumar Bangarappa informing him that the allotment of site bearing No.11-A in Sector 5. HSR layout had been cancelled by the Commissioner of the BDA by his order dated 31.7.2008. It is further contended that immediately thereafter, petitioner approached the BDA and obtained the notice dated 7.8.2008 by making an application under the Right to Information Act. In the said letter, the BDA had asked S.Kumar Bangarappa to return all the original documents and to execute the deed of cancellation. It is further contended that immediately thereafter, petitioner approached the BDA and obtained the notice dated 7.8.2008 by making an application under the Right to Information Act. In the said letter, the BDA had asked S.Kumar Bangarappa to return all the original documents and to execute the deed of cancellation. Therefore, petitioner has filed the writ petition for quashing the notice dated 7.8.2008 bearing No.BEMAAPRA:UKA-1/HSR/11(A)/2008-09 vide Annexure ‘N’ issued by the respondent pursuant to the order dated 31.7.2001 passed by the Commissioner of the BDA. 5. In W.P.No.16147/2009, the petitioners contend that the second petitioner’s mother late Smt. Anusuyamma was an applicant for allotment of a site from the BDA. On 9.3.1989, BDA allotted a site bearing No.563, 4th Block, Hennur-Bellary Road Layout, measuring 40 ft. x 60 ft. and possession of the said site was delivered to Smt. Anusuyamma and possession certificate was issued on 7.7.1989. The lease period had expired on 8.3.1999. Smt. Anusuyamma died on 28.3.2005. Anusuyamma had executed a Will bequeathing the said site in favour of the second petitioner. However, the respondents have allotted an alternative site No.3CC-907, I BLOCK, HRBR Layout, to the second petitioner instead of the aforesaid site as per the allotment letter dated 5.3.2007. In pursuance of the same, the respondent executed a registered sale deed in favour of the second petitioner as per the sale deed dated 19.4.2007 and possession certificate was issued on 21.4.2007. The second petitioner sold the said site in favour of the first petitioner for a valuable consideration as per the sale deed dated 4.8.2007 (Annexure ‘K’). Thus, the first petitioner is the owner in possession and enjoyment of the said site. The BDA has issued a show cause notice to the second petitioner dated 16.5.2009 calling upon him to show cause as to why the allotment of the site made in his favour on 5.3.2007 should not be cancelled, which was duly replied by the second petitioner. Thereafter, the BDA has passed an order as per Annexure ‘A’ canceling the allotment of the site. It is the case of the petitioners that the respondent after having executed a registered sale deed, conveying right, title and interest, cannot cancel the allotment of the site. 6. Thereafter, the BDA has passed an order as per Annexure ‘A’ canceling the allotment of the site. It is the case of the petitioners that the respondent after having executed a registered sale deed, conveying right, title and interest, cannot cancel the allotment of the site. 6. In W.P.No.16954/2009, the petitioner contends that he is the owner and in possession of the site bearing No.4HC-201/A situated at East of NGEF Layout, Bangalore BDA had allotted the site No.119KG-103 in favour of one James on 15.5.1989. BDA had executed a lease-cum-sale deed on 16.7.1990. Since the BDA could not deliver possession of the site as it was in unauthorised occupation of certain other persons, an alternative site No.4HC-201/A was allotted in favour of James, BDA had executed a sale deed dated 21.11.2007 in favour of James, Possession certificate in respect of the said site was issued in favour of James on 23.11.2007. Being the owner and in possession, he sold the said property in favour of the petitioner through a deed of sale dated 11.2.2008. Thereafter, a notice was issued by the BDA to James calling upon him to show cause as to why the allotment of site should not be cancelled. James filed objections to the said notice on 12.5.2009. On enquiry, James came to know that BDA has passed an order on 9.6.2009 cancelling the allotment of site, which has not been communicated to the petitioner. On further enquiry, the petitioner came to know that on 11.6.2009, BDA has executed a deed of cancellation, canceling the sale deed dated 21.11.2007, a copy of which has been produced at Annexure ‘H’. 7. In W.P.No.11102/2008, the BDA has filed its statement of objections contending that notice was issued to S.Kumar Bangarappa, the allottee of the site in question. The allottee has not questioned the validity of the said notice/order cancelling the allotment of the site. It is further contended that vide Government Order No.UDD:1178:BEM-BHOO:SWA dated 11.2.2004, the State Government had allotted a site measuring 50 x 80 ft. under ‘G’ category to S.Kumar Bangarappa. Following the said direction, site measuring 50 ft. x 80 ft. bearing No.5M-681 at OMBR layout was allotted in his favour vide allotment letter dated 21.12.2004 for `8,58,400/-. The allottee failed to pay the said amount within the period prescribed. Therefore, a show cause notice was issued to him on 19.8.2005. under ‘G’ category to S.Kumar Bangarappa. Following the said direction, site measuring 50 ft. x 80 ft. bearing No.5M-681 at OMBR layout was allotted in his favour vide allotment letter dated 21.12.2004 for `8,58,400/-. The allottee failed to pay the said amount within the period prescribed. Therefore, a show cause notice was issued to him on 19.8.2005. Since no response was received by the respondent, an order dated 28.3.2006 was passed canceling the allotment of the said site. On 20.2.2007, S.Kumar Bangarappa submitted a letter stating that he could not pay the sital value within the prescribed period and requested for allotment of an alternative site since the site allotted to him earlier was not available as it was allotted in favour of a third party. On 13.6.2007, an allotment letter was issued to him allotting site No.11-A, HSR layout Sector-5, measuring 50 ft. x 80 ft. for a total consideration of `8,58,500/- + `50/-as site exchange charges. On 31.7.2007, the said allotment was confirmed by the Alternative Sites Allotment Committee. On the basis of the correct dimension report dated 15.6.2007 received from the Engineering Section, an absolute sale deed was execute on 20.6.2007 in his favour. It is further contended that on the directions of the Commissioner of BDA, the Executive Engineer of the BDA, East Division, Bangalore, held a spot inspection of site No.12 on 28.7.2008. He submitted a report that as per the layout plan, site No.12, HSR layout, was a corner site. Without the approval of the Authority, it was bifurcated and a new site number was assigned as 11-A with the dimension of 15.24 x 24.40 mtrs, and the extent remaining in site No.12 was 6.40 x 24.40 mtrs. From the particulars obtained by the respondent, it was clear that irregularities have been committed in bifurcating the corner site and allotting the same in favour of S.Kumar Bangarappa. On the strength of illegal bifurcation, the remaining extent of 6.40 x 24.40 sq. mtrs. in site No.12 was put to auction on 21.11.2007 The petitioner has purchased the corner site in the auction held by the BDA. As a result of the irregularities in bifurcating corner site No.12 as site Nos.11-A and 12, sale deed came to be executed in the name of S.Kumar Bangarappa on his paying `8,58,974/- and possession certificate was issued to him. As a result of the irregularities in bifurcating corner site No.12 as site Nos.11-A and 12, sale deed came to be executed in the name of S.Kumar Bangarappa on his paying `8,58,974/- and possession certificate was issued to him. It is further contended that BDA is not aware of the subsequent sale by S.Kumar Bangarappa to Madhu Dhondiba Babar and the purchase of the property by the petitioner from the said Madhu Dhondiba Babar. It is argued that the bifurcation of the corner site was done with an ulterior motive. In order to curb such activities, action was initiated for cancellation of allotment of the said site. Based on the cancellation of the allotment, the original allottee was called upon to surrender necessary documents and he was cautioned that if documents are not surrendered, action will be initiated against him. It is contended that as per the BDA (Disposal of Corner and Commercial Sites) Rules, 1984, (‘BDA Rules, 1984’ for short), it is mandatory to dispose of all corner and commercial sites by public auction. In the present case, the site in question has been allotted after illegally bifurcating site No.12. By virtue of illegal formation of the site, the BDA has suffered loss of crores of rupees at the behest of some unscrupulous elements. After noticing the same and after obtaining necessary report, the respondent has taken steps to cancel the illegal allotment. It is further contended that BDA is a custodian of public property and it cannot close its eyes to such illegal activities and instances of causing financial loss. 8. In W.P.No.16147/2009, BDA has filed objections contending that the alternative site allotted to the second petitioner was under Rule 11-A of the BDA (Allotment of Sites) Rules, 1984. BDA could not have allotted a site at HRBR Layout as it was formed prior to the formation of HBR Layout. 9. In W.P.No.16954/2009, BDA has filed objections admitting the allotment of a site No.119KG-103 at HBR II Stage in favour of James. James had approached the BDA for allotment of an alternative site. Considering the said request, the BDA allotted an alternative site bearing No.4HC-201/A and a sale deed was executed in his favour on 23.11.2007. However, on a detailed enquiry, the BDA came to know that the allotment of alternative site has not been made in accordance with Rule 11-A of BDA (Allotment of sites) Rules, 1984. Considering the said request, the BDA allotted an alternative site bearing No.4HC-201/A and a sale deed was executed in his favour on 23.11.2007. However, on a detailed enquiry, the BDA came to know that the allotment of alternative site has not been made in accordance with Rule 11-A of BDA (Allotment of sites) Rules, 1984. That is why allotment of the site in question was cancelled and a deed of cancellation was executed by the BDA as per Annexure ‘H’. 10. I have heard Smt. Pramila M. Nesargi, learned Senior Counsel appearing for the petitioner in W.P.No.11102/2008. Sri H.N. Shashidhar, learned Counsel appearing for the petitioners in W.P.No.16147/2009. Sri V.B. Siddaramaiah, learned Counsel appearing for the petitioner in W.P.No.16954/2009, Sri Basavaraj V. Subarad and Sri. B.V. Shanakara Narayana Rao, learned Advocates appearing for the respondent-BDA and Sri K.M. Nataraj, learned Addl. Advocate General appearing for Sri M. Keshava Reddy, learned Addl. Govt. Advocate for respondent No.2 in W.P.No.16954/2009. 11. Smt. Pramila Nesargi, learned Senior Counsel contends that neither the BDA Act nor the Rules made thereunder authorize the State Government to allot sites formed by the BDA as per the scheme framed under Section 16 of the BDA Act. It is submitted that the BDA being a creation of the Statute. The Act has not conferred upon the State Government to give directions to the BDA to allot the sites. The allotment of the sites should be made strictly in accordance with the provisions of the BDA Act and the Rules made thereunder. It is argued that while issuing circular under Rule 5 of BDA (Allotment of Sites) Rules, 1984, the Government cannot retain power to allot sites under ‘G’ category. It is further contended that under 1984 Rules, BDA is not authorised to execute the sale deed immediately after allotment of the site. Rule 13 is applicable to all the categories of allotments under the said Rules. It is further contended that the petitioner has purchased property from its previous owner as per the sale deed at Annexure ‘G’ dated 7.11.2007 for a consideration of Rs.1 crores 20 lakhs. The katha has been transferred by the BBMP in his favour on 18.3.2008. The petitioner has purchased the said property from Madhu Dhondiba Babar. It is further contended that the petitioner has purchased property from its previous owner as per the sale deed at Annexure ‘G’ dated 7.11.2007 for a consideration of Rs.1 crores 20 lakhs. The katha has been transferred by the BBMP in his favour on 18.3.2008. The petitioner has purchased the said property from Madhu Dhondiba Babar. Madhu Dhondiba Babar had purchased the property from S.Kumar Bangarappa, who was the allottee of the said site as per the allotment letter dated 13.6.2007 and a sale deed was executed by the BDA in this favour on 20.6.2007. It is further argued that in the notice at Annexure ‘N’, the BDA had informed the original allottee that the allotment of the site has been cancelled. On 31.7.2008, he was called upon to return the original sale deed, possession certificate and other documents relating to the properties in question and co-operate with the BDA for registering the deed of cancellation, failing which the BDA will take appropriate action against him in accordance with law. Though Annexure ‘N’ is in the form of a notice, in essence, it is an information to the original allottee that the allotment of the site has been cancelled. Petitioner being the purchaser of the property has every right to challenge the same. Annexure ‘N’ is nothing but an order informing the original allottee of cancellation of the allotment of site, which has a serious civil consequence. BDA has no power to cancel the allotment of a site once the sale deed has been executed in favour of an allottee. BDA has issued the said notice without making an enquiry as to whether the property has been transferred by its allottee/purchaser to the third parties. Had the BDA verified the records from the Sub-Registrar’s office, it could have come to know that the property has been transferred by the allottee/purchaser to third parties. 12. Sri H.N.Shashidhar, and Sri V.B.Siddaramaiah, learned Counsel submit that the BDA has no authority to cancel the sale deeds executed by it in favour of its allottees nor can it execute deed of cancellation unilaterally. 13. On the other hand, Sri Basavaraj V. Sabarad, learned Counsel appearing for the respondent-BDA contends that layout plan of HSR layout does not contain site No.11-A in Sector 5. 13. On the other hand, Sri Basavaraj V. Sabarad, learned Counsel appearing for the respondent-BDA contends that layout plan of HSR layout does not contain site No.11-A in Sector 5. On the direction of the Commissioner of the BDA, the Executive Engineer, East Division, held a spot inspection of site No.12 on 28.7.2008 and submitted a report that as per the plan, site No.12, Sector 5, HSR layout, is a corner site. Without approval of the BDA, it was bifurcated and a new number was assigned as 11-A with dimension of 15.24 x 24.40 mtrs, and the extent remaining in site No.12 was 6.40 x 24.40 mtrs. On the strength of the illegal bifurcation, the remaining extent of land 6.40 x 24.40 sq. mtrs. In site No.12 was put into auction on 21.11.2007 and the petitioner has purchased the said corner site. It is argued that the layout plan does not disclose the existence of two sites viz., site Nos.12 and 11-A Site No.11-A has been illegally carved out of site No.12 and allotted in favour of S.Kumar Bangarappa, as an alternative site. The bifurcation was done with an ulterior motive. With a view to curb such illegal activities, action has been initiated for cancellation of the site. In view of the said illegalities, huge financial loss has been caused to the BDA. It is argued that as per the BDA (Disposal of Corners and Commercial Sites) Rules, 1984, it is mandatory to dispose of all corner and commercial sites by public auction. In the case on hand, after illegally bifurcating site No.12, it was allotted in favour of S.Kumar Bangarappa. 14. Sri B.V. Shankara Narayana Rao, learned Counsel has supported the action of the BDA in canceling the sale deed executed in favour of the vendor of the petitioner in W.P.No.16954/2009. 15. Sri K.M. Nataraj, learned Addl. Advocate General appearing for Sri M. Keshava Reddy, learned Addl. Government Advocate submits that the directions issued by the State Government to the BDA for allotment of the sites in favour of the persons in public life as per the circular dated 6.8.1987 is in furtherance of the purpose of the Act. He has taken me through the preamble and in particular. Sections 14, 17, 19, 38 and 65 of the Act. He has taken me through the preamble and in particular. Sections 14, 17, 19, 38 and 65 of the Act. It is argued that reading of the aforesaid provisions conjointly would clearly indicate that the State Government has the power to direct the BDA to allot the stray sites in favour of the persons in public life. He has relied on several decisions of the Apex Court in support of his contentions, which will be dealt with at an appropriate stage of this order. 16. Having regard to the contentions urged, the questions for consideration in these writ petitions are as under: (i) Whether the State Government has the power to direct the BDA to allot the sites under ‘G’ category as per the circular dated 6.8.1997 to the persons in public life? (ii) Whether the BDA has the power to cancel the sale deeds executed by it earlier in favour of the petitioner/their vendors? Re.Point No.(i): 17. The contention of the learned Senior Counsel for the petitioner is that the State Government has no authority to direct the BDA to allot the sites to the persons in public life as per the circular issued under Rule 5 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984. On the other hand, the contention of the learned Addl. Advocate General is that the Government is authorised to give directions to the BDA to allot stray sites in furtherance of the purpose of the Act. Before dealing with this question, it is necessary to note the relevant statutory provisions in the light of which the present controversy has to be resolved. 18. The Bangalore Development Authority Act, 1976 (Karnataka Act No.12 of 1976) has come into force w.e.f. 8.3.1976. Before the Act was brought into force, different authorities like the City of Bangalore Municipal Corporation, the Karnataka Industrial Area Development Board. The Housing Board and the Bangalore City Improvement Trust Board. The Housing Board and the Bangalore City Improvement Trust Board were exercising jurisdiction over the area. Some of the functions of these bodies were overlapping creating thereby avoidable confusion. That is why Bangalore Development Authority Act was brought into force. It is an Act to provide for the establishment of a development authority for the development of the City of Bangalore and areas adjacent thereto or for the matters connected therewith. Some of the functions of these bodies were overlapping creating thereby avoidable confusion. That is why Bangalore Development Authority Act was brought into force. It is an Act to provide for the establishment of a development authority for the development of the City of Bangalore and areas adjacent thereto or for the matters connected therewith. On the issue of notification under Section 3(i) of the Act, constituting the Bangalore Development Authority, the City of Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945) was repealed. The object of the Authority is to promote and secure the development of Bangalore Metropolitan Area and for that purpose, the Authority has the power to acquire, hold, manage and dispose of movable and immovable property whether within or outside the areas under its jurisdiction, to carry out building, engineering and other operations and generally to do all things necessary or expedient for the purpose of such development and for the purposes incidental thereto. 19. Chapter III of the Act provides for drawing up of development schemes by the Authority for the development of Bangalore Metropolitan Area. Section 16 lays down the particulars to be provided in a development scheme drawn up by the Authority. Section 17 provides for acquisition of lands for the development scheme prepared under Section 16. Section 18 provides for sanctioning of the scheme by the Government. Section 19 states upon sanction, declaration has to be published giving particulars of the land to be acquired. Thereafter, compensation has to be awarded and possession has to be taken in accordance with the relevant provisions of the Land Acquisition Act. Section 31 states that the Authority shall not sell or otherwise dispose of any sites for the purpose of constructing buildings thereon for the accommodation of persons until all the improvements specified in Section 30 have been substantially provided for in the estimates. Sub-section (3) of Section 36 states that after the land vests in the Government under Section 16 of the Land Acquisition Act, the Deputy Commissioner shall, upon payment of the cost of acquisition, and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority. Section 37 of the Act provides for power of Government to transfer to the Authority, lands belonging to it or to Corporation. Section 37 of the Act provides for power of Government to transfer to the Authority, lands belonging to it or to Corporation. It states that the Government may, by notification, from time to time for the purpose of the Act and subject to such limitations and conditions as it may impose, transfer to and vest in the Authority any land belonging to the Government or to the Corporation or a Local Authority. Section 38 of the Act lays down the power of the Authority to lease, sell or transfer property, which is as under: “38. Power of Authority to lease, sell or transfer property: Subject to such restrictions, conditions and limitations as may be prescribed, the Authority shall have power to lease, sell or otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme.” 20. The other provision relevant for the purpose of these cases, is Section 65, which is as under: “65. Government’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.” 21. Section 69 of the Act provides of making the Rules by the State Government to carry out the purposes of the Act, which is as under: 69. Power to make rules:(1) The Government may by notification make rules to carry out the purpose of this Act. (a) xxxxx xxxxx xxxxx (b) xxxxx xxxxx xxxxx (c) xxxxx xxxxx xxxxx (d) xxxxx xxxxx xxxxx (e) xxxxx xxxxx xxxxx (f) xxxxx xxxxx xxxxx (2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely: (g) the restrictions, conditions and limitations subject to which the Authority may lease, sell or transfer movable or immovable property; (h) regulating the allotment or sale by auction of sites by the Authority.” 22. Before proceeding further, it is also relevant to note that City of Bangalore Improvement Act, 1945, which was repealed by the BDA Act also contained similar provision. Before proceeding further, it is also relevant to note that City of Bangalore Improvement Act, 1945, which was repealed by the BDA Act also contained similar provision. The City of Bangalore Improvement (Allotment of Sites) Rules, 1972, was made regulating the allotment of sites. Rule 5 of the said Rules dealt with allotment of stray sites, which is as under: 5. Allotment of stray sites: Notwithstanding anything contained in Rule 3, the Board may allot a stray site to a person who is eligible for allotment of a site under Rule 10.” ‘Stray site’ in the 1972 Rules was defined in Rule 2(g) as under: “2(g): “Stray Site” means a site which was once allotted but subsequently the allotment was either cancelled by the Board or surrendered by the allottee or a site left over inadvertently while notifying the sites for allotment or a site which has been formed on account of readjustment in the plan subsequent to the issue of notification inviting applications for allotment of sites.” 23. In accordance with Section 69 of the BDA Act, Bangalore Development Authority (Allotment of Sites) Rules, 1982 was made for regulating allotment of sites. The ‘stay site’ is defined in Rule 2(i), which is as under. “(i) “stray site” means a site which was once allotted but subsequently the allotment was either cancelled by the Authority or surrendered by the allottee or a site left over inadvertently while notifying the sites for allotment or a site which has been formed on account of readjustment in the plan subsequent to the issue of notification inviting applications for allotment of sites.” Rule 5 provided for allotment of stray sites, which is as under: “5. Allotment of stray sites: Notwithstanding anything contained in Rules 3 and 11, but subject to the provisions of Rule 10, the Bangalore Development Authority shall dispose of the stray sites in accordance with the directions issued by Government from time to time.” The aforesaid Rules were repealed by a notification No.HUD 622 MNX 83, Bangalore, dated 18.8.1984 and “Bangalore Development Authority (Allotment of Sites) Rules, 1984” was brought into force w.e.f. 20.8.1984. In the said Rules, “stray sites” is defined in Rules 2(j) as under: “2(j) Stray Sites: means a site which was once allotted but subsequently the allotment was either cancelled by he Authority or surrendered by the allottee or a site which has been formed on account of readjustment in the plan subsequent to the issue of notification inviting applications for allotment of sites.” Rule 5 of 1984 Rules deals with allotment of stray sites, which is as under: “5. Allotment of stray sites: The Bangalore Development Authority shall dispose of stray sites in accordance with the guidelines issued by Government.” 24. Revised guidelines have been issued under Rule 5 vide circular No.HUD 616 MNX 89 dated 17.10.1992, which is as under: “GOVERNMENT OF KARNATAKA (Housing and Urban Development Department) No. HUD 616 MNX 89. Karnataka Government Secretariat M.S. Building, Bangalore, dated 17th October, 1992. CIRCULAR Sub: Revised Guidelines for the allotment of stray sites by the Bangalore Development Authority. Ref: Circular No. HUD 616 MNX 89, dated 18.9.1989 and 23.9.1989. *** In supersession of Circular No.HUD 616 MNX 86, dated 18.9.1989, the following revised guidelines for the disposal of stray sites are issued as provided under Rule 5 of the Bangalore Development Authority, (Allotment of Sites) Rules, 1984: A Disposal by auction 40% B Persons who have won special recognition in the field of Art. Science, Literature, Sports, Education, Medicine, Social Service and Public/Administration at the State/National/International levels. 20% Senior officers of the Government of Karnataka/Government of India in the rank/pay scale of a Secretary to the State Government/Government of India or above. Defence Service Officers of the rank of Deputy General or equivalent and above and others who have won gallantry awards, and Judges of the High Court/Supreme Court. 15% D Government of Karnataka/Government of India Organisations/bodies of a non-commercial nature and registered Charitable Associations/Societies/Trusts (with at least 5 years standing) for Civil Amenity purposes. 5% E Freedom Fighters who are residents of Bangalore for a period of not less than 10 years. 5% F Dependents of Karnataka Government Servants when the latter is killed during the performance of his duty. 5% G Under the discretion of the Authority for deserving person. 10% 31. ‘Art’ in Category ‘B’ includes Painting Sculpture, Music, Dance, Drama, Films, etc. 5% F Dependents of Karnataka Government Servants when the latter is killed during the performance of his duty. 5% G Under the discretion of the Authority for deserving person. 10% 31. ‘Art’ in Category ‘B’ includes Painting Sculpture, Music, Dance, Drama, Films, etc. The allotment of stray sites under Category ‘D’ for civic amenity purposes should be made on the basis of civil amenities actually required for a particular locality. In the case of allotment of private organisations allotment should be made only to organizations of at least 5 (five) years standing who have a good reputation.” 25. The aforesaid circular was substituted by yet another circular No. UDD 129 MNJ 97 dated 6.8.1997, which is as under: “CIRCULAR UNDER BANGALORE DEVELOPMENT AUTHORITY (ALLOTMENT OF SITES) RULES, 1984 CIRCULAR No. UDD 129 MNJ 97, Bangalore dated 6th August, 1997 Subject: Revised Guidelines for allotment of stray sites by the Bangalore Development Authority. Reference: 1. Circular No. HUD 616 MNX 89, dated 18th September, 1989, 23rd September, 1989 and 17th October 1992. In supersession of all the orders issued regarding allotment of stray sites the following revised guidelines for disposal of stray sites are issued as provided under Rule 5 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984. Sl. No. Category Description Percentage 1. A Disposal by Auction 30 2. B Persons who have won special recognition in the field of sports at Intentional/National levels persons of Karnataka Domicile 15 3. C Persons who have won special recognition in the filed of Arts, Science, Literature, Education, Medicine, and Public Administration at the National/International levels. 10 4. D Ex-Military Personnel, Military Personnel, persons of Karnataka domicile 5 5. E Freedom Fighters who are residents of Bangalore for a period of not less than 10 years 5 6. F Dependents of Karnataka Government Servants when the latter dies during the performance of his/her duty 5 7. G Persons in public life as may be directed by Government 30 2. Category ‘C’ besides Arts etc., it includes Painting, Sculpture, Music, Dance, Drama, Films, etc. 3. In the case of allotment of stray site to individuals, a stray sites shall be allotted to a personal only if – (i) he is not a minor; (ii) he is domiciled in Karnataka for not less than 10 years immediately prior to the date of his application. 3. In the case of allotment of stray site to individuals, a stray sites shall be allotted to a personal only if – (i) he is not a minor; (ii) he is domiciled in Karnataka for not less than 10 years immediately prior to the date of his application. (iii) He or any member of his family does not own a site or a house in Bangalore Metropolitan Area and has not been allotted a site or a house by the Bangalore Development Authority or by any other Authority within the Bangalore Metropolitan Area; and (iv) He satisfied the Authority that he or she is in a reasonable position to put up a residential house or other building on the site allotted within a period of three years from the date of handing over possession of the site in question. 4. There quirement of 10 years domicile may be relaxed: (i) in case of persons who are domiciled in the State of Karnataka but are in the Armed Forces of the Union and serving outside the State of Karnataka. (ii) in the use of persons who are domiciled in the State of Karnataka but have gone outside the State for employment/business, studies or training and who bona fide intend to reside in the Bangalore Metropolitan area; and (iii) with the prior permission of the State Government in the case of persons under Categories ‘B’ and ‘C’ in para 1 above. 5. The allotment of stray sites in respect of Categories ‘A’ to ‘F’ except Category ‘G’ shall be made by the Bangalore Development Authority on the recommendation of a sub committee of the Bangalore Development Authority as constituted by it. 6. Theselling price of the stray sites shall be fixed at 10% above the current allotment rates of the Bangalore Development Authority under its normal rules. The list of stray sites available shall be complied by the Secretary, Bangalore Development Authority layout wise and dimension wise and got it approved by the Authority, at least once in a year.” 26. It is clear from the aforesaid circular that 30% of the stray sites should be allotted to the persons in public life as may be directed by the State Government, Clause 5 of the circular was substituted by corrigendum No.UDD 129 MNJ 97 (P) dated 26.8.1997. It is clear from the aforesaid circular that 30% of the stray sites should be allotted to the persons in public life as may be directed by the State Government, Clause 5 of the circular was substituted by corrigendum No.UDD 129 MNJ 97 (P) dated 26.8.1997. Previously clause 5 of the circular dated 6.8.1997 was as under: “The stray sites may be allotted by a Committee consisting of the Chairman, Bangalore Development Authority, Commissioner, Bangalore City Corporation, and two other members of the Authority. The allotment be subject to final approval of the Authority.” 27. It is also relevant to note that in exercise of the power conferred under Section 69 of the Act, the Government of Karnataka has made Rules for disposal of corner sites and commercial sites known as “Bangalore Development Authority (Disposal of Corner Sites and Commercial Sites) Rules, 1984”. Sub-section (d) of Section 2 defines ‘corner site’ to mean the site at the junction of two roads having more than one side of the site facing the road. A corner site has to be disposed of strictly in accordance with the said Rules. 28. BDA is a body corporate having a perpetual succession and a common seal with power subject to the provisions of the Act to acquire, hold and dispose of the property. From the scheme of the Act, it is clear that the land is acquired by the State Government and made over to the BDA for the purpose of executing a scheme framed under Section 16 of the Act. Section 38 of the Act authorises the Authority to lease, sell or otherwise transfer any movable or immovable property, which belongs to it and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. Section 38-A of the Act provides for lease/sell or otherwise transfer any movable or immovable property, which belongs to it and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. Section 38-A of the Act provides for lease/sell or otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved. Section 38-A of the Act provides for lease/sell or otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved. Section 38-B of the Act empowers authority to make bulk allotment of the lands. Bangalore Development Authority (Bulk Allotment) Rules, 1995 regulates bulk allotment of land under this Section. Section 38-C deals with the power of the authority to reconvey the land. Thus, the lands acquired by the State Government and made over to the BDA has to be allotted/conveyed/re-conveyed strictly in accordance with the BDA and the Rules made therein. It is well established that a public body invested with statutory powers has to take care not to exceed or abuse its powers. It must act within the limits of the authority committed to it. The Act has not conferred upon either the BDA or the State Government any inherent powers much less any discretionary powers to allot the lands vested with the BDA. In B. VENKATASWAMY REDDY VS. STATE OF KARNATAKA – ILR 1989(1) KAR 75 and in BDCC BANK EMPLOYEES COOPERATIVE SOCIETY VS. BANGALORE DEVELOPMENT AUTHORITY – 1989(1) KLJ 111, this Court was considering the validity of the bulk allotment of the lands made to the Cooperative Societies prior to insertion of Sect 38-B of the Act. It has been held that the BDA has no power to make bulk allotment because the lands acquired by the State Government and made over to the BDA for a specific purpose of executing an approved scheme and as such, land has to be utilized by the BDA solely for the purpose of execution of the scheme in the manner envisaged by the scheme and not beyond. A part of such land cannot be handed over to a society for however noble the purpose since it would be contrary to the intendment of the scheme and the Act and virtually would amount to fraud or a breach of trust. The said decisions have been approved by a Division Bench of this Court in TELECOM EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. VS. SCHEDULED CASTES, SCHEDULED TRIBES, MINORITY COMMUNITIES & BACKWARD CLASSES IMPROVEMENT CENTRE – ILR 1990 KAR 3320. 20. None of the provisions of the Act authorize the State Government to direct the BDA to allot stray sites. The said decisions have been approved by a Division Bench of this Court in TELECOM EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. VS. SCHEDULED CASTES, SCHEDULED TRIBES, MINORITY COMMUNITIES & BACKWARD CLASSES IMPROVEMENT CENTRE – ILR 1990 KAR 3320. 20. None of the provisions of the Act authorize the State Government to direct the BDA to allot stray sites. Rule 5 of the City of Bangalore Improvement (Allotment of Site) Rules, 1972 authorised the Board to allot a stray site to a person, who is eligible for allotment of a site under Rule 10. A provisions was made in the BDA (Allotment of Sites) Rules, 1982 for disposal of stray sites in accordance with the directions issued by the State Government from time to time. Rule 5 in the said Rules was contrary to the intendment of the Act, which was rightly repeated by the Government, BDA (Allotment of Sites) Rules, 1984, are made by the State Government for disposal of sites by the BDA. There is a marked difference between Rule 5 of the 1982 Rules and 1984 Rules. The 1982 Rules provided for disposal of stray sites as per the directions of the State Government, whereas under the 1984 Rules, stray sites have to be disposed of as per the guidelines issued by the State Government, which is in conformity with the intendment of the Act. Circulars have been issued from time to time for disposal of stray sites. Revised circular of 1992 issued by the State Government under Rule 5 provided for disposal of stray sites to persons from different walks of life as also to the Government of Karnataka, Government of India and other charitable associations, societies, trusts, etc. For the first time, the 1997 Circular issued by the State Government provided for allotment of 30% of stray sites to persons in public life as may be directed by the Government. It is true that if a statute gives power to a Government to make Rules to carry out the purposes of the Act, the Rules so framed have the force of the statute and are deemed to be incorporated as a part of the statute. (See CO-OPERTIVE CENTRAL BANK LTD. & OTHERS etc. VS. ADDITIONAL INDUSTRIAL TRIBUAI, ANDHRA PRADESH, HYDERABAD & OTHERS, etc. – AIR 1970 SC 245 ). (See CO-OPERTIVE CENTRAL BANK LTD. & OTHERS etc. VS. ADDITIONAL INDUSTRIAL TRIBUAI, ANDHRA PRADESH, HYDERABAD & OTHERS, etc. – AIR 1970 SC 245 ). In the present case, there is no indication whatsoever about the legislative policy to vest the power with the State Government to allot sites belonging to the BDA. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions, which cannot be delegated. What is permissible is to leave the delegated authority the task of implementing the object of the Act after legislature lays down adequate guidelines for the exercise of power. (see A.N. PARASURAMAN, etc. VS. STATE OF TAMILNADU – AIR 1990 SC 40 ). When the Act does not authorise the State Government to allot the stray sites, question of vesting the right to allot 30% of the sites in ‘G’ category with the State Government by way of a circular is totally illegal. The submission of the learned Additional Advocate General that the allotment of sites under clause ‘G’ of the 1997 circular is for the purpose of the BDA Act cannot be accepted as the Act does not authorise the State Government to issue directions to allot the sites to the persons of its choice. 30. The State Government cannot even justify its action in directing the BDA to allot the sites under Section 65 of the Act. Section 65 of the Act empowers the State Government to give such directions to the BDA, which in its opinion is necessary or expedient for carrying out the purposes of the Act. This is an omnibus statutory provision, which invests the State Government with the power to issue such directions, which in its opinion would be conclusive to the implementation of the purposes of the Act. In S. VASUDEV VS. GOVERNMENT OF KARNATAKA – 1999 (1) KLJ 116, a Division Bench of this Court has held that allotment of sites to the legislators through the society at the instance and under the directions of the Government of Karnataka under Section 65 of the Act is illegal and motivated by extraneous considerations. In S. VASUDEV VS. GOVERNMENT OF KARNATAKA – 1999 (1) KLJ 116, a Division Bench of this Court has held that allotment of sites to the legislators through the society at the instance and under the directions of the Government of Karnataka under Section 65 of the Act is illegal and motivated by extraneous considerations. A Division Bench of this Court in TELECOM EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD.’s case (supra), was considering the case of bulk allotment of lands by the State Government before the insertion of Section 38-B and C. It has been held that there is no general power for allotment of the sites because Section 38 of the Act would exclude the general power. There is no power to issue directions to make bulk allotment of the land under Section 65 of the Act. It has been held as under: “Under Section 65, the Government is enabled to give directions to the BDA ‘as are necessary or expedient’ for carrying out the purposes of the Act. If the power of the Government is available to direct the BDA to carry out the purposes of the Act, certainly a direction in disregard of the statutory provision cannot be issued. Such a direction is not permissible in law. Therefore, the question of good faith does not arise…………….. . If the power is wholly unavailable, it cannot be supplied in the guise of interpretation.” The Apex, Court in BANGALORE DEVELOPMENT AUTHORITY AND OTHERS VS. R.HANUMAIAH AND OTHERS – ILR 2005 KAR 5533, has that the direction issued by the Chief Minister to re-convey the land to the land owner-respondent are also of no consequence. Power of the Government under Section 65 to issue directions is not unrestricted. Directions have to be to carry out the objective of the Act and not contrary to the provisions of the Act. Directions issued by the Chief Minister would not be to carry out the purpose of the Act rather it would be to destroy the same. Such a direction would not have the sanctity of law. 31. BDA is the custodian of public properties. It is not as free as an individual in selecting the recipients for its largess. For allotment of the properties, a transparent, and objective criteria/procedure has to be evolved based on reason, fair play and non-arbitrariness. In such action, public interest has to be the prime guiding consideration. 31. BDA is the custodian of public properties. It is not as free as an individual in selecting the recipients for its largess. For allotment of the properties, a transparent, and objective criteria/procedure has to be evolved based on reason, fair play and non-arbitrariness. In such action, public interest has to be the prime guiding consideration. In RAMANA DAYARAM SHETTY VS. THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA & OTHERS – AIR 1979 SC 1628 , the Apex Court has held that it must therefore be taken to be the law that even in the matter of grant of largesses including award of jobs, contracts, quotas, licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of land. In COMMON CAUSE, A REGISTERED SOCIETY VS. UNION OF INDIA & OTHERS – (1996) 6 SCC 530 , the Apex Court has held as under: “The Government today – in a welfare State – provides large number of benefits to the citizens. It distributes wealth in the form of allotment of plots, houses, petrol pums, gas agencies, mineral leases in contracts, quotas and licences etc., Government distributes largesses in various forms. A Minister who is the executive head of the department concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people’s property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people ……………………………..”. In ONKAR LAL BAJAJ & OTHERS VS. UNION OF INDIA & ANOTHER – (2003) 2 SCC 673 , the Apex Court has summarized the cardinal principles of governance, which is as follows: “35. The expression “public interest” or “probity in governance” cannot be put in a straitjacket. “Public interest” takes into its fold several factors. There cannot be any hard-and-fast rule to determine what is public interest. The circumstances in each case would determine whether government action was taken in public interest or was taken to uphold probity in governance. 36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. “Public interest” takes into its fold several factors. There cannot be any hard-and-fast rule to determine what is public interest. The circumstances in each case would determine whether government action was taken in public interest or was taken to uphold probity in governance. 36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base a transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to be withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principles of governance has to be tested on the touchstone of justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.” 32. As per the circular, the government can allot the sites to the persons in public life under ‘G’ category. ‘Persons in public life’ in the context are those having to do with the public or available to the people as a whole and are those involved in the affairs of the community. Learned AGA has produced one of the files bearing No. (Language) relating to the allotments made by the State Government under ‘G’ category. A perusal of the file shows that the State Government has made allotment of sites mostly on the recommendation of the Ministers. The sites have been allotted in an arbitrary manner without considering as to whether the applicants are persons in public life. BDA forms sites of different dimensions. No reasons have been assigned as to why some of the applicants were allotted sites measuring 50 ft x 80 ft. and some others were allotted sites measuring 40 ft x 30 ft x 40 ft. It is also evident from the file that one T.N. Narayana Gowda, under Secretary to Chief Minister was allotted a site under ‘G’ category on 3.10.2007. and some others were allotted sites measuring 40 ft x 30 ft x 40 ft. It is also evident from the file that one T.N. Narayana Gowda, under Secretary to Chief Minister was allotted a site under ‘G’ category on 3.10.2007. When a democratic Government in exercise of its discretion selects the recipients for its largess, the discretion should be exercised objectively, rationally, intelligibly, fairly and non-arbitrarily. It is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion. 33. The objection filed by the BDA in W.P.No.11102/2008 would indicate as to the manner in which the site in question was allotted under ‘G’ category to the allottee therein in an arbitrary manner. The relevant portions of the statement of objections is as under: “3. Vide Government Order No.UDD 1178; BEM BHOO SWA dated 11.2.2004, orders were issued to allot a site measuring 50 x 80 ft. under ‘G’ category to Sri S.Kumar Bangarappa, the then Minister of State for Municipal Administration. Following the said direction, a site measuring 50 x 89 ft. bearing No. 5M-681 at OMBR Layout was allotted to him vide allotment letter dated 21.12.2004 for `8,58,400/-. The allottee failed to pay the allotment money within the prescribed period and therefore, a show cause notice was issued on 19.8.2005. Since no response was received, the respondent passed an order dated 28.3.2006 cancelling the allotment. The said order was sent to him on 28.3.2006. 4. On 20.2.2007, Sri S.Kumar Bangarappa submitted a letter stating that he could not pay the sital value within the time provided and requested for allotment of another site since the site already allotted had been registered in favour of other party. On 13.6.2007, allotment letter was issued to him allotting site No.11-A. HSR Layout, Sector – 5, measuring 50 x 80 ft. at allotment price of `8,58,500/- + `50/- as the exchange charges. On 31.7.2007, the said allotment was confirmed by the Alternative Sites Allotment Committee. On the basis of the correct measurement correct received from the Engineering Section on 15.6.2007, an absolute sale deed was executed on 20.6.2007 and possession certificate was also given. It is submitted that on the directions of the respondent, the Executive Engineer. East Division, BDA, Bangalore held spot inspection of site No.12 on 28.7.2008. On the basis of the correct measurement correct received from the Engineering Section on 15.6.2007, an absolute sale deed was executed on 20.6.2007 and possession certificate was also given. It is submitted that on the directions of the respondent, the Executive Engineer. East Division, BDA, Bangalore held spot inspection of site No.12 on 28.7.2008. He submitted a report that as per the plan site No.12 Sector 5, HSR Layout is a corner site. It was reported that without approval of authority it was bifurcated and a new site number was given as 11/A with dimension 15.24 x 24.40 mtrs. Thus, from the particulars obtained by the respondent, it was clear that irregularities were committed in bifurcating the corner site and allotting the same. On the strength of illegal bifurcation the remaining extent of 6.40 x 24.40 sq. mtr. In site No.12 was put to auction on 21.11.2007 it is interesting to notice that the petitioner himself is the auction purchaser of the remaining extent. 5. It is submitted that as the result of irregularities in bifurcating corner site No.12 as site No.11/A and 12, sale deed came to be executed in the name of allottee Sri S. Kumar Bangarappa on his paying `8,58,974/- It is also be true that the possession certificate etc., were issued to him. But the allegation that on 23.6.2007, the said allot Sri S.Kumar Bangarappa sold the said site in favour of Sri Madhu Dhondiba Babar for a sum of `85 lakhs, is not known to this respondent, since BDA is not a party to this transaction. Similarly, the allegation that on 7.11.2007, the said site was again sold by Madhu Dhondiba Babar for a sum of `1.20 crore in favour of the petitioner is also not within the knowledge of BDA, since BDA is not a party to the said sale. But the petitioner was successful bidder of site No.12, which was auctioned on 21.11.2007. 6. Be that as it may. The Layout plan relating to the subject layout discloses that there are no two sites with Nos.12 and 11A. But it is not known hhow the concerned Engineer has bifurcated site No.12 and assigned site 11-A resulting in allotment of said illegally carved site in favour of Sri S. Kumar Bangarappa as alternate site. 6. Be that as it may. The Layout plan relating to the subject layout discloses that there are no two sites with Nos.12 and 11A. But it is not known hhow the concerned Engineer has bifurcated site No.12 and assigned site 11-A resulting in allotment of said illegally carved site in favour of Sri S. Kumar Bangarappa as alternate site. Obviously, the said bifurcation was done with ulterior motives and therefore, it was decided to curb such activities at an early stage itself. In view of the said illegalities, which have caused huge financial loss and illegal formation of so called site No.11/A. Therefore, the allotment was cancelled. Based on the cancellation of the allotment, the original allottee has been called upon to surrender necessary documents, and he is also cautioned that if documents are not surrendered as per Rules, action will be initiated. 7. It is submitted that as per the BDA (Disposal of corner and commercial sites) Rules, 1984, it is mandatory to dispose of all corner and commercial sites by public auction. Whereas in the case on hand, after illegally bifurcating site No.12, it was allotted in favour of Sri S.Kumar Bangarappa. The sale deeds executed by the said allottee and the one executed in favour of the petitioner as per Annexures ‘E’ & ‘G’ show that it was disposed of at a very high price immediately after allotment. By virtue of illegal formation of the site. BDA was made to suffer loss of crores of rupees at the behest of some unscrupulous elements. After noticing the same and after obtaining necessary report, the respondent has taken steps to cancel the illegal allotment. It may be stated here that BDA is the custodian of public property and cannot close its eyes to such illegal activities and instances of causing financial loss. But decision to cancel the allotment has been taken for valid and legal reasons. Cancellation of allotment was necessary in public interest and also since the site bearing part of site No.12 was meant for public auction.” 34. It is thus clear that a site measuring 50 ft. x 80 ft. situated at OMBR layout was allotted to the applicant on 20.12.2004 by the State Government under ‘G’ category for `8,58,000/-. The allottee failed to pay the amount to the B.D.A. within the prescribed period. Therefore, a show cause notice was issued to him on 19.8.2005. It is thus clear that a site measuring 50 ft. x 80 ft. situated at OMBR layout was allotted to the applicant on 20.12.2004 by the State Government under ‘G’ category for `8,58,000/-. The allottee failed to pay the amount to the B.D.A. within the prescribed period. Therefore, a show cause notice was issued to him on 19.8.2005. Since he failed to respond to the notice, the allotment of the site was cancelled on 28.3.2006. On 20.2.2007, the allottee wrote a letter to the BDA to allot an alternative site since the site allotted to him earlier has been allotted to some other applicant. In response to the said request, the BDA has allotted the site in question in his favour on 13.6.2007. The sale deed was executed in his favour on 20.6.2007. The allotment price of the site was `8,58,974/-. The allottee has sold the said site in favour of Madhu Dhondiba Babar by a registered sale deed on 23.6.2007 (i.e. within 3 days from the date of execution of sale deed by the BDA) for a sale consideration of `85,00,000/-, thus making a profit of more than `75,00,000/-, in face, the said site was a corner site bearing site No.12. It was bifurcated and a new site number was given as 11-A with a dimension 15.24 x 24.40 mtrs, and the remaining extent of site No.12 was 6.40 x 24.40 mtrs, which was sold in auction on 2.5.2008 for `1,50,96,640/-. Thus, the remaining portion of site No.12 (after carving out site No.11-A) which does not even measure 50% of the area of site No.11-A was sold for `1,50,96,640/-, whereas site No.11-A was allotted on 23.6.2007 for `8,58,974/-. Thus, the illegal allotment of site No.11-A has caused heavy loss to the public authority like the BDA. The site being a corner site should have been disposed of in accordance with the BDA (Disposal of Corner Sites and Commercial Sites) Rules, 1984. It is high time that the public servant should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. The site being a corner site should have been disposed of in accordance with the BDA (Disposal of Corner Sites and Commercial Sites) Rules, 1984. It is high time that the public servant should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. In this connection, it is relevant to note the observations of the Apex Court in COMMON CAUSE’s case (supra), which is as under: “We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to individual or loss of public property, an action may be maintained against such public servant. No public servant can say “you may set aside an order on the ground of mala fide but you cannot hold me personally liable”. No public servant can arrogate to himself the power to act in a manner, which is arbitrary.” Therefore, action has to be initiated against the officials of the BDA, who were responsible for illegally bifurcating the site resulting in huge loss to the BDA. 35. Rule 5 of BDA (Allotment of sites) Rules, 1984 provides for disposal of stray sites in accordance with the guidelines issued by the Government. Rule 8 provides for registration for allotment of the sites. Rule 9 lays down the procedure for making an application for allotment of the site. Rule 10 provides for the eligibility criteria for allotment of the sites. Rule 11 lays down the principles of selection of applicants for allotment of sites and reservation of sites. Rule 13 provides the conditions of allotment and sale of sites. Sub-rule (2) of Rule 13 states that after payment under sub-rule (1) is made, the authority shall call upon the allottee to execute a lease-cum-sale agreement in Form 111. Sub-rule (3) of Rule 13 states that every allottee shall construct a building on the site so allottee in accordance with the plans and designs approved by the authority. Sub-rule (2) of Rule 13 states that after payment under sub-rule (1) is made, the authority shall call upon the allottee to execute a lease-cum-sale agreement in Form 111. Sub-rule (3) of Rule 13 states that every allottee shall construct a building on the site so allottee in accordance with the plans and designs approved by the authority. Sub-rule (8) of Rule 13 states that on the expiry of a period of ten years from the date of the lease-cum-sale agreement and if the allotment has not been cancelled or the lease has not been determined, the authority shall by notice call upon the allottee to get the sale deed of the site executed at his own cost within the time specified in the notice. The conditions of allotment of sites under Rules 7 and 13 are applicable to all the sites allotted under 1984 Rules including the allotments made under Rule 5 because Rules 7 and 13 start with the words “the sites allotted under these Rules”. Therefore, BDA should not have executed the sale deed in favour of the allottee immediately after allotment of the site. 36. In W.P.Nos.16147/2009 and 16954/2009, BDA has taken a contention that it should not have allotted an alternative site in a layout formed prior to the layout in which site was originally allotted to the applicants therein. After insertion of Rule 11-A of the BDA (Allotment of Sites) Rules, 1980, by notification No.UDD-246.MNJ 2003 dated 27.9.2003, which has come into effect from 29.9.2003, the allotment of alternative sites are regulated as under: “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 to the following conditions: (i) An alternative site may be allotted only where the mistake was on the part of the Authority only where the mistake was on the part of the Authority while making the allotment of sites of 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 or sites, alternative sites may be allotted by the Authority in the same layout in which sites were 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 allotment, even if sites are physically available in the layouts formed prior to the layout in which original allotment was made. (iv) While allotting alternative sites, sites higger in dimension than the sites originally allotted shall not be considered for allotment. However, an alternative site up-to ten percent over and above the area of the originally allotted site may be allotted and in such cases for the sites 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 sita value in cases where it is applicable. (vi) While allotting alternative sites eligibility of the applicant shall be verified in accordance with these Rules.” 37. It is clear from the above Rules that an alternative site has to be allotted only where the mistake was on the part of the Authority while making the allotment of site or where the possession of the sites allotted originally could not be given to the allottee due to stay orders of the Courts or due to other disputes. Alternative site has to be allotted by the Authority in the same layout in which sites were originally allotted or in the layouts formed by the Authority subsequent to the formation of the layout in which the sites were originally allotted, and 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. While allotting alternative sites, sites begger in dimension than the sites originally allotted shall not be considered for allotment. While allotting alternative sites, sites begger in dimension than the sites originally allotted shall not be considered for allotment. The exception to this Rule is that an alternative site up-to ten percent 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 the layout for that site shall he collected by the Authority in addition to the difference in sital value to be collected. 38. Learned Addl. Advocate General has relied on certain decision including (i) THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM & ANOTHER VS. KUNJAMBU & OTHERS – (1980) 1 SCC 340 ; (ii) STATE OF MYSORE, etc. VS. M.L.JAGADE & GADAG & OTHERS – AIR 1983 SC 762 ; (iii) CONSUMER ACTION GROUP & ANOTHER VS. STATE OF TAMIL NADU & OTHERS – AIR 2000 SC 3060 ; and (iv) PEOPLE’S UNION FOR CIVIL LIBERTIES AND ANOTHER VS.UNION OF INDIA & OTHERS – (2004) 2 SCC 476 . In the first decision, the Apex Court has held that Parliament and the State Legislatures function best when they concern themselves with general principles, broad objectives and fundamental issues, instead of technical or situational intricacies which are better left to better equipped full time executive bodies and specialist public servants. Parliament and the State Legislature have neither the time or expertise to be involved in detail or circumstances, nor can visualize and provide for new strange unforeseen situations. That is the raison d’etre for delegated legislation. The power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninihiited. So the theory has been evolved that the legislature cannot delegate its essential legislative function. Legislate it must, by laying down policy and principle and delegate it may to fill in detail and carry out policy. The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute such as the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. This decision does not help the State in any manner. What is permissible is to leave the delegated authority the task of implementing the object of the Act. If guidance there is, wherever it may be found, the delegation is valid. This decision does not help the State in any manner. What is permissible is to leave the delegated authority the task of implementing the object of the Act. Neither the Act nor the Rules made therein authorise the State Government to issue directions to allot the sites to the persons of its choice. Therefore, under the guise of a circular, the State Government cannot direct the BDA to allot the sites. In the second decision, the Hon’ble Supreme Court has held that the guidelines need not he found in the impugned provision. The same may be collected from the setting in which the provision is placed, the purpose for which the Act is enacted and even the preamble of the statute in which the provision is incorporated. This decision also does not help the State in any manner. The Act does not envisage the State Government to direct the BDA, which is a body corporate having the perpetual succession and common seal with power to acquire, hold and dispose of the property, for allotment of sites to the persons of its choice. The State Government does not have any inherent power much less any discretionary powers to allot the sites vested with the BDA. The Act does not spell out either directly or impliedly legislative policy empowering the State Government to allot the property vested with the BDA. In the third decision, the Apex Court has held that in spite of very wide power being conferred on delegate such a section would still not be ultra vires, if guideline could be gathered from the Preamble, Object and Reasons and other provisions of the Act and the Rules. Neither the preamble nor the objects and reasons of the Act suggest the legislative policy, authorizing the State Government to direct allotment of the sites. In the fourth decision, the Hon’ble Supreme Court was considering the validity of Section 18 of the Atomic Energy Act, 1962. It has been held that the question as to whether a statute is ultra vires the Constitution having conferred unguided, uncanalised or wide power cannot be determined in vacuum. It has to be considered having regard to the text and context of the statute as also the character thereof. It has been held that the question as to whether a statute is ultra vires the Constitution having conferred unguided, uncanalised or wide power cannot be determined in vacuum. It has to be considered having regard to the text and context of the statute as also the character thereof. The guidelines for enacting the said provision must be found out from the subject matter covering the field. For the said purpose, even the preamble of the Act may be looked into. This decision also does not support the contentions advanced on behalf of the State. As has been stated above, the legislative intendment can be gathered from the preamble and other provisions of the Act would clearly indicate that power is not vested with the State Government to direct the BDA to allot sites in favour of the persons suggested by it. 39. From the above discussion, it is clear that the State Government has no authority to direct the BDA to allot the sites under ‘G’ category as per the circular dated 6.8.1997. Point No.(i) is answered accordingly. Re.Point No.(ii): 40. In all these cases, the BDA had executed sale deeds in favour of the allottees. In W.P.No.11102/2008, the BDA had executed the sale deed in favour of the allottee as per the direction of the State Government under ‘G’ category on 20.6.2007. The allottee has sold the said site in favour of Madhu Dhondiba Babar and Madhu Dhondiba Babar inturn had sold the site in favour of the petitioner in the said writ petition. In W.P.No.16147/2009, the petitioners mother late Anusuyamma was an applicant for allotment of the site. The site was allotted on 9.3.1989. Before the expiry of the lease period. Anusuyamma had died bequeathing the said site in favour of the second petitioner. The BDA allotted an alternative site to the second petitioner and a sale deed was executed in his favour on 19.4.2007. The second petitioner sold the said site to the first petitioner on 4.8.2007. In W.P.No.16954/2007, the BDA had allotted a site in favour of one James on 15.5.1989. However, an alternative site was allotted to him and a sale deed was executed in his favour on 21.11.2007. James sold the said property through a sale deed dated 11.2.2008 in favour of the petitioner in the said writ petition. In W.P.No.16954/2007, the BDA had allotted a site in favour of one James on 15.5.1989. However, an alternative site was allotted to him and a sale deed was executed in his favour on 21.11.2007. James sold the said property through a sale deed dated 11.2.2008 in favour of the petitioner in the said writ petition. The question for consideration is, having executed the sale deeds by the BDA as above, whether it can pass an order canceling the said deeds or execute the deed of cancellation? 41. It is not in dispute that the BDA was the owner of the properties in question. It has executed sale deeds in respect of the said properties in favour of the allottees. Section 54 of the Transfer of Property Act defines ‘sale’ as under: “Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.” 42. When the owner of the property sells/conveys the property to a purchaser under a written document and gets the registered, the right, title and interest in the said property is transferred from the owner to the purchaser or registration of the said document. Thus, once such sale takes places, transfer is complete, the vendor of the property ceases to be the owner of the property. The effect of registration of an instrument not only affects the rights of the parties to the instrument but also affects parties, who may claim under them. Section 31 of the Specific Relief Act provides for cancellation of the written instruments, which is as under: “31. When cancellation my be ordered: (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” 43. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” 43. It is clear from the above provision that both void and voidable instruments can be cancelled by the Court. This Court in BINNY MILL LABOUR WELFARE HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED VS. D.R.MRUTHYUNJAYA ARADHYA – ILR 2008 KAR 2245 was considering a similar case where the vendor of the property had unilaterally cancelled the sale deed. It is held as under: “Unilaterally he cannot execute what is styled as a deed of cancellation, because on the date of execution and registration of the deed of cancellation, the said person has no right or interest in that property. Normally what can be done by a Court can be done by the parties to an instrument by mutual consent. Even otherwise if the parties to a document agree to cancel it by mutual consent for some reason and restore status quo ante, it is possible to execute such a deed. An agreement of sale, lease or mortgage or partition may be cancelled with the consent of the parties thereto. Because in the case of agreement of sale, lease, mortgage or partition, each of the parties to the said document even after the execution and registration of the said deed retains interest in the property and, therefore, it is permissible for them to execute one more document to annul or cancel the earlier deed. However, it would not apply to a case of deed of sale executed and registered. In the case of a sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchase and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties aggreing by mutual consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel a deed vests with a Court and it cannot be exercised by the vendor of a property.” (emphasis supplied by me) 44. It is thus clear that when the sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel the deed vests with a Court and it cannot be exercised by the vendor of a property. After execution and registration of the sale deed, the BDA cannot determine the validity of the sale deed. It can neither execute a cancellation deed unilaterally. If the BDA is of the view that the sale deed executed by it is contrary to law, it has to approach the Civil Court for its cancellation as provided under Section 31 of the Specific Relief Act. Point No.(ii) is answered accordingly. 45. Learned Counsel for the parties have not urged any contentions at the time of hearing. 46. If the BDA is of the view that the sale deed executed by it is contrary to law, it has to approach the Civil Court for its cancellation as provided under Section 31 of the Specific Relief Act. Point No.(ii) is answered accordingly. 45. Learned Counsel for the parties have not urged any contentions at the time of hearing. 46. In the light of the above discussion, I pass the following: ORDER (i) It is hereby declared that the State Government has no power or authority under the provisions of the Bangalore Development Authority Act, 1976 and the Rules made thereunder to direct the BDA to allot the sites to any person/persons under ‘G’ category as per the circular No.UDD.129.MNJ dated 6.8.1997. (ii) It is further declared that the condition contained in Rules 7 and 13 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 are also applicable to the sites allotted by the BDA under Rule 5 of the BDA (Allotment of Sites) Rules, 1984. (iii) The Commissioner, Bangalore Development Authority, is directed to initiate action against its Officers who were responsible for illegally bifurcating civic amenity site No.12 in Sector 5 of HSR layout. (iv) The notice at Annexure ‘N’ dated 7.8.2008 and the order dated 31.7.2008 passed by the Commissioner, BDA, in W.P.No.11102/2008 are hereby quashed. (v) The order passed by the Commissioner, BDA dated 9.6.2009, the notice at Annexure ‘G’ dated 11.6.2009 and the deed of cancellation at Annexure ‘H’ dated 11.6.2009 in W.P.No.16954/2009 are hereby quashed. (vi) The order at Annexure ‘A’ dated 12.6.2009 passed by the Commissioner, BDA, in W.P.No.16147/2009 is hereby quashed. (vii) Liberty is reserved to the Bangalore Development Authority to seek cancellation of the sale deeds executed by it in favour of the allottees of the sites in the above writ petitions by filing suits before the competent Civil Court. (viii) Writ petitions are disposed of in the aforesaid terms. No costs.