A. Gundabhat v. Commissioner, Bangalore Development Authority
2011-09-23
B.S.PATIL, N.KUMAR
body2011
DigiLaw.ai
ORDER N. Kumar, J This Writ Petition is filed challenging the order passed by the Bangalore Development Authority (for short hereinafter referred to as 'the BDA') on 5.12.2008 purported to be in compliance with the orders of this Court passed on 27.9.2007 in W.P. No.9792/2006. 2. The petitioner was allotted a site bearing No.210 measuring 30' x 40' in 9th Block, Jayanagar, Bangalore. On payment of the amount, a conditional sale deed came to be executed on 20.7.1981. He gifted the said site to his son on 10.3.2000. Thereafter, he applied for a site from the BDA, this time under 'G' category. His request was considered and a site was allotted on 8.4.2002. A show-cause notice came to be issued asking him to show- cause why the allotment of site should not be cancelled because he had suppressed the fact of allotment of a site earlier by the BDA. He filed his explanation pointing out that, on the date he applied for allotment, he did not possess the BDA site. Overruling the said objections, the allotment of site was cancelled on 27.5.2004. Aggrieved by the said order of cancellation, he preferred a revision petition to the Government. The Government allowed the revision petition by its order dated 29.12.2004 and held that the petitioner has not contravened any of the Sections of the Bangalore Development Authority Act and therefore, it restored the allotment. The said order was not challenged and it has attained finality. 3. Thereafter, the BDA executed a sale deed in favour of the petitioner on 19.2.2005. The petitioner applied for sanction plan which was duly sanctioned on 15.11.2005. The petitioner has put up construction and is living with his family members. The Government on the basis of the judgment of this Court in W.P. No.54602/2003 to which the petitioner is not a party which was disposed of on 4.2.2004 restored its earlier order dated 29.12.2004 and set aside the order upholding the allotment of site and cancelled the same. On the basis of the said order, consequentially the BDA passed one more order dated 1.7.2006 affirming the earlier order of cancellation. 4. The petitioner preferred Writ Petition challenging those two orders.
On the basis of the said order, consequentially the BDA passed one more order dated 1.7.2006 affirming the earlier order of cancellation. 4. The petitioner preferred Writ Petition challenging those two orders. The specific case of the petitioner was, neither the Government nor the BDA issued any notice to him before passing the aforesaid two orders and therefore the orders passed are in violation of the principles of natural justice. Accepting the case of the petitioner, the Writ Petition was allowed, the order dated 2.6.2006 passed by the Government and the order dated 1.7.2006 passed by the BDA were quashed. However, liberty was reserved to the respondents in the said writ petition to hear the petitioner, if they so choose to initiate any further action and then proceed to pass orders in accordance with law. 5. The net effect of the order passed by this Court on 27.9.2007 in W.P. No.9792/2006 is, the earlier order passed by the BDA on 27.5.2004 cancelling the allotment in favour of the petitioner stood set aside and the order of the Government dated 29.12.2004 upholding the order of allotment was resurrect. When this Court granted liberty to the respondents if they choose to initiate any proceedings, it is to the Government to hear the petitioner before recalling the said order. Admittedly, the Government has not issued any notice. The order passed by the Government on 29.12.2004 cancelling the order of cancellation of allotment stands. It has attained finality. The Government has not chosen to initiate any proceedings to recall the said order, even though the order of this Court was passed nearly 4 years back. But, taking advantage of the said order where the word 'respondents' have been issued, the BDA issued a notice on 10.12.2007 calling upon the petitioner to show cause why the allotment in his favour should not be cancelled. The petitioner appeared before them filed the statement of objections and requested them to drop the proceedings. Overruling the objections, the BDA proceeded to pass the impugned order which is challenged in this Writ Petition. 6. Sri Ashok Harnahalli, the learned senior Counsel appearing for the petitioner contends that a reading of the order passed by this Court only reserves liberty to the Government to issue notice to the petitioner, to hear him and pass an order. No such liberty is given to the BDA to initiate such proceedings.
6. Sri Ashok Harnahalli, the learned senior Counsel appearing for the petitioner contends that a reading of the order passed by this Court only reserves liberty to the Government to issue notice to the petitioner, to hear him and pass an order. No such liberty is given to the BDA to initiate such proceedings. The Government order setting aside the cancellation order earlier and restoring the allotment has attained finality. Therefore, the BDA has no jurisdiction to initiate any proceedings or cancel the allotment. Therefore, he submits the impugned order is one without jurisdiction and requires to be set aside. 7. Per contra, the learned Counsel Sri. Basavaraj V. Sabarad appearing for the BDA contends that, as is dear from the operative portion of the order passed by this Court, liberty is given to the respondents if they so choose to initiate proceedings for cancellation. It is in pursuance of that order, show cause notice has been issued and this order of cancellation has been made. Therefore, he submits no case for interference is made out. 8. The order of a Court cannot he read in piecemeal or out of context. A sentence in an order cannot be read out of context. The en tire order has to be read as a whole to understand what the case of the parties is, what is the point that arise for consideration and what is the decision rendered by the Court, Keeping in mind these principles, if we the order what the Court has done is to set aside the order passed by the Government and the consequential order of BDA which had cancelled the order of allotment in favour of the petitioner. As those two orders were set aside by this Court, the order of the Government upholding the allotment and cancelling the earlier allotment stands. When once the Government upholds the allotment, the BDA has no authority to cancel the allotment over again. No doubt in the operative portion, the word used is 'respondents'. In the earlier Writ Petition, Government as well as BDA were the respondents, but the BDA was not given the freedom to initiate any proceedings against the petitioner and as such the proceedings initiated by them is one without authority of law.
No doubt in the operative portion, the word used is 'respondents'. In the earlier Writ Petition, Government as well as BDA were the respondents, but the BDA was not given the freedom to initiate any proceedings against the petitioner and as such the proceedings initiated by them is one without authority of law. Moreover when an earlier order of cancellation passed by them on the same set off acts was set aside by the Government and the Government has restored the order of allotment, it is not open to the BDA to overlook such a binding order of the Government which was passed after hearing them and which order has been restored by this Court while allowing the Writ Petition and pass the impugned order. Therefore, the impugned order passed is one without jurisdiction, illegal, contrary to law and therefore, it cannot be sustained. Hence, I pass the following order :- (i) Writ Petition is allowed. (ii) The impugned order is hereby set aside (iii) Parties to bear their own costs.