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2012 DIGILAW 902 (KAR)

S. VASUDEVA v. GOVERNMENT OF KARNATAKA

2012-10-25

K.L.MANJUNATH, V.SURI APPA RAO

body2012
ORDER Writ Petition Nos.23475/10 and 36275/09 are filed by one Vasudev, a member of this bar challenging the action of the Government and the BDA in allotting several sites under the guise of allotment of stray sites under "G" category to various persons. W.P.No.1032/06 is filed by the District Ryots Horata Samithi of Gulbarga represented by its President. The prayer in all these petitions are one and the same. The prayer of the petitioners is to declare Rule 5 of the BDA (Allotment of Sites) Rules 84 framed under the BDA Act 1976 empowering the BDA to dispose of the stray sites in accordance with the guidelines issued by the Government as arbitrary and to cancel the allotment made in favour of the respondents/allottees.2. It is the specific case of the petitioner that based on the application filed by individuals or on the recommendation of Ministers or MLAs, the Chief Ministers have issued directions to the BDA to allot sites to such persons under "G" category and BDA without following the norms has allotted the sites to ineligible persons and therefore they request the court to declare the allotment of stray sites as bad in law, consequently to cancel the allotment made in favour of all the allottees/respondents. 3. In order to appreciate the facts of the case, it would be proper for us to quote Rule 5 of the BDA Allotment Rules, which reads as hereunder: "5. Allotment of stray sites: The Bangalore Development Authority shall dispose of the stray sites in accordance with the guidelines issued by Government." 4. Based on the aforesaid Rules, guidelines were framed by the Government and the said guidelines are revised from time to time. The guidelines issued by the Govt. as per the Circular dt.6.8.1997 reads as hereunder:"CIRCULAR UNDER BANGALORE DEVELOPMENT AUTHORITY(ALLOTMENT OF SITES) RULES 1984 CIRCULAR NO.UDD 129 MINJ 97, Bangalore dt.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. 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 fields 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. u_ 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. (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. 4. The requirement 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 case 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 stray sites may be allotted by a Committee consisting of the Chairman, Bangalore Development Authority, Commissioner, BDA, Commissioner, Bangalore City Corporation, and two other members of the Authority. The allotment shall be subject to final approval of the Authority. 6. The selling 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." 5. Relying upon this circular, the Hon. Chief Ministers have issued directions to the Bangalore Development Authority to allot sites to several persons as and when the applications were received by them and based on the direction issued by the Government, BDA has allotted the sites to the respondents.6. Contending that the allotment made in favour of the respondents by the BDA on the directions of the Government is bad in law and that most of the respondents were not entitled for allotment of sites under "G" category and that BDA has allotted the regular sites even though no stray sites were available for allotment, these petitions are filed. 7. 7. In order to appreciate whether the stray sites has been allotted under "G" category as per the Circular dt.6th August 1997, it would be relevant for us to quote the definition of stray sites as defined under Rule 2 (j) of the BDA (Allotment of Sites) Rules 1984: "2(j) Stray Sites: 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 which has been formed on account of readjustment in the plan subsequent to the issue of notification inviting applications for allotment of sites." 8. From this it is clear that even if the circular dt.6.8.1997 is held to be a valid, Government can issue direction to the BDA to allot stray sites only. Out of thetotal number of stray sites available as per the circular, 30% of the sites are to be disposed of by way of public auction, 15% of sites to B category persons who have won special recognition in the field of sports at International/National levels persons of Karnataka Domicile (Emphasis is supplied by us), 10% of C category sites to the persons who have won special recognition in the field of Arts, Science, Literature, Education, Medicine and Public Administration at the National/International levels. 5% of the stray sites shall be allotted to D category, viz., to the Ex.Military personnel, Military personnel, persons of Karnataka domicile (emphasis supplied by us), 5% to the persons falls under E category, i.e., Freedom fighters who are residents of Bangalore for a period of not less than 10 years. 5% of stray sites shall be allotted under F category, i.e., to the dependents of Karnataka Government Servants when he later dies during the performance of his/her duty. The remaining 30% can be allotted under G category to the persons in public life as may be directed by the Government.9. In regard to the allotment of C Category sites are concerned, personalities who have been recognised in the field of Painting, Sculpture, Music, Dance, Drama and Films, etc. are also included. The remaining 30% can be allotted under G category to the persons in public life as may be directed by the Government.9. In regard to the allotment of C Category sites are concerned, personalities who have been recognised in the field of Painting, Sculpture, Music, Dance, Drama and Films, etc. are also included. For allotment of a stray site, an allottee shall not be a minor, he shall be a domicile in Karnataka for not less than 10 years immediately prior to the filing of an application and such person or his family members does not own a site or a house in Bangalore Metropolitan Area and has not been allotted a site or a house by the BDA or by any other authority within the Bangalore Metropolitan Area and that a person shall also satisfy the authority that he or she in a reasonable position to put up a residential house or other building on the site allotted within a period of 3 years from the date of handing over of the sites in question. 10. Clause(4) of the Circular deals with the requirement of relaxation of 10 years domicile in regard to the persons who are working in Armed Forces of the Union and serving outside the State of Karnataka who have gone outside the State for employment or business or training,etc, a stray site cannot be allotted directly by the Government or Commissioner or Chairman of BDA. As per the circular, a Committee has to be constituted under the Chairmanship of the BDA Commissioner and two other members of the BDA and that the allotment shall be subject to final approval of the authority. 11. In regard to the cost of allotment of a stray site, the allottee shall pay 10% above the current allotment rate of BDA under its Rules and any person satisfy the aforesaid conditions, the Committee shall consider the application for allotment of a stray site. A similar question arose in regard to the right of the Government in issuing directions to the BDA for allotment of stray sites exercising its power u/s 65 of the BDA Act. A learned Single Judge of this court in the case of K.RAJU VS. A similar question arose in regard to the right of the Government in issuing directions to the BDA for allotment of stray sites exercising its power u/s 65 of the BDA Act. A learned Single Judge of this court in the case of K.RAJU VS. BANGALORE DEVELOPMENT AUTHORITY (ILR KAR 2011(1) PAGE 120) has declared that Government has no power or authority under the provisions of the BDA Act 1976 and the Rules made thereunder to direct the BDA to allot a stray site to any person under G category as per circular dt.6.8.1997. He further declared that the conditionscontained in Rule 7 and 13 of the BDA (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, concerning the allotment of stray sites. 12. The order of the learned Single Judge has become final because the Government has not challenged the same. It may be relevant to state that challenging the order of the learned Single Judge, the BDA had filed an appeal before this court in Writ Appeal No.5662/11. We have dismissed the above appeal as not maintainable because the subject matter of the Writ Petition was in regard to the propriety or power of the Government in issuing a direction u/s 65 of the BDA Act to allot stray sites under G category. Therefore the order of the learned Single Judge has become final. 13. Sri.K.M.Nataraj, Additional Advocate General made a submission that Government has accepted the Judgment of the learned Single Judge and has no intention to issue any direction or allot sites under G Category till proper legislation is brought in. Therefore, there is no necessity for us to consider the prayer of the Writ Petitionersin regard to the challenge made by the petitioners, the right of the Government in issuing direction to the BDA to allot the stray sites under Rule 5 under G Category as the same has become final and the same is binding on all the parties. 14. 14. The Government has produced the records and the list of allottees and also produced the records to show the manner in which the applications filed by each of the allottees are processed and also the manner in which the directions are issued by the Government to the BDA and the procedure followed by the BDA in allotting the sites pursuant to the action of the Government. 15. On perusal of the records, it is clear that even if we hold that Circular dt.6.8.1997 is binding on all the parties, still this court has to hold that circular dt.6.8.1997 has not been followed while allotting the stray sites to any one of these allottees because at the first instance, BDA has not identified the stray sites available for allotment, in each of the layouts formed by it and out of the stray sites available BDA has to dispose of 30% of the sites by way of auction, 15% to the persons who fall under B category, 10% underC category, 5% each in D, E and F category and only 30% of the stray sites can be allotted to person falls under G category. In addition to that even if Government has directed for allotment of a stray sites under G Category, the Commissioner or the Chairman cannot straightaway implement the direction without considering the applications of such persons by a Committee consisting of the Chairman, BDA, Commissioner and two other members of the BDA. 16. It is fairly admitted by the learned Addl. Advocate General and the Advocate for the BDA that such procedure is not followed in any of the allotments. Therefore, it is clear that the allotments made in favour of the respondents are not even according to the circular dt.6.8.1997. In addition to that as per the Circular, the Government can issue a direction to the BDA to allot sites under G Category to the persons who are in public life. 17. The word "Public life" is not defined either under the BDA Act or under the Rules for allotment of the sites. In addition to that as per the Circular, the Government can issue a direction to the BDA to allot sites under G Category to the persons who are in public life. 17. The word "Public life" is not defined either under the BDA Act or under the Rules for allotment of the sites. In the absence of any definition to the word, "persons in public life",this court can only say that the word, persons in public life shall be considered as such of those persons having to do with the public or available to the people as a whole and are those involved in the affairs of the community. 18. Be that as it may, when the circular is not followed by the Government and BDA in allotting the sites, when no documents are placed before the court to show the sites allotted to these allottees had fallen under the category of stray sites, this court has to hold that the allotment made to all these respondents as bad in law. 19. At this juncture, the learned counsel appearing for the respondents - allottees and the learned Addl. Advocate General submitted that considering that most of the respondents - allottees were otherwise eligible for allotment, if they had filed an application under a regular allotment proceedings and as most of them have constructed the buildings and some of them have parted with the possession by alienating the property, they plead equity in order to save the sites allotted to the persons whoare really eligible relying upon rulings of the Hon"ble Supreme Court. 20. Mr. Vasudev, the Writ Petitioner is also of the view that in the back drop of illegal allotments made in favour of the respondents, if there are any eligible applicants for allotment and if they satisfy the eligibility conditions of allotment of sites under the BDA Act, such cases may be considered and he has no objections to consider the request of the allottees. 21. The learned counsel appearing for the respondents as well as the petitioners relying upon the Judgement of the Punjab and Haryana High Court in ANIL SABHARWAL VS. STATE OF HARYANA AND OTHERS (21.03.1997-PHHC) and also the Judgment of the Hon"ble Apex court in HARISH DHINGRA VS. 21. The learned counsel appearing for the respondents as well as the petitioners relying upon the Judgement of the Punjab and Haryana High Court in ANIL SABHARWAL VS. STATE OF HARYANA AND OTHERS (21.03.1997-PHHC) and also the Judgment of the Hon"ble Apex court in HARISH DHINGRA VS. STATE OF HARYANA reported in AIR 2001 SC 3795 , submit that a Committee may be constituted to examine each and every application filed by the respondents/allottees to find out whether the respondents are eligible for allotment and if they are otherwise eligible, to save their allotment as per the direction issued by theSupreme Court and also of the Punjab and Haryana High Court in the aforesaid cases. 22. The learned counsel for the respondents-allottees submit that many of the respondents have already constructed buildings and some of the buildings are under construction and some of them have also parted with sites by alienating the same for their financial difficulties. In regard to these categories of site allotment, court may also give suitable direction, the manner in which such allotment can be saved if permissible pursuant to the directions issued in the case of ANIL SABHARWAL. 23. We have seen the records produced by the Govt. Advocate. On perusal of the records we notice that the sites have been allotted right from 1997 upto 2011. On perusal of the entire list upto 2011, pursuant to the Government circular dt.6.8.1997 in all 1128 sites have been allotted of different dimensions to different persons, considering the occupation and avocation of the allottees. We also notice that sites have been allotted to MLAs, MPs, MLCs. former MLAs. former MLC and former MPs. Former Ministers, Sportpersonalities, Cine actresses, Freedom Fighters, aged persons suffering from various ailments, widows, persons working in Chief Minister"s office and in different Government offices and defence personnel. As could be seen from the list, people from all walks of life have been benefited by such allotments. From these documents, it is not possible for us to find out and to examine the case of each and every respondents in detail whether these persons are eligible for allotment if they had made an application under the regular allotment pursuant to the notification issued by the BDA. 24. The facts involved in Anil Sabharwal"s and the facts involved in the present writ petitions are similar to each other. 24. The facts involved in Anil Sabharwal"s and the facts involved in the present writ petitions are similar to each other. The Chief Minister of Haryana had allotted plots to several VIPs under the category known as "Distinguished and needy people". The Rules regarding allotment of sites under G-category under the BDA Act and Rules and rules framed by the Haryana Urban Development Authority, are almost similar in nature. Full Bench in Anil Sabharwal"s case has declared allotment made by the Chief Minister as vague,arbitrary and violative of Art. 14 of the Constitution and further ruled that the allotment of residential sites made under the discretionary quota of the Chief Minister on or after 31.10.1989 has declared illegal and quashed subject to certain conditions. Full Bench of Punjab and Haryana High Court by constituting a committee to consider each and every application find out how such allotments could be saved based on various criteria and which sites can be forfeited. 25. Counsel appearing for the petitioner as well as the respondents including Addl. Advocate General submits that in the larger interest of the allottees as many of them were eligible for allotment since they had no sites or house of their own and if they had made any application for allotment of site before the BDA under different category, they were entitled for allotment and such allottees can be saved if their cases are examined separately. They further submit that some of the allottees have already constructed house by spending huge amount and if such allottees are not eligible for allotment under regular allotment Rules of BDA, if suchsites are to be forfeited they would be put to untold hardship and great injustice would be caused as they have proceeded on the premise that the allotment made by the Chief Minister was in accordance with law and similarly some of the allottees for their legal necessities have sold the sites allotted to them and many of the purchasers have constructed buildings by investing lot of money and that some of the purchasers in turn have further alienated such sites and subsequent purchasers will be put to untold hardship in such circumstances. Therefore they submit that such allotment can also be saved penalizing for their bonafide act by calling upon the allottees or the subsequent purchasers to pay the double value of the guide-lines fixed for the registration of sites in that particular area after giving deductions to the amount already paid towards the value of the site allotted to them and if such procedure is evaluated, hardship can be mitigated as the allottees or the subsequent purchasers were not aware of the Rules and allotment of sites under G-category has been made by several Chief Ministers right from 1997 and they further submit that if a person is not eligible for allotment and if noconstruction is made or sold, such sites may be resumed by returning the sital value deposited by such allottees. With the above suggestion they request the court to consider the case of each of the respondents/allottees. 26. Having heard the counsel for the parties and considering the avocation of various allottees, we have noticed that people from all walks of life are the beneficiaries not only political figures but also public servants and constitutional appointees are the beneficiaries of such sites and even some of the aged persons and ailing persons have been allotted sites. Many Government servants working under State and Union Government are the beneficiaries and some of them are working in different places and such people are also entitled for allotment if they had made an application provided they satisfy allotment rules of BDA. 27. Many Government servants working under State and Union Government are the beneficiaries and some of them are working in different places and such people are also entitled for allotment if they had made an application provided they satisfy allotment rules of BDA. 27. In this background, having held that the allotment made by the State of Karnataka and BDA allotting sites under G-category as violative of BDA Act and Rules and are required to be quashed by allowing the writ petition, considering the judgment in Anil Sabharwal"s case and thejudgment of the Hon"ble Supreme Court in Harish Dhingra"s case, we direct the State of Karnataka to constitute a committee to examine and scrutinize all the applications of the respondents/allottees and to find out whether they were eligible for allotment of sites under the General Category as per BDA Act and Rules provided they fulfil the eligibility criteria and if any illegal allotments are made and if the allottees have already put up constructions or sold the property to collect double value of the guide-line value fixed for the purpose of registration of sites as on the date of allotment in the particular layout where the site is allotted excluding the amount already paid by the allottees and to recommend to the BDA to resume sites where an allottee is not otherwise eligible for allotment on account of his nonfulfillment of eligibility criteria under the allotment rules and to resume the same. 28. 28. Accordingly, these petitions are allowed in part with the following directions: i) It is declared that the sites allotted to the respondents/allottees pursuant to the directionsissued by the State Government under G-Category is held to be illegal, arbitrary and violative of Art.14 of the Constitution holding that issuing direction by the Government exercising powers under Sec.65 of BDA Act and to allot G-category sites; ii) A direction is issued to the Government to constitute a committee of three members out of two shall be retired Hon"ble Judges of this court and one shall be from the cadre of retired Chief Secretary of the State of Karnataka; iii) Government and BDA shall provide all infrastructure to the committee; iv) Government and BDA are directed to place all the applications submitted by each of the respondents/allottees; v) Committee shall scrutinize each and every application filed by the respective allottees in order to find out whether such allottees were eligible for allotment of sites under BDA Act andRules considering them as general merit applicants; vi) If the committee is of the opinion that allottees who satisfy the eligibility criteria of the sites to be allotted by the BDA under general allotment rules, such allotments are saved; vii) If the committee is of the opinion that any allottee was ineligible for allotment and if such allottee has constructed the building or sold the property to a third party under registered document, in such circumstances the committee shall recommend to the BDA and to the Government to recover double the value of the amount fixed as per the guide-line value for the purpose of registration of such site in that particular layout as on the date of allotment excluding the sital value deposited by the allottees. If the allottees were not eligible and if no construction is made by such allottees, Committee shall recommend for resuming thesites. Based on the recommendation of the Committee BDA shall pass appropriate order in each and every case and if the allotment made to the allottees are saved subject to the fulfillment of the aforesaid condition, BDA shall impose the condition on the allottees or subsequent purchasers not to alienate the property/sites for a period of 10 years from the date of respective allotment. viii) Committee is requested to examine all the applications and to make its recommendation within a period of three months from the date of providing all the infrastructure and documents by the BDA and the Government; ix) Till committee submits its report and cases are considered by the BDA thereafter no further construction shall be undertaken either by the allottees or by the purchasers; x) Government shall not allot any sites under G-category and liberty is reserved to the Government to frame appropriate Rules in accordance with law. xi) Two weeks time is granted to the Government to constitute a committee from the date of receipt of this order.