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2013 DIGILAW 1248 (KAR)

Pavan Agarwal v. State of Karnataka

2013-10-30

A.N.VENUGOPALA GOWDA

body2013
ORDER A.N. Venugopala Gowda, J. 1. This is the third round of litigation between the parties in the matter of fixation of price of marginal land which was allotted by the respondent to the petitioner. W.P. No. 8916 of 2006 filed questioning the direction to pay the amount at the rate of Rs. 30,197/- per sq. mtr., on an average auction rate prevailing in the area in question, in all amounting to Rs. 46,38,863/-, was allowed on 15-11-2007 and the BDA was directed to reconsider the matter in terms of proviso (a) to Rule 5 of the Bangalore Development Authority (Disposal of Comer Sites and Commercial Sites) Rules, 1984, BDA having passed a resolution dated 8-5-2009, sent a notice dated 22-5-2009 and informed the petitioner to remit Rs. 39,21,891/-, for conveying of the marginal land situated adjacent to the property held by him. Contending that the said demand is not in conformity with the order passed on 15-11-2007 in W.P. No. 8916 of 2006 and W.P. No. 18554 of 2009 was filed. After consideration of the rival contentions, by an order dated 16-1-2012, BDA was directed to reconsider the matter in terms of the direction issued in the order passed on 15-11-2007 in W.P. No. 8916 of 2006. Three months time was granted for compliance. No action having been taken by the BDA, this writ petition was filed on 11-1-2013, to direct the BDA to issue possession certificate in respect of the said land by treating the payment of cost of allotment in terms of endorsement dated 16-9-2008 and the payment made on 17-9-2008 as per Annexures-F and G as sufficient and extend the benefit of the decision reported in the case of Bhaskara Reddy v. Bangalore Development Authority, Bengalooru and Another 2009 (6) Kar. L.J. 670 : ILR 2009 Kar. 2882. After filing of the writ petition, a decision having been taken to collect Rs. 44,06,897/- from the petitioner, an intimation dated 18-7-2013, copy of which has been produced at Annexure-R1, was dispatched by the respondent and statement of objections was filed to the writ petition. 2. Heard the learned Counsel on both sides and perused the writ record. 3. Sri V. Lakshminarayana, learned Advocate for the petitioner vehemently contended that BDA has generated endless litigation on the petitioner. 2. Heard the learned Counsel on both sides and perused the writ record. 3. Sri V. Lakshminarayana, learned Advocate for the petitioner vehemently contended that BDA has generated endless litigation on the petitioner. He submitted that no action was taken pursuant to the order dated 16-1-2012 passed in W.P. No. 18554 of 2009 within the period stipulated therein. He submitted that the decision taken on 18-7-2013, after filing of this petition vide Annexure-R1 is contrary to the orders passed in the earlier two rounds of litigation and thus there is arbitrary and contumacious act on the part of respondent 2 and that this is a fit case to mould the relief, to end further litigation in the matter. 4. Sri B.V. Shankar Narayana Rao, learned Counsel for the respondent 2 was unable to point out as to how the decision taken by the respondent intimating the petitioner to pay Rs. 44,06,897/- vide Annexure-R1, being in conformity with the order passed on 15-11-2007 in W.P. No. 8916 of 2006, which was directed to be given effect to in W.P. No. 18554 of 2009 on 16-1-2012. Learned Counsel did not dispute the fact that the orders (Annexures-E and F) passed in the said two writ petitions have become final. He submitted that, if Annexure-R1 is found to be not in conformity with the earlier orders passed, BDA may be granted another opportunity to re-examine the matter and fix the price of the marginal land proposed to be allotted to the petitioner. While allowing W.P. No. 18554 of 2009 on 16-1-2012, it was found as follows: 8. From the perusal of the decision taken as at Annexure-P and the consequential notice as at Annexure-O, it is clear that the respondent has not acted in terms of the specific direction issued in the order passed in W.P. No. 8916 of 2006 on 15-11-2007, which has attained finality. In view of the specific direction issued in the matter of fixation of price of the marginal land in question, noticed supra, the respondent has to determine the costs of the marginal site payable by the petitioner in accordance with the specific direction and not otherwise, as has been done vide Annexures-P and O, wherein, average auction price has been adopted as the basis. (emphasis supplied) The decision which the BDA has taken vide Annexure-R1 is not in conformity with the said order. (emphasis supplied) The decision which the BDA has taken vide Annexure-R1 is not in conformity with the said order. Respondent has again acted arbitrarily in the matter by making demand in terms of Annexure-R1. Opportunity granted vide Annexure-J has not been utilised. The petitioner has been made to approach this Court for the third time in the matter of fixation of price of the marginal land. The communication as at Annexure-R1 does not indicate the BDA having taken note of the specific finding and observation made in the order passed on 16-1-2012 in W.P. No. 18554 of 2009. In the circumstances, the communication as at Annexure-R1 being vitiated is liable to be quashed. In the result writ petition is allowed and the intimation of the BDA vide Annexure-R1 is quashed. BDA-2nd respondent shall pay cost of Rs. 25,000/- to the petitioner for generating unwarranted litigation. BDA is directed to fix the price of the marginal land which has been proposed to be allotted to the petitioner, by keeping in view the findings and observations made in the orders as at Annexures-E and J, noticed supra and also the decision in the case of Bhaskar Reddy, within an outer limit of two months from the date of a copy of this order becomes available to it. Delay in the matter of fixation of price of marginal land having been caused by the BDA by not taking the decision within three months period of the date of passing the order dated 16-1-2012 in W.P. No. 18554 of 2009, is prohibited from demanding any interest on the price of the said marginal land which may be fixed, with effect from 16-4-2012 till a decision is taken and communicated to the petitioner.