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2013 DIGILAW 1408 (KAR)

V. Sharada v. Bangalore Development Authority

2013-12-17

A.N.VENUGOPALA GOWDA

body2013
Judgment : 1. In response to an application of the petitioner, vide Annexure-R1, the respondent sent an allotment intimation dated 26.02.2007, vide Annexure-R3. Petitioner was informed about allotment of site No.753 in Arkavathi Layout Block-X. Petitioner remitted the site cost. Later, column No.6, relating to the date of birth in Annexure-R1 having been found to be left blank, a notice dated 17.11.2007 was served on the petitioner, to furnish the details and proof with regard to her date of birth. In response to the said communication, petitioner submitted a letter dated 14.12.2007, enclosing her school transfer certificate, showing her date of birth as 20.05.1963'. A show cause notice dated 21.04.2008 was issued to the petitioner, as to why the allotment of site No.753 in Block-X of Arkavathi Layout should not be cancelled, since the cut off date was 10.12.1959.' The petitioner submitted a reply dated 25.04.2008 and did not dispute her date of birth being 20.05.1963. A site cancellation order dated 17.05.2008 was passed and the petitioner was notified of the same. Petitioner filed W.P.No.33403/2010, to direct the respondent to execute the registered sale deed and issue possession certificate and put her in possession of the site No.753 in Block-X of Arkavathi Layout. The said writ petition was disposed of on 29.10.2010, recording the submission made that the petitioner's reply furnishing the particulars called for is pending consideration and that another representation would be made within a week and also the BDA having agreed to consider and pass orders in accordance with law, if a representation is submitted to it. A representation dated 03.11.2010 having been submitted and the respondent upon consideration having found that the petitioner is ineligible for allotment and passed an order dated 02.06.2011, vide Annexure-A, feeling aggrieved, this writ petition has been filed to quash Annexure-A and direct the respondent to issue possession certificate and execute the registered sale deed of the allotted site. 2. In justification of the order passed, as at Annexure-A, the respondent filed statement of objections on 06.12.2013. Pursuant to an order passed on 25.11.2013, the Commissioner of Bangalore Development Authority filed an affidavit dated 02.12.2013, with which, the documents relating to the passing of the impugned order have been produced. 3. Sri. 2. In justification of the order passed, as at Annexure-A, the respondent filed statement of objections on 06.12.2013. Pursuant to an order passed on 25.11.2013, the Commissioner of Bangalore Development Authority filed an affidavit dated 02.12.2013, with which, the documents relating to the passing of the impugned order have been produced. 3. Sri. L.S. Chikkanagoudar, learned advocate, contended that the impugned order is arbitrary, since, the fixing of cut off date of birth is an afterthought to deprive the benefit which has accrued to the petitioner vide Annexure-B i.e., allotment intimation dated 26.02.2007. Learned counsel submitted that on account of omissions and commissions of the officials of the BDA, petitioner, who hails from economically weaker section, should not be made to suffer. He submitted that the case of the petitioner, stated in the representation, as at Annexure-G, has not been lawfully considered and hence, the order at Annexure-A being vitiated, warrants interference. He placed reliance on an order dated 18.08.2010 passed in W.P.No.11660/2009 and a judgment dated 17.07.2012 passed in W.A.No.4368/2011. 4. Sri I.G. Gachchinamath, learned advocate by reiterating the case of the respondent, as stated in the statement of objections filed on 06.12.2013 and in the affidavit of the Commissioner of BDA, dated 02.12.2013, submitted that the petitioner having suppressed the material information with regard to her date of birth, her application vide Annexure-R1 being incomplete, after extending reasonable opportunity of hearing and consideration of the entire record, the impugned order having been passed, which being neither arbitrary nor illegal, no interference is warranted. He placed reliance on the decision in the case of Arjun Baljee vs. Bangalore Development Authority, 2007(6) KLJ 504. 5. Petitioner had sought allotment of a site by submitting an application, as at Annexure-R1. Column No.6 relating to date of birth, has been left blank. However, as against column No.7, the age was shown as 40'. Petitioner was issued with an endorsement dated 17.11.2007, to produce the particulars and material in proof of her date of birth. In response thereto, petitioner submitted a representation dated 14.12.2007, enclosing her school transfer certificate. The said certificate shows the petitioner's date of birth is 20.05.1963.' Though the petitioner had joined the school and furnished her date of birth as 20.05.1963, for the reasons best known to her, column No.6 in Annexure-R1 was left blank. In response thereto, petitioner submitted a representation dated 14.12.2007, enclosing her school transfer certificate. The said certificate shows the petitioner's date of birth is 20.05.1963.' Though the petitioner had joined the school and furnished her date of birth as 20.05.1963, for the reasons best known to her, column No.6 in Annexure-R1 was left blank. The said application being incomplete i.e., particulars of date of birth having not been furnished, the allotment committee constituted under Rule 11(3) of the Bangalore Development Authority (Allotment of Sites) Rules 1984, should have rejected the application on the ground that the same was defective. Instead of doing that, the officers concerned entertained the application and allotted the site No.753 in Block-X of Arkavathi Layout. Before the possession certificate could be issued and sale deed could be executed, having noticed the mistake committed in allotting the site to the petitioner, who does not fulfil the cut off date i.e., 10.12.1959, the said cancellation order dated 17.05.2008 was passed. In view of the undertaking given and the order passed in W.P.No.33403/2010, petitioner's representation dated 03.11.2010 having been considered, the order at Annexure-A, stating cogent reasons has been passed. 6. The order and the judgment, noticed in para 3 supra, on which Sri L.S.Chikkanagoudar placed the reliance, being in different factual context, has no application to the instant case. 7. In the case of Arjun Baljee, (supra), on which Sri. I.G. Gachchinamath placed reliance, the specific column relating to the date of birth having not been filled up, without the said information, the BDA having selected the petitioner for allotment, in ignorance of the mandatory provisions and having realized the blunder committed, after issuing show-cause notice, allotment having been cancelled, when assailed in the writ petition, it was held as follows: "Failure to mention the date of birth in the application is not a mistake, it is a deliberate omission. His contention that he is not aware of any condition regarding the age limit for being eligible for allotment shows, not only he was conscious of the significance of the age as a criteria in selection, he deliberately has not filled up the column meant for date of birth, to facilitate the allotment of the site by the officials of the Bangalore Development Authority in his favour...." The said decision having been upheld by the Apex Court in the Judgment reported at (2010) 14 SCC 398 , squarely applies to the case on hand. 8. Annexure-R1 is a prescribed Form under the Rules. Undeniably, the petitioner had the proof of her date of birth, which becomes evident from the school transfer certificate produced along with her representation dated 14.12.2007. The column relating to the date of birth in Annexure-R1 has been left blank. The application vide Annexure-R1 being defective, ought to have been rejected by the Allotment Committee constituted under Rule 11(3) of the Rules. On account of the material omission on the part of the Officers of the allotment committee, the allotment of a site was made in favour of the petitioner. The affidavit filed by the Commissioner of BDA makes it clear that the allotment made in favour of the petitioner was on account of bona fide mistake. 9. Keeping in view of the provisions under Rule 11, the BDA was required to consider each application on its own merit with reference to the information furnished in several columns of the prescribed Form-II. In view of the column relating to the date of birth having been left blank, despite possessing required information with regard to the date of birth, there is suppression of material fact by the petitioner. It is not the case of the petitioner, that any person, who was born after 10.12.1959 as having been allotted with a site under EWS category. Petitioner who is ineligible for allotment with reference to cut off date having been allotted a site by mistake, after issuing show cause notice and considering her reply, the respondent has passed a reasoned order, as at Annexure-A. In the factual background, noticed supra, I do not find any ground to nullify the order, as at Annexure-A. In the result, the writ petitions being devoid of merit are dismissed with no order as to costs.