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2022 DIGILAW 734 (KAR)

H. S. Mallesh v. Commissioner

2022-06-10

SURAJ GOVINDARAJ

body2022
JUDGMENT 1. Petitioner is before this court seeking for the following reliefs: a) Issue a Writ of Certiorari or any other appropriate writ order or direction quashing the Sub-Committee decision dtd. 29/7/2011 and 10/1/2012 of the Respondent vide Annexure-'D and D1'; b) Issue a Writ of Mandamus or any other appropriate order or direction directing the Respondents to allot a smaller dimension site measuring 20 feet x 30 feet in favour of the Petitioner as per Rule -3 of BDA (Incentive Scheme for voluntarily surrender of land) Rules, 1989, vide subject No.125/2011 vide Annexure-C dtd. 12/2/2011. 2. The petitioner is the owner of land bearing Sy.No.10 measuring 0.12 guntas of Ramasandra Village, Kengeri Hobli, Bengaluru South Taluk. The said land came to be acquired under a preliminary notification published on 23/5/2002. The petitioner having voluntarily surrendered the land under acquisition made an application in terms of Rule 3 of BDA (Incentive Scheme for voluntarily surrender of land) Rules, 1989 (herein after refer to as "Incentive Rules") for allotting of a site. 3. The contention of the petitioner is that on such application being made, a site was allotted in favour of the petitioner and his three brothers namely Sri.H.S.Renukaradhya, Sri.H.S.Jaishankar and Sri.H.S.Rudraradhya. 4. The grievance of the petitioner is that since all the four brothers were notified as khathedars of aforesaid survey number in terms of Rule 3 afore mentioned each of the brothers ought to have been allotted individual sites and one site could not have been allotted in the joint name of all the notified khathedars. 5. Sri.Nagaiah, learned counsel for the petitioner refers to and relies upon Rule 3 and contends that each and every notified khathedar would be eligible for an individual site in terms of the incentive scheme and he, therefore submits that the rejection of the claim of the petitioner for allotment of individual site in the name of the petitioner is bad-in-law and it requires to be quashed as well as mandamus be issued directing the respondents to allot an individual site in favour of the petitioner. 6. Learned counsel for respondents submit that such a claim is not permissible in as much as the incentive scheme is applicable to land acquired and in respect of notified khathedars. As such rejection by the authority is proper. 7. Heard the learned counsel for the petitioner and learned counsel for the respondents. 6. Learned counsel for respondents submit that such a claim is not permissible in as much as the incentive scheme is applicable to land acquired and in respect of notified khathedars. As such rejection by the authority is proper. 7. Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the material on record. 8. Rule 3 of the Incentive Scheme is reproduced here under for easy reference: "3. Allotment of sites - Notwithstanding anything to the contrary contained in the Bangalore Development Authority (Allotment of Sites) Rules, 1984, and subject to the provisions of Rule 4, the Authority, with a view to facilitating expeditious acquisition of land, may as per Annexure appended to these rules, allot sites as incentives to an owner of land - (i) if, in response to the notice given under Sec. 9 of the Land Acquisition Act, 1894, he voluntarily hands over to the Deputy Commissioner possession of the land, which is being acquired from him under the said Act on behalf of the authority, free from any objection whatsoever and from any unauthorised construction and the said land has vested in the Authority; or (ii) where his land has been acquired by the authority under Sec. 35 of the Act: Provided that where two or more persons jointly own such land, unless all such persons have voluntarily handed over possession in accordance with these rules, no eligibility for allotment shall accrue to any one of them." 9. Annexure to the Incentive Rules reads as under: Dimensions of sites proposed to be granted to original land owners by the Bangalore Development Authority under the Incentive Scheme. Sl. No. Extent of land voluntarily surrendered by the original landowners to the BDA Dimensions of sites proposed to be granted under the Incentive Scheme by BDA 1. Upto half acres 20’ x 30’ 2. More than half acre but not exceeding one acre 30’ x 40’ 3. More than one acre 40’ x 60’ at the rate of one site per acre but not exceeding ten sites. 10. Form -1 of the said Rules reads as under: Form I Application Form for allotment of Site under Bangalore Development Authority (Incentive Scheme for Voluntary Surrender of land) Rules, 1989 1. Name of the applicant (in block letters) 2. Father’s name/Husband’s name 3. Date of Birth 4. Address of the Applicant 5. 10. Form -1 of the said Rules reads as under: Form I Application Form for allotment of Site under Bangalore Development Authority (Incentive Scheme for Voluntary Surrender of land) Rules, 1989 1. Name of the applicant (in block letters) 2. Father’s name/Husband’s name 3. Date of Birth 4. Address of the Applicant 5. Names and addresses of all the persons interested in the land 6. Particulars of the lands proposed To be acquired/purchased (a) Survey Number (b) Location (c) Extent (d) No., date and particulars of Notification of acquisition of land 7. Particulars of the land Voluntarily surrendered: (a) Survey Number (b) Location (c) Extent 8. Particulars of title of the applicant To the land (copy of the deed shall be Enclosed) 9. Encumbrances, if any, on the land. 10. Demand Draft/Challan No. and  Date under which Application fee of Rs.100 (Rs.One Hundred only) is paid Place: Signature of the applicant/s Date: 11. The reading of Rule 3 in conjunction with Annexure and Form-1 of the Incentive Rules would indicate that the classification is as regards the lands voluntarily surrendered by the original land owners. There is no classification as regards the number of land owners who surrendered their land. 12. The classification is as per the extent of land voluntarily surrendered that is to say when land to an extent of half acre is voluntarily surrendered, a site measuring 20" x 30" would be granted under the Incentive Scheme, if more than half acre but not exceeding one acre, a site measuring 30" x 40" would be granted under the Incentive Scheme and for land surrendered more than one acre, site measuring 40" x 60" at the rate of one site per acre but not exceeding ten sites would be granted under the Incentive Scheme. That is to say, that even in the event of more than eleven acres being surrendered, maximum number of sites that could be allotted is ten sites measuring 40" x 60". 13. This makes it clear that the allotment of sites under Incentive Rules and Incentive Scheme is only in so for as the land surrendered and does not have any reference or co- relation to the number of persons who surrendered the land. 14. Thus, I am unable to accept the submission of learned counsel for the petitioner Sri. 13. This makes it clear that the allotment of sites under Incentive Rules and Incentive Scheme is only in so for as the land surrendered and does not have any reference or co- relation to the number of persons who surrendered the land. 14. Thus, I am unable to accept the submission of learned counsel for the petitioner Sri. Nagaiah., that for land measuring 0.12 guntas surrendered since there are four owners each of them would be entitled to a site measuring 20" x 30". The purport and ambit of the scheme has been discussed above, the land surrendered being less than half acre it is only one site measuring 20" x 30" which can be granted. 15. Since, there are four Khathedars, the site measuring 30" x 20" would have to be granted in favour of all of them jointly in terms of Incentive Rules and Scheme. However, in the event of all four brothers submitting a request for grant of site in the name of the one of the brothers, the same can be favourably considered by the BDA while granting the site. 16. In view of the above, I find no merits in the writ petition. Petition stands dismissed.