N R SRIDHAR Vs. BANGALORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THE admitted facts are that the BDA had originally allotted the land to the Legislators Housing Co-operative Society under Section 38-B of the Bangalore Development Authority Act, 1976 (for short 'the Act'), with a direction to allot to its members. Accordingly, the safety formed a layout and allotted one site to G. P. Nanjayyana Math who in turn sold the same to Smt. B. S. Lakshmi Devi by registered sale deed dated 15-2-1996 as per Annexure-B and subsequently khata was changed to the name of Smt. B. S Lakshmi Devi as per Annexure-C. Thus Smt. B. S. Lakshmi Devi became the absolute owner of the property. Encumbrance certificate to that effect is produced as per Annexure-D. Lakshmi Devi died on 21-1-1999 and her death certificate is produced as per Annexure-E. The petitioner and her 3 daughters (i. e. , the sisters of the petitioner) are the only legal heirs of Lakshmi Devi. The petitioner's sisters waived their right over this property as per the copy of the affidavit filed in this case as per Annexure-F. The plan as per Annexure-G was sanctioned in favour of the purchaser. However, the construction work could not be taken up as Writ Petition No. 31227 of 1996 (PIL) (S. Vasudeva v Government of Karnataka and Others1) was pending before this Court. Virtually, the said writ petition came to be allowed by this Court with necessary directions. The said order was questioned before the Hon'ble supreme Court in Civil Appeal Nos. 456 to 458 of 2000 (Commissioner, bangalore Development Authority v S. Vasudeva and Others2) and their lordships of the Supreme Court allowed the civil appeal as per Annexure-H, the copy of order dated 18-1-2000. Thereafter the 1st respondent sent a letter dated 27/28-10-1995 to the 2nd respondent in No. BDA/a/315/95-96 as per the direction of the Apex Court to pass an order enabling the 1st respondent to regularise the sites purchased by the third parties from the original allottees on the strength of the order passed by the 2nd respondent. A copy of the same is produced as per annexure-J. Subsequent to the quashing of the order passed by the High court in Writ Petition No. 31227 of 1996 by the Apex Court, the petitioner had obtained house building loan of Rs. 4. 00 lakhs from the KSFC in which Corporation the petitioner is working as Deputy General Manager and also got released a sum of Rs. 70,000/- from his P. F. account to commence construction work in the petition schedule property after revalidating the sanctioned plan as per Annexure-G and khata also was changed in his name. He has produced the copy of the house building advance sanctioned on 24-5-2000 and P. F. withdrawal order dated 1-4-2000 as per Annexures-K and L respectively. In the meantime, the respondent issued a notice dated 21-8-2000 in No. BDA/ds/adm/24/2000-01 as per Annexure-A. The petitioner has questioned the same in this writ petition. Therefore, the petitioner seeks for the following reliefs: (a) Issue a writ in the nature of certiorari to quash the notice dated 21-8-2000 received on 21-9-2000 issued in No. BDA/ds/adm/24/2000-01 by the first respondent as in annexure-A; issue a writ in the nature of mandamus directing the 1st respondent to permit the petitioner to put up construction in the petition schedule property by following the due process of law and for such other reliefs.

(2.) THOUGH sufficient time was granted to the respondents; none of the respondents filed any objection in this petition. However, the learned Advocates appearing for the respective respondents vehemently argued opposing this petition.

(3.) SRI D. S. Joshi, the learned Counsel for the petitioner has vehemently argued that the petition schedule site which is the subject-matter of sale deed dated 15-2-1996 as per Annexure-B was one of the 11 sites for which the 1st respondent made recommendation under Rule 14 (3) of the BDA Allotment of Sites Rules, 1982 (for short 'the Rules') to the 2nd respondent who in turn approved and sanctioned on various dates, recommendation was accepted and sanction was communicated as per Annexure-J, dated 28-10-1995. This was not the subject-matter of the challenge in Writ Petition No. 31227 of 1996 before this Court. The hon'ble Supreme Court did not pass any orders in respect of these 11 persons detailed in Annexure-J. The order of the Supreme Court was confined to only 13 members of the society in whose case permission was directly given by the 2nd respondent without having any recommendation from the 1st respondent as envisaged in Rule 14 (3) of the Rules. The Hon'ble Supreme Court directed to recover 25% of the sital value from the 13 purchasers authorising the 1st respondent to issue notices within 8 weeks from the date of order viz. , 18-1-2000 to these persons. It was received by the 1st respondent on or before 8-2-2000. Therefore, the notice dated 21-8-2000 as per Annexure-A is contrary to the order passed by the Hon'ble Supreme Court in Civil Appeal Nos. 456 to 458 of 2000 and is liable to be quashed. The steps taken by the 1st respondent on incongruous advice is without jurisdiction. Therefore, the steps taken by the 1st respondent is without the authority of law and jurisdiction offending Article 14 of the Constitution. Inclusion of the name of the purchaser and 10 others in the letter dated 27/28-10-1995 as in Annexure-J along with 13 others to whom permission was given by the 2nd respondent to purchase sites ignoring the existence of the 1st respondent will not give authority to the 1st respondent to modify the judgment of the Apex Court order dated 18-1-2000. Therefore, Annexure-A is bad in law and is not sustainable. The Apex Court concluded that in the matter of according permission to sell the site is a case of usurping the power of authority established under a statute. Therefore, it is argued that it is not a case in respect of 11 persons including the petitioner. Such being the finding of the Supreme Court directing the petitioners to pay a sum of Rs. 5,35,000/- within a time frame is illegal and opposed to the rule of law. Petitioner also contends that the notice itself is illegal having not been issued within the time frame fixed in the operative portion of the order of the Apex Court dated 18-1-2000. Petitioner is not liable to pay as the recovery of such amount is not permissible in law. Therefore, he submitted that the notice, Annexure-A be quashed.