VASANTHAA W/O. LATE D. KRISHNA Vs. THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY AND COMMISSIONER B.B.M.P.

JUDGEMENT

(1.) AFTER having heard the learned Counsel for the parties on 4.2.2011, the following order was passed: The Petitioner's husband by name D. Krishna when allotted site No. 194 in the industrial suburb II Stage. Bangalore, under allotment letter dated 23.11.1979 Annexure -"A", though paid the entire sital value, was neither issued with a Possession Certificate nor put in possession of the site by the Respondent - BDA, leading to filing W.P. No. 2794/1985 which when allowed by order dated 25.07.1986, the Respondent was directed to hand over the possession of the site. The BDA did not comply with the order but issued letter allotting Site No. 141/B calling upon the Petitioner's husband to surrender the original allotment letter Annexure -"A" while adjusting the amount paid towards value of Site No. 194 against the value of the site No. 141/B. It appears, Petitioner's husband died on 4.11.1988 pursuant to which the Petitioner sought transfer of katha and paid the necessary charges. The Respondent - BDA filed Civil Petition No. 338 and 339/1989 stating that an alternate site was allotted to the Petitioner's husband, which when accepted by this Court, modified the order dt. 25.7.1986 in W.P.2794/1985. The Petitioner having noticed a Board erected on Site No. 141/B stating that it was subject matter of litigation, sought allotment, of an alternative site by letter dated 31.01.1998 Annexure -"E" The Respondent, by letter Annexure -'F' dated 19.05.2008, called upon the Petitioner to furnish copies of the order judgment passed in O.S. No. 5047/1989 and 5048/1989, which was responded by letter dt. 22.7.2008 Annexure -'G' stating that the records in the suit were destroyed and hence unavailable, nevertheless sought for possession of the said site. Thereafterwards, by endorsement dated 15.06.2009 Annexure -"H", the Respondent - BDA stated that the Petitioner having failed to protect the site bearing No. 141/B, it was resolved to reject the "request for allotment of an alternate site. The copy of the resolution No. 165/2009 dt.21.5.2009 Annexure -J is said to have been obtained by the Petitioner, under the Right to Information Act. The Respondent - BDA by resolution dated 6.6.2009 Annexure -'K', resolved that in continuation of the resolution Annexure -J, to recover possession of the said site. Again, by endorsement dated 22.07.200:9 Annexure -"L", the BDA informed the rejection of the Petitioner's request for allotment of an alternate site and to take over possession of the site. Hence, the petition for the following reliefs: a) To issue a writ of certiorari or any other appropriate writ, order or direction, quashing the Endorsement at Annexure -'H' dated 15/6/2009, Annexure 'L' dated 22/7/2009 issued by Respondent and also resolutions at Annexure 'J' and 'K' dated 21/5/2009 and 6/6/2009 respectively of Respondent, b) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent to allot an alternative site in lieu of Site No. 141/B: Industrial Suburb, 2nd Stage, Bangalore and 'deliver possession. c) To grant any such order or direction as this Hon'ble Court deems fit to grant in the facts and circumstances of the case in the interest of justice and equity. The petition is opposed by filing Statement of objections dated 'nil' filed on 4.11.2009 of the Respondent interalia admitting the fact that the Petitioner's husband by name D. Krishna was allotted Site No. 194 measuring 90' x 100' under allotment letter dated 23.11.1979 and the filing of W.P.2794/1985 for a mandamus to hand over possession of the said site followed by the order dated 27.05.1986 of this Court and the BDA filing C.P. No. 338 & 339/1989 stating that Site No. 194 was unavailable and an alternate site allotted in its place which when accepted, this Court modified the order in W.P.2794/1985. According to the Respondent, the Petitioner instead of taking possession of site No. 141/B, made a representation dated 31.1.1998 to allot an alternate site contending that, the said site was subject matter of litigation. Respondent -BDA is said to have called upon the Petitioner to substantiate her contention over the pending litigation by producing copies of the judgments which is said to have been produced and on enquiry found no litigation over Site No. 141/B and therefore, order was issued on 12.12.2008 to transfer Site No. 141/B in favour of the Petitioner. Respondent further states that Petitioner made yet another representation dated 19.12.2008 requesting allotment of an alternate site in place of Site No. 141/B whence the Executive Engineer, West Division conducted a spot inspection and reported that stones and mud had covered the site and that Rs. 34.20 lakhs was required to remove the debris collected and for forming the road, in addition, it is stated that the entire layout was handed over to the Bangalore Mahanagara Palike and being under its administrative control and supervision, a request was made to undertake the said work by letter, dated 24.03.2009 of the BDA. It is lastly stated that since the Petitioner failed to protect the said site, the BDA by resolutions Annexures "J" and "K" decided to take possession of the said site after extending a reasonable opportunity of hearing to the Petitioner. The Petitioner filed a rejoinder dated 7.12.2009 specifically contending that since possession of the site was not delivered, there was no question of protecting the site. The estimate of the BDA Engineer for removal of the stones and mud in the site requiring Rs. 34.20 lakhs is said to speak volumes of the true state of affairs of the alleged formation of a layout. According to the Petitioner, the aforesaid sum is much more than the value of the site. The Respondent - BDA filed I.A. under Section 151 Code of Civil Procedure to grant three months' time to remove the debris stacked on the property allotted to the Petitioner and also to form an access road for ingress and egress to and from the property. In the affidavit dated 28.09.2010 sworn to by one G.K. Ravindra said to be the Assistant Executive Engineer states that on 2.9.2010, this Court directed the BDA to dear the debris stacked on the property and directed the matter be relisted on 4.9.2010, whence the Commissioner directed to take necessary action within 10 days and report the action taken, before this Court. Again on 16.09.2010, when the directions of the Commissioner of BDA was brought to the notice of this Court, time was granted till 30.09.2010 whence the deponent, along with the other concerned officials, visited the spot, conducted a detailed survey and found that the debris was to a height of 20 to 25 ft. dumped over the schedule property and the estimated cost for undertaking the work was Rs. 34.20 lakhs which was revised to Rs. 19.45 lakhs - and placed before the Finance Department and the BDA required three months' time for calling tenders to have the work carried out. The BDA, by memo dated 30.09.2010 enclosed an estimate for removal of earth including boulders in the site in question. Yet again, by another memo dated 3.9.2010, enclosed a detailed estimate for removal of the debris, earth including boulders and the mud and stones. On 31.1.2011, the 1st Respondent -BDA filed a memo enclosing photocopies of photographs stating that action was initiated whence debris was removed and an access road (Kacha road) was formed for ingress and egress to and from the property in question. The 1st Respondent also filed an additional Statement of objections dated 31.01.2011 interalia reiterating the averments set out in the statement of objections and in addition, that though letter was addressed on 7.11.1987 Annexure -R1 to the Petitioner's husband to complete all formalities regarding allotment within three days, nevertheless he did not take steps to secure the Possession Certificate or the lease -cum -sale agreement. According to the BDA, Peenya Industrial Area, Bangalore was formed in the year 1979 and access to industrial Plot No. 141/B was provided by forming 'asphalted road'. It is alleged that though the Petitioner's husband died on 4.11.1988, nevertheless in C.P. No. 338 & 339/1989, the deceased was represented by an Advocate. The Petitioner, it is stated, sought transfer of Site No. 141/B into her name only in the year 1994 and executed the affidavits, request letter and Indemnity Bond Annexures R2 to R5. It is further stated thus: It is admitted that the Petitioner's request was unfortunately not processed as there was litigation on the said property at that particular point of time and thereafter, litigation was cleared and presently, there is no litigation.It is the assertion of the BDA that the Petitioner's husband having not taken possession of the Site No. 141/B, debris Was dumped on the said site and the access road to the property by the general public, which presently is said to have been cleared by the BDA. It is admitted that though the Petitioner made an application in the year 1998 for allotment of an alternate site, was considered in the year 2008 whence a spot inspection was conducted, property identified, mahazar drawn as at Annexure -"R6". Thereafter, by endorsement Annexure -"R7", the Petitioner was informed of the resolution to transfer Site No. 141 /B into the name of the Petitioner. The Petitioner, by letter dated 19.12.2008 Annexure -"R8" complained that there was a litigation on the said property and that the site was not suitable for industrial use as it was filled with debris. In Paragraph 9 of the additional statement, it is asserted that the BDA handed over the layout to the BBMP and requested it to take necessary action on the Petitioner's request by letter dated 21/24.03.2009 Annexure -"R9". BDA, it is claimed, extended 'fullest co -operation to the Petitioner' and that the Petitioner refused to take possession of the property while insisting for allotment of an alternate site by letters dt. 24.3.2009, 2.6.2009 and 20.6.2009 Annexures "R10" to R12" respectively. In that view of the matter, the BDA is said to have cancelled the allotment by the order Annexure -"L". It is further reiterated that it was due to the Petitioner's husband's fault that debris was collected on the industrial plot No. 141/B and that all developmental works in the entire layout was completed in the year 1987 and on account of the negligence of the Petitioner's husband, there was wastage. According to the BDA it was the Petitioner's fault in not initiating steps to complete the necessary legal formalities for taking possession of the property and therefore, the allotment was cancelled. In paragraph 11, it is stated that the schedule property falls within the jurisdiction of the BBMP and the BDA has provided a road and necessary facilities at the time of forming of the layout and that in terms of the directions issued by this Court, debris from the site and access road leading to the property was removed by incurring cost of Rs. 19.45 lakhs. The BDA further states that for asphalting the road and providing facilities like underground drainage system, etc., requires an expenditure of more than Rs. 75 lakhs, that too only for one. site and therefore, a decision is necessary. The BDA further claims that due to the negligent attitude of the Petitioner's husband, it may be exempted from incurring huge expenditure from developing the site in question and therefore, may not direct it to metal/asphalt and provide all the facilities. The BDA filed a memo dt. 31.1.2011 which reads thus: MemoThe First Respondent above named respectfully submits as follows: The First Respondent respectfully submits that pursuant to the application instituted by the First Respondent seeking time to remove the debris stacked in the property allotted to the Petitioner and to form an access road for ingress and egress to the said property, action was initiated and the debris has been removed and an access road (Katcha road) has been formed for ingress and egress from the said property, which is the subject matter of the Writ Petition. The photographs of the road and of the site are enclosed herewith, for the kind perusal of this Hon'ble High court.;' Heard the learned Counsel for the Petitioner and perused the pleadings. Without having to reiterate the facts supra, suffice it to notice that Site No. 141/B said to have been formed in the industrial suburb II Stage, Bangalore, layout by the BDA, was allotted as an alternate site in lieu of Site No. 194 measuring 90' x 100' allotted under letter dated 23.11.1979 in favour of one D. Krishna, the Petitioner's husband since deceased. When possession was not delivered, the Petitioners husband filed W.P.2794/1985, whence this Court by order dt. 25.7.1986 directed the BDA to deliver possession of the site. The BDA filed C.P.338 -339/89 stating that since Site No. 194 was not available, an alternate Site No. 141/3 was allotted which was accepted and the order in Writ Petition modified accordingly. Petitioner's husband died on 4.11.1988, and did not secure the fruits of litigation and therefore, the Petitioner sought for transfer of the said site in her favour in the year 1994. Thereafter having noticed a Board fixed on the site that it was under litigation, made a request for allotment of an alternate site. The BDA admitting the fact of litigation, slept over the matter for ten long years and in the year 2008, by order dated 12.12.2008, directed transfer of Site No. 141/B in favour of the Petitioner. The fact that on 19.12.2008, when the Executive Engineer, West Division conducted a spot inspection of the site, found debris up to 20" to 25' high, covered with stones and mud requiring huge expenditure for removal is also admitted. Though in the Statement of objections, the BDA admitted the said facts, nevertheless, in the Additional Statement of objections, sought to retract from the admissions and blamed the Petitioner's husband since dead, of being negligent in not taking possession of the site within three days of the letter dt. 7.11.1987 made though such pleadings are not made in the C. Ps filed in the year 1989 by the BDA. Yet again, negligence having not been taken as a defence at the earliest opportunity in the year 1989, cannot be urged at this distance of time, more appropriately since such allegations cannot be tested as the Petitioner's husband is now dead and gone. Even otherwise the CPs were ordered during the year 1989 -90 modifying the order in the writ petition. Thus it cannot be said that the Petitioner's husband was negligent. So also, the allegation of negligence of the Petitioner is incorrect since it is an admitted fact that site No. 141/B was under litigation. In addition the contention that debris was collected on the site due to negligence of the Petitioner is unacceptable. Except for the assertions in the Statement of objections that a layout was formed, roads laid out, there is not a titre of evidence to substantiate the said fact. There is also no evidence to establish a fact that debris including huge stones and mud collected on the site in question was by general public. Question therefore arises that if it was general public who were the cause for the debris and the site was in the possession of the BDA, including the roads and civic amenities, then what was the BDA doing and who is accountable? The BDA by merely making an allegation against general public is no justification for not having maintained the layout with due diligence. That contention too must necessarily fail. It is not in dispute that a kacha road is formed in front of Site No. 141/B at a cost of Rs. 19.45 lakhs during the pendency of this proceeding. If truly there was an 'asphalted road', that would have surfaced on clearing the debris. In other words, there existed no 'asphalted road' and therefore, a kacha road was formed. It is not in dispute that asphalting of the road and providing facilities of underground drainage system, water connection, requires an expenditure of more than Rs. 75 lakhs, as set out in Paragraph 11 of the Statement of objections. If that is so, in the fact situation, all these facilities and amenities, it must necessarily be inferred, were never in existence in the alleged layout at any time, much less in the year 1979. At this stage, the only impression that can be gathered is that the BDA has suppressed material facts. There can be no more doubt in my mind that the BDA failed to address the grievance of the Petitioner's husband in the first instance and thereafter that of the Petitioner requiring the Petitioner to institute the present petition to set -aside the cancellation of Plot No. 141/B by resolutions Annexures "J" and "K" as communicated by order Annexure -"L". According to the Respondent - BDA, since the Petitioner did not initiate steps to complete the legal formalities over securing possession of Plot No. 141/B has resulted in cancellation of allotment, in the circumstances, is illegal and arbitrary. The BDA having failed to comply with its statutory duties, sought: to cancel the allotment of the site by alleging negligence on the Petitioner and her deceased husband. This speaks volumes of the nature of business carried on in the BDA. At this stage, learned Counsel submits that he will produce the records. In that view of the matter, list on 11.02.2011.

(2.) THEREAFTERWARDS , the Respondent -Bangalore Development Authority cleared the debris, formed the road and asphalted it and by letter dated 3.9.2011, of the Respondent -BDA, Petitioner was allotted a site and the Respondent was willing to put the Petitioner in possession as also execute the sale deed.

(3.) IF the Petitioner is aggrieved by the letter dated 3.9.2011, may question the same in an appropriate legal proceeding, if so advised. I.A. No. 2/2011, is accordingly rejected.