NAYANA B MEHTA Vs. BANGLORE DEVLOPMENT AUTHORITY

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned Single Judge dated 4-7-2007 passed in W. P. No. 23667/ 2005 rejecting the prayer of the petitioner/ appellant for direction to the respondent No. 1 to allot alternative site No. 4099, banashankari II Stage, Bangalore and for completing the formalities in respect of said alternative site or for ejectment of 3rd respondent from Site No. 83 of Kattariguppe, banashankari III stage, Bangalore.

(2.) THE facts leading to the presentation of this appeal as set out by the appellant, are as under: by Notification dated 3-12-1992 the Bangalore Development Authority (for short 'the bda') proposed to auction corner sites carved in the acquired land bearing Sy. Nos. 17,134/ 2 and 120 of Kattariguppe, Banashankari III stage, Bangalore, on 23-12-1992. In respect of Site No. 83 totally measuring 297. 32 sq. mts. which was also proposed for auction, the appellant was the highest bidder and his bid at Rs. 1930/- per sq. mts. was accepted. The total cost of the site at that rate was Rs: 5,73,828/ -. As per the contents of the Notification and the relevant rules, the appellant deposited Rs. 1,43,500/- being 25% of the total cost of the site on the date of auction and the balance amount was payable within 45 days from the date of confirmation. By resolution dated 27-1-1993, the BDA confirmed the auction sale of Site No. 83 in favour of the appellant and the said resolution was communicated to the appellant on 29-1-1993 and she was called upon to pay Rs. 4,30,328/-being the balance 75% of the amount within 45 days from the date of receipt of the said notice. The appellant deposited Rs. 3,80,000/-on 29-1-2003 itself and another sum of Rs. 50,328/- on 16-3-1993. Thereafter the BDA executed sale agreement on 16-3-1993. Thereafter the BDA executed sale agreement on 4-1-1994 in respect of site No. 83 and also issued possession certificate on 18-6-1994. In the meanwhile, the 3rd respondent claiming to be in unauthorised occupation of site No. 83, sought regularisation of the unauthorised* constructionput up by him on the site in question under the provisions of the Karnataka regularization of Unauthorised Construction in Urban Areas Act, 1991 before the appropriate authority. The 3rd respondent also approached this Court in W. P. No. 25654/1994. In the said writ petition, a direction was issued to the authorities to consider the application of the 3rd respondent herein and further direction was issued not to demolish the construction existing thereon until the application for regularisation is decided. Pursuant to the said direction, the competent authority considered the request of the 3rd respondent and by order dated 25-10-1996 rejected the request of the 3rd respondent for regularisation of unauthorised construction. Against the said order an appeal was filed by the 3rd respondent under Section 8-A of the said Act before the Appellate Authority. The Appellate Authority by order dated 17-3-1997 remanded the. matter to the competent authority to consider the matter afresh. After remand, the competent authority by order dated 17-9-1997 rejected the prayer of the 3rd respondent. The appeal filed against the said order also came to be dismissed and thus, the request of the 3rd respondent for regularisation of unauthorised construction came to be rejected by the competent authority.

(3.) IN the light of the claim made by the 3rd respondent as stated above, the appellant by her letter dated 17-9-1995 requested the BDA to remove the unauthorised construction and to deliver vacant possession of site to her. The said letter was followed by series of requests and letters to BDA. However, the BDA did not consider the request of the appellant for removal of unauthorised construction and to deliver vacant possession of site to her. Under these circumstances, the appellant by her letter dated 24-4-2002 requested the BDA for grant of alternative site as her request for removal of unauthorised construction on Site no. 83 and to place her in possession of the same had not been considered favourably. Pursuant to her request, the BDA decided to allot site No. 4099 measuring 2400 sq. ft. situated at Banashankari II Stage to the appellant as alternative site, in lieu of Site No. 83 and the same was intimated to her by letter dated 12-6-2003. As the alternative site allotted was smaller in size than the site which the appellant had purchased in public auction, the appellant through her letter dated 16-6-2003 requested the BDA to clarify the difference in area and to identify the alternative site so as to complete the formalities. On physical verification of the alternative site, it was found that it was adjacent to a slum. Therefore, the appellant again made a request to BDA to allot any other site if possible similar in size of the site purchased by her in the public auction. As there was no reply in this regard, the appellant by her letter dated 14-9-2004 requested the authorities to suggest the formalities which she is required to comply with so as to occupy the alternative site. However, the appellant received the endorsement dated 1-2-2005 from the BDA intimating her that her request for allotment of alternative site is rejected and she was called upon to submit all the documents and to take refund of the money. Being aggrieved by the endorsement dated 1-3t2005 issued by the BDA, the appellant filed W. P. No. 23667/2005 seeking issue of writ of certiorari to quash the said endorsement dated 1-3-2005 produced at annexure-L to the writ petition and for the issue of writ of mandamus directing the BDA to complete the formalities for allotment of alternative site No. 4099 or in the alternative to direct the BDA to remove the unauthorised construction found on site No. 83 and to de-liver vacant possession of the said site to her.