SMT VIJAYA PRABHU vs. BANGALORE DEVELOPMENT AUTHORITY

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF AUGUST 2012 PRESENT THE HON'BLE MR. JUSTICE K.L.MANJUNATH AND THE HON'BLE MR. JUSTICE V.SURI APPA RAO W.A. No.16686/2011 (BDA) BETWEEN : SMT VIJAYA PRABHU W/O LATE A.K. RAMACHANDRA PRABHU (A.K.R. PRABHU), AGED ABOUT 77 YEARS, R/AT NO. 581, 44TH CROSS I MAIN, JAYANAGAR 8TH BLOCK BANGALORE-560082. ...APPELLANT ( By SRI. C R PANDIT, ADV.) AND : BANGALORE DEVELOPMENT AUTHORITY (A BODY CORPORATE CONSTITUTED UNDER SECTION 3 OF THE BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 AND REPRESENTED BY ITS COMMISSIONER APPOINTED UNDER SECTION 12 OF THE SAID ACT, T. CHOWDAIAH ROAD, KUMARA PARK (WEST), BANGALORE-560020. ...RESPONDENT ( By SRI. G S KANNUR, ADV.)

2 This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, 1961, prays that this Hon'ble Court be pleased to set aside the impugned order dated 20th July 2011 passed by the learned Single Judge in W.P. No. 4460/2009 and consequently grant the reliefs prayed for by the appellant/petitioner in the said writ petition. This Writ Appeal coming on for Preliminary Hearing this day, K.L.MANJUNATH. J., delivered the following : JUDGMENT The appellant is the widow of one A.K. Ramachandra Prabhu. She filed the Writ Petition in W.P. No. 4460/2009 challenging the order passed by the B.D.A. as per Annexure 'A' dated 06.01.2009 cancelling the allotment of site bearing No. 581, 8th Block, Jayanagar which was allotted to her husband in lieu of the second allotment made by the Bangalore Development Authority another site No.949 at J.P. Nagar 2nd Phase, Bangalore. 2. Heard the learned Counsel for the parties. 3. The facts leading to this appeal are as hereunder : The appellant is the widow of one A.K. Ramachandra Prabhu, who died on 19.10.1998. In the year 1962 the then City Improvement Trust Board allotted site No.1331 at Jayanagar 4th 'T' Block, Bangalore to the husband of the appellant. The said site was

3 surrendered by him in view of allotment of another site bearing No.539 at Binnamangala Extension which site was also surrendered by him on account of allotment of site No. 581 in 8th Block, Jayanagar, Bangalore, which site was allotted on 03.08.1972. Subsequently, the husband of the appellant sought for an alternate site. Accordingly, on 26.04.1977 the B.D.A. has allotted site No. 949 in Sarakki now known as J.P. Nagar as per allotment letter dated 26.04.1977. Subsequently, a lease-cum-Sale Agreement was also executed in favour of the appellant's husband in respect of J.P. Nagar site on 03.08.1972. Thereafter, a house was built by her husband and an absolute sale deed in respect of site No.949 of J.P. Nagar was also executed by the BDA in favour of her husband. 4. The appellant's husband retired from the service as Chief Commissioner of Income Tax at Chennai. Without bringing to the notice of BDA about the subsequent allotment of site No. 949 at J.P. Nagar, a lease-cum-sale agreement in respect of Site No.581 of Jayanagar was obtained on 26.08.1986 and possession was taken on 27.08.1986 and house was constructed thereafter. 5. A Will was executed on 17.08.1996 by her husband

4 bequeathing the house property in J.P. Nagar as well as site bearing No. 581 of Jayanagar. Subsequently, the house in J.P. Nagar was sold on 26.10.2001 for a sum of Rs.82.00 lakhs which was later registered on 22.04.2002. 6. When an application was filed by appellant on 13.01.2004 before the BDA for execution of absolute sale deed in respect of site No. 581 of Jayanagar 8th Block, it was learnt by the BDA that the site No.581 at Jayanagar was cancelled and thereafter Site No.949 of Sarakki (J.P. Nagar) II Phase was allotted to the appellant's husband that the execution of lease-cum-sale agreement by the BDA is bad in law and informed the General Public not to deal with the property in question. Therefore, the appellant addressed a letter to the BDA on 14.12.2004. 7. On 16.12.2004 a show-cause notice was issued to the appellant by the BDA to show cause why the allotment of site No.949 of J.P. Nagar could not be cancelled, for which the appellant sent a reply on 17.01.2005 and after considering the reply as site No.949 of J.P. Nagar was not available for cancellation, an order was passed by the BDA cancelling the allotment of site No.581 of Jayanagar.

5 Challenging the order of cancellation of the site in question, the appellant filed writ petition in W.P. No. 9569/2006, which writ petition was allowed on 27.09.2007 granting liberty for the BDA to initiate fresh proceedings in accordance with law. Accordingly, a fresh show cause notice was issued on 18.01.2008 calling upon the appellant to show cause why the site No. 581 of Jayanagar 8th Block should not be confiscated. Considering the reply of the appellant an order of confiscation was passed by the BDA on 06.01.2009 as per Annexure 'A', which was questioned by the appellant before the learned Single Judge. 8. The learned Single Judge after hearing the parties came to the conclusion that site No.949 of J.P. Nagar was allotted in the year 1977 in lieu of the site No. 581 of Jayanagar 8th Block and the appellant's husband having obtained an alternate site at J.P. Nagar, the earlier allotment of site No.581 of Jaynagar 8th Block automatically stands cancelled. Accordingly, the learned Single Judge has confirmed the orders of the BDA and dismissed the writ petition. However, liberty is granted to the appellant to approach the BDA for fresh allotment of the same site and if such representation is given, it

6 is for the BDA to consider in accordance with law. Being not satisfied with the liberty granted to the appellant, the present appeal is filed. 9. The main contention of the appellant's Counsel before us is that, no fraud is played by the husband of the appellant either getting a site bearing No.949 at J.P. Nagar 2nd Phase allotted in his favour or in obtaining the lease-cum-sale agreement in respect of present site in No.589 of Jayanagar 8th Block and for no fault of the appellant, the appellant cannot be penalised after allowing her to complete the construction. Therefore, he contends that the learned Single Judge has committed an error in dismissing the writ petition by upholding the order passed by the BDA. 10. Learned Counsel for the respondent submits that the appellant's husband who was working as Chief Commissioner of Income Tax has been favoured by the respondent to allot a site of his choice. Ultimately, a site bearing No. 949 in J.P. Nagar 2nd Phase was allotted to him considering his in the Society by cancelling the earlier allotment and therefore, without bringing notice to the BDA the deceased husband of the appellant was managed to get the lease-cum-

7 sale agreement executed in respect of site No.581 in Jayanagar 8th Block from the BDA. The BDA having realised the mistake has rightly taken action to cancel the site bearing Site No.581 since J.P. Nagar site was allotted by the BDA. He also contends that a person is not entitled for double allotment. 11. Having heard the parties, we do not see any merits in this appeal for the following reasons : Considering the facts involved in this case, it is not in dispute that the husband of the appellant who was working in the Income Tax, at the first instance allotted a site bearing Site No.1331 in Jayanagar 4th 'T' Block and then at his request site No.539 in Binnamangala was allotted again. After surrendering the earlier site, a site No.581 at Jayanagar 8th Block was allotted and thereafter a site was also allotted in Koramangala at the request of the appellant's husband and after cancelling all these allotments, site No. 949 in J.P. Nagar, Bangalore was allotted to him. From these facts, it is clear that in favour of one person the CITB as well as the present BDA have allotted one after other by cancelling earlier allotment nearly five (5) sites and ultimately site No.949 in J.P. Nagar was the last

8 allotment. If the site in J.P. Nagar has been allotted as a last allotment it goes without saying that earlier allotment of sites stands cancelled and the documents which were in possession of the earlier sites appellant's husband was required to be surrendered. 12. It is not in dispute that as per the allotment rules, a person is entitled for allotment of only one site and not more than one. The appellant's Counsel does not dispute that a building was constructed on site No.949 at J.P. Nagar, which was later sold for Rs.82.00 lakhs and based on the earlier allotment the appellant's husband was able to manage get the agreement of sale executed in respect of site in question subsequent to construction of the house at J.P. Nagar. In all fairness, being an Officer of Income Tax Office should have surrender the earlier allotment letter in respect of site No. 581 of Jayanagar 8th Block. Instead of it, he was able to get the lease-cum- sale agreement in his favour and constructed the house thereafter. This has come to the notice of the BDA only when the application was filed for execution of the sale deed. If the appellant had not made an application for obtaining the sale deed from BDA, the BDA would have not learnt double allotment of site in favour of one

9 person. 13. Therefore, the respondent – BDA gave an option to surrender the site No.949 of J.P. Nagar. But the appellant is unable to surrender the same because she has also sold the same to third party by receiving a consideration of Rs.82.00 lakhs. Under such circumstances, if the BDA hs cancelled the earlier allotment order no one can compel the BDA not to cancel the earlier allotment in view of second allotment by allowing the appellant to continue and enjoy the property in question. The Court cannot find fault with the action of B.D.A. Therefore, we do not see any merits in this appeal. 14. Accordingly, this writ appeal is dismissed. The dismissal of this writ appeal shall not come in the way for the appellant to approach the BDA as directed by the learned Single Judge. Sd/- JUDGE. Sd/- JUDGE. Rbv