Bangalore Development Authority vs H.P. Darshan

Ravi V. Malimath, J.—Aggrieved by the order dated 7.11.2012 passed by the learned Single Judge in W.P. No. 34083/2011 (BDA) allowing the petition and directing the BDA to execute the sale deed in terms of the allotment order, respondent BDA before the learned Single Judge has filed this appeal.

By notification dated 9.9.2003, BDA had invited applications for allotment of sites in Sir M. Vishweshwaraiah Layout. Respondent had applied for the same and by order dated 24.1.2004, a site was allotted to him. BDA, however did not execute the sale deed and did not complete the formalities. Hence, he made a representation for the same. By an endorsement dated 23.8.2011, he was informed that the allotment made in his favour ought to be cancelled since he was an applicant on the first occasion. Hence, the instant writ petition was filed seeking to quash the endorsement. During the pendency of the writ petition, same was amended to include a prayer to cancel the order of the BDA cancelling the allotment.

Learned Single Judge allowed the petition by holding that there was no fault of the petitioner in seeking the allotment and that there is no fraud or misrepresentation by him. Allotment has been legitimately made and therefore BDA cannot interfere with the same. Therefore, BDA was directed to execute the sale deed.

The learned counsel for the appellant-BDA contends that the impugned order is bad in law and liable to be set aside and that the learned Single Judge has committed an error in directing the appellant to execute the sale deed as well as to set aside the order of cancellation.

On the other hand, Sri. Virupakshaiah, learned counsel for the respondent defends the impugned order.

The material on record would show that there was no misrepresentation or any false information furnished to the BDA. Annexure-A is the application made by the respondent. Column-17 is with reference to the number of attempts made for allotment of sites and there is no entry to the same. In column-21 with reference to the details of the previous attempts made to the BDA, respondent has stated "NIL". Therefore, the application filed by him cannot be said to be incorrect. He has very clearly stated that he has not made any attempts earlier. Therefore, no fraud or misrepresentation can be attributed to him. Therefore, cancellation of the allotment by the BDA on the ground of misrepresentation of facts is incorrect.

The learned Single Judge has rightly held that the BDA is not entitled to cancel the same. The learned Single Judge was also of the view that no particulars are furnished by the BDA in the statement of objections of any person who was denied allotment purely because the respondent has been allotted a site. Further, there is no material produced to indicate that there is any inadvertent mistake committed by the BDA in allotment of the site. Therefore, the Rule sought to be invoked by the BDA cannot be used to deny the allotment made in favour of the respondent. Therefore, once the site is allotted in accordance with law, the same cannot be disturbed.

We are in complete agreement with the reasoning assigned by the learned Single Judge since the same is based on law and facts. Even on examination of the application for allotment in terms of Annexure-A to the writ petition, we are of the considered view that the BDA was not justified in cancelling the allotment.

Further the contention of the appellant is that initially, the writ petition was filed seeking to quash the endorsement dated 23.8.2011 rejecting the plea of the respondent. Thereafter, by virtue of an amendment, the cancellation of allotment was sought to the challenged. Allotment was cancelled in the year 2005 and the writ petition was filed in the year 2011. Hence, there was a delay in challenging the endorsement. Hence, the writ petition requires to be rejected on the ground of delay and laches itself as contended in paragraph-3 of the additional statement of objections filed by the appellant-BDA. We have considered the same.

There is no material to show that even though objections were filed by the BDA, the same were contested before the learned Single Judge. Each and every objection in the pleadings cannot form a determination by the Court until and unless they are contested. Pleadings do not necessarily mean stating so in the written objections. They have to be argued and contested before the Court. Therefore, the contention of the appellant that the question of delay has not be considered is highly inappropriate. Since the said contention has not been argued before the learned Single Judge, the same cannot be permitted to be argued for the first time before the Appellate Court.

Even otherwise, we are of the considered view that the delay per se cannot be held against the respondent. Even though the cancellation was in the year 2005, there is substantial material to show that the request was made to the appellant - BDA for rectification of the error. It is only in the year 2011 that an endorsement was issued declining the request of the respondent. Therefore, it cannot be said that there was delay in challenging the same.

A litigant is not expected to rush to the Court on any endorsement issued by the appellant. Respondent has made efforts to persuade the BDA to act in his favour. Therefore, the delay is not advantageous to the appellant-BDA and cannot be held against the respondent. Hence, on this ground also, we are of the considered view that there is no merit in the appeal.

Consequently, appeal is dismissed.