H.N. Raghunatha vs The Bangalore Development Authority

Hon''ble Mr. Justice Ashok B. Hinchigeri

The petitioner, who is the senior citizen (aged about 72 years), is agitating for the determination of the fair allotment consideration for the marginal land. The facts of the case in brief are that the respondent allotted site bearing No. 883, 2nd C Cross, 3rd A Main, Banashankari III Stage, II Phase, 7th Block, Bangalore-85 in Hosakerehalli layout. The site was allotted in 1978 and the sale deed was executed in 1981. The petitioner constructed the house and he has been residing therein. Adjacent to the said site, there lies a strip of land measuring 13" x 30", which is known as marginal land in the general parlance. The petitioner was given to understand that the marginal land would be allotted to him at the consideration to be worked out as per the norm prescribed in Rule 5(b) of Bangalore Development Authority (Disposal of Corner Sites, etc.,) Rules, 1984 (for short, ''the said Rules''). However, the respondents did not allot the marginal land to the petitioner; it was given to one Sri Venkatesh Shetty. Aggrieved by the said allotment in favour of Venkatesh Shetty, the petitioner had filed W.P.No. 24451/1994, which came to be dismissed by the learned Single Judge by his order, dated 03.09.1997. The petitioner filed W.A.No. 5825/1997. The Division Bench disposed it of by its judgment, dated 10.12.1999 recording the respondent''s memo that the decision allotting the marginal site to Venkatesh Shetty is being reviewed. The Division Bench prescribed the time-frame of six months to the respondent for completing its review exercise. Pursuant thereto, the respondent passed an order, dated 03.07.2000 cancelling the allotment made in favour of Venkatesh Shetty, However, no orders came to be passed on the petitioner''s application for the allotment of marginal land. Aggrieved by the inaction of the respondent in the matter, the petitioner filed W.P.No. 39301/2003 seeking a writ in the nature of mandamus to the respondent to give the marginal land. The said writ petition was disposed of by this Court by its order, dated 24.02.2005 directing the respondent to pass the orders in the light of Rule 5 of the said Rules.

The respondents issued the demand notice, dated 10.7.2008 (Annexure-A) to the petitioner calling upon him to pay Rs. 26,90,206/- at the rate of Rs. 43,237/- per sq. metre, towards the allotment consideration of the marginal land. The petitioner represented to the respondent to revise the demand notice, as the amounts were erroneously noted, The petitioner also sought certain information invoking the relevant provisions of the Right To Information Act. The communication, dated 31.01.2009 (Annexure-E) issued by the respondent states that the average auction rate is Rs. 28,628/- per sq.metre in Hosakerehalli and Rs. 21,368/- in Banashankari 3rd Stage.

The respondent revised the demand downwards by calling upon the petitioner to pay Rs. 22,67,297/- at the rate of Rs. 36,400/- per sq.metre towards the allotment consideration vide notice dated 20.02.2009 (Annexure-B). The said notice further states that the earlier notice, dated 10.07.2008 is withdrawn and that the same be returned to the respondent''s office.

Not content with the marginal reduction of amounts, the petitioner submitted one more representation, dated 18.03.2009 (Annexure-H) furnishing the auction rates with the aid of the statistics. He attempted to show to the respondent that the average auction rate cannot exceed Rs. 29,123/-. The respondent instead of considering the petitioner''s request for further reduction, issued an endorsement, dated 19.09.2009 (Annexure-C). The sum and substance of the endorsement is that the status-quo ante is restored i.e., the petitioner was asked to pay Rs. 26,90,206/- as per the BDA''s notice, dated 10.07.2008 (Annexure-A) and not Rs. 22,67,297/- as demanded by the respondents subsequent notice, dated 20.02.2009 (Annexure-B). The two demand notices and the endorsement are impugned in this petition.

Sri Sridhar, the learned counsel for the petitioner submits that none of the three impugned communications give the basis for the determination of the amounts demanded from the petitioner. He submits that if the amounts payable are calculated in accordance with Rule 5(b) of the said Rules, the petitioner''s liability to pay would be at the rate of either Rs. 21,368/- or Rs. 28,628/- per sq.metre. He submits that he is ready to pay even at the alternative rate of Rs. 28,628/- per sq.metre. He complains of arbitrariness on the part of the respondents.

The learned counsel for the respondents submits that as no auctions have taken place in the layout in question (Hoskerehalli layout), the rates are taken from the auctions conducted in the nearby layouts.

The submissions of the learned counsel have received my anxious consideration, The impugned notices, dated 10.07.2008 and 20.02.2009 (Annexures A and B) give no clue, much less the details of how the amounts are determined by the respondents. The demand notice are not accompanied by any work-sheet or memo of calculations.

As per the requirement contained in Rule 5(b) of the said Rules, the average auction rate has to be worked out on the basis of the rates at which the sites have been sold at previous auctions in the locality in which the site is situated. In the instant case, no auction particulars whatsoever are mentioned in the impugned notices. On the short ground of the notices being non-speaking and deficient in every respect, they are liable to be quashed and accordingly they are quashed.

The third impugned communication smacks of the arbitrariness, to say the least. It contains no reason for withdrawing the demand for Rs. 22,67,297/- and re-imposing the demand of Rs. 26,90,206/-. The petitioner has made his position worse off by giving the representation to reduce the amount from Rs. 22,67,297/-. No reason whatsoever is assigned for withdrawing the downwardly revised demand notice and reviving the earlier demand.

It is trite position in law that the action is to be judged by the impugned orders and not by the reasons shown for the first time either by way of affidavit or the statement of objections. In this regard, it is beneficial to refer to the Apex Court judgment in the ease of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , The relevant portion is extracted hereunder:

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must he judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit otherwise. Otherwise, an order bad in the beginning may, by the lime it comes to Court on account of a challenge, get validated by additional grounds later brought out We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of the explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older.

Yet another aspect of the matter which cannot be lost sight of is that, even after the disposal of W.P.No. 39301/2003 by this Court on 24.02.2005 the respondents took three years to take a decision in the matter. The respondents sent the demand notice only on 10.07.2008. If the respondents were to take a decision in 2005 or immediately after 2005 fixing the petitioner''s liability to pay the consideration based on the rates fetched in the auctions conducted on three occasions, the outcome would have been different I do not see any justification for the respondents to keep the matter pending for three years and then try to fix the rate based on what the auctions fetched in 2007-2008 and that too in some other localities.

This Court would not venture to fix any allotment consideration; that is the duty of the respondents. This Court directs the respondent to redetermine the allotment consideration for the marginal land strictly in accordance with Rule 5(b) of the said Rules.

The Rule requires the respondents to take the auction rates fetched in the same locality in which the site is situated. If it is the case of the respondent that no auctions whatsoever took place in Hoskerehalli, then it has to take into account the auction rates fetched in a comparable locality. If the respondent has any difficulty in arriving at the comparability, it shall obtain the sale-statistics from the concerned Sub-Registrar''s office.

Further, in the fitness of the things and to be fair to the petitioner, the respondents shall re-fix the consideration based on the rates in the auctions conducted in 2005 2006. This exercise shall be completed within two months from the date of the issuance of the certified copy of today''s order.

As the petitioner (who is a senior citizen) is driven to the Court for no fault on his part and or account of the whimsical and inconsistent attitude of the respondent, I find that this is a fit case for the imposition of cost. The learned counsel for the respondents has been pleading with me not to impose the cost. His persuasion has made me not to impose any exemplary cost. The respondents shall pay the cost of Rs. 1,000/- to the petitioner within one month from today. This petition is accordingly disposed of.