Shanmugam S. vs The Bangalore Development Authority

Ram Mohan Reddy, J—Petitioner, claiming to belong to scheduled caste, applied for and secured an allotment of a site No. 94 measuring 20 ft. x 30 ft. in Nandini layout, under letter, dated 26.05.1989, of the respondent/ Bangalore Development Authority (''BDA'' for short) demanding payment of Rs. 2,200/- being the full value of the site within the time stipulated. The said sum was not paid within the said time but, on 26.06.1996, letter Annexure-E was addressed stating though he was ready and willing to pay the amount, but the bank was not willing to disburse the money until and unless time was extended for such payment. It appears that the respondent/ BDA addressed a letter to the State Government on 02.12.1997, Annexure-F, seeking permission to condone the delay and extend time for the petitioner to pay the balance value of the site under sub Rule (1) Rule 13 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 (''Rules'' for short). That communication led to a reply, dated 29.01.1998, Annexure-G, of the State Government permitting BDA to condone the delay and receive the payment, following which, petitioner was issued with letters dated 21.04.1998 and 08.07.1998 to make payment of the value of the said amount with interest thereon totaling to Rs. 15,850/-, which when not responsive, was finally issued with a show cause notice dated 24.08.1998. Petitioner did neither responded nor make payment of the sum demanded in entirety and therefore, respondent/BDA by order, dated 21.04.1999, Annexure-K, cancelled the allotment for non payment of the full value of the site, within the time stipulated.

It appears that on 18.05.1999, petitioner addressed a letter, Annexure-L, informing the deposit of Rs. 5,000/- on 14.09.1998 and Rs. 10,850/- on 19.05.1999 totaling to Rs. 15,850/- and sought for registration of site No. 94 in Nandini Layout, Laggere, which allotment was since cancelled. There afterwards, petitioner is said to have made another representation, dated 30.12.1999, Annexure-M, while alleged letters dated 14.06.2002, 02.03.2008, Annexures-N and N1 said to be addressed to the respondent/BDA are not supported by acknowledgments, however, letter dated 30.03.2013, Annexure-N2 copy of which is issued under the Right to Information Act shows that it was received by the BDA. Subsequent thereto, petitioner claims to have written another letter dated 09.06.2014, Annexure-N3 though not supported by an acknowledgement of the BDA. Hence this petition filed on 02.06.2015 for the following reliefs:

"(a) Issue writ in the nature of mandamus directing the respondent Authority to consider the representation of the petitioner dated 9.6.2014, vide Annexure-N3.

(b) Issue a writ in the nature of certiorari or any other writ/order or direction quashing the impugned cancellation order vide Annexure-K, vide No. BDA/Ooka-3/Aavi/la/Nandini/94/98-99, dated 21.04.1999 issued by the respondent for terminating the allotted site No. 94, measuring 20'' x 30'' at Nandini Layout, Leggere, Bangalore, and further directing the respondent Authority to allot the alternative site in lieu of Site No. 94, if the said site is already allotted to any other persons.

(c) Pass any order or direction as this Hon''ble Court deems fit under the circumstances of the case in the interest of justice and equity."

Rule 13(1) of the ''Rules'' relating to conditions of allotment and sale of site mandate payment of sital value within the time prescribed. According to learned counsel, Rule 13(1) mandates that in case allottees belong to scheduled caste, the period of payment of value of the site is three years and if allotment is made under general category after 01.01.2002, the allottee would be entitled to an extension of six months for payment with interest.

In the first place, it is not known as to the source of power of BDA to address a letter to the Government to condone the delay by extending time as stipulated in the ''Rules'' and in the second place, it is not known as to what is the source of power of the State Government to extend time dehors a Rule since the ''Rules'' do not provide for such a power of the State Government. Therefore, condonation of delay and extension of time allegedly by the State Government is without competence and jurisdiction, under the ''Rules''. Be that as it may, BDA is said to have acted on such extension and addressed letters to the petitioner to make payment within the stipulated time, despite which petitioner did not make payment leading to cancellation of the allotment by order, dated 21.07.1999, Annexure-K.

The ''Rules'' of allotment, disentitled petitioner to make payment after 25.05.1992, i.e., three years from 26.05.1989 the date of allotment, nevertheless correspondence seem to have emanated between BDA and State Government leading to an illegal extension of time. Even then, petitioner did not make use of the opportunity extended, although, such opportunity amounts to discrimination under Article 14 of the Constitution of India, since every applicant belonging to scheduled caste was entitled to such extension though not granted. It is well settled law that as between equals, there can be no discrimination. Therefore, the order of the State Government to condone the delay and extend time to make payment of value of the site in the year 1998 cannot be sustained.

The Apex Court in Bedanga Talukdar v. Saifudullah Khan and others AIR 2002 SC 1803 observed thus:

"There must be no arbitrariness resulting from any undue favour being shown to any candidate, since the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved."

In that view of the matter, relaxation in the time schedule in favour of the petitioner/allottee in default, is detrimental to all other allottees who complied with the time schedule and made payment of the value of the site, tantamounting to breach of Article 14 of the Constitution of India. It is needless to state that the executive power of the State under Article 162 of the Constitution cannot be exercised contrary to the prescription and in a field which is already occupied by legislation. Thus the instructions/direction/correspondence issued by the State in exercise of executive power (assuming) contrary to the provisions of the ''Rules'' to condone the delay and extend the period in the case of petitioner to make payment of the value of the site is without jurisdiction and a nullity. It is pertinent to notice that any direction/instruction when issued by the State must be in compliance with the Constitutional scheme under Articles 162 and 169, that is expressed in the name of the Governor and is authenticated in the manner prescribed by the Governor which in the present is unavailable.

Petitioner having failed to take advantage of the illegal orders of the Government and the ''BDA'', has filed this petition 17 years after cancellation of the allotment. By now it is possible that the site in Nandini Layout which is almost in the heart of the city, today, may have been allotted to somebody and third party rights created. In that view of the matter, it would be unfair to interfere with the order of cancellation after an inordinate delay of 17 years.

Learned counsel submits that a learned single Judge in W.P. No. 19093/2012, by order dated 06.06.2013, directed consideration of extension of time to consider the claim of the petitioner therein for allotment of site in the light of Circular dated 18.11.2010, Annexure-J of the ''BDA''. Yet again, it must be noticed that circulars must have force of law, that means, there must be a source of power in the State to issue such a Circular either emanating from the Constitution or a statutory prescription. When Rule 13 incorporated under the ''Rules'' fixing a time schedule for payment of value of the site and no power is reserved for extending such time under the statute or the subordinate legislation, the State Government had no jurisdiction to issue the circular permitting extension of time. The circular cannot but be characterized as illegal and without jurisdiction.

In that view of the matter, it cannot but be said that the order of the learned single Judge attracts the well known maxims of sub-silentio and per incuriam. Even otherwise, the learned single Judge observes the existence of a circular and hence the direction to consider the case of the petitioner therein. Said order does not advance the case of the petitioner in the present case.

The memorandum of writ petition does not disclose sufficient cause for inordinate delay of 17 years in filing the petition calling in question the order dated 21.07.1999, Annexure-K of cancellation of the site. Petition suffers from delay and laches.

If petitioner has paid the value of the site, it is open for him to make a representation for refund of the said sum and if it is so done, it is for the ''BDA'' to consider the same and pass orders thereon, or in the alternative may request for allotment of a site when notifications are issued by the respondent/BDA and adjust the said sum against the value of the site, on such allotment. Petition is rejected subject to the above observations.