Smt. Kanchandevi Sipani vs Bangalore Development Authority and Smt P.M. Pushpa

J.S. Khehar, C.J.—The appellant herein claims to have been allotted a stray site bearing No. 862/D, Koramangala III Block Bangalore on 14.12.1982. It is the claim of the appellant, that despite having deposited the entire consideration for the aforesaid site ( Rs. 24,500/-), she has been deprived of an allotment letter.

Insofar as the issue of allotment of the site referred to in the foregoing paragraph is concerned, the appellant, in the first instance, approached this Court by filing W.P. No. 4207/1984. The aforesaid writ petition was disposed of, by an order dated 07.01.1991. The operative part of the aforesaid order is being extracted hereunder:

After hearing both sides, I am of the view that this writ petition has to be dismissed for the following reasons, viz., (1) that merely the allotment was made by the Chairman of the B.D.A. that does not conclude the contract between the B.D.A. and the allottee; (ii) that the contract can be concluded only when the allottee is put in possession of the site in question after executing necessary lease deeds; (iii) that nowhere under the Act the Chairman is empowered to make an allotment and when such an allotment came to the notice of the Government, it stayed the same by exercising its superintendent power and therefore, the petitioner cannot say that the same shall be quashed. If she is aggrieved, she can approach the Government with a request to vacate the stay order; (iv) that merely because the Lok Ayuktha has stated that no fraud has been committed in making such an allotment, that is not a matter to be considered since that issue has not been called upon to be decided in this writ petition; that (v) if the petitioner has again deposited the amount on 20.12.1983 the same has been accepted by the B.D.A. it gives altogether a different cause of action; (vi) that if the petitioner feels that the B.D.A. in view of its conduct, is liable to allot a site, she is at liberty even now to approach the B.D.A. with necessary application for allotting another site; (vii) that, if the petitioner feels that the Government has stayed the allotment under a mistaken belief that she is not a resident of Bangalore, even now she is at liberty to approach the Government and file necessary application for vacating the stay and (viii) that if the Government feel that she is a resident of Bangalore and further that is has got power to direct the B.D.A. to allot a site, it can do as well. If the E.D.A. has again received the amount in respect of the same site, it is for the petitioner to make an attempt to get the same site allotted by the B.D.A. and on its failure, she can approach this Court for proper relief.

For the reasons stated above and the observations made above, this writ petition is disposed of. All other contentions are left open. No costs.

In obedience to the direction issued by this Court in W.P. No. 4207/1984, the appellant made further attempts to secure, the allotment of the said stray site bearing No. 862/D Koramangala III Block, Bangalore. Having failed, the appellant approached this Court by filing W.P. No. 23498/1995. During the course of hearing of the second writ petition i.e., W.P. No. 23495/1995, the Bangalore Development Authority raised a number of objections. The objections raised by the Bangalore Development authority have been summarised in paragraph-4 of the order dated 18.03.1997. Paragraph-4 of the aforementioned order is being extracted hereunder:

Sri. Nazeer, learned Counsel for B.D.A. stated that for several reasons, B.D.A. has not been able to consider and dispose of the application of the petitioner. The first is that the State Government had stayed the allotment and thereafter the stay was not vacated and Annexure ''D'' cannot be considered as vacation of the stay as domicile. The second ground given by him is that B.D.A. subsequently learnt that petitioner was the purchaser of site No. 862/E in Koramangala Layout having purchased it in an auction of sites held by B.D.A. and if a person (or any member of his family) is already owning a site or house in Bangalore, such a person is not entitled for allotment of site and, therefore, the B.D.A. has referred the matter to its Vigilance Cell to verify whether the persons who purchased site 862-E and the petitioner is one and the same. He stated that though there was some delay in the matter, the B.D.A. will now examine all these matters and decide the petitioners application within a period of two months from the date of receipt of this order.

Accordingly, this Court decided not to express any firm opinion while disposing of W.P. No. 23498/1995, leaving it open to the appellant to make a further representation to the Bangalore Development Authority on the issue as to whether or not the allotment of the stray site claimed by the appellant was barred on account of the purchase of another site, i.e., site No. 862-E, III Block Koramangala, Bangalore. It would be pertinent to mention, that all issues raised, in spite of disposal of the said writ petition on 18.03.1997, were permitted to be kept open.

Yet again, the appellant was not successful in persuading the Bangalore Development Authority to allot the stray site bearing No. 862/D, III Block. Koramangala. Bangalore to her. It is therefore, that the appellant filed the third writ petition bearing No. 8931/2001. The order dated 13.11.2002 passed in the aforesaid third writ petition is the subject matter of challenge, through the instant writ appeal.

Having heard the learned Counsel for the rival parties, we are of the view, that the only issue, that requires consideration, at our hands, while considering the claim of the appellant for allotment of stray site bearing No. 862/D, III Block Koramangala, Bangalore is, whether the aforesaid claim was sustainable in the background of the fact that the appellant already owned another site. Insofar as the instant issue is concerned, adjudication thereof, is to be determined under Rule 10 of the Bangalore Development Authority (Allotment of Sites) Rules, 1982 (hereinafter referred to as the ''1982 Rules''). Rule 10 of the aforesaid Rules is being extracted hereunder:

Eligibility: No person.-

(1) who is not a domicile of (living independently or with the members of his family) Karnataka for not less than ten years immediately prior to the date of registration; and

(2) who or any member of whose family owns or has been allotted a site or a house by the Bangalore Development Authority or any other Authority within the Bangalore Metropolitan Area, shall be eligible to apply for allotment of a site:

Provided that the rule may be relaxed,-

(a) in case of persons who are domicile in the State of Karnataka but being in the armed forces of the Union and serving outside the State of Karnataka:

(b) in the case of persons who are domicile in the State of Karnataka but have gone out side the State for employment, business, studies or training and who bona fide intend to reside in the Bangalore Metropolitan Area;

Before determining the claim of the appellant under Rule 10 extracted hereinabove, it would be necessary to notice, that the Bangalore Development Authority during the course of the proceedings in W.P. No. 8931/01 had filed a counter affidavit wherein, in paragraph-1, it was asserted as under:

The petitioner is not a registered applicant for allotment of stray site as per Rule 8 of the B.D.A. (Allotment of Sites) Rules, 1982 hereinafter called the "Rules". The petitioner is the owner of the site bearing No. 862/E, III Block, Koramangala having purchased the said corner site in auction sale held by B.D.A. on 31.10.1981.

The factual position depicted in paragraph-1 of the counter affidavit filed on behalf of respondent No. 1, which was not disputed, leaves no manner of doubt in our mind, that the appellant herein already owned site bearing No. 862-E, III Block Koramangala, Bangalore, prior to the allotment of stray site bearing No. 862/D, III Block, Koramangala, Bangalore on 14.12.1982. The first site bearing No. 862/E, III Block, Koramangala was purchased by the appellant in an auction sale held by the Bangalore Development authority on 31.10.1981. Being an owner of a site on 31.10.1981, could the appellant claim allotment of another site on 14.12.1982 ? It is in order to determine the aforesaid issue, that Rule 10 of the 1982 Rules assumed significance. Clause (2) of Rule 10 of 1982 Rules leaves no room for any doubt, that any individual who himself/herself (or a member of whose family) owns a site (or a house) within Bangalore Metropolitan Area, is ineligible for allotment of another site.

Thus, we are satisfied, that the appellant, who already owned another site on 31.10.1981 (bearing No. 862/E III Block, Koramangala Bangalore), was not entitled to allotment of stray site bearing No. 862/D. Koramangala, III Block, Bangalore.

For the reasons recorded hereinabove, we find no merit in the claim raised by the appellant, and accordingly, the instant Writ Appeal is dismissed.