Smt. Saroja vs Bangalore Development Authority

A.N. Venugopala Gowda, J.—Sri A. Venkatesh, son of late Appu, husband of the petitioner, made an application dated 11.12.2002 for allotment of a site, measuring 20 x 30 feet, to the Bangalore Development Authority (for short ''the BDA''), in response to a Notification No. BDA/ADM/Allot/Scy/4633/2002-03, dated 07.11.2002. BDA allotted a site No. 3796, VI Block, Sir M. Vishweshwaraiah Layout, vide allotment letter dated 10.04.2003 and called upon the allottee to deposit the sital value of Rs. 81,900/-, after deducting initial deposit of Rs. 4,300/-, within 60 days. A show cause notice dated 03.09.2003 was issued, on account of non deposit of the said sital value. Thereafter, a site cancellation order dated 08.10.2004 was sent. Petitioner''s husband died on 16.02.2007. BDA issued a circular dated 23.07.2007, extending the time to pay the balance sital value to the allottees of sites, measuring 20 x 30 and 30 x 40 feet, in EWS category. Another circular dated 18.11.2010 was issued, extending the time for payment of balance sital amount to the allottees of the sites in EWS category. Petitioner submitted a representation dated 31.03.2008, enclosing the demand drafts for Rs. 81,900/- and sought transfer of said allotment in her favour. The demand drafts were returned with an endorsement dated 12.08.2008 vide Annexure-R3 and she was informed that, on account of recent amendment, there is no provision for consideration of her representation. Feeling aggrieved, this writ petition has been filed, to quash the endorsement dated 08.10.2004, as at Annexure-C and to direct the BDA to ratify the allotment of said site made in the name of petitioner''s husband and for grant of consequential reliefs. Petition is opposed by filing statement of objections inter alia contending that it is hit by inordinate delay and unexplained latches and that the site having been allotted under the general category, the balance sital value having not been paid within the prescribed period, after issue of a show cause notice dated 03.09.2003 and finding no response, site cancellation order dated 08.10.2004 was sent. The claim of the petitioner that she belongs to backward tribe and EWS category is unacceptable, since the ration card produced by the petitioner''s husband shows that he did not belonged to Economically Weaker Section'', and thus the site allotted was canceled during the lifetime of the petitioner''s husband, who did not question the site cancellation order and that the petitioner having voluntarily sent demand drafts for Rs. 81,900/- along with her representation dated 31.03.2008, was rejected on 12.08.2008. It has been further stated that the site having been allotted under general category, the proviso under Rule 13(1) of the BDA (Allotment of Sites) Rules, 1984, is not applicable and that she is also not entitled to pay the balance amount and get the allotment of the site as per the circulars dated 23.07.2007 and 18.11.2010, vide Annexures-E and F, since the same are applicable to the allotment of sites, measuring 20 x 30 and 30 x 40 feet, to the allottees who deposited part of the sital value and failed to pay the balance sital amount. It has been further stated that the husband of the petitioner had not paid any amount towards the sital value, except the initial deposit and hence, petitioner is not entitled to seek any relief.

Sri H.T. Vasantha Kumar, learned advocate, firstly contended that the respondent has acted arbitrarily and illegally, in canceling the allotment of the site, vide Annexure-C and in not accepting the demand drafts for Rs. 81,900/-, sent along with the representation dated 31.03.2008. Secondly, the representation submitted by the petitioner on 31.03.2008 has not been examined by the respondent by keeping in view the circulars dated 23.07.2007 and 18.11.2010. Thirdly, the application dated 11.12.2002 submitted by the petitioner''s husband was under a person belonging to backward tribe (CAT-I) and hence, the respondent committed an error in making the allotment under general category. He submitted that since the petitioner''s husband suffered from Cancer and died on 16.02.2007, while undergoing treatment, he could not deposit the balance sital value and that the petitioner having mobilized the fund and remitted balance sital value of Rs. 81,900/- along with the representation dated 31.03.2008, ought to have been sympathetically considered by the respondent, by keeping in view the aforesaid circulars. He placed reliance on an order dated 06.06.2013 passed in W.P. No. 19093/2012 (Smt. Kempamma Vs. The Commissioner, BDA).

Sri K. Krishna, learned advocate for the respondent on the other hand contended that the allotment of site having been cancelled on 08.10.2004, there being delay of nine years, has not been explained. He submitted that though the representation of the petitioner was rejected by issue of the endorsement dated 12.08.2008, vide Annexure-R3, the writ petition filed on 28.08.2013 is hit by delay and laches. Learned counsel submitted that in view of the factual position stated in the statement of objections filed to the writ petition, the petitioner is not entitled to any relief.

However, learned advocate, when questioned, as to whether the site allotted vide Annexure-A in favour of petitioner''s husband has been allotted by the BDA in favour of any other person i.e., after issue of site cancellation order dated 08.10.2004 as at Annexure-R3, submitted that the site has not been re-allotted. In the circumstances, no third party right having come into being, I find justification to condone the delay and laches in filing of the writ petition, which is required to be decided on its merit.

Sri H.T. Vasanth Kumar, submitted that the petitioner is ready and willing to pay the balance sital value with interest at 21% per annum and comply with any other lawful terms and conditions as may be imposed by the BDA in the matter of ratification of allotment of the site made in favour of husband of the petitioner, which is now required to be transferred to the name of the petitioner, in view of death of her husband.

Perused the writ record. A. Venkatesh filed an application dated 11.12.2002 for allotment of site, as a person belonging to Backward Tribe, Category-I with annual income of Rs. 11,000/-. In column No. 15 of the said application category code shown is ''3''. The allotment having been made, the allotment intimation was issued on 10.04.2003 by wrongly showing as ''General''. Petitioner''s husband passed away on 16.02.2007. Circulars dated 23.07.2007 and 18.11.2010, as at Annexures-E and F provide for extension of time to pay the sital value of the sites, measuring 20 x 30 and 30 x 40 feet. The petitioner to show her bonafides, submitted along with her representation dated 31.03.2008, demand drafts for value of Rs. 81,900/-. By making a reference to non-deposit of the sital value within the stipulated period, the site cancellation order dated 08.10.2004, as at Annexure-C was issued and not on any other ground, much less the allottee not falling under EWS category. The representation of the petitioner dated 31.03.2008 has not received lawful consideration, which becomes evident from Annexure-D, the endorsement issued on 12.08.2008. The petitioner''s case should have been examined sympathetically by keeping in view the death of her husband, who was suffered from Cancer and died on 16.02.2007 and also in the light of the circulars dated 23.07.2007 and 18.07.2010. There is arbitrariness on the part of the respondent in taking the decision mechanically and rejecting the said representation of the petitioner.

In the result, the writ petition is allowed. In order to enable the respondent to consider the representation dated 31.03.2008 of the petitioner afresh, the site cancellation order dated 08.10.2004, as at Annexure-C, the decision of the Secretary of the BDA, as at Annexure-D and the consequential endorsement issued on 12.08.2008, as at Annexure-R3 are quashed. The respondent is directed to consider the representation dated 31.03.2008 submitted by the petitioner afresh by keeping in view the circulars dated 23.07.2007 and 18.11.2010 and pass order within a period of two months from the date, a copy of this order becomes available to it.

No costs.