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2004 Supreme(Kar) 676
Karnataka High Court
GURUKRUPA CO-OPERATIVE HOUSING SOCIETY LIMITED, BANGALORE - Appellant
Versus
BANGALORE DEVELOPMENT AUTHORITY - Respondent
Decided On : 12-09-04
W.P. : 50190 of 2003
H.N.SHASHIDHAR, R.THARESHA, U.ABDUL KHADAR
Headnote:Allotment of site
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Allotment of site -Effect -Allottee will have no pre-existing title in the site -Only after the price is paid and other legal formalities are undergone, title will be conferred on him.
[N. Kumar, J]: . In the case of an allotment of a site in the Layout formed by the BDA, the allottee has no pre-existing title before such allotment is made. It is only after an allotment is made and such allottee pays the price fixed for such allotment and after he complies with other legal requirements the site allotted to him is conveyed, thus conferring title on such an allottee. On execution of a Sale Deed by the Authority in favour of the allottee he becomes the absolute owner of the site. He has to pay the price fixed by the authorities to acquire title to the property allotted to him.
Reconveyance
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 38C -reconveyance -Rights and liabilities of the landowner and the authority -Private layout -Section 32 -Private layout -Entitlement of the authority -It is only entitled to sums necessary for meeting expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting, amounts towards execution of developmental schemes and ownership of drains etc. -It cannot be different -It is not entitled to cost of land.
[N. Kumar, J]: What it is entitled to is the sums necessary for meeting the expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting. They are also entitled to amounts towards the execution of a scheme or work for augmenting electricity supply, transportation and such other amenities. In addition to the aforesaid amount they are entitled to ownership of side drains, water supply mains and open spaces let out by such person to the Authority permanently without claiming any compensation therefor. Therefore, in such cases he is not liable to pay the cost of the land retained by him. In the case of reconveyance it cannot be different. The authority is not entitled to the cost of the land. Any charges referred to in Section 38C(l) (a) can be only in respect of the aforesaid charges in addition to ownership of the drains, roads and other civic amenities free of cost.
Levy of charges
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 32 -Levy of charges -Discretion of the authority -Merely because the law gives power to levy any charges which they may levy from time to time, that does not mean that, discretion vested in the authority can be exercised in an arbitrary and discriminatory manner.
[N. Kumar, J]: Even though it is not a judicial discretion, even in administrative matters the authority is bound to exercise the discretion in a reasonable manner and in accordance with law, and to see that their decisions do not suffer from vice of arbitrariness.
Private layout
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 32 -Private layout -Entitlement of the authority -It is only entitled to sums necessary for meeting expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting, amounts towards execution of developmental schemes and ownership of drains etc.
[N. Kumar, J]: What it is entitled to is the sums necessary for meeting the expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting. They are also entitled to amounts towards the execution of a scheme or work for augmenting electricity supply, transportation and such other amenities. In addition to the aforesaid amount they are entitled to ownership of side drains, water supply mains and open spaces let out by such person to the Authority permanently without claiming any compensation therefor.
Reconvey
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 38C -Reconvey -Meaning and repercussions of reconveyance.
[N. Kumar, J]: The word "reconvey" presupposes that the person to whom the land or site is reconveyed was the owner of the land, which was acquired by the Authority. On such acquisition, he ceased to be the owner and title passes to the Authority. If the Authority finds the land so acquired is not useful for the purpose for which it was acquired, then at the request of such owner of the land/site Section 38C provides for reconveyance in favour of the original owner by passing of a Resolution by the Board.
Reallotment
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 38C (1)(a) -Reallotment -Effect -Allottee will have a pre-existing right -Upon reallotment to the owner by way of re-conveyance, the authority is only entitled to any expenditure incurred by it for developmental works carried out by it -When land was acquired, if compensation is not paid, to expert the re-allottee (owner) to pay cost of the site does not stand to reason.
[N. Kumar, J]: In the case of a reconveyance the allottee has a pre-existing right. When his land is acquired, if he has not been paid compensation for the same and when the land is reconveyed to him, to expect him to pay the prevailing allotment rate which includes cost of the land would not stand to reason because, he was not paid compensation for the land acquired. Therefore, in the case of reconveyance when the site or land is reconveyed to the original owner, all that the BDA is entitled to is the developmental charges and the charges for the amenities which are given to such land. It cannot be the prevailing rate as in the case of an allotment of a site. Therefore, any charges mentioned in Section 38C(1) (a) cannot be the allotment rate of a site to an allottee for the first time. It is to be necessarily less than that and the cost of the land is to be excluded.
( 1 ) THE land bearing Sy. No. 22, measuring 1 acre 30 guntas and Sy. No. 23, measuring 18 guntas situated at Agrahara Dasarahalli, yeshwanthpur Hobli, Bangalore North Taluk, originally belonged to one sri Munikrishnappa. The erstwhile CITB notified the land for acquisition along with other lands and a preliminary notification came to be issued on 6-4-1961. It was followed by a final notification dated 19-12-1961. The owner of the land Munikrishnappa requested the BDA to denotify the said land and release the same to him for the purpose of formation of industrial area. The said application was considered by the citb and they did not proceed with the acquisition of the land. On the contrary, they entered into an agreement with the said Munikrishnappa on 12-12-1961 whereunder he was permitted to convert the land and also to form the industrial layout. He was called upon to pay the layout charges of Rs. 7,698/- which he paid on 11-12-1961. Munikrishnappa continued in possession of the aforesaid land and thereafter the khatha of the said land was made out in his name by Bangalore City corporation. However, CITB again included the said land in the final notification. Munikrishnappa died on 20-12-1972. Thereafter, his children sold the aforesaid land in favour of the petitioner-society under a registered sale deed dated 23-6-1980 for a consideration of Rs. 1. 72 lakhs and the society was put in possession of the land. Thus, the petitioner-society became the absolute owner in possession of the aforesaid land.
( 2 ) IT appears that after including the aforesaid land in the final notification, an award came to be passed on 18-3-1964 and award amount was deposited. Notwithstanding the passing of the said award and records showing that the possession is taken by the acquiring authority, possession continued with Munikrishnappa, after his death with his children, after sale with the petitioner. The respondent-BDA passed a resolution dated 16-1-1980 allotting a portion of the aforesaid land in favour of one Sangameswara Vidya Kendra High School. When the petitioner came to know about the said resolution, they filed a suit in O. S. No. 391 of 1981 before the VII Additional City Civil Judge, bangalore, and an interim order of status quo came to be passed in the said suit. During the pendency of the said suit, the respondent-BDA passed a resoution dated 9-6-1982 in subject No. 125, cancelling the allotment of the land measuring 150' x 200' in favour of Sangameswara vidya Kendra High School in view of the opinion furnished by the Law officer. They approved the residential layout of the land in the question in favour of the petitioner subject to usual conditions of approving the private layout and on condition that the society should not claim any compensation for the land and the road. On coming to know of the said resolution, Sangameswara Vidya Kendra High School challenged the resolution before this Court in W. P. No. 23814 of 1982. After contest, the said writ petition was allowed and the resolution of the BDA was quashed. Being aggrieved by the order of the learned Single Judge, the petitioner preferred a writ appeal in W. A. No. 1066 of 1991. After contest, the said appeal was allowed and the order of the learned Single judge was set aside and the resolution of the BDA was restored.
( 3 ) THEREAFTER, the Bangalore City Corporation made an attempt to take possession of the aforesaid land claiming ownership over the same. Petitioner was constrained to file a suit in O. S. No. 7263 of 1995 for permanent injunction against the Corporation. The said suit came to be decreed on 2-8-2003 restraining the Corporation from interfering with the petitioner's possession of the aforesaid land. During the pendency of the aforesaid suit, Magadi Chord Road Welfare Association filed a public interest litigation before this Court in W. P. Nos. 10231 to 10233 of 1997 against the petitioner-Society, the Corporation and the BDA contending that the l
