2010 Supreme(Kar) 1091

2011 (2) KCCR 1217
High Court of Karnataka
THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER
K. Raju
Versus
Bangalore Development Authority By its Commissioner
Writ Petition No.11102 of 2008 C/w W.P.Nos. 16147 of 2009 & 16954 of 2009 (BDA)
Decided on : 15-12-2010

Headnote:BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - BDA Act, 1976: [S. Abdul Nazeer,J] Power of the Bangalore Development Authority to execute deed of cancellation - Held, When the sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the Court which can cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel the deed vests with a Court and it cannot be exercised by the vendor of a property. After execution and registration of the sale deed, the BDA cannot determine the validity of the sale deed. It can neither execute a cancellation deed unilaterally. If the BDA is of the view that the sale deed executed by it is contrary to law, it has to approach the Civil Court for its cancellation as provided under Section 31 of the Specific Relief Act.

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 65: [S.Abdul Nazeer,J] Government’s Power to give directions to the Authority - Held, The State Government cannot justify its action in directing the BDA to allot the site under Section 65 of the Act. Section 65 of the Act empowers the State Government to give such directions to the BDA, which in its opinion is necessary or expedient for carrying out the purposes of the Act. This is an omnibus statutory provision, which invests the State Government with the power to issue such directions, which in its opinion would be conducive to the implementation of the purposes of the Act. BDA is the custodian of public properties. It is not as free as an individual in selecting the recipients for its largess. For allotment of the properties, a transparent and objective criteria/procedure has to be evolved based on reason, fair play and non-arbitrariness. In such action, public interest has to be the prime guiding consideration.

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Sections 16, 38 & 38-A: [S.Abdul Nazeer,J] Object of the Authority - Development and execution of schemes - Bulk allotment - Power of the Authority - Held, The lands acquired by the State Government and made over to the BDA has to be allotted, conveyed or re-conveyed strictly in accordance with the BDA Act and the Rules invested with statutory powers has to take care not exceed or abuse its powers. It must act within the limits of the authority committed to it. The Act has not conferred upon either the BDA or the State Government any inherent powers much less any discretionary powers to allot the lands vested with the BDA. From the scheme of the Act, it is clear that the land is acquired by the State Government and made over to the BDA for the purpose of executing a scheme framed under Section 16 of the Act. Section 38 of the Act authority the Authority to lease, sell or otherwise transfer any movable or immovable property, which belongs to it and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any development scheme. Section 38-A of the Act provides for lease/sell or otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved. Section 38-A of the Ad empowers authority to make over to the BDA for a specific purpose of executing an approved scheme and as such, land has to be utilized by the BDA solely for the purpose of execution of the scheme in the manner envisaged by the scheme and not beyond.

       BANGALORE DEVELOPMENT AUTHORITY (ALLOTMENT OF SITES) RULES, 1984 - Rule 5: [S.Abdul Nazeer,J] Power of the Government to allot sites under ’G’ Category - Issue of Circular - Legality of - Held, When the Act does not authorise the State Government to allot the stray sites, question of vesting the right to allot 30% of the sites in ’G’ category with the State Government by way of a circular is totally illegal. The Act does not authorise the State Government to issue directions to allot the sites to the persons of its choice. As per the circular, the Government can allot the sites to the persons in public life under ’G’ category. ’Persons in public life’ in the context are those having to do with the public or available to the people as a whole and are those involved in the affairs of the community. A perusal of the file shows that the State Government has made allotment of sites mostly on the recommendation of the Ministers. The sites have been allotted in an arbitrary manner without considering as to whether the applicants are persons in public life. No reasons have been assigned as to why some of the applicants were allotted sites measuring 50 ft. x 80 ft. and some others were allotted sites measuring 40 ft. x 60 ft. or 30 ft. x 40 ft. On facts, held, It is also evident from the file that one T.N.Narayana Gowda, Under Secretary to Chief Minister was allotted a site under ’G’ category on 3.10.2007. When a democratic Government in exercise of its discretion selects the recipients for its largess, the discretion should be exercised objectively, rationally, intelligibly, fairly and non-arbitrarily. It is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion.

       BANGALORE DEVELOPMENT AUTHORITY (ALLOTMENT OF SITES) RULES, 1984 - Rules 5, 8, 9, 10, 11, 13: [S. Abdul Nazeer;J] Procedure for disposal of Stray sites - Eligibility criteria - Execution of Lease cum Sale Agreement and the Sale Deed in favour of the Allottee - Held, Rule 5 of BDA (Allotment of sites) Rules, 1984 provides, for disposal of stray sites in accordance with the guidelines issued by the Government. Rule 8 provides for registration for allotment of the sites. Rule 9 lays down the procedure for making an application for allotment of the site. Rule 10 provides for the eligibility criteria for allotment of the sites. Rule 11 lays down the principles of selection of applicants for allotment of sites and reservation of sites. Rule 13 provides the conditions of allotment and sale of sites. Sub-rule (2) of rule 13 states that after payment under sub-rule (1) is made, the authority shall call upon the allottee to execute a lease-cum-sale agreement in Form III. Further held, Sub-rule (3) of Rule 13 states that every allottee shall construct a building on the site so allotted in accordance with the plans and designs approved by the authority. Sub-rule (8) of Rule 13 states that on the expiry of a period of ten years from the date of the lease-cum-sale agreement and if the allotment has not been cancelled or the lease has not been determined, the authority shall by notice call upon the allottee to get the sale deed of the site executed at his own cost within the time specified in the notice. -The conditions of allotment of sites under Rules 7 and 13 are applicable to all the sites allotted under 1984 Rules 7 and 13 start with the words "the sites allotted under these Rules". Therefore, BDA should not have executed the sale deed in favour of the allottee immediately after allotment of the site. The conditions contained in Rules 7 and 13 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 are also applicable to the sites allotted by the BDA under Rules 5 of the BDA (Allotment of Sites) Rules, 1984.

       BANGALORE DEVELOPMENT AUTHORITY (ALLOTMENT OF SITES) RULES, 1984 - Rule 5: [S.Abdul Nazeer, J] Disposal of Stay sites - Power of the State Government to allot sites belonging to the B.D.A. in the absence of legislative policy - Held, Under the 1984 Rules, stray sites have to be disposed of as per the guidelines issued by the State Government, which is in conformity with the intendment of the Act. Circulars have been issued from time to time for disposal of stray sites. Revised circular of 1992 issued by the State Government under Rule 5 provided for disposal of stray sites to persons from different walks of life as also to the Government of Karnataka, Government of India and other charitable associations, societies, trusts, etc. For the first time, the 1997 Circular issued by the State Government provided for allotment of 30% of stray sites to persons in public life as may be directed by the Government. It is true that if a Statute gives power to a Government to make Rules to carry out the purposes of the Act, the Rules so framed have the force of the Statute and are deemed to be incorporated as a part of the Statute. On facts, held, In the present case, there is no indication whatsoever about the legislative policy to vest the power with the State Government to allot sites belonging to the BDA. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions, which cannot be delegated. What is permissible is to leave the delegated authority the task of implementing the object of the Act after legislature lays down adequate guidelines for the exercise of power.

       BANGALORE DEVELOPMENT AUTHORITY (ALLOTMENT OF SITES) RULES, 1984 - Rule 11-A: [S.Abdul Nazeer,J] Allotment of alternative sites - Held, An alternative site has to be allotted only where the mistake was on the part of the Authority while making the allotment of site or where the possession of the sites allotted originally could not be given to the allottee due to stay orders of the Courts or due to other disputes. Alternative site has to be allotted by the authority in the same layout in which sites were originally allotted or in the layouts formed by the Authority subsequent to the formation of the layout in which the sites were originally allotted, and alternative sites shall not be allotted in layouts formed prior to the layout in which sites were originally allotted, even if sites are physically available in the layout/s formed prior to the layout in which original allotment was made. Further, While allotting alternatives sites, sites bigger in dimension than the sites originally allotted shall not be considered for allotment. The exception to this Rule is that an alternative site up-to ten percent over and above the area of the originally allotted site may be allotted and in such cases for the extra sital area involved, additional sital value applicable in that layout for that site shall be collected by the Authority in addition to the difference in sital value to be collected.