Bangalore Development Authority vs R.Jayakumar .

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).3628-3960 OF 2004

BANGALORE DEVELOPMENT AUTHORITY Appellant(s)

VERSUS

R.JAYAKUMAR & ORS. Respondent(s)

WITH

CIVIL APPEAL NO(S). 3250 OF 2005

THE BANGALORE DEVELOPMENT AUTHORITY Appellant(s)

VERSUS

B. S. VIJAYADEVARAJ Respondent(s)

J U D G M E N T

Having heard the learned counsel for the parties, we are

of the opinion that the Division Bench of the High Court of

Karnataka has erred by relying upon their earlier decision in

the case of E.R. Manjaiah and others v. Bangalore Development

Authority and others1 as the factual matrix in the present

case is different.

2. The respondents in the present case had exercised their

option to be governed by the terms of the notification dated Signature Not Verified Digitally signed by Indu Marwah Date: 2022.03.15 14:57:19 IST Reason: 15.10.1988. Therefore, the respondents by choice gave up

their right to be governed by the earlier notification dated 1ILR 1997 KAR 1025 10.03.1988. There were good-reasons why the respondents had

given up their right to be allotted sites in terms of the

notification dated 10.03.1988 as the Bangalore Development

Authority2 was not in a position to make allotments to all the

applicants registered under the notification dated

10.03.1988. In any case, once the respondents had by consent

agreed to the terms and conditions mentioned in the

notification dated 15.10.1988, they cannot fall back on the

notification dated 10.03.1988.

3. The notification dated 15.10.1988 had referred to the sites

‘proposed’ at three different locations/layout plans.

Further, Clause 16 of the notification stated thus:

“16. The B.D.A. reserves its right to allot sites in any layout other than the ones preferred by the applicant. Owing to unforeseen Court litigations and impediments, if any, the B.D.A. also reserves its right to allot sites in any one of its future layouts i.e., in the layouts not advertised at present.”

4. The Authority was again unable to allot the sites mentioned

in the notification dated 15.10.1988 for various reasons,

including litigation. In any case, the sites specified in the

15.10.1988 Notification were only ‘proposed’ sites. In 1997-

1998 the Authority issued allotment letters to the

respondents for sites in the layout plan which they had

subsequently developed. These sites were not mentioned in the

notification dated 15.10.1988. The allotments were to the

2For short, ‘the Authority’.

advantage and for the benefit of the respondents as allotment

at the sites mentioned in the notification dated 15.10.1988

was not possible. The respondents had the choice to withdraw

their initial deposit and not accept the allotment.

Apparently, the respondents were interested and wanted the

sites offered, albeit at the price applicable and paid by

allottees under the 10.03.1988 Notification.

5. Rule 12 of the Bangalore Development Authority (Allotment of

Sites) Rules, 19843 stipulates as under:

“12. Value of the site.- The value of a site notified while inviting applications may be altered by the authority and an allottee may accept the site at the altered price or decline allotment.”

Interpreting the said Rule, the Division Bench in the

case of E.R. Manjaiah (supra), referring to several decisions

of this Court and Karnataka High Court, held that the

Authority was entitled to charge the price prevailing on the

date of allotment.

6. Once this legal position and facts as accepted, we do not

think that the respondents were entitled to any relief on the

plea of parity relying upon the decision in the case of E.R.

Manjaiah (supra). The facts in E.R. Manjaiah (supra) were

different as the allottees had already been issued allotment

letters for the sites under the notification dated

10.03.1988. Subsequently, the Authority could not allot the

allotted sites to some of the allottees. Fresh allotment at 3For short, ‘the Rules’.

new sites were made at a higher price. In E.R. Manjaiah

(supra) it was held that while there was no vice of

illegality or unconstitutionality in the power of the

Authority to enhance the prices under Rule 12 of the Rules,

the Authority had no right to alter the sital value according

to its convenience or whims without furnishing any

explanation. As Rule 12 is equally applicable to all persons

similarly situated, the allottees given plots at the new

sites could not be discriminated against other allottee given

old sites on lower price on arbitrary grounds. Despite being

similarly positioned with other allottees to the notification

dated 10.03.1988, the allottees of the new sites had to pay a

higher price.

7. We have already noticed the facts of the present case and

find that the respondents had exercised their choice to be

governed by the notification dated 15.10.1988, which means

that they also agreed to the condition stipulated in Clause

16 under which the Authority had reserved its right to allot

sites in any layout other than the one preferred by the

applicants. All allottees under the 15.10.1988 Notification

have been treated alike and similar price is payable. No

allottee has been discriminated. Unlike E.R. Manjaiah

(supra), the dispute herein arises concerning the

Notification dated 15.10.1988, and not 10.03.1988

Notification, the terms of which were different. The

notification dated 15.10.1988, unlike 10.03.1988, made only a provisional allotment to the applicants.4 Further, the scope

of Clause 16 under the Notification dated 15.10.1988 is

broader than the scope of Clause 145 under the Notification

dated 10.03.1988.

8. Out of about 1571 applicants, who had exercised their choice

to be governed by the notification dated 15.10.1988, about

168 applicants had objected and preferred the writ petitions

before the High Court. The writ petitions were dismissed by a

detailed order dated 14.12.1998 passed by the Single Judge in

the case of R. Jayakumar & Others v. The Bangalore

Development Authority & Others,6 rightly distinguishing E.R.

Manjaiah (supra) in view of the difference in the facts. However, the respondents on appeal had succeeded before the

Division Bench, which had in a short order dated 30.08.2001,

impugned in these appeals, simply referred to the decision in

the case of E.R. Manjaiah (supra) to allow the appeals. The

review petition filed by the Authority before the High Court

was dismissed vide the second impugned order dated

12.04.2002.

9. On the filing of the Special Leave Petitions, vide order

dated 15.07.2002, notice was issued, and it was directed that

4Title of the Notification dated 15.10.1988 reads as “Applications are invited from the General Public for allotment of residential sites in the Bangalore Development Authority area. The details of the sites proposed to be allotted are as under:

XX XX XX ” (Emphasis Supplied) 5“14. The B.D.A. reserves the right of allotting sites in a layout other than the one indicated by the applicant.” 6ILR 1999 KAR 1905 till further orders, refund of the amounts would be stayed.

This was followed by the order dated 10.03.2003, which reads:

“Delay condoned.

Substitution applications are allowed.

I.A.No.172 IN SLP(C)No.13422/2002

By order dated 15th July, 2002, it was directed that till further orders the refund of the amount is stayed. This application has been filed seeking clarification of that order to the extent that only the refund of the amount has been stayed and the said order will not come in the way of the respondent-applicant in getting possession of the site on completion of all other formalities including execution of the sale deed. It is evident that the order dated 15th July, 2002 stays every kind of refund by Bangalore Development Authority to the respondent and it is not restricted only to prayer (iv) in the Writ Petition. In short, Bangalore Development Authority will not be required to make any payment to the respondent in terms of the impugned judgment till the decision of the petitions by this Court. Insofar as the delivery of possession and execution of the sale deed is concerned, Secretary of Bangalore Development Authority in his affidavit dated 21st February, 2003 has explained the difficulty in the matter. According to the affidavit, after the amendment of Site Rules in 1998 now an absolute sale deed is executed on allotment of sites and there is no lease-cum-sale deed. He says that in this eventuality of Bangalore Development Authority executing sale deed, it may not be able to recover the balance price payable on the site in the event of success of the authority in these Special Leave Petitions.

In view of the above though we direct Bangalore Development Authority to execute the sale deed and deliver possession, but at the same time we also direct, the respondents will not, in any manner, part with possession, transfer or encumber the site till final decision by this Court. Further in case, any payment becomes due to the authority as a result of decision of this Court, the respondents will give an undertaking to the authority before the execution of sale deed that the same will be made within four weeks of the demand and the amount would be a charge on the site.

I.A. is disposed of accordingly.”

10. During the pendency of the present appeals, 119 out of about

168 of the writ petitioners had made applications or made

payment to the Authority and have accordingly been deleted

from the array of parties as respondents.

11. Our attention has been drawn to the order dated 09.09.2021

passed on an application moved by one such respondent. The

order reads:

“ xx xx xx Having heard learned counsel for the respective parties, IA No.16698/2021 is allowed with a direction to the Bangalore Development Authority to accept the enhanced amount of the sital value as well as the interest payable in terms of Rule 13 of the Bangalore Development Authority (Allotment of Site) Rules, 1984.

xx xx xx ”

12. As we are allowing the present appeals, it would be just and

fair if the remaining 49 respondents are given an opportunity

to make payment of the enhanced amount of the sital value

along with interest payable in terms of Rule 13 of the Rules.

The said payment on self-computation by the respondents would

be made within eight weeks. In case there is a dispute with

regard to the quantum of interest payable, the Authority

would notify the respondent with calculation, who would then

either make payment of the interest or file

response/objection. If the dispute cannot be resolved, the parties would be entitled to take recourse to appropriate

remedies as available.

13. Accordingly, we allow the appeals and set aside the impugned

orders dated 30.08.2001 and 12.04.2002. As a consequence, the

Writ Appeals preferred by the respondents would be treated as

dismissed. However, directions given in paragraph 12 above

would apply.

…………………………………………..,J.

[SANJIV KHANNA]

…………………………………………..,J.

[BELA M. TRIVEDI]

New Delhi, 9th March, 2022