Judgment:
- 1 - NC:
2023. KHC:38754 WP No.37159 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU ® DATED THIS THE31T DAY OF OCTOBER, 2023 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.37159 OF2017(LB-RES) BETWEEN: C.N. BALASUBRAMANYAM AGED ABOUT71YEARS S/O LATE SRI NARASIMHAN NO.115/A, 4TH CROSS13H MAIN, BTM LAYOUT, 1ST STAGE BANGALORE560068. ...PETITIONER (BY SRI. MANOHAR N, ADVOCATE) AND: THE COMMISSIONER MYSORE URBEN DEVELOPMENT AUTHORITY JLB ROAD, MYSORE-570008. …RESPONDENT (BY SRI. T.P. VIVEKANAND, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE FINAL LIST PUBLISHED BY THE RESPONDENT ON118.2017 IN RESPECT OF ALLOTMENT OF SITES IN R.T.NAGAR, MYSORE IN NO.1/2011-12 DATED199.2011 [ANNEXURE-K]. AS ILLEGAL, UNJUST, ULTRA VIRES, ARBITRARY, CAPRICIOUS AND VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND ETC.-. 2 - NC:
2023. KHC:38754 WP No.37159 of 2017 THIS WRIT PETITION COMING ON FOR FURTHER HEARING AND HAVING BEEN RESERVED FOR ORDER
S ON1509.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: ORDER
1 The petitioner is before this Court seeking for the following reliefs: a) Issue a writ of certiorari or any other Writ or direction to quash the final list published by the respondent on 11.08.2017 in respect of allotment of sites in R.T.Nagar, Mysore in No.1/2011-12 dated 19.09.2011 (Annexure-K) as illegal, unjust, ultra vires, arbitrary, capricious and violation of principles of natural justice. b) Issue a writ of Mandamus or any other Writ or direction to the respondent to allot a site to the petitioner in R.T.Nagar layout only by considering the number of attempts and his seniority in age for the category of site sought for, in the interest of justice and equity. c) Pass such other orders which this Honourable High Court deems just and proper in the circumstances of the case, in the interest of justice and equity.
2. The petitioner claims to be a Central Government employee who was then working with the Canara Bank having been born in Mandya wanted to live in the City of Mysuru after retirement.-. 3 - NC:
2023. KHC:38754 WP No.37159 of 2017 3. In that background, the petitioner had from time to time submitted his applications for allotment of a site whenever called for by City Improvement Trust Board, Mysuru (CITB, Mysuru) or the Mysore Urban Development Authority (MUDA). It is contended that the petitioner has made the following attempts. Sl. CITB/MUDA notification No.& Date Applicati Atte Remark No on mpt s . number s 1 B.1.8/1985-86 dt.6.7.85 10841 1 45 x 60 2 B.1.ADA.7/86-87 dt.25.8.86 40117 2 40 x 60 3 MUDA/01/89-90 dt.18.4.89 17490 3 45 x 60 4 MUDA/01/93-94 dt.5.3.94 185602 4 Conditi on prescri bed to apply only for 50 x 80 due to higher income 5 MUDA/02/94-95 dt.13.8.94 185602 5 Fresh applica tion was not necess ary as per notifica tion as the initial deposit was held by - 4 - NC:
2023. KHC:38754 WP No.37159 of 2017 MUDA6MUDA/37/98-99 dt.8.3.99 185602 6 “ 7 MUDA/Vasanthanagar/Noft/01/2004- A00056 7 Amt 05 dt.30.11.04 330 Rs.39, 100 remitte d on 20.1.0 5 being initial site deposit neither returne d back with interes t nor allotted the site though it is more than 12 years 8 MUDA/LBShastrinagar/ShanthaveriGo A00056 8 “ palagowdanagar/Lalithadrinagar:
330. 01/2005-06 dt.14.07.2005 9 MUDA/R.T.Nagar/Lalithadrinagar/Cha 2011G0 9 Rs.1,9 malapura {Nanjangud}:01/11-12 003282 0,100/ dt.19.9.2011 - ID is held by MUDA4 Thus, in spite of 9 attempts having been made in between 1985 to 2011, the petitioner has not been allotted a site. Due to such non-allotment, the petitioner had approached the District Consumer Disputes Redressal Forum, Mysuru in CD No.20/2005 - 5 - NC:
2023. KHC:38754 WP No.37159 of 2017 when on 29.06.2005 the Consumer Forum directed payment of interest on the deposited amounts for 126 months which was taken up in appeal by MUDA before the Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal No.1209/2005, the appeal came to be dismissed on 17.10.2005 again directing payment of interest.
5. On an Execution Petition having been filed, the MUDA handed over a cheque dated 19.12.2007 for a sum of Rs.12,213/- being the interest and also submitted to the Court the seniority list contending that the petitioner’s seniority can only be taken into consideration for site measuring 50 x 80 and thus, there have been 5 attempts made and not 8 attempts as sought to be contended by the petitioner. Accepting the same, the Execution Petition came to be closed on 26.12.2007.
6. On another notification having been published on 19.09.2011, the petitioner submitted his application - 6 - NC:
2023. KHC:38754 WP No.37159 of 2017 once again for 50 x 80 plot. However, no allotment was made to the petitioner even this time. When the petitioner made enquiries, since no response having been received, the petitioner applied under Right to Information Act seeking for reasons as to why allotment was not made in his favour, when in reply he was informed that due to certain technical problems, the allotment of sites in R.T.Nagar Layout have not been completed by MUDA.
7. Another application dated 10.06.2013 having been submitted, the petitioner sought for furnishing of the seniority list of the allottees in R.T.Nagar, when he was informed that due to pendency of Writ Appeal in W.A.No.2497/2012 before this Court, the allotment of sites was delayed due to stay operating in the said appeal. The petitioner filed an application for impleading himself in the said Writ Appeal. Thereafter, a compromise was entered into between - 7 - NC:
2023. KHC:38754 WP No.37159 of 2017 the appellant and MUDA in W.A.No.2497/2012 on 24.04.2017.
8. Upon the disposal of the said appeal, MUDA prepared and published a provisional list of site allottees on 20.06.2017 inviting objections, if any, in relation thereto. The petitioner on seeing the provisional list was shocked to see that his name was not found either in Central Government category or under the general category and as such, filed his detailed objections on 21st, 22ndand 27th June 2017 wherein he had requested the MUDA to give weightage to his seniority on account of several attempts being made and his date of birth being 18.02.1947. Despite the said representations, a final list came to be announced on 12.08.2017 without the petitioner’s name in it.
9. The petitioner on verification of the said list having observed several irregularities placed the same before the MUDA vide his email dated - 8 - NC:
2023. KHC:38754 WP No.37159 of 2017 12/13.08.2017. It is contending that there are large scale deep irregularities in the seniority list published that the petitioner is before this Court by way of above petition filed in the year 2017 when the petitioner was at the advanced age of 71 years seeking for the aforesaid reliefs.
10. Sri.N.Manohar, learned counsel for the petitioner would submit that:
10. 1. In the seniority list which has been published, the number of attempts made by the petitioner have not been properly taken into consideration inasmuch as the petitioner has made more than 9 attempts which ought to have been considered by the MUDA. Instead of doing so, the MUDA has considered the number of attempts as only 5 resulting in an adverse impact on the seniority of the petitioner. 10.2. If the 9 attempts made by the petitioner had been properly taken into consideration, the - 9 - NC:
2023. KHC:38754 WP No.37159 of 2017 petitioner would have been definitely allotted a site which the petitioner has been waiting for more than 30 years. 10.3. Insofar as the age criteria adopted, he submits that the age criteria would have to be taken into consideration in relation to the number of attempts. If the higher number of attempts made, then that would prevail over the age of any other applicant. Even when the age of the applicants are the same, the number of attempts would decide the seniority and as such, when two variables are to be considered viz., the number of attempts and age, the number of attempts would have precedence over the age and as such, the petitioner could not have been rejected or another candidate being favoured because that candidate is older than the petitioner.-. 10 - NC:
2023. KHC:38754 WP No.37159 of 2017 10.4. On these grounds, he submits that the seniority list which has been published is contrary to the applicable laws and is required to be quashed.
11. Sri.T.P.Vivekananda, learned counsel for MUDA which is the successor in interest to CITB, Mysuru submits that:
11. 1. The number of attempts would have to be taken into consideration on the basis of the dimension of the site. 11.2. In the present case, the petitioner had made three earlier attempts in the year 1985, 1986 and 1989 for site measuring 45 x 60 and it is only in the year 1994 that an application was made for a site measuring 50 x 80. 11.3. As such, there being a change in the measurement of the site, earlier application cannot be considered for determining the seniority. If at all, the petitioner had continued to make application for a site measuring 45 x - 11 - NC:
2023. KHC:38754 WP No.37159 of 2017 60, the seniority would have continued. Since the petitioner had made a change in the dimension or the measurement of the site in the year 1994, the earlier applications cannot be considered for the purpose of seniority. 11.4. He submits that this methodology has been evolved by the MUDA in order to maintain a level playing field amongst all the applicants on the basis of the site measurements. 11.5. On enquiry, as to whether there is any statutory basis for such methodology to be evolved by MUDA, he submits that it is a practice followed by MUDA and the Statute itself does not lay any such basis. On further enquiry as to whether the petitioner had been informed that if he were to change his preference of the measurement of the site, he will lose his seniority as regards the earlier sites, he submits that no such information was - 12 - NC:
2023. KHC:38754 WP No.37159 of 2017 made available. His submission is that the seniority for application of sites can only be taken into consideration for identical measuring site and once there is a change in the measurement, the application being made for a different site, the seniority can only be considered for such different sites and all applications cannot be treated on parity, hence there was no particular need to inform the petitioner of the same. He thus submits that the seniority as regards only 50 x 80 have been taken into consideration and by doing so, it is only 5 attempts which can be taken into consideration and not 8 attempts as contended by the petitioner. The petitioner’s name has been placed at seniority with 5 attempts which does not entitle the petitioner for allotment of site and as such, he submits that the reliefs prayed by the petitioner are not sustainable and the petition required to be dismissed.-. 13 - NC:
2023. KHC:38754 WP No.37159 of 2017 12. Heard Sri.Manohar N., learned counsel for the petitioner and Sri.T.P.Vivekanand, learned counsel for respondent and perused papers.
13. The points that would arise for consideration are:
1. Whether the applications made for a site of different measurement could be taken into consideration as regards subsequent applications made for a site of another measurement and all such applications can be taken into consideration for determining the seniority of the applicant for the purpose of allotment?.
2) Whether the MUDA can arrive at its own methodology and implement the methodology without making known the said methodology to the applicants?.
3) In the present case, is the methodology followed by the MUDA proper or not?.
4) What order?.
14. I answer the above points as under:- 15. Answer to Point No.1: Whether the applications made for a site of different measurement could be taken into consideration as regards subsequent applications made for a site of another measurement and all such applications can be taken into consideration for determining the seniority of the applicant for the purpose of allotment?. - 14 - NC:
2023. KHC:38754 WP No.37159 of 2017 And 16. Answer to Point No.2: Whether the MUDA can arrive at its own methodology and implement the methodology without making known the said methodology to the applicants?. 16.1. Both the above points being connected to each other are taken up for consideration together. 16.2. The Karnataka Urban Development Authority (Allotment of Sites) Rules, 1991 applies to allotment of sites of all Urban Development authorities including MUDA. It is these Rules, which have to be followed to ascertain the seniority of the applicant as also for allotment of sites relating thereto. 16.3. Rules 10, 11, 12, 13, 14 and 15 are applied to the same and they are extracted hereunder for easy reference:
10. ಅ(cid:2)(cid:3):- (1) (cid:1)ೕಲ(cid:4)ಂಡಂ(cid:7)ೆ (cid:10)ೋಂ(cid:12)ಾ(cid:14)ತ(cid:10)ಾದ ಒಬ(cid:19) ವ(cid:21)(cid:22)(cid:23)ಯು ಒಂದು (cid:26)(cid:27)ೇಶನದ ಹಂ(cid:31) ೆ!ಾ", (cid:26)(cid:27)ೇಶನದ ಅ$ಸೂ(cid:31)ತ &ೆ’ೆಯ (ೇಕ*ಾ ಹತರ(cid:23) ಷು- .ಾ/ರಂ0ಕ 1ೇವ23ಂ4!ೆ (cid:26)ಯ5ಸ’ಾದ ಪ/ಪತ/ IIರ78 ಅ9:ಯನು; ಸ78ಸತಕ(cid:4)ದು<, - 15 - NC:
2023. KHC:38754 WP No.37159 of 2017 ಅನುಸೂ(cid:31)ತ =ಾ> ಅನುಸೂ(cid:31)ತ ಬುಡಕಟು-, @ಾ9 Aೈ(cid:26)ಕರು ಅಥ(cid:27)ಾ ಮೃತ Aೈ(cid:26)ಕರ ಕುಟುಂಬಗಳ ಸದಸ(cid:21)ರು ಮತು (cid:23) ೇಂದ/ದ ಸಶಸH ಪ*ೆಯ ಸದಸ(cid:21)ರ ಪ/ವಗ:ದ ಅIಯ7 8 (cid:26)(cid:27)ೇಶನಗJ!ಾ" ಅ9: ಸ78Kದ ಸಂದಭ:ದ7 8 .ಾ/ರಂ0ಕ 1ೇವ2ಯು (ೇಕ*ಾ ಮೂರು ಆ"ರತಕ(cid:4)ದು,< (2) ಅ9:ಗಳನು; ಖು(cid:12)ಾ<" ಸ78ಸತಕ(cid:4)ದು< ಅಥ(cid:27)ಾ ಅಂಥ ಅ9:ಗಳನು; KOೕಕPಸಲು !ೊತು(cid:23)ಪIKರುವ 4(cid:10)ಾಂಕ ಮತು (cid:23) ಾಲ ೆ(cid:4) ಮುಂQೆ .ಾ/$ ಾರದ ಕRೇPಯನು; ತಲುಪSವಂ(cid:7)ೆ (cid:10)ೋಂ(cid:12)ಾ(cid:14)ತ ಅಂQೆಯ ಮೂಲಕ ಕಳTUಸತಕ(cid:4)ದು<, !ೊತು(cid:23)ಪIKದ 4(cid:10)ಾಂಕ ಮತು (cid:23) ಸಮಯದ ನಂತರ KOೕಕPಸ’ಾದ ಮತು (cid:23) (cid:12)ೋಷಪVPತ ಮತು (cid:23) ತ.ಾW"ರುವ ಅ9:ಗಳನು; >ರಸ(cid:4)Pಸತಕ(cid:4)ದು,< 11. (cid:4)ಾತ(cid:7) (cid:9)ೇವ(cid:13):- (cid:26)(cid:27)ೇಶನ ಪ*ೆಯುವSದ ಾ(cid:4)" ಪ/>3ಬ(cid:19) ವ(cid:21)(cid:22)(cid:23)ಯು (cid:7)ಾನು ಅ9: ಸ78Kದ XK(cid:23)ೕಣ:Xರುವ (cid:26)(cid:27)ೇಶನದ @ೌಲ(cid:21)ದ (ೇಕ*ಾ 10 ೆ(cid:4) ಸಮ(cid:10)ಾದ [ಬಲಗನು; \ಾತP1ೕವ2].ಾ" ಇಡತಕ(cid:4)ದು < ಮತು(cid:23) ಅಂಥ 1ೇವ2ಯ ಗುರು>!ಾ" ಪ*ೆದ ರKೕ> ಅಥ(cid:27)ಾ .ಾ/$ಕೃತ &ಾ(cid:21)ಂಕುಗJ!ೆ [ಬಲಗನು; ಜ(cid:1) @ಾIರುವ ಬ!ೆ"ನ ಚಲa ಅಥ(cid:27)ಾ ಕ5ೕಷನರ bೆಸPನ7 8 ಪ*ೆಯ’ಾದ ಹಣದ *ಾ/ಪ-ನು; ಅ9:3ಂ4!ೆ ಲಗ>ಸ(cid:23) ತಕ(cid:4)ದು< : , ಪರಂತು ಅನುಸೂ(cid:31)ತ =ಾ>ಗಳT ಅನೂಸೂ(cid:31)ತ ಬುಡಕಟು-ಗJ!ೆ AೇPಸದವರು ಅಥ(cid:27)ಾ ಸdeಾಂತPತ ರfgಾ Kಬ(cid:19)ಂ4 ಮತು(cid:23) Aೇ(cid:27)ೆ ಸ78ಸು>(cid:23)ರು(cid:27)ಾಗ ಮೃತhಾದ ರfgಾ Kಬ(cid:19)ಂ4ಯ ಪ> ಪ>;ಯರು 1ೇವ2(cid:14)ಡ&ೇ ಾದ 3 ಹಣವS (cid:26)(cid:27)ೇಶನದ @ೌಲ(cid:21)ದ (ೇಕ*ಾ ಆ"ರತಕ(cid:4)ದು<. 12.ಹಂ(cid:16)(cid:17)ೆ(cid:18)ಾ(cid:19) ಅನಹ(cid:3)(cid:21)ೆ:- ].ಾjಬ(cid:19) ವ(cid:21)(cid:22)(cid:23)ಯು- (1) ಅ9: ಸ78ಸುವSದ ೆ(cid:4) (cid:26)ಗ4ಪIKದ ೊ(cid:10)ೆಯ 4(cid:10)ಾಂಕದ (cid:26)ಕಟಪVವ:ದ ಐದು ವಷ:ಗJ!ೆ ಕI(cid:1) ಇಲ8ದ ಅವ$ಯವhೆ!ೆ ಕ(cid:10)ಾ:ಟಕ hಾಜ(cid:21)ದ78 - 16 - NC:
2023. KHC:38754 WP No.37159 of 2017 Aಾ@ಾನ(cid:21)(cid:27)ಾ" (cid:27)ಾಸ @ಾಡ(cid:12)ೇ ಇರುವವನು (ಸOತಂತ/(cid:27)ಾ" ಅಥ(cid:27)ಾ ತನ; ಕುಟುಂಬದ ; ಸದಸ(cid:21)hೊಂ4!ೆ (cid:27)ಾಸ @ಾಡು>(cid:23)ರುವವನು) [(2) No person shall be eligible for allotment of the site, If such person has been allotted a site or a house in any part of the state by any other Urban Development Authority or Karnataka Housing Board or any other Agency of Government or any Private layout formed by Housing Co- Operative Societies:]. ಪರಂತು, ಕ(cid:10)ಾ:ಟಕದ (cid:26)(cid:27)ಾK].ಾ"ದು< ಆದhೆ ಉ(cid:12)ೊ(cid:21)ೕಗ, ವ(cid:21)ವbಾರ, (cid:27)ಾ(cid:21)ಸಂಗ ಅಥ(cid:27)ಾ ತರ&ೇ>!ಾ" X(cid:12)ೇಶ ೆ(cid:4) bೋ"ರುವ ಮತು(cid:23) ಹಂ(cid:31) ೆ].ಾಗ&ೇ ಾದಂಥ ಪ/(cid:12)ೇಶದ7 8 (cid:27)ಾKಸಲು ಉ(cid:12)ೆ<ೕpKರುವ ವ(cid:21)(cid:22)(cid:23)ಗಳ ಸಂದಭ:ದ78 .ಾ/$ ಾರವS ಐದು ವಷ:ಗಳ ಅ$(cid:27)ಾಸನ ಷರತುಗ(cid:23) ಳನು; ಸI7ಸಬಹುದು.
13. (cid:22)(cid:23)ೇಶನಗಳ ಹಂ(cid:16)(cid:17)ೆ(cid:18)ಾ(cid:19) ಅ(cid:2)(cid:3)(cid:27)ಾರನ ಆ(cid:30)(cid:31) (cid:22)ೕ ಗಳ!:- (1) .ಾ/$ ಾರವS ಪ/>3ಬ(cid:19) ಅ9:(cid:12)ಾರನ ಪ/ಕರಣವನು; ಗುgಾವಗುಣಗಳ (cid:1)ೕ’ೆ ಪPಗ2ಸತಕ(cid:4)ದು< ಮತು(cid:23) ಆq(cid:4) @ಾಡುವ7 8 ಈ ಮುಂ4ನ (cid:26)ೕ>ಗಳನು; ದೃs-ಯ78Pಸತಕ(cid:4)ದು<:- (i) ಅ9:(cid:12)ಾರನ (cid:27)ೈ(cid:27)ಾUಕ Aಾdನ@ಾನ ಎಂದhೆ ಅವನು X(cid:27)ಾUತ(cid:10)ೆ ಅಥ(cid:27)ಾ ಇಲ(cid:27)8 ೆ ಮತು (cid:23) ಅವಲಂuತ ಮಕ(cid:4)ಳನು; bೊಂ4ರುವ(cid:10)ೇ, ಇಬ(cid:19)ರು ಅಥ(cid:27)ಾ ಇಬ(cid:19)P"ಂತ ಕI(cid:1) 9ೕವಂತ ಅವಲಂuತ ಮಕ(cid:4)ಳನು; bೊಂ4ರುವ ವ(cid:21)(cid:22)(cid:23)!ೆ bೆ(cid:31)vನ .ಾ/wಾನ(cid:21)(cid:7)ೆ (cid:26)ೕಡತಕ(cid:4)ದು<. (ii) ಅ9:(cid:12)ಾರನ ವರ@ಾನ ಮತು(cid:23) (cid:26)(cid:27)ೇಶನಗಳನು; ಖPೕ4 @ಾಡುವ ಮತು (cid:23) ಅವನ (cid:27)ಾಸ ಾ(cid:4)" ಅದರ7 8 ಮ(cid:10)ೆ ಕx-ಸುವ ಅವನ Aಾಮಥ(cid:21):: - 17 - NC:
2023. KHC:38754 WP No.37159 of 2017 ಪರಂತು, ಈ ಷರತ(cid:23)ನು; ಅನುಸೂ(cid:31)ತ =ಾ>ಗಳT ಮತು (cid:23) ಅನುಸೂ(cid:31)ತ ಬುಡಕಟು-ಗJ!ೆ AೇPದ ಅ9:(cid:12)ಾರರ ಸಂಬಂಧದ7 8 ಪPಗ2ಸತಕ(cid:4)ದ<ಲ8; [(iii) x x x x x]. (iv) (cid:26)(cid:27)ೇಶನದ ಹಂ(cid:31) ೆ!ಾ" ಅ9:(cid:12)ಾರನು ಈ Uಂ(cid:12)ೆ ಎಷು- &ಾP ಅ9:Kರುವ(cid:10)ೆಂಬ ಬ!ೆ z ಮತು(cid:23) (cid:26)(cid:27)ೇಶನಗಳನು; ಪ*ೆಯಲು ಅವನು ಅಹ:(cid:26)(cid:12)ಾ(cid:21)ಗೂ(cid:21) ಅವನು (cid:26)(cid:27)ೇಶನ ಪ*ೆಯ(cid:12)ೆ ಇರುವ ಸಂಗ>ಯನು; ಅವನು ಅಹ:(cid:10)ಾ"(cid:12)ಾ<(cid:10)ೆ ಎಂಬು(cid:12)ಾ" ಪPಗ2ಸ&ೇಕು; (v) @ಾ9 Aೈ(cid:26)ಕhಾ"ರುವ ವ(cid:21)(cid:22)(cid:23)ಗಳT ಅಥ(cid:27)ಾ ಕeೆದ ಹತು (cid:23) ವಷ:ಗಳ78 Aೇ(cid:27)ೆ ಸ78ಸು>ರ(cid:23) ು(cid:27)ಾಗ ಮೃತhಾದ Aೈ(cid:26)ಕರ ಕುಟುಂಬದ ಸದಸ(cid:21)ರು, (2) (cid:26)(cid:27)ೇಶನವನು; ಈ ೆಳ"ನ XXಧ ಪ/ವಗ:ಗಳ .ೈ(cid:22) ಹಂಚತಕ(cid:4)ದು.<- (ಎ) UಂದುJದ ಪಂಗಡಗಳT2 (u) ಅನುಸೂ(cid:31)ತ ಬುಡಕಟು-ಗಳT3 20% (K) ಅನುಸೂ(cid:31)ತ =ಾ>ಗಳT15 (I) @ಾ9 Aೈ(cid:26)ಕರು ಅಥ(cid:27)ಾ ಮೃತ Aೈ(cid:26)ಕರ ಕುಟುಂಬದ ಸದಸ(cid:21)ರು ಮತು(cid:23) ೇಂದ/ ಶಸH ಪ*ೆಯ ಸದಸ(cid:21)ರು 5% (ಇ) hಾಜ(cid:21) ಸ ಾ:ರ (cid:26)ಗಮ Aಾವ:ಜ(cid:26)ಕ ವಲಯ ಉ4<(cid:1)ಗಳT ಮತು(cid:23) (ಾಸನ ಪ/ದತ(cid:23) .ಾ/$ ಾರಗಳ (cid:10)ೌಕರರು 10% (ಎ{) ೇಂದ/ ಸ ಾ:ರದ Aಾವ:ಜ(cid:26)ಕ ವಲಯ ಉ4<(cid:1)ಗಳT/ (cid:26)ಗಮ ಮತು(cid:23) (ಾಸನ ಪ/ದತ(cid:23) .ಾ/$ ಾರಗಳ (cid:10)ೌಕರರು 5% (=ೆ) Aಾವ:ಜ(cid:26)ಕರು 48% - 18 - NC:
2023. KHC:38754 WP No.37159 of 2017 ((ಎ}) ಕ’ೆ, X~ಾನ, (cid:22)/ೕ*ೆ' ಅಥ(cid:27)ಾ ಇ(cid:10)ಾ(cid:21)ವS(cid:12)ೇ (cid:127)ೇತ/ಗಳ78 (ಾ8ಘ(cid:26)ೕಯ: (ಾಧ(cid:10)ೆಯನು; Aಾ$Kರುವ ವ(cid:21)(cid:22)(cid:23)ಗಳT8 (ಐ) ಅಂಗXಕಲರು 2% "ವರ#ೆ:- ಹಂ(cid:31) ೆ @ಾಡುವ ಾಲದ78, (ಎ) ಪವಗ: ೆ(cid:4) AೇPದ ವ(cid:21)(cid:22)(cid:23)ಗJಂದ Aಾಕಷು- ಸಂ\ೆ(cid:21)ಯ78 ಅ9:ಗಳT ಬಂದhೆ ಆಗ ಆ ಪ/ವಗ: ೆ(cid:4) 5ೕಸ7PKದ ಉJದ (cid:26)(cid:27)ೇಶನಗಳನು; (u) ಪ/ವಗ: ೆ(cid:4) ವ!ಾ:Uಸತಕ(cid:4)ದು < ಮತು (cid:23) (ಎ) ಮತು(cid:23) (u) ಪ/ಗJ!ೆ AೇPದ ವ(cid:21)(cid:22)(cid:23)ಗJಂದ Aಾಕಷು- ಸಂ\ೆ(cid:21)ಯ78 ಅ9:ಗಳT ಬರ4ದ 2023. KHC:38754 WP No.37159 of 2017 15. ಅ(cid:2)(cid:3)(cid:27)ಾರರ ಆ(cid:30)(cid:31):- .ಾ/$ ಾರವS ಹಂ(cid:31) ೆ @ಾಡುವ ಬ!ೆ z (cid:7)ಾನು ಯುಕ(cid:23)(cid:27)ೆಂದು (cid:132)ಾXಸುವಂಥ bೆ(cid:31)vನ XQಾರgೆಯ ತರು(cid:27)ಾಯ ಹಂ(cid:31) ೆ ಸ5>ಯ p(cid:129)ಾರಸು(cid:130)ಗಳನು; ಪPಗ2ಸತಕ(cid:4)ದು<. 16.4. The manner of submitting an application is detailed in Rule 10, the manner of verification is stated in Rule 11, ineligibility of an applicant is covered under Rule 12, the manner of reservation is covered under Rule 13, Rule 14 deals with the establishment of a Committee to verify the applications submitted and in terms of Rule 15, the selection is required to be made. 16.5. In none of the aforesaid Rules, there is any prohibition for an applicant from changing the measurement of the sites applied for in the next application. What is stated is only as regards application for a site and the same does not in any manner curtail the change of measurement of sites applied for.-. 20 - NC: 2023. KHC:38754 WP No.37159 of 2017 16.6. It is in that background that the present matter would have to be looked into. Though the submission of Sri.T.P.Vivekanand, learned counsel for MUDA is that there being a change in measurement from a lower measurement to a higher measurement, it is only the applications which have been filed subsequently for a higher measurement, which would have to be taken into consideration for determining the seniority, I do not find any basis for such submission in the aforesaid rules. 16.7. Any Urban Development Authority or authority under the State would have to act and discharge its functions in terms of the applicable Rules. There can be no departure from the said Rules, let alone substitution. The Rules which have been framed for allotment are to bring about transparency and to indicate to all concerned that their applications would be - 21 - NC: 2023. KHC:38754 WP No.37159 of 2017 considered in terms of the said Rules. Any disadvantage to be made applicable to an applicant would have to be informed to such applicant prior to or at the time of filing such an application. If the applicant were to lose seniority for allotment by such change, it was but required for the authority to have categorically informed the applicant that in the event of making a change in the measurement of a site applied for then the seniority that he had acquired till then would be lost. 16.8. It was then for the applicant to decide whether he wanted to make a change in the measurement or not and if such a change was made, the change would be accompanied by loss of seniority. Without making known the said consequence, the MUDA permitted the petitioner to change the measurement of application to apply for a site of different - 22 - NC: 2023. KHC:38754 WP No.37159 of 2017 measurement in a subsequent notification issued. Such change was made by the petitioner not knowing that the change would adversely affect his seniority. 16.9. It appears that the MUDA has come up with its own methodology (not mentioned or covered by the Rules) and in terms of the said methodology decided that if there is a change in measurement made in a subsequent application, the earlier application for a site of a different measurement would not be taken into consideration for determining the seniority. 16.10. Such a methodology which has been adopted by the MUDA being unilateral one without informing the affected persons like the petitioner in my considered opinion cannot be sustained. No person can be put to a disadvantage on the basis of change in methodology, change in Rules which are - 23 - NC: 2023. KHC:38754 WP No.37159 of 2017 applied retrospectively and/or without making known the same to the applicant. 16.11. In my considered opinion there is a vested right of seniority created in the petitioner as and when he submitted applications for allotment of sites and the said vested right cannot be taken away by the MUDA on a subsequent date by contending that the petitioner has applied for a site of different measurement than that he had applied for earlier. Even under law, a vested right cannot be retrospectively interfered with. 16.12. In the present case, there is no law enabling the MUDA to do so. The delegated legislation viz., the Rules also do not provide for the same. It is only a practice by way of methodology which is sought to be made use of by the MUDA for the purpose of ascertaining the seniority which in view of the above reasoning cannot be done, such a methodology has apparently been - 24 - NC: 2023. KHC:38754 WP No.37159 of 2017 adopted by the MUDA on its own and not sanctioned by the statute or rules. 16.13. Thus, I answer Points No.1 and 2 by holding that the methodology adopted by the MUDA without making known the same, at the time when the petitioner applied for a site of different measurement than that he had applied for earlier is not sustainable. Without informing the petitioner the consequences of a choice or election made by the petitioner, such a methodology cannot be applied to the petitioner disentitling the earlier applications from being considered for seniority and as such, all the earlier applications made by other applications would also have to be considered for determining the seniority and the seniority list redone, it is however made clear that due to passage of time the rights which are created by way of allotment shall not be disturbed and the - 25 - NC: 2023. KHC:38754 WP No.37159 of 2017 persons now eligible by way of redoing the seniority shall be eligible for allotment of sites in priority. 17. Answer to Point No.3: In the present case, is the methodology followed by the MUDA proper or not?. 17.1. For all the aforesaid reasons, the methodology which has been adopted by the MUDA insofar as the petitioner is concerned not taking into consideration the earlier three applications made for site measuring 45 x 60, 40 x 60 and 45 x 60 respectively is not sustainable and they would have to be taken into consideration to determine the seniority. 17.2. Not having done so, the seniority list which has been prepared is bad in law. 18. Answer to Point No.4: What order?. 18.1. Though the petitioner would succeed in being required to be considered for allotment of sites - 26 - NC: 2023. KHC:38754 WP No.37159 of 2017 and determination of the seniority on the basis of the earlier applications filed, there would be no requirement as such to quash the entire final list published by the respondent on 11.08.2017 in respect of sites R.T.Nagar, Mysuru. The reliefs would be required to be modulated and as such, I pass the following: ORDER i. The Writ Petition is allowed. ii. A mandamus is issued to the respondent – MUDA to reformulate the seniority of the petitioner and other applicants in terms of the above by taking into consideration all the applications submitted by the petitioner and such persons even though they may be for a different measurement and sites allotted (as per the measurement for which last application - 27 - NC: 2023. KHC:38754 WP No.37159 of 2017 was made) in terms of their respective seniority on priority. iii. In so far as the petitioner is concerned if a site measuring 50 x 80 is available in the layout viz., R.T.Nagar, Mysuru to allot the same within a period of 30 days of the present order. In the event of no site being available in R.T.Nagar, Mysore to allot a site measuring 50 x 80 in the next subsequent layout formed by the MUDA. If not available in that layout, in the next layout formed and so on within the aforementioned period. Sd/- JUDGE PRS