Bhaskara Reddy (Ex Service Man) S/O. Peddappa Vs. Bangalore Development Authority Rep. by Its Commissioner and Deputy Commissioner-iv Bangalore Development Authority - Court Judgment

Excerpt:
- section 69 & bangalore development authority (disposal of corner sites and commercial sites) rules, 1984, rule 5: [mohan shantanagoudar, j] allotment of marginal land -determination of market value - marginal land situated in between site of petitioner and common drainage - neither a corner site nor a commercial site held, rule 4 is not applicable. had the marginal land been a corner site, value thereof could have been determined as per rule 5 - that not being so, value is to be determined under relevant resolutions passed by bda. rule 5: [mohan shantanagoudar, j] allotment of a corner site to individuals or bodyof persons or institutions in special cases - petitioners prayer for allotment of marginal site which is neither a corner site nor a commercial site - demand made by the bangalore development authority directing the petitioner to pay market value penalty as per rule 5 of the rules - legality of held, the site in question does not fall within the definition of either the corner site or commercial site in as much as it is stated to be situated in between the purchased site of the petitioner and the common drainage. as the site in question is neither the corner site nor the commercial site, the provisions of the rules in general and rule 5 of the rules is particular are inapplicable to the facts of the case. the rules deal only with disposal of corner sites and commercial sites. they do not deal with marginal lands (which are neither the corner site snor commercial sites). it has to be made clear that the rules are applicable if marginal lands are either the corner sites or commercial sites. thus, the bangalore development authority has to value the property and impose the penalty there on, without reference to rule 5 of the rules. further, the case of marginal land should be fixed at the rate at which the applicant purchased the site.(as evidenced by the sale deed) or at 1 times the bdas allotment rate whichever is higher. if the marginal site itself is a corner site, its cost should be fixed as per rule 5 of the rules.ordermohan shantanagoudar, j.1. petitioner is the owner of the site bearing no. 920-2hc, situated at hrbr layout, 1 block, bangalore. the site was originally allotted in favour of smt. d. pushpa as per the allotment letter vide annexure-d, dated 21.2.2000. bda has executed absolute sale deed in favour of smt. d. pushpa on 24.2.2000. thereafter she sold the property in favour of abdul jabbar vide sale deed dated 7.5.2003, who in turn sold the property in favour of the petitioner on 22.8.2003. copy of the sale deed executed in favour of the petitioner is produced at annexure-e to the writ petition.2. adjacent to the property of the petitioner (on the hind side), a marginal land measuring 24.10 sq.mtrs. is lying. according to the petitioner, the said marginal land cannot be used of by anyone else except by the petitioner, who is the owner of the site bearing no. 920-2hc. thus, the petitioner made an application dated 25.3.2004, seeking allotment of the marginal land. the bda sent intimation dated 4.8.2006 vide annexure-c to the writ petition directing the petitioner to pay a sum of rs. 8,67,959/- towards the value of marginal land + penalty. the said intimation, which is in the form of order, is called in question in this writ petition.3. sri r.s. hegde, learned advocate appearing on behalf of the petitioner submits that the impugned intimation is illegal, inasmuch as the bda has fixed the value of the site according to its whims and fancies without reference to the resolution dated 11.12.1996/13-12-96 (subject no. 249/1996). according to him, the bda can fix the market value of the marginal land only in accordance with the aforementioned resolution.per contra, sri k. krishna, learned advocate appearing on behalf of the bda by relying upon another resolution dated 13.10.2005 (subject no. 135/2005) contends that the bda is entitled to fix the market value of the site in accordance with rule 5 of bda (disposal of corner sites and commercial sites) rules, 1984 (for short hereinafter referred to as the 'rules'). thus, according to him, the bda is justified in directing the petitioner to pay a sum of rs. 8,67,959/- towards the value of the property + penalty.4. it is relevant to note rule-5 of rules before proceeding further. the same reads thus:5. allotment of a corner site to individuals or body of persons or institutions in special cases: notwithstanding anything in rule 3, the authority may allot any corner site, which has not been notified under treated as an independent site, to the owner of the adjacent site:provided that where the width of such site is:a) one-third of the width of the adjacent site or less, the sale shall be at such rate as the authority may fix;b) more than one-third but equal to one half of the width of the adjacent site or less, the sale shall be for average auction rate, the said rate being determined on the basis of the rates at which sites have been sold at three previous auctions in the locality in which such site is situated;c) more than one-half of the width of the adjacent site the sale shall be by auction in accordance with rule 6 as if such site were an independent site.5. from the above, it is clear that rule-5 is applicable in case of allotment of corner site. the impugned intimation cannot be sustained, inasmuch as the value arrived at therein is based on rule 5 of the rules. the statement of objections filed by bda make it amply clear that the bda has arrived at the amount of rs. 8.67,9 59/- by calculating the market value relying upon rule 5 of the rules. such a valuation made by the bda is illegal.6. it is not in dispute that the site in question is only a marginal land. it is neither a corner site nor a commercial site. the words commercial site and comer site are defined in the rules as under:'commercial site' means any site formed in any extension or layout earmarked for locating a cinema theatre, a hotel or restaurant, a shopping centre, a shop, a market area and includes sites for locating any business or commercial enterprises or undertaking but does not include any site earmarked for the location of any factory or any industry.'corner site' means the site at the junction of two roads having more than one side of the site facing the roads.the site in question does not fall within the definition of either the corner site or commercial site inasmuch as it is stated to be situated in between the purchased site of the petitioner and the common drainage. as the site in question is neither the corner site nor the commercial site, the provisions of the rules in general and rule 5 of the rules in particular are inapplicable to the facts of the case. the rules deal only with disposal of corner sites and commercial sites. they do not deal with marginal lands (which are neither the corner sites nor commercial sites). it has to be made clear that the rules are applicable if marginal lands are either the corner sites or commercial sites. thus, the bda has to value the property and impose the penalty thereon, without reference to rule 5 of the rules.7. resolution dated 11.12.1996/13.12.1996 (subject no. 249/ 1996) passed by bda reads thus:i) if the applicant is the first or subsequent purchaser of a bda site from the original allottee, the cost of the marginal land should be fixed at the rate at which he purchased the site, (as evidenced by the sale deed) or at 1 1/2 times the bda's current allotment rate, whichever is higher;ii) if the applicant is the first or subsequent purchaser of a bda auction site from the original auction purchaser, the cost of marginal land should be fixed at the rate at which he purchased the site or the auction rate at which the site was originally disposed of in auction by bda or 1 1/2 times the current allotment rate whichever is the higher;iii) if the marginal land allotted is by itself a corner site, its cost should be fixed at the average auction rate as per rule 5 in the bda (disposal of corner sites and commercial sites) rules, 1984 or at the rate at which the applicant purchased his site, whichever is higher.from the above resolution, it is amply clear that the cost of marginal land should be fixed at the rate at which the applicant purchased the site. (as evidenced by the sale deed) or at 11/2 times the bda's allotment rate whichever is higher. if the marginal site itself is a corner site, its cost should be fixed as per rule 5 of the rules. another resolution is passed by bda dated 23.3.2001 (subject no. 45/2001), which also reveals the procedure to value the marginal land, which is a corner site. thus, separate resolutions are passed by the bda to value purely a marginal land and the marginal land-cum-corner site. the resolution dated 13.10.2005 (subject no. 135/2005) relied upon by sri k. krishna, learned counsel appearing on behalf of bda deals with the imposition of penalty in case if the allottee or the purchaser encroaches upon the marginal land. hence, the petitioner has to pay penalty as per the said resolution, inasmuch as the petitioner has encroached upon the marginal land and constructed the house much prior to the allotment of marginal land. but the said resolution dated 13-10-2005 does not deal with the fixation of value of marginal land, which is a corner site. since the property in question neither the corner site nor the commercial site, aforementioned rule 5 of the rules cannot be made applicable to the case on hand. thus, the bda has to determine the value of the marginal land + penalty in accordance with the resolution dated 11.12.1996/13.12.1996 (subject no/249/1996) and the resolution dated 13.10.2005 (subject no. 135/2005). it has to be made clear here itself that in case if the bda has passed any subsequent resolution touching the question regarding valuation of the marginal land (not being the commercial site or corner site), prior to 4.8.2006 (date of allotment of marginal site in favour of the petitioner), the said resolution shall also be taken into consideration.in view of the above, the intimation letter dated 4.8.2006, passed by the bda vide annexure-c is liable to be quashed and accordingly the same is quashed. consequently, the subsequent endorsements vide annexures-b and a, dated 3.1.2007 and 27.2.2007 respectively, also stand quashed.writ petition is disposed of accordingly with the direction to the bda to determine the market value and the penalty in respect of the marginal land as stated above.

Judgment:
ORDER

Mohan Shantanagoudar, J.

1. Petitioner is the owner of the site bearing No. 920-2HC, situated at HRBR Layout, 1 Block, Bangalore. The site was originally allotted in favour of Smt. D. Pushpa as per the allotment letter vide Annexure-D, dated 21.2.2000. BDA has executed absolute sale deed in favour of Smt. D. Pushpa on 24.2.2000. Thereafter she sold the property in favour of Abdul Jabbar vide sale deed dated 7.5.2003, who in turn sold the property in favour of the petitioner on 22.8.2003. Copy of the sale deed executed in favour of the petitioner is produced at Annexure-E to the writ petition.

2. Adjacent to the property of the petitioner (on the hind side), a marginal land measuring 24.10 sq.mtrs. is lying. According to the petitioner, the said marginal land cannot be used of by anyone else except by the petitioner, who is the owner of the site bearing No. 920-2HC. Thus, the petitioner made an application dated 25.3.2004, seeking allotment of the marginal land. The BDA sent intimation dated 4.8.2006 vide Annexure-C to the writ petition directing the petitioner to pay a sum of Rs. 8,67,959/- towards the value of marginal land + penalty. The said intimation, which is in the form of order, is called in question in this writ petition.

3. Sri R.S. Hegde, learned advocate appearing on behalf of the petitioner submits that the impugned intimation is illegal, inasmuch as the BDA has fixed the value of the site according to its whims and fancies without reference to the Resolution dated 11.12.1996/13-12-96 (Subject No. 249/1996). According to him, the BDA can fix the market value of the marginal land only in accordance with the aforementioned resolution.

Per contra, Sri K. Krishna, learned advocate appearing on behalf of the BDA by relying upon another resolution dated 13.10.2005 (Subject No. 135/2005) contends that the BDA is entitled to fix the market value of the site in accordance with Rule 5 of BDA (Disposal of Corner Sites and Commercial Sites) Rules, 1984 (for short hereinafter referred to as the 'Rules'). Thus, according to him, the BDA is justified in directing the petitioner to pay a sum of Rs. 8,67,959/- towards the value of the property + penalty.

4. It is relevant to note Rule-5 of Rules before proceeding further. The same reads thus:

5. Allotment of a corner site to individuals or body of persons or institutions in special cases: Notwithstanding anything in Rule 3, the Authority may allot any corner site, which has not been notified under treated as an independent site, to the owner of the adjacent site:

Provided that where the width of such site is:

a) One-third of the width of the adjacent site or less, the sale shall be at such rate as the authority may fix;

b) More than one-third but equal to one half of the width of the adjacent site or less, the sale shall be for average auction rate, the said rate being determined on the basis of the rates at which sites have been sold at three previous auctions in the locality in which such site is situated;

c) More than one-half of the width of the adjacent site the sale shall be by auction in accordance with Rule 6 as if such site were an independent site.

5. From the above, it is clear that Rule-5 is applicable in case of allotment of corner site. The impugned intimation cannot be sustained, inasmuch as the value arrived at therein is based on Rule 5 of the Rules. The statement of objections filed by BDA make it amply clear that the BDA has arrived at the amount of Rs. 8.67,9 59/- by calculating the market value relying upon Rule 5 of the Rules. Such a valuation made by the BDA is illegal.

6. It is not in dispute that the site in question is only a marginal land. It is neither a corner site nor a commercial site. The words commercial site and comer site are defined in the Rules as under:

'Commercial site' means any site formed in any extension or layout earmarked for locating a Cinema theatre, a hotel or restaurant, a shopping centre, a shop, a market area and includes sites for locating any business or commercial enterprises or undertaking but does not include any site earmarked for the location of any factory or any industry.

'Corner site' means the site at the junction of two roads having more than one side of the site facing the roads.

The site in question does not fall within the definition of either the corner site or commercial site inasmuch as it is stated to be situated in between the purchased site of the petitioner and the common drainage. As the site in question is neither the corner site nor the commercial site, the provisions of the Rules in General and Rule 5 of the Rules in particular are inapplicable to the facts of the case. The Rules deal only with disposal of corner sites and commercial sites. They do not deal with marginal lands (which are neither the corner sites nor commercial sites). It has to be made clear that the Rules are applicable if marginal lands are either the corner sites or commercial sites. Thus, the BDA has to value the property and impose the penalty thereon, without reference to Rule 5 of the Rules.

7. Resolution dated 11.12.1996/13.12.1996 (Subject No. 249/ 1996) passed by BDA reads thus:

i) If the applicant is the first or subsequent purchaser of a BDA site from the original allottee, the cost of the marginal land should be fixed at the rate at which he purchased the site, (as evidenced by the sale deed) or at 1 1/2 times the BDA's current allotment rate, whichever is higher;

ii) If the applicant is the first or subsequent purchaser of a BDA auction site from the original auction purchaser, the cost of marginal land should be fixed at the rate at which he purchased the site or the auction rate at which the site was originally disposed of in auction by BDA or 1 1/2 times the current allotment rate whichever is the higher;

iii) If the marginal land allotted is by itself a corner site, its cost should be fixed at the average auction rate as per Rule 5 in the BDA (Disposal of Corner Sites and Commercial Sites) Rules, 1984 or at the rate at which the applicant purchased his site, whichever is higher.

From the above resolution, it is amply clear that the cost of marginal land should be fixed at the rate at which the applicant purchased the site. (As evidenced by the sale deed) or at 11/2 times the BDA's allotment rate whichever is higher. If the marginal site itself is a corner site, its cost should be fixed as per Rule 5 of the Rules. Another resolution is passed by BDA dated 23.3.2001 (Subject No. 45/2001), which also reveals the procedure to value the marginal land, which is a corner site. Thus, separate resolutions are passed by the BDA to value purely a marginal land and the marginal land-cum-corner site. The resolution dated 13.10.2005 (Subject No. 135/2005) relied upon by Sri K. Krishna, learned Counsel appearing on behalf of BDA deals with the imposition of penalty in case if the allottee or the purchaser encroaches upon the marginal land. Hence, the petitioner has to pay penalty as per the said resolution, inasmuch as the petitioner has encroached upon the marginal land and constructed the house much prior to the allotment of marginal land. But the said resolution dated 13-10-2005 does not deal with the fixation of value of marginal land, which is a corner site. Since the property in question neither the corner site nor the commercial site, aforementioned Rule 5 of the Rules cannot be made applicable to the case on hand. Thus, the BDA has to determine the value of the marginal land + penalty in accordance with the Resolution dated 11.12.1996/13.12.1996 (Subject No/249/1996) and the resolution dated 13.10.2005 (Subject No. 135/2005). It has to be made clear here itself that in case if the BDA has passed any subsequent resolution touching the question regarding valuation of the marginal land (not being the commercial site or corner site), prior to 4.8.2006 (date of allotment of marginal site in favour of the petitioner), the said resolution shall also be taken into consideration.

In view of the above, the intimation letter dated 4.8.2006, passed by the BDA vide Annexure-C is liable to be quashed and accordingly the same is quashed. Consequently, the subsequent endorsements vide Annexures-B and A, dated 3.1.2007 and 27.2.2007 respectively, also stand quashed.

Writ petition is disposed of accordingly with the direction to the BDA to determine the market value and the penalty in respect of the marginal land as stated above.