B. Sridhara Murthy Vs. the Bangaluru Development Authority and Others - Court Judgment

Excerpt:
[a.n.venugopala gowda, j.] constitution of india - articles 226, 227 -- power of high courts to issue certain writs -- on 3.5.1985, petitioner deposited the site cost of rs.1,23,547/-. lease cum sale agreement of the site was executed on 13.5.1985 and the possession of the site in question was delivered to the petitioner. on 22.5.1993, bda issued a show cause notice and cancelled the allotment of the site in question, by issue of an endorsement dated 30.7.1993, on the ground that, the petitioner violated condition nos. 6 and 7 of the allotment letter. feeling aggrieved, petitioner questioned the said endorsement by filing w.p.no.26740/2003, writ petition was allowed and the said endorsement was quashed and a direction was issued to the bda to execute the sale deed of the site in question. feeling aggrieved, the allottee of the site in question has filed this writ petition.(prayer: this writ petition is filed under articles 226 and 227 of the constitution of india, praying to quash the order/letter dated 18.8.2009 forwarded under letter dated 9.10.2009, vide annexure-v issued by the second respondent to the petitioner and direction to the respondents not to take any action against the petitioner with regard to his site no.5/a situated at koramangala 1st‘a’ block, industrial layout in any manner without taking de recourse to law.)1. since the matter has had a checkened history and, in fact, the present writ petition is the fourth round of litigation between the parties, in order to appreciate the material question raised, it would be necessary to take notice of the foundational facts.2. bangalore development authority, on 2.5.1985, allotted to the petitioner, industrial site no.5/a, measuring 60’ x 530’, situated in koramangala 1st ‘a’ block, bangalore (for short ‘site in question’). on 3.5.1985, petitioner deposited the site cost of rs.1,23,547/-. lease cum sale agreement of the site was executed on 13.5.1985 and the possession of the site in question was delivered to the petitioner. on 22.5.1993, bda issued a show cause notice and cancelled the allotment of the site in question, by issue of an endorsement dated 30.7.1993, on the ground that, the petitioner violated condition nos. 6 and 7 of the allotment letter. said cancellation order was questioned in w.p.no.29452/1993. noticing that, bda has not considered the objections and the reasons for non-compliance and also that the documents produced by the allottee to show compliance of condition no.7 and for non-compliance of condition no.6 and that the petitioner was not granted opportunity of hearing before the cancellation of allotment, it was held that the cancellation of allotment of the site in question as being opposed to the principles of natural justice. consequently, the writ petition was allowed, the impugned endorsement was quashed and the petitioner was permitted to file further objections and produce the documents to show that the matter is pending consideration before the bangalore city corporation and also show compliance with condition no.6. bda was prohibited from taking further action, if it is satisfied, that the allottee was prevented from putting up structure on account of bangalore city corporation refusing to transfer katha. liberty was reserved to the bda to take further action, if there is violation in future. the said order was not questioned by either of the parties and attained finality.3. bda though did not take any further action in the matter, on 18.6.1996, notified the said site, for sale by way of auction in public. the public auction notification issued was questioned in w.p.no.19018/1996. it was stated before the court, by the bda though its learned counsel, that the impugned notification has been withdrawn. in view of the submission made, it was held that nothing survives for consideration in the writ petition.4. bda, suo motu, allotted an alternate site bearing no.141/a, situated at industrial suburb ii stage, peenya, the intimation regarding which was sent to the petitioner on 17.11.1999. the said action was questioned in w.p.no.43363/1999. noticing that the petitioner had approached the bda to execute a sale deed of the site in question, pursuant to the allotment made on 2.5.1985 and that the representation being under the consideration of bda, without expressing any opinion on the correctness or otherwise of the communication issued by the bda on 17.11.1999 relating to the suo motu alternate allotment of a site, the writ petition at that stage having felt to be unnecessary, was disposed of, reserving liberty to the petitioner to approach the court, even for any reason the bda passes any adverse order against him.5. on 29.4.2003, bda making a reference to the order passed in w.p.no.43363/1999, issued an endorsement to the petitioner, rejecting the request for execution of an absolute sale deed in respect of the site in question. feeling aggrieved, petitioner questioned the said endorsement by filing w.p.no.26740/2003, writ petition was allowed and the said endorsement was quashed and a direction was issued to the bda to execute the sale deed of the site in question.6. bda questioned the correctness of the said order in w.a.no.6770/2003. writ appeal was allowed in part and the order passed on 11.8.2003 in w.p.no.26740/2003, quashing the endorsement of the bda dated 29.4.2003 was affirmed. however, the direction issued to the bda to execute the sale deed in respect of the site in question was set aside and the matter was remitted to bda to pass a fresh order, on the application filed for execution of the sale deed of the site in question, after considering the objections and the additional objections filed pursuant to the liberty given in w.p.no.29452/1993 and in the light of the observations made in the order passed therein on 27.1.1995.7. pursuant to the said judgment, on 1.12.2008, a notice was issued to the petitioner, to appear before the commissioner on 10.12.2008 along with the original records of the site in question. the commissioner, bda, by an order dated 18.8.2009, having opined that the petitioner cannot be permitted to retain the site in question and that the petitioner should be content with the alternate package that has been offered in the form of an industrial site in the industrial suburb, confirmed the endorsement issued earlier i.e., on 29.3.2003. feeling aggrieved, the allottee of the site in question has filed this writ petition.8. prof. ravi varma kumar, learned sr. counsel appearing on behalf of the petitioner, in assailing the impugned order, contended that the commissioner has failed to take into consideration the relevant facts but has based his decision on irrelevant facts by posing unto himself a wrong point for consideration. he submitted that there is a misdirection adopted in the matter by the commissioner, on account of which, the impugned order has been passed, which being arbitrary and illegal, is liable to be quashed. learned counsel submitted that the respondent has been, time and again, deliberately been taking wrong decisions in the matter, with the malafide intention to harass and brow-beat the petitioner, who is an under graduate and a scheduled caste person. learned counsel further submitted that the petitioner has been forced to approach this court repeatedly for relief and hence, the respondent be saddled with exemplary costs.9. sri jayakumar s. patil, learned sr. counsel appearing on behalf of the respondents, on the other hand urged that, although ex facie the impugned order of the commissioner would show that he has taken into consideration some circumstances which may not be of relevance, but there is real consideration, since the site in question is situated in a residential area, as per the scheme plan of the year 1984 for koramangala, which was approved on 12.10.1994 and hence the site could not have been allotted for industrial purpose. learned counsel submitted that in order to avoid any injustice to the petitioner, site bearing no.141/a, measuring 220 ft x 120 ft, in industrial suburb ii stage, peenya was allotted on 17.11.1999, as an alternate measure. learned counsel further submitted that in the circumstances of the case, no interference with the impugned order is called for.10. in view of the above and the record of the case, the point for consideration is;whether the impugned order is arbitrary and illegal?11. from the perusal of the record of the case, it is clear that the site in question was allotted to the petitioner on 5.9.1985 and upon remittance of the allotment price on 3.5.1985, a lease-cum-sale agreement dated 10.5.1985 was executed and on 13.5.1985, possession certificate was also issued. the allotment was cancelled on 30.7.1993, alleging violation of condition nos.6 and 7 contained in the allotment letter dated 2.5.1985. the said conditions read as follows:“6. in case your are already running your industry in the municipal limits, you should shift the same to the koramangala ‘a’ 1st block, industrial layout, within two years from the date of receipt of this intimation of allotment. if your are not running the industry at present you should build up the industry within two years from the date of receipt of allotment intimation. agreement should be executed binding yourself to tae above conditions.7. this allotment is subject to condition that you should produce the certificate of letter of the department of industries and commerce as required in application form within two weeks, forms may be obtained from this office.”12. the said cancellation order having been questioned, finding the same to be arbitrary and illegal, was quashed on 27.1.1995 in w.p.no.29452/1993. petitioner was permitted to file further objections and produce the documents to show that the matter is pending consideration in the bangalore city corporation and also show compliance with condition no.6. bda was directed as follows:“bda will not take any further action, if it is satisfied, that the petitioner was prevented from putting up of the structure on account of bangalore city corporation refusing to transfer katha.7. hence, reserving liberty to bda to take further action, if there is violation in future, this writ petition is allowed in terms of para 6 above.”13. in obedience to the said order, on 18.3.1985, the petitioner has submitted further objections and documents. respondents have not been able to produce any record to show that the matter was considered, in the manner directed i.e., by taking into consideration the further objections and documents filed by the petitioner.14. the allotment made on 17.11.1999 in respect of the site no.149/a, industrial suburb ii stage, peenya, by the bda, in lieu of the allotment of site in question, was a suo motu action. the allotment made vide annexure-r shows that it was a mechanical act on the part of the bda and not in compliance of the order dated 27.1.1995 passed in w.p.no.29452/1993. the said action was questioned in w.p.no.43363/1999 and in view of pendency of a representation for execution of sale deed of the site in question, the writ petition was disposed off as follows:“3. in that view of the matter, this writ petition is disposed off as unnecessary for the present,. liberty is reserved to the petitioner to approach this court, if for any reason, the respondent – bangalore development authority passes any adverse order against the petitioner. all the other contentions of both the parties are left open. ordered accordingly.”15. making a reference to the aforesaid order, bda issued an endorsement on 29.4.2003, wherein, it w stated that, in view of the allotment of industrial site no.149/a, it was resolved to reject the request of the petitioner for execution of a sale deed of the site in question. the said order was questioned by filling w.p.no.26740/2003. the writ petition was allowed on 11.1.2003, the impugned endorsement therein was quashed and the bda was directed to execute, within 3 months, the sale deed with respect to site in question.16. bda challenged the said order in w.a.no.6770/2003. noticing that the objections filed by the allottee pursuant to the liberty granted to him in w.p.no.29452/1993 has not been considered and merely on the basis of certain complaints received and violation of the condition of non construction of the industrial shed within 6 months and non completion of the same within 2 years, the bda has refused to execute the sale deed, taking into consideration the order dated 27.1.1995 passed in w.p.no.29452/1993, it was held, that the learned single judge was justified in setting the said endorsement dated 29.4.2003 issued by the bda, refusing to execute the sale deed of the site in question. however, finding that the bda had not considered the objections filed by the allottee, the direction issued to execute the sale deed was held as erroneous. while upholding the order of the learned single judge to the extent of quashing the endorsement dated 29.4.2003, the matter was remitted to the bda to pass fresh orders on the application filed for execution of sale deed after considering the objections and the additional objections filed pursuant to the liberty given to him in w.p.no.29452/1993 and in the light of the observations made in the order passed on 27.1.1995.17. from the facts and the proceedings noticed supra, it is clear that the bda was required to consider the prayer of the petitioner for execution of sale deed of the site in question by keeping in view the objections and additional objections filed by the petitioner and in the light of the observations made in the order passed on 27.1.1995 in w.p.no.29452/1993. the matter having been taken up for consideration by issue of a notice dated 9.10.2009, the commissioner of bda has raised the following point for consideration.“whether the cancellation of allotment of a plot measuring 65’x530’ in koramangala i block, bearing no.5/a and allotment of an alternate site in lieu of the same in industrial suburb of peenya ii state, is in order?18. indisputedly, petitioner was not issued with any show cause notice, after passing of the orders and judgment of this court, noticed supra. the commissioner, bda, by taking into consideration, matters which were not even put to the petitioner and without even considering the objections and further objections filed by the petitioner, pursuant to the liberty given to him in w.p.no.29452/1993, has passed the impugned order and has illegally confirmed an endorsement dated 29.3.2003 (annexure-t), which was quashed on 11.8.2003 in w.p.no.26740/2003 and the same was also affirmed in the judgment dated 17.6.2008 passed in w.a.no.6770/2003.19. the consideration which has weighed with the bda to pass the impugned order is not in conformity with the judgment dated 17.6.2008 passed in w.a.no.6770/2003. the petitioner had no occasion to have his say in respect of the matters, to which a reference has been made by the commissioner of bda in the impugned order. thus, there is violation of the principles of natural justice.20. the order dated 27.1.1995 passed in w.p.no.29452/1993 having not been questioned by the bda and the same having also been directed to given effect to in the judgment dated 17.6.2008 passed in w.a.no.6770/2003, in my opinion, the commissioner of bda has posed unto himself a wrong question, noticed supra. in the light of the said orders passed by this court, what is necessary to be considered by the bda is, whether the explanation offered by the petitioner in the objections and additional objections filed to the show cause notice as at annexure-g, for the non compliance of condition nos.6 and 7 of the allotment letter dated 2.5.1985, as at annexure – a, is acceptable or not? the commissioner of bda by misdirecting himself i.e., by posing a wrong question for consideration, has passed the impugned order. it is trite that, an authority deciding a question must pose into himself a correct question so as to arise the correct finding, since a wrong question posed leads to a wrong answer, which is exactly the fact situation in the instant case.21. the impugned order, therefore, being vitiated, cannot be sustained and thus, is liable to be quashed.in the result, writ petition is allowed and the impugned order dated 17.6.2008, which was communicated to the petitioner on 9.10.2009, as at annexure-y, is quashed. consequently, the bda is directed to consider, within a period of three months, the objections and additional objections filed by the petitioner, pursuant to the liberty given to him in w.p.no.29452/1993 and in the light of the observations made in the order passed thereon 27.1.1995 and a reiterated in the judgment dated 17.6.2008 passed in w.a.no.6770/2003.since, the bda has not acted in the matter in the light of the orders passed by this court, noticed supra and had made the petitioner to knock the doors of this court for relief, for the fourth time, i am constrained to award exemplary costs quantified at rs.20,000/- to be paid to he petitioner.