Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6797 OF 2010
(Arising out of SLP(C) No.29519/2008)
KESHAV BALJEE ...Appellant
VERSUS
BANGALORE DEVELOPMENT AUTHORITY ...Respondent
WITH
CIVIL APPEAL NO.6798 OF 2010
(Arising out of SLP(C) No.30656/2008)
O R D E R
Leave granted.
These appeals are directed against judgment dated
11.8.2008 of the Division Bench of the Karnataka High Court
whereby it allowed the writ appeal preferred by the Bangalore
Development Authority (for short, the B.D.A.') in the matter of
cancellation of the allotment of residential site to appellant,
Keshav Baljee and dismissed the one filed by the other
appellant, Arjun Baljee against the dismissal of the writ
petition filed by him for quashing the order of cancellation of
allotment.
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The appellants are real brothers. In 2002, they applied
for allotment of residential sites under the Bangalore
Development Authority (Allotment of Sites) Rules, 1984 (for
short, “the Rules”). Appellant, Keshav Baljee submitted two
applications on 31.5.2002 and 13.12.2002. His brother, Arjun
Baljee also submitted applications on 31.2.2002 and 13.12.2002.
However, neither of them was successful in getting the
allotment. In 2003, they again applied for allotment of
residential sites in different areas. Keshav Baljee applied for
allotment of site in VIII Block, FE of SMV Nagar and Arjun
Baljee applied for allotment of site in BSK IV Stage Layout.
Although, copies of the application forms submitted by the
appellants in 2002 have not been produced by either party, xerox
copies of the application forms submitted in 2003 have been
placed on record along with I.A. No. 2/2010 filed in the appeal
arising out of SLP(C) No. 29519/2008. A perusal of the same
shows that both the applications were incomplete inasmuch as the
appellants did not give the particulars of their date of birth,
age and annual income in column Nos. 9, 10 and 14. The
Allotment Committee constituted under Rule 11(3) of the Rules
should have rejected the applications of the appellants only on
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the ground that the same were defective, but instead of doing
that the concerned officers not only entertained and processed
the applications, but also allotted residential sites to both
the appellants in 2004.
Although, at the time of submission of the applications
the appellants were students and neither of them had any
independent source of income, both of them deposited
approximately Rs.13 lacs as cost of the sites. After about one
year, Deputy Secretary of the B.D.A. initiated process for
cancellation of the allotments made in favour of the appellants
on the ground that neither of them were eligible to get the
sites and finally the allotments were cancelled by the
Commissioner, B.D.A. vide orders dated 3.8.2005 and 15.9.2005.
The appellants challenged the cancellation of allotments
in Writ Petition Nos.24100 of 2005 - Keshav Baljee v. Bangalore
Development Authority and 21133 of 2005 - Arjun Baljee v.
Bangalore Development Authority. The first writ petition was
allowed by the learned Single Judge by a rather cryptic order
dated 22.9.2006 but the second writ petition was dismissed by
another learned Single Judge vide his order dated 31.7.2007 by
relying upon Rule 11 of the Rules. Paragraphs 8, 9, 14 and 15
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of that order, perusal of which show how the appellants
succeeded in getting allotment of residential sites in
connivance with the officers of the B.D.A. are extracted below:
“8. In the instant case, facts are not in
dispute. In Annexure-R.1 – the application filed by
the petitioner for allotment of the site by the
Bangalore Development Authority, there is a specific
column i.e., col. No.9 for date of birth.
Petitioner as a student has deliberately not filled
up the said column mentioning the date of birth.
Except the said column, all other columns have been
meticulously filled up by the petitioner. As it is
from the said form, the petitioner has applied for a
site on two occasions as per the particulars given
in col. no.21. The present attempt is a third
attempt. Without the information regarding the age
of the petitioner, the Bangalore Development
Authority has selected the petitioner for allotment.
The Bangalore Development Authority has ignored the
mandatory provisions. They have turned their blind
eyes to this material omissions in the application
which do not contain the date of birth of the
petitioners. Without knowing the date of birth of
the petitioner, consequently the age of the
petitioner, they have selected the petitioner and
allotted a site measuring 50 ft x 80 ft to the
petitioner, a student who is aged 23 years, who had
no independent income.
9.After realizing the blunder they have committed, a
show cause notice was issued as per Annexure-F
calling upon the petitioner to show cause why the
allotment should not be cancelled because of his age
and his failure to give date of birth in the
application form.
14. The petitioner's younger brother Sri
Keshav Balajee was born on 16.12.1983, as is clear
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from the order dated 22.9.2006 in W.P.
No.24100/2005, a copy of which was made available to
me by the learned counsel for the petitioner. Even
the records of the said writ petition is also put up
along with this writ petition. He is younger to the
petitioner by three years. He is a student studying
in Doon School at Dehradun. He is also allotted a
50 x 80 feet site in his third attempt at the age of
20. Again it is pleaded therein that it was a
mistake because in the application, date of birth
was not mentioned. The worst part of it is, in the
writ petition filed by him challenging the similar
cancellation order, the defence taken in this
proceeding is not taken. On the contrary, what was
contended is that he was a minor and therefore he
was not eligible. The court found from the birth
certificate he was a major and directed the
Bangalore Development Authority to execute a sale
deed in his favour. The lapse on the part of the
Authority is not pardonable. They are not only
playing with the public but also with the Court.
Thus, they are polluting the stream of justice by
withholding the vital and material information and
misleading the Courts, and making a mockery of
justice. This instance may be a tip of the iceberg.
It only shows the erosion of moral values and
irreparable damage, the power of money, positions
and political clout has wrecked on the working of
these public authorities are made-up of. It also
shows how the rule of law is trampled upon and in
practice how much it is respected. It also gives an
indication as to whom the authority is serving.
Both the brothers are residents of Defence Colony at
Indiranagar – a posh locality in the City of
Bangalore. It appears the petitioner's younger
brother has passed out from Doon School, Dehradun.
Probably, that explains the reason, why Bangalore
Development Authority has gone out of the way to
allot 50 x 80 ft sites to boys who are aged 23 and
20 years in preference to those who are standing in
the queue and who are at the fag end of their life,
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is a mystery. It is for the persons who are at helm
of the affairs at the authority to have some
introspection and take appropriate remedial measures
to restore the confidence of the public in these
institutions. However, it is heartening to note
that there are some people still left in the
institution who have not succumbed to these
manipulations and took bold steps to cancel the
allotment.
15.The mistake on the part of the Bangalore
Development Authority in allotting a site is because
of a deliberate omission on the part of the
applicant in not mentioning the date of birth and
therefore it cannot be said that the applicant is
not at fault. It is because of this deliberate
omission on the part of the petitioner, the
Bangalore Development Authority was enabled on the
pretext of being mislead, in allotting the site and
therefore that action of Bangalore Development
Authority, even if it is held that it is a mistake,
is directly attributable to the petitioner and
therefore he is not entitled to the benefit of the
said mistake. Authorities were fully justified in
issuing a show cause notice and after hearing the
petitioner as he had no tenable defense to put forth
and his date of birth was in dispute, were justified
in canceling the allotment.”
(emphasis supplied)
Initially, the B.D.A. did not challenge the order passed
by the learned Single Judge in favour of Keshav Baljee but when
the writ petition filed by his brother, Arjun Baljee was
dismissed, the concerned officers woke up from slumber and filed
Writ Appeal No.1435/2005 along with an application for
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condonation of 289 days' delay. Arjun Baljee also challenged
the dismissal of his writ petition in Writ Appeal No.1797/2007.
By the impugned judgment, the Division Bench condoned the delay
in filing of Writ Appeal No.1435/2005, finally allowed that
appeal and dismissed the one filed by Arjun Baljee by recording
the following reasons:
“6. After hearing the learned counsel for
the parties and upon perusing the impugned orders,
the affidavit filed by the BDA and the records made
available to us, the points that arise for our
consideration are:-
i) Whether the allotment of
sites made in favour of the allottees is valid?
ii) Whether the cancellation of
sites is justified?
7.Both the points are inter-related. Therefore, we
have taken the same together and answered.
Our answer to the first point is in the
negative and the second point in the affirmative for
the following reasons:-
a) The undisputed facts are, both the
allottees are brother, students and they are
residing together in the same house. The
residential address furnished in both of their
applications is the same, as mentioned below:-
No.124, III Main,
Defense Colony,
Indira Nagar,
Bangalore – 560 038.
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Their father's name is C.K. Baljee. Thus, both of
them applied for allotment of site from the same
residential address. It is also interesting to note
that the site of the said address is allotted by the
BDA, probably in the name of their father. That
means, a member of this family has already been
allotted a site by the BDA. That being the
position, the allottees are not entitled to
allotment of any site. Virtually, they are
ineligible for allotment under the Rules referred to
above. The above said reason ipso-facto sufficient
to our answer to point No.(i).
b) to d) xxx xxx xxx
e) Admittedly, the two allottees are
students. They have no income of their own. Column
No.14 of the application form pertains to annual
income and the same is unfilled. Such being the
case, the consideration for the sites is definitely
paid by their father, of course, in respect of one
allottee by raising some loan. Independently they
are unable to pay the site value. When their father
himself has got allotted site in which they have
constructed house and are residing, two more sites
allotted for the same family is contrary to
Allotment Rules. Under Rule 10(3) of allotment
Rules the allottees were ineligible to apply for
allotment of site. That being so, the cancellation
of sites made by the BDA is legal, valid and
justified.
f) It is not in dispute that the other
eligible applicants have made more attempts and are
older in age than the present allottees as provided
under proviso Clause (iii) of Rule-11(2) of the
Rules. The allottees being youngsters cannot
overtake the elders and get the sites allotted
making the elders to stand in Q. For this reason
also the cancellation of sites is correct and there
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cannot be any grievance in this regard.
g) Rule 13(10) of BDA (Allotment of Sites)
Rules, 1984 reads as under:
“13(10). If the particulars furnished by the
applicant in the prescribed application form
for allotment of site are found to be incorrect
or false, the sital value deposited shall be
forfeited and the site shall be resumed by the
authority.”
As per the Rule not only the site to be resumed but
the sital value has to be forfeited.
8.In the light of what has been observed above, the
reasons assigned by the learned Single Judge for
allowing the writ petition of the allottee are wholly
untenable in law.”
(emphasis added)
We have heard Shri Basava Prabhu S. Patil, learned senior
counsel appearing for the appellants and Shri S.S. Javali,
learned senior counsel appearing for the B.D.A. and perused the
record.
Rules 10 and 11 of the 1984 Rules, which have bearing on
the decision of these appeals read as under:
“10. Eligibility:- No person-
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) who or any dependent member of whose family,
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owns a site or a house or has been allotted a site
or a house by the Bangalore Development Authority
or a Co-operative Society registered under the
Karnataka Co-operative Societies Act, 1959
(Karnataka Act 11 of 1959) or any such other
Authority within the Bangalore Metropolitan Area
or has been allotted a site or a house in any part
in the State by any other Urban Development
Authority or the Karnataka Housing Board or such
other Agency of the Government, shall be eligible
to apply for allotment of a site;
xxx xxx xxx
11.Principles of selection of applicants for
allotment of sites and reservation of sites.--
(1) The sites shall be allotted among the
different categories as follows :-
(a) Backward Tribes 2%
(b) Scheduled Tribes 3%
(c) Scheduled Castes 13%
(d) Members of the Armed forces of
the Union, Ex-servicemen and
members of the families of
deceased servicemen 10%
(e) State Government employees 10%
(f) Employees of the Central Government
and Public Sector Undertakings and
Statutory Bodies owned or controlled
by the State Government or the
Central Government 8%
(g) Physically Handicapped 2%
(h) General Public 50%
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(i) Persons who have outstanding
achievements in the field of Arts,
Science or Sports 2%
Explanation.-- (i) If at the time of making an
allotment sufficient number of applications from
persons belonging to category –(a) are not received
then the remaining sites reserved for the category
shall be transferred to category (b) and if
sufficient number of applications from persons
belonging to categories (a) and (b) are not received,
then the remaining sites reserved for these
categories shall be transferred to category (c) and
if sufficient number of applications from persons
belonging to categories (a), (b) and (c) are not
received, then the remaining sites reserved for these
categories shall be transferred to category (h).
(ii) If at the time of making an allotment,
sufficient number of applications from persons
belonging to any of the categories (d), (e), (f) (g)
and (i) are not received, then the remaining sites
reserved for the category concerned shall be
transferred to category (h).
(iii) xxx xxx xxx
(2) In respect of the categories (a) to (h), the
Authority shall consider the case of each application
on its merits and shall have regard to the following
principles in making section.-
(i) The marital status of the applicant, that is,
whether he is married or single and has dependent
children;
(ii) The income of the applicant and his capacity to
purchase a site and build a house thereon for his
residence:
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Provided that this condition shall not be considered
in the case of applicants belonging to Scheduled
Castes, Scheduled Tribes and Backward Tribes.
(iii) The number of times the applicant had applied
for allotment of a site and the fact that he did not
secure a site earlier though he was eligible and had
applied for a site:
Provided that if number of eligible applicants with
equal number of attempts is more than the number of
sites notified for allotment in respect of any
particular category the applicant elder in age shall
be considered.
(iv)the fact that the land belonging to the applicant
has been acquired by the authority for the formation
of the layout for which he has applied;
(3) For the purpose of sub-rule (2) the authority
shall constitute a committee called the 'Allotment
Committee' consisting of three official members and
three non-official members. The Chairman of the
authority shall be the Chairman of the Allotment
Committee.
(4) Subject to the approval of the authority the
decision of the Allotment Committee shall be final.
(5)Subject to the provision of rules 8,9 and 10 the
authority shall allot the sites under category(i).”
Shri Basava Prabhu S. Patil, learned senior counsel
appearing for the appellants argued that the impugned judgment
is liable to be set aside because the observation contained in
para 7(a) thereof suggesting that the appellants' father,
C.K. Baljee had already got a site from the B.D.A. is not
supported by any cogent evidence. In the first blush, this
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argument appears convincing but on a closer scrutiny, we do not
find any merit in it and we do not think that this can be made a
ground for quashing the orders passed by the Commissioner,
B.D.A. Neither in the list of dates nor in the grounds of
appeal, the appellants have stated/urged that their father had
not been allotted residential site by the B.D.A. in Defence
Colony. They have also not pleaded that their father had
purchased the site in Defense Colony by private negotiations.
The document evidencing acquisition of site by the appellants
father has also not been produced before this Court. This
silence/omission on the appellants' part shows that what the
Division Bench of the High Court has observed in para 7(a) of
the impugned judgment is factually correct. Therefore, we do
not find any valid ground to interfere with the conclusion that
the allotments made in favour of the appellants were contrary to
Rule 10(3) of the Rules.
We may now advert to Rule 11(2). A reading thereof makes
it clear that in respect of category (h) i.e., General Category,
to which the appellants belong, the B.D.A. is required to
consider each case on its own merit keeping in view the marital
status of the applicant, his income and capacity to purchase a
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site and build a house for his residence. In their application
forms, the appellants had mentioned that they were students.
They left the columns relating to date of birth, age and income
blank. Therefore, their applications ought to have been
rejected on the ground that neither of them had the capacity to
purchase a site or build a house thereon for residential
purpose. However, as is clearly discernible from the record of
the case the Allotment Committee constituted under Rule 11(3)
not only entertained the defective applications of the
appellants but also allotted sites to them ignoring that neither
of them had produced any evidence of his income and capacity to
purchase a site and build a residence on it. It is beyond the
comprehension of any person of reasonable prudence as to how the
concerned officers could allot residential sites to the
appellants, who were students at the relevant time and were
residing with their father and neither of them had any
independent source of income. The manner in which the concerned
officers of the B.D.A. dealt with the applications of the
appellants and allotted residential sites to them prima facie
shows that they had favoured the appellants for extraneous
reasons and, in the process, deprived two eligible applicants of
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their legitimate right to get residential sites.
We are in complete agreement with the Division Bench of
the High Court that the appellants were not eligible to be
allotted residential sites and the B.D.A. officers had
entertained and accepted their applications in complete
disregard of the mandate of Rules 10(3) and 11(2) of the Rules.
As a corollary, we hold that there is no valid ground much less
justification to nullify the orders passed by the Commissioner,
B.D.A. for cancellation of the allotments made in favour of the
appellants.
In the result, the appeals are dismissed with cost of
Rs.1,00,000/-, which the appellants shall deposit with the State
Legal Services Authority, Karnataka within a period of four
weeks. The B.D.A. is also saddled with the cost of Rs.2,00,000/-
for generating unwarranted litigation. This amount shall also
be deposited with the State Legal Services Authority, Karnataka
within a period of four weeks. The B.D.A. shall recover the
amount from the officers who manipulated allotment of sites to
the appellants.
We also direct the Commissioner of Bangalore Development
Authority to take action in accordance with the directions given
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by the Division Bench and submit a report to the High Court
within a period of eight weeks from today. The Registry of the
High Court shall place the report before the Chief Justice, who
may then order consideration thereof by the Division Bench of
the High Court. We expect that the High Court will take serious
view of the manipulations on the part of the officers of the
B.D.A. and ordain appropriate proceedings against them.
A copy of this order be sent to the Registrar General,
Karnataka High Court, who shall place the same before the
learned Chief Justice of the High Court.
........................J.
(G.S. SINGHVI)
........................J.
(ASOK KUMAR GANGULY)
NEW DELHI,
AUGUST 19, 2010.