Case: Commnr.,Bangalore Dev. Authority Vs. S.Vasudeva

(a) the Authority shall pay to the lessee the allotted value of the site and an additional sum equal to the amount of interest at twelve per cent per annum thereon; and (ii) in case covered by clause (b) the lessee shall pay to the authority al sum equal to the amount of interest at twelve per cent per annum on the allotted value of the site." The said Rule did not permit transfer of site on which building had not been erected. According to sub-rule (3), under certain conditions an allottee could only surrender the site in which case he was entitled to receive the favor of the site plus 12 per cent interest thereon. It is only is a building was erected that permission could be given to sell the vacant site and building subject to payment of interest at the rate of 12 per cent on the allotted value of the site. It is represented before us that the BDA permitted the allottees to sell the sites, inasmuch as under Section 65 of the Act the Government of Karnataka had issued a direction requiring the BDA to permit the said transfers. Section 65 of the Act gives power to the Government to issue directions to the Authority and reads thus : 65. Governments power to give directions to the Authority - The Government may given such directions to the Authority as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of the Authority to comply with such directions. 10. As we read the above Section, the Government has no power to issue any directions which are in conflict with the provisions of the Act and, by necessary implication, in conflict with the Rules framed under the said Act. The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14, as it stood in the year 1994-95, did not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the BDA, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 such ex-Legislature and ex-Ministers who were members of the respondent-Society, and whose names are included in the BDAs letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing & Urban Development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside. 11. Rule 14 has now been amended by Notification dated 6th February, 1998. Rule 5 of the Bangalore Development Authority (Allotment of Sites) (Amendment) Rules, 1997 which makes the amendment in Rule 14 reads thus : 5. Amendment of Rule 14 :- In rule-14 of the said rules. - (1) after sub-rule (2), the following shall be inserted namely :- "2A. Notwithstanding anything contained in sub-rule (2), where a lessee has alienated the site in contravention of sub-clause (iii) of clause (a) sub-rule (2), the authority may on application of the purchaser of such site and subject to payment by the purchaser an amount equal to twenty-five per cent of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration, order for regularisation of such alienation and may also convey title to such purchaser." (2) in sub-rule (3), (i) after clause (a), the following clause shall be inserted namely :- "(aa) permit the allottee to sell the site during the lease period of ten years." (ii) in the proviso, after clause (i), the following clause shall be inserted namely :- ("ia) in case covered by clause (aa), mentioned above, the lessee shall pay to the Authority an amount equivalent to fifteen per cent of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration." 12. As a result of the Rules as they now stand where there has been alienation of site in contravention of sub-rule (2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25 per cent of the sital value determined at the rates specified by the State Goverment from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of the provisions of sub-rule (2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in sub-rule (2A). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by sub-rule (3). The said sub-rule provides that an application for transfer can be made by an allottee on the grounds that (a) for reasons beyond h is control he is unable to resident in the city of Bangalore; or (b) by reasons of his insolvency or impecuniosity, it is necessary for him to sell the site and the building. The High Court has interpreted this Rule to mean that it is only for reason of insolvency that permission under sub-rule (3) can be granted. This does not appear to be correct because on the ground that the allottee is unable to reside in the city of Bangalore and also on the ground of impecuniosity, permission can be granted to sell the land or the land and the building constructed thereof, after the amendment of the Rule in 1998.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. At the outset, we are of the opinion that the High Court travelled way beyond the scope of the writ petition which was before it. The prayer in the writ petition was for quashing the out of turn allotments in favour of MLAs, MPs and others who were impleaded as respondents Nos. 4 to 38 before the High Court. The further prayer was that permission which had been granted to some of these MLAs, MPs and others to transfer plots of land which had been allotted to them should also be quashed. It is pertinent to note that in this writ petition there was no challenge either to the registration of thewith the BDA or to the allotment or land to the Society as such. As already noted, the challenge was to the allotment to the 34 persons who were stated to be members of the said Society. The High Court, on the other hand, not only came to the conclusion that bulk allotment of land was not permissible but also directed the constitution of a Committee to go into all allotments made by the BDA. The effect of this would be that the Committee which was sought to be constituted was empowered to carry out a moving and fishing inquiry with regard to allotments of land made by the BDA since the time it was constituted in the year 1976. There was neither any prayer in the writ petition to this effect nor do we find any affidavit having been filed by the respondents before the High Court in relation to such allotments of land to the Society and others. The writ petitioner had not chosen to enlarge the scope of the writ petition by amending his petition and, therefore, the High Court, in our opinion, was not justified in issuing the type of directions which it did.6. Coming to the merits of the case and without going into the question of laches we find that during the pendency of the hearing of the writ petition, two of the respondents, namely, Jagannatha Rao Chandraki and K.G. Ramaswamy had expired. The High Court ordered their deletion from the array of respondents. In addition thereto, it was found that some of the persons who were originally impleaded as respondents were not Legislators and on a memo being filed by the writ petitioner 13 such respondents were deleted from the array of respondents vide Courts order dated 27th August, 1998. We are th us concerned with the remainingAs we read the above Section,the Government haspower to issue any directions which are in conflict with the provisions of the, by necessary implication, in conflict with the Rules framed under the said Act.The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14, as it stood in the yeardid not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the BDA, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 suchrs who were members of theand whose names are included in the BDAs letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing & Urban Development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside.As a result of the Rules as they now stand where there has been alienation of site in contravention of(2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25 per cent of the sital value determined at the rates specified by the State Goverment from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of the provisions of(2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in(2A). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by(3). The saidprovides that an application for transfer can be made by an allottee on the grounds that (a) for reasons beyond h is control he is unable to resident in the city of Bangalore; or (b) by reasons of his insolvency or impecuniosity, it is necessary for him to sell the site and the building. The High Court has interpreted this Rule to mean that it is only for reason of insolvency that permission under(3) can be granted. This does not appear to be correct because on the ground that the allottee is unable to reside in the city of Bangalore and also on the ground of impecuniosity, permission can be granted to sell the land or the land and the building constructed thereof, after the amendment of the Rule in 1998.