Case: BANGALORE DEVELOPMENT AUTHORITY Vs. R.JAYAKUMAR &amp; ORS

3. The notification dated 15.10.1988 had referred to the sites proposed at three different locations/layout plans. Further, Clause 16 of the notification stated thus:       16. The B.D.A. reserves its right to allot sites in any layout other than the ones preferred by the applicant. Owing to unforeseen Court litigations and impediments, if any, the B.D.A. also reserves its right to allot sites in any one of its future layouts i.e., in the layouts not advertised at present.       4. The Authority was again unable to allot the sites mentioned in the notification dated 15.10.1988 for various reasons, including litigation. In any case, the sites specified in the 15.10.1988 Notification were only proposed sites. In 1997- 1998 the Authority issued allotment letters to the respondents for sites in the layout plan which they had subsequently developed. These sites were not mentioned in the notification dated 15.10.1988. The allotments were to the advantage and for the benefit of the respondents as allotment at the sites mentioned in the notification dated 15.10.1988 was not possible. The respondents had the choice to withdraw their initial deposit and not accept the allotment. Apparently, the respondents were interested and wanted the sites offered, albeit at the price applicable and paid by allottees under the 10.03.1988 Notification.

Reasoning:
1. Having heard the learned counsel for the parties, we are of the opinion that the Division Bench of the High Court of Karnataka has erred by relying upon their earlier decision in the case of E.R. Manjaiah and others v. Bangalore Development Authority and others1 as the factual matrix in the present case is different.2. The respondents in the present case had exercised their option to be governed by the terms of the notification dated 15.10.1988. Therefore, the respondents by choice gave up their right to be governed by the earlier notification dated 10.03.1988. There were good-reasons why the respondents had given up their right to be allotted sites in terms of the notification dated 10.03.1988 as the Bangalore Development Authority2 was not in a position to make allotments to all the applicants registered under the notification dated 10.03.1988. In any case, once the respondents had by consent agreed to the terms and conditions mentioned in the notification dated 15.10.1988, they cannot fall back on the notification dated 10.03.1988.Interpreting the said Rule, the Division Bench in the case of E.R. Manjaiah (supra), referring to several decisions of this Court and Karnataka High Court, held that the Authority was entitled to charge the price prevailing on the date of allotment.6. Once this legal position and facts as accepted, we do not think that the respondents were entitled to any relief on the plea of parity relying upon the decision in the case of E.R. Manjaiah (supra). The facts in E.R. Manjaiah (supra) were different as the allottees had already been issued allotment letters for the sites under the notification dated 10.03.1988. Subsequently, the Authority could not allot the allotted sites to some of the allottees. Fresh allotment at new sites were made at a higher price. In E.R. Manjaiah (supra) it was held that while there was no vice of illegality or unconstitutionality in the power of the Authority to enhance the prices under Rule 12 of the Rules, the Authority had no right to alter the sital value according to its convenience or whims without furnishing any explanation. As Rule 12 is equally applicable to all persons similarly situated, the allottees given plots at the new sites could not be discriminated against other allottee given old sites on lower price on arbitrary grounds. Despite being similarly positioned with other allottees to the notification dated 10.03.1988, the allottees of the new sites had to pay a higher price.7. We have already noticed the facts of the present case and find that the respondents had exercised their choice to be governed by the notification dated 15.10.1988, which means that they also agreed to the condition stipulated in Clause 16 under which the Authority had reserved its right to allot sites in any layout other than the one preferred by the applicants. All allottees under the 15.10.1988 Notification have been treated alike and similar price is payable. No allottee has been discriminated. Unlike E.R. Manjaiah (supra), the dispute herein arises concerning the Notification dated 15.10.1988, and not 10.03.1988 Notification, the terms of which were different. The notification dated 15.10.1988, unlike 10.03.1988, made only a provisional allotment to the applicants.4 Further, the scope of Clause 16 under the Notification dated 15.10.1988 is broader than the scope of Clause 145 under the Notification dated 10.03.1988.8. Out of about 1571 applicants, who had exercised their choice to be governed by the notification dated 15.10.1988, about 168 applicants had objected and preferred the writ petitions before the High Court. The writ petitions were dismissed by a detailed order dated 14.12.1998 passed by the Single Judge in the case of R. Jayakumar & Others v. The Bangalore Development Authority & Others, 6 rightly distinguishing E.R. Manjaiah (supra) in view of the difference in the facts. However, the respondents on appeal had succeeded before the Division Bench, which had in a short order dated 30.08.2001, impugned in these appeals, simply referred to the decision in the case of E.R. Manjaiah (supra) to allow the appeals. The review petition filed by the Authority before the High Court was dismissed vide the second impugned order dated 12.04.2002.12. As we are allowing the present appeals, it would be just and fair if the remaining 49 respondents are given an opportunity to make payment of the enhanced amount of the sital value along with interest payable in terms of Rule 13 of the Rules. The said payment on self-computation by the respondents would be made within eight weeks. In case there is a dispute with regard to the quantum of interest payable, the Authority would notify the respondent with calculation, who would then either make payment of the interest or file response/objection. If the dispute cannot be resolved, the parties would be entitled to take recourse to appropriate remedies as available.10. During the pendency of the present appeals, 119 out of about 168 of the writ petitioners had made applications or made payment to the Authority and have accordingly been deleted from the array of parties as respondents.