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Judgment
A.J. Sadashiva J.
The petitioner has presented this petition for the following reliefs, namely,
(i) a Writ of Certiorari or any other Writ or order or direction to quash Annexure-F, the letter No. BDA/AEE-2(S)/1139/94-95 dated 22.11.1994 issued by the second respondent;
(ii) a Writ of Mandamus directing the sub-registrar to register the documents of sale to be submitted by the petitioner in respect of 88 sites without insisting upon any release order passed by the authority (1st respondent);
(iii) a Writ of Mandamus to the Revenue Officer (4th respondent-BDA) to change the khata in favour of the members of the Society in respect of the sites sold by the Society to the members of the petitioner-society under the registered sale deeds without insisting upon any release by the authorities and without reference to Annexure-F, the letter No. BDA/AEE-2(2)/1139/94-95 dated 22.11.1994 issued by the first respondent.
It appears that the impugned order dated November 22, 1994 was made by the first respondent on the complaint of respondents 5 to 26. That, during the pendency of this petition the dispute between the petitioner-Society and respondents 5-26 is stated to have been settled, in view of the petitioner agreeing to allot them sites and the petitioner has also filed a Memo to that effect. The memo is recorded. In the application (IA.III) filed by the petitioner it is also stated that sites have been allotted to all the impleading applicants.
The facts leading to this petition are as follows:-
That, Sy. Nos. 19/1 and 19/2 of Nainappa Setty Palya were allotted in favour of the petitioner as a bulk allotment for the purpose of formation of a layout and to allot sites in favour of its 88 members. The said allotment was subject to certain conditions. One of those conditions is that the list of re-allotters will have to be approved by the authority.
The petitioner after securing possession of the aforesaid lands formed a layout comprising 88 sites and allotted about 44 sites in favour of different members. That, on the application filed by the Society the first respondent released 44 sites in favour of the Society, as per the communication dated November 14, 1994, produced at Annexure-C. It appears, when attempts were being made for allotment of the remaining sites, respondents 5 to 26 made representation to the first respondent that the petitioner has allotted sites in favour of the non-members detrimental to their interests. On the basis of the said complaint the first respondent issued an order dated November 22, 1994 produced at Annexure F withdrawing the release order dated November 14, 1994 and directing the petitioner to surrender forthwith the list of 44 sites already released. The relevant portion of the order reads as follows:-
"Further, as the commissioner desires to get from you the list of original members who have purchased the sites in the year 1984, and to whom re-allotment has been made and send the same to obtain the approval of the Authority, you are requested to furnish these details immediately. You are also requested to relinquish the CA sites, roads, etc. by executing a relinquishment deed to take further action in the matter."
The copy of the said order was forwarded to the Sub-Registrar, Jayanagar, 8th block, Bangalore, with a request not to effect any registration in respect of the sites released in favour of the petitioner under order dated November 14, 1994.
Sri T.S. Ramachandra, learned Counsel appearing for the petitioner has contended that the impugned order is without authority of law. When once the land is vested in the Society and the Society has formed a private layout with the permission of the Bangalore Development Authority, u/s 32 of the Bangalore Development Act (for short ''the BDA Act''), the BDA has no authority to ask the Society to surrender the sites for release after approving the list of members; and there is no provision either under the Act or the rules either empowering the BDA to release the sites in favour of the Society or to refuse to register Khatas in favour of the allottees. It is his further contention that, that first respondent has made the impugned order on the complaint of the respondents 5 to 26 which is a dispute of civil nature and the Commissioner has no lawful authority to decide such question. It is the further contention of the petitioner that, when once the Society formed the private layout, with the permission of the BDA in accordance with the plan approved, the BDA has no authority to interfere either in the allotment of sites in favour of the members of the Society or in respect of any dispute that may arise relating to the allotment. The said dispute has to be decided in the properly framed civil suit in a Civil Court of competent jurisdiction. In support of his contention, Sri T.S. Ramachandra has relied on the decision of this Court in W.P.No. 20898/90 which was later affirmed by the Division Bench in W.A.No.394/93.
Sri N.K. Patil, learned Counsel appearing for the first respondent has contended that the decision relied on by Sri T.S. Ramachandra is inapplicable to this case, as the BDA has granted this land in favour of the petitioner-Society for formation of a Layout subject to certain conditions. It is his further contention that the petitioner having accepted the allotment of the land subject to the conditions, cannot turn-round and say that he is not bound by the terms and conditions. It is imperative that the petitioner shall comply with all those conditions and in default it is always within the powers of the BDA to take such steps as allowed under law. The BDA has further contended that as the list of re-allotters is not approved by the BDA, the Commissioner is well within his powers to withdraw the release order, as the sites to be allotted should be released by the BDA and it is his further contention that the BDA has not taken any coercive steps against the petitioner but directed the petitioner to furnish the list of its members so that the object of the allotment of the land in favour of the Society may be achieved and all the bonafide members have been allotted with the sites.
Before considering the rival contention it is necessary to extract the conditions imposed by the BDA as per resolution No. 282 dated April 30, 1994, which are as under:-
(i) The land shall be reserved for residential purpose;
(ii) The allotment shall be made strictly in accordance with the provisions of the allotment rules 1982;
(iii) The Society shall prepare a list of members before making allotment and obtain approval of the respondent-authority;
(iv) The respondent authority shall collect the charges from the Society as per re-allotment rules.
It is submitted that there are no rules relating to re-allotment. It is further admitted that the land was delivered to the possession of the Society pursuant to resolution No. 282 dated April 30, 1984. It is also admitted that the civil works and other development works were done by the Society in accordance with the plan approved as per Annexure-A. The petitioner-Society formed a layout and allotted sites in favour of its members. The list of members was furnished to the BDA at the time of seeking re-allotment by the Society. It is the case of the respondent that there is some deviation in the allotment made in favour of the members of the Society. Instead of allotting sites in favour of each member, only 77 members have been allotted and the remaining 11 sites were allotted in favour of some persons, who have already been allotted a site. In view of this deviation and violation of the terms of allotment of sites the BDA has withdrawn the letter of release dated November 14, 1994.
That, in view of the allotment of land in favour of the Society with permission to form a layout in accordance with the plan submitted by the Society to the BDA, the layout is deemed to have been formed u/s 32 of the BDA Act. Section 32 of the BDA Act does not contain any provision empowering BDA to release the sites in favour of the Society or the allottees of the Society. The question of release of sites by BDA would not arise as BDA would not be in possession either constructive or physical - of any part of the sites proposed to be released. So long as the BDA is not in possession of the sites the question of releasing the said sites would never arise. Section 32 also would not put any embargo on the mode of allotment of sites. Even the resolution No. 282 dated April 30, 1984 pursuant to which the land was allotted also does not impose any condition providing that the sites should be released by the BDA either in favour of the Society or its allottees, in this view of the matter, the contention of Sri N.K. Patil, the learned Counsel appearing for Respondent No. 1 that unless the sites are released by BDA after approving the list of members submitted by the Society, either the Society or the allottee gets no right, title or interest in the sites in question, is liable to be rejected. Accordingly it is rejected.
When the Society furnished a list of its members at the time of original allotment, it is deemed that the land was allotted in favour of the Society by BDA treating the said list to be the correct list. When the land was allotted on the basis of a list of members produced by the Society, there is no reason for the BDA to insist upon the Society to get the list approved again to release the sites. This Court in T. SUBRAMANYAM v. BANGALORE DEVELOPMENT AUTHORITY AND ANR.,W.P. No. 20898/90 : affirmed in W.A. No. 394/93 dealing with almost a similar situation has held as follows:-
"3, The petitioner, being one of the allottees, has applied to the BDA for change of khata of the aforesaid site No. 19 in his favour. BDA has refused to change the khata on the ground that the said site has not been released for allotment. The layout in question being a private layout formed by the Second respondent- Society in accordance with the layout sanctioned by the BDA, there is no question of "releasing the site" by the BDA for purposes of allotment by the Society."
This decision was affirmed by a Division bench in W.A.No. 394/1993. Later on this Court has followed the decision in other writ petitions also.
Sri N.K. Patil, learned Counsel appearing for respondent-1 has contended that the said decision is distinguishable on account of the peculiar facts and circumstances of this case. He has stated that in view of the land bearing Sy.No. 19/1 and 19/2 of N.S Palya being re-allotted by the BDA in favour of the petitioner-Society subject to certain terms and conditions and the Society having accepted the allotment subject to these conditions, shall not be allowed to approbate and reprobate. The Society is bound by the conditions imposed by the BDA Act. The decisions referred to above, since deal with the formation of a layout by the Society in the land belonging to the Society, the principle laid down by this Court in Subramanyam''s case cannot be made applicable to this case. Sri N.K. Patil, would not dispute that the land was delivered to the petitioner-Society for consideration, of course subject to the conditions referred to above. The Society formed a layout in accordance with Section 32 of the Act. This Court in Subramanyam''s case has held that when a private layout is formed u/s 32 of the Act there is no question of releasing of sites. As the layouts in both the cases have been formed by virtue of Section 32 of the BDA Act it is not possible to hold that the law laid down by this Court in Subramanyam''s case cannot be extended to the case on hand. Further, as aforesaid, the BDA also did not reserve any power to release the sites in its order of allotment. When once the Society formed a layout u/s 32 of the BDA Act, it is for the Society to allot sites in favour of its members. The BDA cannot have any say in the allotment of sites in favour of its members. If there is any violation of the byelaws of the Society or the statutory provisions which govern the affairs of the Society it is for the members to take action against the Society. Even otherwise, it is not the case of the BDA that, the petitioner did not allot sites to any of its members, the case is that, a few members have been favoured with double allotment. In view of IA.III and also in view of the undertaking given by the Society in this case admitting that they would allot sites in favour of Respondents 5 to 26, the impugned order made by the Commissioner withdrawing the order of release dated November 14, 1994, is unsustainable in law and liable to be quashed.
In the result, this petition is allowed. The order dated November 22, 1994 issued by the Commissioner withdrawing the release order dated November 14, 1994, is hereby quashed. The allottees are entitled to get their sale deeds registered at the Office of the Sub-Registrar if they are otherwise found to be eligible, without reference to the impugned order and they are also entitled to get the khatas changed to their names. It is also made clear that the dispute between the members of the Society has not gone into in this petition in view of the specific undertaking given by the petitioner-Society that the sites would be allotted in favour of respondents 5 to 26.