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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.