Dismissed

The Bangalore Development Authority v. Smt S Lakshmi

Karnataka HC21 Jan 2021WA/470/2020

Case brief

AI extract

What is this about?

This High Court dismissed a writ appeal filed by the Bangalore Development Authority against a single judge order regarding land allotment. The court rejected the condonation of a 361-day delay by citing Supreme Court precedents and dismissed the appeal on merits, finding the BDA delayed unreasoningly for 14 years.

What did the court decide?

The writ appeal and the connected interim application were dismissed; the impugned order of the learned Single Judge was upheld.

The Bangalore Development Authority… — Constitutional and Fundamental Rights | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 21^ST DAY OF JANUARY 2021

¶4

PRESENT

¶5

THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

¶6

AND

¶7

THE HON’BLE MRS. JUSTICE M. G. UMA

¶8

WRIT APPEAL No.470 OF 2020 (BDA)

¶9

BETWEEN :

¶10

THE BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD KUMARA PARK WEST, BANGALORE - 560 020 REPRESENTED BY ITS COMMISSIONER.

¶11

THE DEPUTY SECRETARY – 3 BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE - 560 020. … APPELLANTS

¶12

(BY SRI SACHIN B.S., ADVOCATE)

¶13

AND:

¶14

SMT. S. LAKSHMI S/O. LATE P. SHANKARA NARAYANA, AGED ABOUT 77 YEARS, HOUSE NO.561., 3^RD MAIN, 2^ND BLOCK, RAJAJINAGAR, BENGALURU - 560 010 … RESPONDENT

¶15

(BY SRI SANKARANARAYANA RAO B.V., ADVOCATE)

¶16

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE

¶17

¶18

IMPUGNED ORDER DATED 10/02/2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.3727/2016.

¶19

THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-

¶20

J U D G M E N T

¶21

There is 361 days' delay in filing this appeal.

¶22

Nevertheless, we have heard learned counsel

¶23

for the appellant on merits of the case also.

¶24

Learned counsel for the appellant submitted that the delay of 361 days in filing the appeal has occurred due to bona-fide and unintentional reasons and the same has been explained in paragraph No.4 of the affidavit of the Deputy Secretary –III of BDA, Sri. M.S.N. Babu. He submitted that the BDA has stated clearly the reasons as to why there was delay in filing the appeal. The same may be considered and the delay may be condoned. He further submitted that appellant-Bengaluru Development Authority (for brevity referred to as ‘BDA’) has good case on merits, as the learned Single Judge has simply followed the judgment passed in W.P.No.34067-68/2016 dated 08.02.2019. The aforesaid judgment has been appealed

¶25

¶26

against and there is a stay in the writ appeal. Therefore, delay in filing this appeal may be condoned and writ appeal may be entertained on merits.

¶27

Learned counsel for appellant further submitted that pursuant to the judgment of this Court in the case of Junjamma Vs. Bengaluru Development Authority, reported in ILR 2005 Kar. 608 , which pertains to acquisition of land for the purpose of formation of Sri M Vishveswaraiah Layout certain directions were issued, one of which was, to allot alternate sites subject to payment of costs of the site by the allottee. In the instant case, representation for allotment was made on 10.12.2002 and allotment was made on 30.04.2016. That the allotment has been made on the basis of the prevailing market value at the time of allotment of the site, but, respondent assailed the same before the learned Single Judge. That learned Single Judge has set aisle the said valuation and has allowed the writ petition by directing the respondent - writ petitioner to pay re-determined value after adjusting the amount of Rs.4 lakhs, which has been

¶28

¶29

deposited by the respondent vide interim order dated 28.04.2017. The said re-determination has to be made within a period of six weeks from the date of the said order.

¶30

Learned counsel for the appellant-BDA

¶31

contended that the learned Single Judge could not have interfered in the matter and hence, the appeal calls for interference by this Court.

¶32

We have considered the submissions made by

¶33

the learned counsel for the appellant both on condonation of delay as well as on merits.

¶34

With regard to condonation of delay of 361 days in filing the appeal, we have perused the affidavit filed in support of the application. Paragraph No.4 reads as under:

¶35

“4. I submit that, the impugned judgment passed by the learned single judge is on 2.3.2016 and subsequently after obtaining the certified copy of the judgment, discussions was held with the concerned officer and commissioner to prefer the

¶36

¶37

writ appeal challenging the order of the learned single judge and it was sent to the legal section for securing the legal opinion as to whether it is a fit case to prefer the writ appeal challenging the order of the learned single judge and subsequently after taking opinion from the concerned legal officer the file has been handed over to our panel advocate to prefer the appeal challenging the order of the learned single judge, in this back ground there was some delay in preferring the above appeal due o the administrative reasons.”

¶38

On a perusal of the same, we note that the order of the learned Single Judge is dated 15.02.2019. A copy of the said order was received by the appellant – BDA on 27.02.2019. It is stated thereafter discussions were held with the concerned officers and the Commissioner so as to prefer an appeal, the file was sent to the legal section of BDA for securing legal opinion and after obtaining legal opinion from the concerned legal officer, the file was handed over to the concerned panel advocate to prefer an appeal and the appeal was ultimately filed on 19.02.2020, thereby resulting in delay of 361 days in filing the appeal.

¶39

¶40

On a perusal of the aforesaid paragraph in the affidavit, at the outset, we note that, it is bald and bereft of details and is a stereo-typed affidavit filed seeking condonation of delay of as many as 361 days in filing the appeal. It is noted that the period of limitation for filing this intra court appeal is 30 days. But, in the instant case, delay in filing the appeal is 361 days. We do not think that explanation offered, which is in any case is bereft of any details is sufficient in law to be condoned. In this regard, we find it necessary to rely on the following judgments of the Hon’ble Supreme Court:

¶41

a) In the case of Post Master General & others vs. Living Media India Ltd. & another [(2012) 3 SCC

¶42

563] the Hon'ble Supreme Court deprecated delay in filing the special leave petitions by the State and Central Governments as well as their instrumentalities and agencies. Paragraph Nos.27 to 30 of the said judgment read as under:

¶43

“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of

¶44

¶45

limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

¶46

Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.”

¶47

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there

¶48

¶49

was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

¶50

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.”

¶51

b) Recently, the Hon'ble Supreme Court in the State of Madhya Pradesh & others vs. Bherulal [decided on 15/10/2020 in Special Leave Petition

¶52

(Civil) Diary No.9217/2020], has deprecated the practice of filing the appeals and special leave petitions

¶53

¶54

belatedly. The relevant portions of the said judgment read as under:

¶55

"5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

¶56

x x x

¶57

We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

¶58

In the aforesaid case, the delay in filing the special leave petition was 663 days.

¶59

c) The same opinion has been expressed even in Municipal Corporation of Greater Mumbai & others vs. Uday N.Murudkar [Special Leave Petition (Civil) Diary No.9228/2020 disposed of on 15/10/2020]

¶60

¶61

and the State of Uttar Pradesh and another vs. Prem Chandra [Special Leave Petition (Civil) Diary No.971/2020 disposed of on 27/11/2020].

¶62

d) Further, on 18.12.2020, the Hon'ble Supreme Court in the case of Deputy Conservator of Forests vs. Timblo Irmaos Ltd. & others has observed as under:

¶63

"We have dealt with the issue of Government authorities in approaching Courts belatedly as if the Statute of Limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr, (supra). This situation no more prevail and this position had been elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563."

¶64

In view of the aforesaid dicta, delay of 361

¶65

days in filing the appeal, in our view, cannot be condoned in the instant case. The application (I.A.No.1/2020) seeking condonation of delay is, hence, dismissed.

¶66

¶67

We have also considered the matter on merits and we find that the appellant-BDA has taken fourteen (14) years to consider the representation made by the respondent herein seeking allotment of an alternate site. Learned counsel for the appellant sought to interpret the expression ‘prevailing market value’ relating to date of allotment, which could be after six years, 10 years or even after 02 decades. In the instant case, it is after 14 years. He contended that the date of allotment shall be the date to assess the prevailing market value of the site. We do not think the said approach be correct for the BDA cannot consider the representation made in accordance with the judgment of this Court in Junjamma’s case ( supra ), as and when it desires to do so and thereby allowing a decade or beyond to pass, and thereafter go on demanding the inflated market value of the site.

¶68

Any representation made pursuant to the judgment of this Court in Junjamma’s case, ought to have been considered within a reasonable period and on

¶69

¶70

ascertaining the prevailing market value, allotment ought to have been made. But, in the instant case, allotment has been after 14 years, after making such representation. Hence, we find that the learned Single Judge was right in interfering in the matter. We do not find any merit in the appeal, appeal is dismissed even on merits.

¶71

In view of the dismissal of the appeal, I.A.No.2/2020

¶72

also stands dismissed.

¶73

Sd/JUDGE

¶74

Sd/JUDGE

¶75

psg*

The Bangalore Development Authority v. Smt S Lakshmi

Case brief

What is this about?

What did the court decide?

The Bangalore Development Authority v. Smt S Lakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Eugenia Preethi Vs Sri. Leo John

Sri Srinivas L v Vs Smt Chennamma @ Geetha

Mr. David Doss Vs Mrs. Anusuya Kumari v

Hanumanthappa Vs State of Karnataka

Nadeem Ahmed Vs the Bengaluru Development Authority

The General Manager Vs Sri Rajashekar v Handragal