- (1.)SMT.Fatima Mary was allotted site bearing No.5c-242 in HRBR Layout, 3rd Block,measuring6.10x 9.14mtrs. (20' x30'), on 27.8.1984 and consequently lease-cum-sale agreement was executed. However, there was a litigation in respect of the site in question. Hence, she made a representation to allot an alternative site in her favour, on 5.12.2006. She was allotted alternative site bearing No.1310in BTM Layout, measuring 20' x 30' by the allotment letter dated 4.1.2007 vide Annexure-A to the writ petition. She paid the requisite amount towards the said site. At the time of execution of sale deed, it came to the knowledge of the BDA that the site bearing No.1310 allotted to Fatima Mary as an alternative site is actually measuring 30' x 40'. As the site actually measured in excess of 20' x 30', said Fatima Mary was called upon to pay the difference price for the site allotted to her. Accordingly, she paid the excess amount demanded by the BDA for the excess land which is being conveyed to her at the time of registration of sale deed. After accepting the difference amount, sale deed was executed in her favour as per Annexure-C, dated 28.2.2007. The very site is sold by Fatima Mary in favour of the petitioner herein through a registered sale deed dated 9.5.2007 vide Annexure-D to the writ petition. According to the petitioner after getting the sale deed registered, the petitioner constructed the house and residing therein. When the facts stood thus, a show-cause notice is issued by the BDA on 17.4.2009 to the vendor of the petitioner, calling upon her to explain why,the alternative site allotted in favour of her should not be cancelled as the same is contrary to Rule 11-A(3) of Allotment Rules. The petitioner filed statement of objections. Thereafter the impugned order is passed as per Annexure-K, cancelling the allotment of alternative site made in favour of Fatima Mary, i.e., the vendor of the petitioner. Same is called in question in this writ petition.
(2.)IT is no doubt true that in the first allotment made in favour of Fatima Mary, she was allotted the site measuring 20' x 30'. Same was under litigation. Hence, she was allotted an alternative site vide allotment letter dated 4.1.2007 vide Annexure-A to the writ petition. In the said letter of allotment of alternative site also it is mentioned that site measuring 20' x 30' is allotted. However, at the time of registration of sale deed, it seems it has come to the knowledge of the BDA that the alternative site bearing No.1310 measures 30' x 40' and not 20' x 30'. The BDA at that point of time itself should have cancelled the allotment. Instead of doing so, the BDA proceeded to issue notice to the allottee to pay the difference amount. The proceedings sheet maintained by the BDA is produced by the petitioner along with the writ petition at Annexure-L. The said proceedings sheet clearly reveals that the BDA has proceeded to execute the sale deed in favour of the petitioner's vendor in respect of the site measuring 30' x 40' knowing fully well that the said site measures 30' x 40'. The BDA after various deliberations in the office, consciously collected the difference amount in respect of the excess measurement of the site. Thus, it is clear that the sale deed executed by the BDA to an extent of 30' x 40' was not accidental. But it was intentional. After thorough verification, the BDA has executed the sale deed in favour of Fatima Mary in respect of the site to an extent of 30' x 40' after collecting the difference amount. As the sale deed is registered in favour of the petitioner's vendor she became absolute owner of the property. No fraud is played by the vendor of the petitioner on BDA. Under such circumstances, it is not open to BDA to cancel the site after two years, particularly when the third party's interest is involved. As aforementioned, the petitioner after purchasing the property from Smt. Fatima Mary constructed the house and is stated to be residing there.
The BDA cannot take advantage of its own fault, particularly when the vendor of the petitioner is not at fault. She has not suppressed anything. It is the BDA which has allotted alternative site bearing No.1310 which actually measured 30' x 40'. Even at the time of registration after due deliberations in the office as is clear from the proceedings sheet maintained by the BDA, the BDA voluntarily collected the difference amount from the petitioner's vendor and got the sale deed registered. In view of the above, the impugned order of cancellation of alternative site made in favour of the petitioner's vendor is liable to be quashed. Accordingly, the impugned order (dated 23/2/2010 at Annexure-K, stands quashed. Writ petition is allowed accordingly. Petition allowed.