- (1.) Heard the learned Counsel for the petitioner and the learned Counsel for the respondents 1 and 2 and the learned Government Advocate.
(2.) The facts briefly stated are as follows: The petitioner claims to belong to a Scheduled Caste and by virtue of the same, had applied to the Bangalore Development Authority (hereinafter referred to as 'the BDA' for brevity) for the grant of a house site, under a quota reserved for persons belonging to Scheduled Castes. The petitioner accordingly was said to have been allotted site No. 4. 13 M 41.6, Old Madras Road-Banaswadi Road Layout, Bangalore, measuring 60 feet x 40 feet, under an allotment letter dated 23.1.1998. The BDA executed a Lease-cum-Sale agreement on 20.6.1998 and had issued a Possession Certificate as on 31.7.1998. The petitioner was prohibited from alienating the properly for ten years during the term of the lease. It is the petitioner's case that respondent No. 1 had induced the petitioner to enter into an agreement of sale in respect of the said site and accordingly an agreement of sale was executed by the petitioner in favour of respondent No. 1 as on 15.10.1999 for a sale consideration of Rs. 5.00 lakh. An advance of Rs. 4.50 lakh was received and the balance amount of Rs. 50.000/- was to be paid on the date of execution of the sale deed and registration thereof. In this regard, a post-dated cheque is said to have been issued by respondent No. 1. The petitioner parted with the original documents, as well as physical possession of the site. The petitioner had also executed a Power of Attorney authorising respondent No. 1 to execute and register the sale deed. It transpires that by virtue of the agreement and the power of attorney, respondent No. 1 had executed an absolute sale deed in favour of his wife, respondent No. 2 herein as on 8.12.2005. The petitioner claims that this was without the knowledge of the petitioner. Immediately upon coming to know of the transaction, the petitioner is said to have got issued a legal notice to respondent No. 1, calling upon him. to cancel the transaction and to restore the site 10 the petitioner as the same was in violation of the Lease-cum-Sale agreement executed by the BDA and the Bangalore Development Authority (Allotment of sites) Rules, 1994 (hereinafter referred to as 'the BDA Rules' for brevity) as well as the provisions of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the KPTCL Act' for brevity). The respondents having negated the demand of the petitioner the petitioner was constrained to file an application on 30.4.2007 before the Assistant Commissioner. Bangalore North Sub-Division, respondent No. 3 seeking restoration of the said site as the transaction was violative of the provisions of the KPTCL Act. The said authority had rejected the application by an order dated 5.5.2007 and the same having been carried in appeal before the Deputy Commissioner, the appeal has been dismissed as on 6.7.2007. It is in this background that the present writ petition is filed.
(3.) The learned Counsel for the petitioner would submit that the view taken by the authorities is that the provisions of the KPTCL Act would not apply to the present transaction. He would submit that having regard to the fact that the site in question was allotted to the petitioner only on account of the fact that, she belonged to a Scheduled Caste, under a special quota, and since the KPTCL Act does not make a distinction between agricultural land and a building site, as laid down by this Court, the provisions of the KPTCL Act clearly stood attracted and the allotment in favour of the petitioner did require to be protected and therefore, the alienation ought to have been set aside even if it was for a consideration since the transaction was not preceded by a prior sanction of the State Government as required under the KPTCL Act. The added circumstance that the transaction has taken place when there was a prohibition under the Lease-cum-Sale agreement and since the wide definition applied to 'alienation' including an agreement of sale, the illegality is compounded and therefore, the transaction has to be set at naught. It is further contended that the narrow view sought to he taken by the authorities that since the site in question is not a grant or allotment of land under die Mysore Land Revenue Rules, 1960, of under the Karnataka Land Grant Rules, 1969 etc., is not in accordance with the settled legal position and notwithstanding that the allotment is made by the BDA, which is constituted under a special statute, governed by other Rules, the petitioner is yet to be protected for otherwise, the very purpose and object of the Act would be defeated. The learned Counsel seeks to place reliance on the following judgments: (i) B.M. Hanumanthappa v. Deputy Commissioner, Shimoga and Ors., 1990 2 KarLJ 401. (ii) K.T. Huchegowda v. Deputy Commissioner,1994 ILR(KAR) 1839. (iii) K.N. Rame Gowda v. Assistant Commissioner, 1994 5 KarLJ 468 (iv) Kariyappa @ Kariyappa v. The Assistant Commissioner, Hassan and Ors., 1997 ILR(KAR) 1723. (v) Noorunnisa Begum v. Munlobalappa and Ors., 2001 ILR(Kar) 3753.;