The Karnataka High Court has observed that the Writ Court can entertain only a writ petition, not a mercy plea.
A Single Bench of Justice Krishna S.Dixit rejected a Petition filed seeking direction to the respondents that in lieu of withdrawal direct the Bangalore Development Authority (BDA) to allot one plot/ stray plot in bangalore and execute the lease cum sale agreement or sale deed directing the respondent BDA to receive the entire consideration together with interest, i.e., at the cost of his earlier allotment , as the cancellation is contrary statutory provisions of BDA Act from the petitioner.
The Counsel for the petitioner vehemently argued that his client belongs to Schedule Caste and that he was offered a site vide Allotment Letter in 2003. However he had great financial difficulty and therefore, he could not make payment in terms of the condition incorporated in the Allotment Letter; in view of that, his client has withdrawn the amount deposited by way of initial payment. That being the position, the Court should ask the BDA to show mercy, regarding the multiple attempts he has made for securing a one single site. The counsel heavily banks upon the proviso to Rule 13 of the BDA (Allotment of Sites) Rules, 1984.
The Panel counsel appearing for the BDA opposes the petition contending that since on his own the Petitioner has withdrawn the initial deposit specifically pleading financial requirement for the payment of college fees of this daughter, now he cannot turn around and claim that the allotment should be restored or that some other site should be allotted. He loudly reads BDA’s Endorsement dated 06.10.2009 which the petitioner himself has produced. He also repels the invocation of proviso to the subject Rule in the fact matrix of the case. So contending, he seeks dismissal of the petition.
Having heard the counsel for the parties and having perused the petition papers, the Court is broadly in agreement with the submission made by Senior Panel Counsel appearing for the BDA that the allottee of a site cannot turn around and complain that he should be given allotment even when no amount is paid or that even when the initial amount paid by him has been withdrawn unconditionally on his own. The contra contention of petitioner if accepted would amount to placing premium on his approbation & reprobation which the writ courts often bank upon to deny relief sought for in equitable jurisdiction , held the Bench.
Further the Bench held that Panel Counsel for the BDA is more than justified in contending that the proviso to Rule 13 of the 1984 Rules is not at all invokable. Ordinarily, the proviso is treated as an exception to the general norm incorporated in the main. The petitioner should broadly fit into the norm first and then he should escape from it’s clutches by showing the special circumstances which the proviso takes cognizance of for according some reprieve. That has not happened in this case, no special circumstances having been pointed out.
“The last contention of counsel for the Petitioner that his client belongs to Schedule Caste and therefore, leniency has to be shown by treating his case as a mercy petition, is bit difficult to countenance. The Writ Court can entertain only a writ petition, not a mercy petition, since constitutional jurisdiction is to be exercised on the basis of established rights and not on ground of the kind now urged. The contra contention will lay a very bad precedent for such other matters, which if decided on grounds of mercy, would cause a great prejudice to the public interest”, observed the High Court.