By: M.S.Yatnatti: Editor and Video Journalist Bengaluru:As per HKHC order in WP 23475/2010 C/WWP 1032/2006 and WP 36275/2009 (BDA PIL) liberty was reserved the Government to frame appropriate rules in accordance with law and using this liberty government issued Gazette notification No UDD 475 MNJ 2014by amending rule 5 of BDA (Allotment of sites) Rules 1984 by "substitution of new rule 5 i"n place of old rule 5 which will be effective retrospectively from 1984 as rule 5 is substituted in old Rule 5 of BDA (Allotment of sites) Rules 1984 and this validates all allotments and Government orders made but still they have not been allotted the sites since 1984 by Government as per as per BDA Act 1976 and Rule 5 of BDA (Allotment of sites) Rules 1984 as per section (9) which is effective from 20-05-2015 and complying with the guidelines issued by the government in that regard from time to time by Karnataka Government.In matters of substitution by an amendment, it has to be construed that there is not real distinction between the repeal and an amendment.
With amendment of Rule 5 of BDA (Allotment of sites) Rules 1984 the court order became infractuous and government should file an affidavit and can seek HKHC for winding up of the Committee constituted for the purpose of this as according to court order government has complied the HKHC order in WP 23475/2010 C/W WP 1032/2006 and WP 36275/2009 (BDA PIL) and framed appropriate rules in accordance with law. Individual cases can be dealt with separately as per law if any about complaints of allotments to in eligible candidates or persons as now law is in place and accordingly BDA can take corrective steps.
In view of the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which is effective retrospectively since 1984 as rule 5 is substituted inRule 5 of BDA (Allotment of sites) Rules 1984 ,Wherefore request is madefor Allotment of G category site to Mr M.S.Rajshekhar as per Government order Number UDD 407 BLA 2005dated 27-01-20006 is valid and legal & as per BDA Act 1976 and Rule 5 of BDA (Allotment of sites) Rules 1984 as per section (9) and complying with the guidelines issued by the government in that regard from time to time by Karnataka Government .It is pertinent to note that High court order in WA 2066/2006 dated 12-09-2007. The Division Bench of Honble justice Sridhar Rao and Honble justice L Narayan Swamy clearly states that BDA is subordinate to Government and cannot question the act of Government and BDA is bound by directions issued under Section 65 of the BDAActin respect of G category of site.
Reportedly in Satish Chandra Makan vs Dr. S.V.S. Sastry And Anr. on 7 October, 2005 Equivalent citations: 2006 (1) ALD 145 it is held that "In matters of substitution by an amendment, it has to be construed that there is not real distinction between the repeal and an amendment. Whether a provision of an Act is omitted by an Act and the said Act simultaneously re-indicates new provision which substantively covers with certain modifications. In that event, such re-enactment is recorded as having force continuously and modification are treated as changes with effect from the date of the enforcement of the re-enacted provision.It makes no difference in application to these principles that the amendment is by substitution or otherwise. However, the statutes dealing with the procedures in contrast with the substantive rights are presumed to be retrospective, unless such a conclusion is textually inadmissible. If the new Act affects the matters of procedure, then only prima facie it applies to all actions pending as well as future.While the law relating to forum and limitation is procedural in nature while the law relating to right of action and right of appeal even though remedial is substantive in nature, that a procedural statute should not generally be speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. A statute which not only changes the procedure but also creates new rights and obligations shall be construed to be prospective, unless otherwise provided either expressly or by necessary implication.