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“UDD” DEPARTMENT HAS FAILED TO COMMUNICATE TO HIGH COURT THE AMENDMENT MADE TO RULES “BY SUBSTITUTION”

 
 
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“UDD” DEPARTMENT HAS FAILED TO COMMUNICATE TO HIGH COURT THE AMENDMENT MADE TO RULES “BY SUBSTITUTION”
by System Administrator - Friday, 19 February 2016, 5:08 AM
 

By: M.S.Yatnatti: Editor and Video Journalist Bengaluru: Despite Jayachnadra the law minister to issued an "official note” directing Principal Secretary UDD to file an affidavit in HKHC in WP 23475/2010 C/WWP 1032/2006 and WP 36275/2009 (BDA PIL) stating that " Earlier Government had no power to allot G Category sites and Government took power to allot G category sites retrospectively by way of amendment to Bangalore Development Authority (Allotment of site)(Amendment) rules 2015 which in turn amends BDA (Allotment of sites) Rules 1984 by "substitution” of new rule 5 in place of old rule 5 as HKHC order in WP 23475/2010 C/WWP 1032/2006 and WP 36275/2009 (BDA PIL) had grantedliberty to the Government to frame appropriate rules in accordance with law Mr K J George Bengaluru Development Ministerand UDD department has failed to take up follow up action after amendment and amendment was not communicated to high court as All MLAs MPs Ministers and social workers who have been allotted G Category sites by Government or have Government allotment letters but sites were not allotted by BDA stands to get the benefit by the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which is effective retrospectively since 1984 as rule 5 is substituted in Rule 5 of BDA (Allotment of sites) Rules 1984.

Bangalore Development Authority (Allotment of site)(Amendment) rules 2015 have been published by the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which has come into force from the 20-05-2015the date on which it is published in the official gazette of Government of Karnataka . This amendment of Bangalore Development Authority (Allotment of site)(Amendment) rules 2015 which in turn amends BDA (Allotment of sites) Rules 1984 by "substitution” of new rule 5 in place of old rule 5 . Which makes this amendment effective retrospectively since BDA (Allotment of sites) Rules 1984 is amended by BDA (Allotment of sites) Rules 2015 as rule 5 is "substituted” in Rule 5 of BDA (Allotment of sites) Rules 1984. "The word 'substitute' ordinarily would mean 'to put (one) in place of another', or 'to replace'. In Black's Law Dictionary, Fifth Edition, at page 1281, the word 'substitute' has been defined to mean 'To put in the place of another person or thing', or 'to exchange'. In Collins English Dictionary, the word 'substitute' has been defined to mean 'to serve or cause to serve in place of another person or thing'; 'to replace (an atom or group in a molecule) with (another atom or group)"; or 'a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'." This amendment was made as per HKHC order in WP 23475/2010 C/WWP 1032/2006 and WP 36275/2009 (BDA PIL) as liberty was reserved to the Government to frame appropriate rules in accordance with law as it was said in the order that Government has no power to allot G Category sites and Government took power to allot G category sites retrospectively by way ofamendment toBangalore Development Authority (Allotment of site)(Amendment) rules 2015 amends BDA (Allotment of sites) Rules 1984 by "substitution” of new rule 5 in place of old rule 5.In view of this amendment UDD Department is duty bound to inform the HKHC in WP 23475/2010 C/W WP 1032/2006 and WP 36275/2009 (BDA PIL) that earlier Government had no power to allot G Category sites and Government took power to allot G category sites retrospectively by way of amendment to Bangalore Development Authority (Allotment of site)(Amendment) rules 2015 which in turn amends BDA (Allotment of sites) Rules 1984 by "substitution” of new rule 5 in place of old rule 5.

With this order of HKHC in WP 23475/2010 C/W WP 1032/2006 and WP 36275/2009 (BDA PIL) becomes infractous as Government has complied the order in letter and spirit and consequently can seek HKHC for winding up of the Justice Farouque 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 and committee became redundant .Public are free to file individual cases against G category allottee if any individual allotment is found to be illegal in view of New amendment toBangalore Development Authority (Allotment of site)(Amendment) rules 2015 amends BDA (Allotment of sites) Rules 1984 by "substitution” of new rule 5 in place of old rule 5 making all allotments and Government orders allotting G category ordersbecame legal .All MLAs MPs Ministers and social workers who have been allotted G Category sites by Government or have Government allotment letters but sites were not allotted by BDA stands to get the benefit by the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which is effective retrospectively since 1984 as rule 5 is "substituted” in Rule 5 of BDA (Allotment of sites) Rules 1984. In view of the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which is effective retrospectively from 1984 as rule 5 is "substituted” inRule 5 of BDA (Allotment of sites) Rules 1984 (substitution makes the law effective retrospectively from the Rules 1984) ,Request for Allotment of G category site to Mr M.S.Rajshekhar Social worker and Congress leader as per Government order Number UDD 407 BLA 2005dated 27-01-2006 which is valid as per above cited amendment and substitution of rules & 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. With amendment of Rule 5 of BDA (Allotment of sites) Rules 1984 the court orders became infractuous and government should file an affidavit stating that Government has regained power of allotment of G-Category sites through amendment retrospectively 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.

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.

It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.An amending Act may be purely declaratoryto clear a meaning of a provision of the

principal Act which was already implicit.A clarificatory amendment of this nature will have retrospective effect. (ibid, pp.468-469).The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting.'Substitution' has to be distinguished from 'supersession' or a mere repeal of an existing provision.Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles ofStatutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. Vs. State of U.P. and Ors. (2002) 2 SCC 645, State of Rajasthan Vs. Mangilal Pindwal (1996) 5 SCC 60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co. (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar Vs. S. Michael & Ors. AIR 1963 SC 933.In West U.P. Sugar Mills Association and Ors.'s case (supra) a three-Judges Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule.Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative.In Mangilal Pindwal's case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force.In Koteswar's case (supra) a three-Judges Bench of this Court emphasizedthe distinction between 'supersession' of a rule and 'substitution'of a rule and held that the process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.

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.