IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No. 6646 OF 2017 (BDA) BETWEEN:
SMT. B S LAKSHMI AGED ABOUT 50 YEARS WIFE OF LATE K RAJENDRAPRASAD RESIDING AT NO.58, PRAJWAL NILAYA 8TH CROSS, SHIVANANDANAGAR MOODALAPALYA BENGALURU-560 072.
... APPELLANT (BY SRI. H.S. SANTHOSH, ADVOCATE) AND:
1. THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY BENGALURU-560 072.
2. THE DEPUTY SECRETARY BENGALURU DEVELOPMENT AUTHORITY BENGALURU-560 001.
... RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 01/10/2012 PASSED BY THE LEARNED SINGLE JUDGE OF THIS COURT IN WRIT PETITION NO.20800/2012 [BDA] AND ALLOW THIS WRIT APPEAL WITH COSTS THROUGHOUT AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 01.10.2012 passed by the learned Single Judge in W.P. No.20800 of 2012, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying for issuance writ of certiorari to quash endorsement bearing No.BAPRA:UKA-3:05-06 dated 03.11.2005 and endorsement No.BAPRA:UKA-3:05-06 dated 13.12.2005 and to direct the respondents to consider the representations at Annexure-C to C2.
3. The petitioner avers that she belongs to economically weaker section of the Society. She applied for a house site to the respondent-Bengaluru Development Authority (‘BDA’ for short) for allotment of a site meant for economically weaker section of the Society. It is stated that the respondent-BDA by allotment letter dated 06.02.2004 allotted a site bearing No.2049 measuring 6 x 9 meters (EWS), IX Block, FE of Sir M.Vishweshwaraiah Layout. The value of the site indicated was Rs.66,900/- which the petitioner claims that she has paid the entire amount. The respondent-BDA on 03.11.2005 issued a show cause notice calling upon the petitioner to show cause why the site No.2049 allotted in favour of her should not be cancelled as the income shown by the petitioner is more than the income criteria fixed for a person belonging to economically weaker section. The petitioner submitted her reply. As the reply submitted by the petitioner was not satisfactory, the respondent-BDA by order dated 13.12.2005 cancelled the site allotted in favour of the petitioner. Thereafter, the petitioner submitted representation dated 24.12.2005 to the respondent- authority stating that her annual income is Rs.10,500/- which is within the income of Rs.11,500/- prescribed for a person belonging to economically weaker section. If the income of her husband is included, then it would be Rs.23,000/-. She requested to withdraw the cancellation order by taking only her income. The petitioner again submitted a representation 18.04.2011. As nothing was heard from the respondent-BDA, the petitioner filed the instant writ petition praying to quash the show cause notice dated 03.11.2005 and the cancellation order dated 13.12.2005. The learned Single Judge by order impugned, dismissed the writ petition on the ground that one has to disclose the income of his/her family and merely because the State Government has not issued notification describing a person belonging to economically weaker section, the petitioner cannot take advantage of the same. Aggrieved by the same, the petitioner is in appeal.
4. Heard the learned counsel for the appellant and perused the appeal papers.
5. Learned counsel for the appellant-petitioner would submit that the order of the learned Single Judge is wholly erroneous and committed an error in dismissing the writ petition without assigning proper reasons. The learned Single Judge could not have dismissed the writ petition on the ground that the State Government has not described a person belonging to economically weaker section. It is further submitted that the petitioner has no site or house of her own, as such, the learned Single Judge ought to have allowed the writ petition. Further the learned Single Judge failed to notice the directions issued by this Court in similar matters. It is further submitted that only income of the applicant is to be looked into and income of both husband and wife cannot be clubbed to arrive at annual income of the family. Thus prays for allowing the appeal.
6. On hearing the learned counsel for the appellant and on going through the appeal papers, we are of the view that the learned Single Judge has rightly dismissed the writ petition in exercise of his discretion under Article 226 of the Constitution of India. The petitioner who claims to be belonging to economically weaker section, applied for allotment of site from the respondent-BDA, meant for the persons belonging to economically weaker sections of the Society. The respondent-BDA by allotment letter dated 06.02.2004 allotted a site bearing No.2049 in favour of the petitioner. On verification, the BDA appears to have found that the petitioner has more income than the criteria of income fixed for the persons belonging to economically weaker section. From the show cause notice, it appears that the income prescribed to say that one belongs to economically weaker section is that one should have annual income of Rs.11,500/- or less. Hence the respondent-BDA issued show cause notice dated 03.11.2005 to show cause why the site allotted to the petitioner should not be cancelled on the ground that her income is more than the income criteria fixed for the persons belonging to economically weaker section. As the reply submitted by the petitioner was not satisfactory, the respondent-BDA cancelled site on 13.12.2005. Thereafter, the petitioner made a representation dated 24.12.2005 to reconsider the decision by the respondent-BDA. Having kept quite for more than 7 years, the petitioner approached this Court only in the year 2012. The learned Single Judge noting the contention of the petitioner held that merely because the State Government has not issued notification to define a person belonging to economically weaker section, the petitioner cannot take advantage of the same. Moreover, the criteria fixed by the BDA is that if a person belongs to economically weaker section their annual income should be less than Rs.11.500/- whereas the annual income of the petitioner and husband put together would be more than Rs.23,000/- as stated in her representation. Therefore, the learned Single Judge was of the opinion that the petitioner is not entitled for the relief. However, observed that the petitioner would be entitled for refund of the amount paid by her. Further, it is to be noted that the site was allotted in February 2004. The allotment of site was cancelled in December 2005. After cancellation of the site, the petitioner kept quite for more than 7 years before approaching this Court by filing instant writ petition. Hence, the petitioner is not diligent in prosecuting her cause. Any right is to be exercised within a reasonable time. The Hon'ble Supreme Court in a case reported in (2015) 15 SCC page 1 PRABHAKAR v/s JOINT DIRECTOR OF SERICULTURE DEPARTMENT AND ANOTHER at paragraph 38 has held as follows:
“38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity “delay defeats equities”.
7. The above principle laid down by the Hon'ble Supreme Court would squarely apply to the case of the petitioner. On the ground of delay laches also the writ petition is liable to be dismissed. The order of the learned Single Judge is neither perverse nor erroneous so as to call for interference. No ground is made out to interfere with the order of the learned Single Judge. Accordingly, the appeal is dismissed.
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JUDGE JUDGE mpk/-* CT:KHV