IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.14834/2018 (LB-RES) BETWEEN:
M/s. Saraswathi Education & Culture Trust [R], Represented by President, No.2250/1, Jhansi Laxmi Bai Cross Road, Mysuru – 570 005. …Petitioner (By Sri. Nagaiah, Advocate) AND:
1. The Secretary, Urban Department, Government of Karnataka, Vidhana Soudha, Bengaluru – 560 001.
2. The Commissioner, Mysuru Urban Development Authority, Jhansi Laxmi Bai Road, Mysuru – 570 005. ...Respondents (By Smt. Prathima Honnapura, AGA for R1; Sri. T.P. Vivekananda, Advocate for R2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 22.09.2012 passed by the 2nd respondent at Annexure-G This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
O R D E R Petitioner is stated to be an allottee of Civic Amenity site bearing No. 6 situated at Vijayanagara 1st Stage, Mysuru, by way of Allotment letter dated 23.03.1998. It is stated that the petitioner has paid the lease amount in its entirety on 10.06.1998. A registered Lease Agreement is said to have been executed on 28.02.2000 and Possession Certificate was issued on 04.04.2000. However, in the light of non-commencement of construction, under Rule 10(7) of the Karnataka Urban Development Authorities (Allotment of Civic Amenity Sites) Rules, 1991, (hereinafter referred to as the ‘Rules’, for short) allotment of Civil Amenity site bearing No.6 situated at Vijayanagara 1st Stage, Mysuru, came to be cancelled.
2. It is further submitted that the petitioner subsequently had made a representation to the Authority to reconsider the order of cancellation. The petitioner being aggrieved by the order dated 22.09.2012 has filed the present petition and sought for cancellation of the order at Annexure – G and further pleads for another opportunity to be given to the petitioner. Petitioner states that initially they had sought for change of the purpose for which the site could be put to, however, on rejection of the said request as the petitioner had financial constraints, the construction could not be completed.
3. It is further submitted that neighbouring site owner one Basavegowda had interfered with the possession of the site and hence, there were practical difficulties in commencement of construction. The petitioner has filed an affidavit and states that the petitioner is in possession of the funds for putting up construction and states that he is ready to abide by terms and conditions as may be imposed upon the petitioner and prays that a final opportunity be given.
4. Learned counsel for the respondents submits that action has been taken taking note of non-utilization of the site and not making any efforts to put-up construction as mandated under Rule 10 (7) of the Rules.
5. Heard the learned counsel appearing on both the sides.
6. It is to be noted that lease amount has been paid in its entirety. Subsequent to the order at Annexure – A, the site has not been allotted to any other allottee. Petitioner has filed an affidavit and undertakes to comply with the necessary conditions that this Court may impose and undertakes to utilize the site forthwith for the purpose as specified in the Lease Agreement. It is further submitted that, the petitioner had sought for change in land use which request was rejected and hence, there was delay.
7. Taking note of the order passed in W.P.No.37455/2016, wherein this Court has extended indulgence and has set aside the cancellation, while putting the petitioner on terms, in the present case also, taking note that no third party interests has been created and also taking note of the affidavit filed by the petitioner and the fact that petitioner has demonstrated the availability of funds, the order at Annexure – G is set aside, subject to the following terms and conditions:
i) Petitioner to make an application for sanctioned plan before the Mysuru City Corporation within eight weeks from today.
ii) Endeavour to be made by the petitioner to get approval of the plan submitted, by complying with the requirements of the Mysuru City Corporation within a period of three months thereafter.
iii) Upon obtaining of sanctioned plan, petitioner is to commence construction and complete construction within a period of two years from the date of obtaining of sanction plan.
Accordingly, petition is allowed. In light of the delay in putting to use the property as stipulated, petitioner is to pay costs of Rs.50,000/- to the respondent-authority.
It is made clear that the order is passed in the peculiar facts of the case as made out.
Sd/- JUDGE SV