IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No. 3488 OF 2018 (BDA) BETWEEN:
SMT. SHANTHAMMA DAUGHTER OF SRI. DOLLAIAH WIFE OF SRI. MAHADEVU AGED ABOUT 63 YEARS PRESENTLY RESIDING AT NO.33/1, 1ST A CROSS OPPOSITE 4TH MAIN, MALLIGE THOTA, CHOLURUPALYA MAGADI ROAD BENGALURU - 560 023.
... APPELLANT (BY SRI. K. ABHINAV ANAND, ADVOCATE) AND BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD BANGALORE - 560 020.
REPRESENTED BY ITS COMMISSIONER.
... RESPONDENT THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 4/10/2018 IN WP 29607/2017 [BDA] PASSED BY THE LEARNED SINGLE JUDGE.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 04.10.2018 passed by the learned Single Judge in W.P. No.29607 of 2017, by which the petition was rejected, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying for a writ of mandamus directing the respondent to issue allotment letter in respect of Site No.617 in the layout formulated as Ambedkar’s Layout in sy.Nos. 9, 10 and 11 of Vaddarapalya village as intimated to her through endorsement dated 02.09.2002 as per Annexure-C and further to direct the respondents to process further to hand over possession of the site or to direct respondent to allot alternative site to her in any BDA layout. The petitioner states that she belongs to Scheduled Caste community. It is stated that the State Government came up with a project for distribution of sites measuring 20 x 30 feet to the persons belonging to the Scheduled Caste and Scheduled Tribe (‘SC/ST’ for short) and other weaker sections of the Society. The respondent called for applications from deserving persons. The petitioner being eligible, applied for the same through application dated 16.02.1989. The respondents for the above purpose formed layout in Sy.Nos.10, 11 and 12 of Vaddarapalya village. The petitioner claims that she was allotted site No.617 measuring 20 x 30 feet, but she did not receive the allotment letter and the allotment letter was sent back by the Postal authorities to the respondent. As such the petitioner made a representation to the respondent. The respondent issued Annexure-C endorsement dated 02.09.2002 to furnish certain details so as to verify the allotment in her favour. It is the case of the petitioner that through Annexure-D representation dated 22.09.2002, she submitted the required documents to the respondents on 07.12.2005. The petitioner was asked to submit specimen signatures and photo duly attested by a gazetted officer, which the petitioner submitted along with covering letter dated 29.12.2005. It is stated that the petitioner made repeated representations. Only on 28.12.2012, the respondent issued an endorsement vide Annexure-H, stating that there is no provision to consider her representation. Aggrieved by the said endorsement, the petitioner filed instant writ petition. The learned Single Judge by impugned order rejected the writ petition only on the ground that the petitioner is not diligent in staking her claim and the petition is hit by delay and latches.
Aggrieved by the same, the petitioner preferred the instant appeal.
3. Heard the learned counsel for the appellant. Perused the appeal papers.
4. Learned counsel for the appellant would submit that the appellant had applied for allotment of site meant for SC/ST and other weaker sections of the Society. The petitioner was allotted a site, but she had not received the allotment letter. As such she made a representation to the respondent-Bengaluru Development Authority which after obtaining documents from the petitioner failed to consider petitioner’s request. The learned Single Judge committed an error in rejecting the writ petition on the ground of delay and laches, when the petitioner had continuously represented to the respondents. On the other hand, the respondent had slept over the matter and issued endorsement only in the year 2012.
5. Having heard the learned counsel for the appellant and on perusal of the appeal papers, we are of the view that there is no merit in the appeal and the appeal is liable to be dismissed. The respondent, for distribution of sites measuring 20 x 30 feet to the persons belonging to SC/ST and other weaker sections of the Society, appears to have called applications from the eligible persons. The petitioner states that she applied for allotment of a site under the above scheme on 16.02.1989 by registering her name with the Bangalore Development Authority as per Annexure-B. The petitioner claims that she was allotted site No.617 measuring 20 x 30 feet, but she did not receive the allotment letter as she was not in the house when the postal authorities came to deliver the letter. The petitioner has not produced any document indicating allotment of site in her favour by the respondent- Authority. Mere statement by the petitioner that she was allotted site No.617 would not be sufficient to believe the allotment of site in her favour. The petitioner said to have made representation and in response to her representation, the respondent sought certain information from the petitioner in the year 2002. On furnishing the information, according to the petitioner, there was no progress in the matter till 2012 i.e., when she received the endorsement stating that there is no provision to consider her request. According to the petitioner, the petitioner applied for allotment of site in the year 1989, on representation of the petitioner particulars were sought from the petitioner in the year 2002, thereafter endorsement was issued in the year 2012. The writ petition is filed before this Court in April 2017. There is inordinate delay in approaching the Court. The petitioner slept over the matter for decades together and there is no diligence on her part in prosecuting her case. One has to exercise his/her right within a reasonable time. There is delay of more than 25 years in approaching this Court from the date of alleged application to the respondent. The Hon'ble Supreme Court in a case reported in (2015) 15 SCC page 1 in the case of PRABHAKAR v/s JOINT DIRECTOR OF SERICULTURE DEPARTMENT AND ANOTHER at paragraph 38 has held as follows:
“38. It is now a well-recognized 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”.
6. The principles laid down in the above judgment of the Hon’ble Apex Court would squarely apply to the facts of the present case. The order of the learned Single Judge would not suffer from either perversity or erroneousness, so as to call for interference from this Court. No good ground is made out to interfere with the order of the learned Single Judge and the appeal stands dismissed, accordingly.
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JUDGE JUDGE mpk/-*CT:KHV