IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 51635 OF 2017 (BDA) BETWEEN:
SRI H V KARIYANNA S/O VEERABHADRAIAH AGED ABOUT 53 YEARS R/A NO.121, 5TH MAIN BANASHANKARI 3RD STAGE KATHRIGUPPE BENGALURU-560085 … PETITIONER (BY SRI. H C SUNDARESH, ADVOCATE) AND:
1. THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD BENGALURU-560020 2. THE DEPUT YSECRETARY-II BENGALURU DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD BENGALURU-560020 … RESPONDENTS (BY SMT. A D VIJAYA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE CANCELLATION ORDER DATED 20.08.2004 ISSUED BY THE 2ND RESPONDENT AS PER ANNX-D; AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The grievance of the petitioner is against the cancellation of the allotment of BDA site vide impugned order dated 20.08.2004 at Annexure-B on the ground that the petitioner did not pay the amount due towards sital price despite Demand Notice dated 15.12.2001, within the time stipulated by law. Petitioner complains that in terms of Circular dated 18.11.2010 at Annexure-H the cutoff date for payment of unpaid price being 31.12.2010 and admittedly, he having remitted the entire amount on 01.10.2004, the respondent – BDA is not justified in not recalling the cancellation of allotment.
2. The respondent-BDA having entered appearance through its Senior Panel Counsel Smt. A.D. Vijaya has filed its Statement of Objections dated 10.05.2018 resisting the petition-claim contending that the site was allotted on 07.07.2001; the Demand Notice was sent on 15.12.2001 and the petitioner did not pay the demand nor did he show any plausible explanation for not making the payment; the cancellation of allotment was effected on 20.08.2004 vide Annexure-B; even if the petitioner has made payment i.e., on 01.10.2004 it was inconsequential in law since by then, the cancellation was already affected; and lastly, the petitioner has approached the Court with the unexplained inordinate delay and therefore, he is not entitled to seek any relief in the equitable jurisdiction of Writ Court.
3. I have heard the learned counsel for the petitioner and the learned Senior Panel Counsel for the respondent-BDA. I have perused the writ petition papers as also the Statement of Objections.
4. The site was allotted on 07.07.2001 under the Economic Weaker Section Category; the Demand Notice was sent by the BDA on 15.12.2001; since demand was not met, the allotment was cancelled on 20.08.2004; however the petitioner has paid entire sital value on 01.10.2004 i.e., about one and a half month after cancellation. The BDA has issued two Circulars dated 18,10.2007 and 18.11.2010 at Annexures G and H respectively, the latter of which prescribes 31.12.2010 to be the cutoff date for making payment of unpaid sital value. Thus, admittedly the petitioner has made the payment on 01.10.2004 which is years before the cut off date.
5. Although a person intending to own a BDA site has to make payment of entire sital value within the prescribed time in terms of the Rules obtaining in the field still the human difficulties may come in the way of payment being made without delay. To mitigate such hardship, the BDA has come up with the aforesaid two Circulars in favour of the citizens aspiring for sites. The case of the petitioner falls with in the ambit of these Circulars, although, he has approached the writ court with some delay which may come in the way of granting relief by setting aside cancellation of allotment if the site in question is already allotted in favour of third persons who are not parties to this writ petition. Thus, the petitioner needs to be granted the relief, of course, subject to that condition.
6. In a more or less similar circumstance, the Coordinate Benches of this Court have granted relief to the litigants as rightly contended by the learned counsel for the petitioner. A copy of the judgment dated 21.06.2013 made in W.P. No.15726/2013 (BDA) is at Annexure-N; another copy of the judgment dated 07.04.2016 in W.P.No.13658/2015 (BDA) is at Annexure-P to the writ petition. The support the case of the petitioner for the grant of additional relief.
In the above circumstances, this writ petition succeeds in part; a Writ of Certiorari issues quashing the impugned order of cancellation of allotment dated 20.08.2004 at Annexure-B; consequentially a Writ of Mandamus issues to the respondents to consider the claim of the petitioner for grant of the site in question if it is not allotted to anybody, as yet.
If the said site is already allotted to others, then the BDA shall return the entire sital value with 18% interest thereon to the petitioner from the date, the same was received.
Sd/- JUDGE Bsv