Dismissed

K M Nagesh v. Shimoga Urban Development Authority

Karnataka HC9 Oct 2020WP/19769/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking quashing of an authority's resolution cancelling a site allotment due to payment default. The Court held the cancellation was lawful and allowed the authority to allot the site to another eligible applicant who fulfilled terms.

What did the court decide?

Writ petition disposed of. Petitioner directed to submit further representation if sites remain vacant, to be considered at the authority's discretion.

K M Nagesh Vs Shimoga Urban Development Authority — Landlord and Tenant | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.19769/2013 (LB – RES)

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BETWEEN

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K.M.NAGESH S/O MANJAPPAGOWDA, AGED ABOUT 50 YEARS, RESIDING AT ‘ANNAPOORNA’, NEAR VIKAS SCHOOL, 1^ST STAGE, 1^ST CROSS, ALKOLA(SHIVAPPA NAIKA EXTENSION), SHIVAMOGGA – 577 201.

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... PETITIONER

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(BY SRI REUBEN JACOB, ADVOCATE (VIDEO CONFERENCING))

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AND

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SHIMOGA URBAN DEVELOPMENT AUTHORITY, VINOBHA NAGAR, SHIVAMOGGA – 577 201 BY ITS COMMISSIONER.

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Y.VEENA W/O THIMMAPPA, HOUSE NO.29, SHIVAPPA NAYAKA LAYOUT,

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1^ST CROSS, VINOBANAGAR, SHIVAMOGGA – 577 201.

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... RESPONDENTS

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(BY SRI , ADVOCATE(VIDEO CONFERENCE))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE RESOLUTION DT.27.7.12, PASSED BY THE R1 AUTHORITY IN SUBJECT NO.(9) IN SO FAR AS THE CANCELLATION OF THE ALLOTMENT OF THE SCHEDULE SITE IS CONCERNED AT SERIAL NO.(22) VIDE ANN-F & ORDER DT.23.8.12, ISSUED BY THE R1, VIDE ANN-G, TO THE WRIT PETITION ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The brief facts of the case leading to filing of the

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present writ petition are:

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The Shimoga Urban Development Authority (hereinafter referred to as ‘the authority’ for short) called for applications for allotment of residential sites in the residential layouts that they had developed for the benefit of the general public. The petitioner who was a resident of Shimoga town, with an intention of securing an allotment,

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applied for a site and also claims to have deposited the advance amount in the years 1996, 1998, 1999 and 2000.

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In the year 2010-2011, the authority again invited applications for allotment of intermediate residential sites in a layout known as ‘Atal Bihari Vajpayee’ residential layout. The petitioner again applied to the authority for allotment of site in the aforesaid layout. Considering the application of the petitioner, a site bearing No.E-454 in the aforesaid layout was allotted in terms of an allotment intimation letter dated 16.05.2011 at an allotment price of Rs.6,28,000/- excluding advance payment that was made of Rs.62,800/-.

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The allotment letter called upon the petitioner to pay the balance of value of the site which was Rs.5,65,200/- within 90 days from the intimation of letter of allotment. The letter of allotment was issued on 16.05.2011 and the entire payment was to be made on or before 15.08.2011 i.e., before the expiry of 90 days.

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The petitioner did not pay the balance amount

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which he claims on account of his ill health and in view of BSNL spectrum scam in which the amounts of the petitioner were withheld. On 03.09.2011, petitioner remitted a further sum of Rs.50,000/- towards the value of the site. Noticing the fact that 90 days had elapsed and the petitioner had not made any payment except the aforesaid amounts and was still in due of Rs.5,15,200/-, a final notice was issued by the authority calling upon the petitioner to pay the balance value of the site failing which, the allotment would be cancelled.

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Even after the receipt of final notice, the petitioner

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did not make any payment. Long after the expiry of the cut-off date, on 01.08.2012 submitted a representation to the authority stating that he was now ready and able to pay the balance value of the site and requested the authority to permit him to remit the balance amount. Without considering the representation of the petitioner, as also, the fact that the petitioner had defaulted in payment,

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cancelled the order of allotment on 23.08.2012. The cancellation order was pursuant to a resolution of the authority on 27.07.2012.

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Thereafter, petitioner caused a legal notice upon the authority seeking allotment by accepting the remaining amount which was also rejected by the authority on the ground that after the cancellation of the allotment of site that was made in favour of the petitioner, owing to his default in payment, the site was allotted to the second respondent. It is the cancellation of allotment and the allotment of site in favour of the second respondent, that are questioned in this writ petition.

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Sri.Reuben Jacob, learned counsel for petitioner contends that even before the order of cancellation of allotment was passed by the authority, petitioner had given a representation on 01.08.2012 and notwithstanding the same, the allotment was cancelled and the site that was allotted to the petitioner was allotted to the second respondent. He would further contend that the second

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respondent was allotted a different site and in cancellation of the said site, an alternate site which was the one that was allotted to the petitioner was allotted, which is clearly illegal.

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On the other hand, Sri.A.V.Gangadharappa, learned counsel appearing for the authority would vehemently contend that the allotment though was made in favour of the petitioner, he defaulted in payment despite sufficient opportunity being granted to him. Insofar as the contention with regard to the second respondent being allotted the site that was allotted to the petitioner, he would submit that the site that was allotted to the second respondent had a well in the middle of the site. Hence, an alternate site was given to her.

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I have given my anxious consideration to the

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submissions made and perused the material on record.

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The letter of allotment dated 16.05.2011 in unequivocal terms indicated that the remainder of the

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amount i.e., Rs.5,65,200/- was to be remitted by the petitioner within 90 days which came to an end on 15.08.2011. The petitioner did not remit any amount within 90 days, but after the expiry of 90 days, a sum of Rs.50,000/- against the balance of Rs.5,65,000/- was paid which further led to a default of Rs.5,15,200/-

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The authority issued a final notice on 30.01.2012 asking the petitioner to pay the remaining amount, failing which, the allotment made in favour of the petitioner would be cancelled. Despite this, the petitioner did not pay any amount but gave a representation long after the receipt of the final notice on 01.08.2012 that he was ready and willing to pay the balance of Rs.5,15,200/-. By then, the authority had already resolved to cancel the allotment made in favour of the petitioner on the sheer default of the petitioner in not making the payment within the stipulated time despite being given sufficient opportunity and owing to the default, the order of cancellation was passed on 23.08.2012.

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In the light of the facts narrated hereinabove and glaring default on the part of the petitioner in payment of the value of the site for years, no fault can be found with the order of the authority dated 23.08.2012 cancelling the allotment made in favour of the petitioner.

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Insofar as the contention of the petitioner that the action of the first respondent in allotting his site to the second respondent as an alternative site notwithstanding the second respondent being allotted a different site earlier being arbitrary is concerned, the authority has allotted the alternate site to the second respondent on a bonafide ground that the allotment of a site in favour of the second respondent contained a well where no construction could take place. The alternate site being allotted to the second respondent is after the second respondent had fulfilled the terms of allotment. The petitioner having not fulfilled the terms of allotment and being in default throughout, cannot question a bonafide action of the authority allotting his site to the second respondent. In the aforementioned facts and

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circumstances, the grounds urged by the petitioner are all untenable and are rejected. However, in the event, any sites are still vacant, the petitioner is at liberty to submit a representation showing his bonafides by making a payment towards it, which would be within the discretion of the authorities to consider the same in accordance with law.

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With the aforesaid observations, writ petition stands

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disposed of.

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Sd/JUDGE

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bkp CT:MJ

K M Nagesh v. Shimoga Urban Development Authority

Case brief

What is this about?

What did the court decide?

K M Nagesh v. Shimoga Urban Development Authority

Case brief

What is this about?

What did the court decide?

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