Smt. Vijayarajashekhar Vs the Commissioner

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE CANCELLATION ORDER BEARING NO. ¨ÉAC¥Áæ:D:GPË-4:©J¸ïPÉ:ªÀÄÄA§:64©:1389:05-06 DATED 16.08.2005 ISSUED BY THE RESPONDENT AS PER ANNEXUR-E AND TO SET ASIDE THE ENDORSEMENT BEARING NO.¨ÉAC¥Áæ:GPÁ-4/§£À/6/4/©1389/2013-14 DATED 12.04.2013 AS PER ANNEXURE-J AND ETC.

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NC: 2026:KHC:28618 WP No. 10734 of 2021

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HC-KAR

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged an endorsement bearing No.¨ÉAC¥Áæ:D:GPË-4:©J¸ïPÉ:ªÀÄÄA§:6-4©:1389:05-06 dated 16.08.2005

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as well as an endorsement bearing No.¨ÉAC¥Áæ:GPÁ4/§£À/6/4/©1389/2013-14 dated 12.04.2013, by which the respondent cancelled the allotment of a site and also refused to reconsider the same. The petitioner has also sought for a writ in the nature of mandamus to consider the representation dated 28.12.2012 for allotment of an alternate site.

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(i) The petitioner claims that she filed an application for allotment of a site measuring 40 X 60 feet under the backward tribe category. After considering her application, the respondent allotted a site bearing No.1389, measuring 40 X 60' feet, situated at 4^th B Block, further extension of BSK 6^th Stage, on 07.02.2004. The petitioner paid the total cost of Rs.4,53,600/-, which was evidenced by two remittance challans

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dated 23.02.2004 and 26.03.2004, apart from the initial deposit of Rs.56,700/-. The petitioner claimed that after furnishing necessary documents, she requested the respondent to execute a sale deed conveying the allotted site.

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(ii) After nearly 1 and ½ years from the date of allotment, the respondent passed an order dated 16.08.2005 canceling the allotment on the ground that though the petitioner had made only one attempt seeking allotment of a site, it was wrongly reflected in the computer system maintained by the respondent that the petitioner had made eight attempts.

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(iii) The petitioner claims that she approached the District Consumer Forum, Bengaluru, in Complaint No.460/2009, which directed the respondent to allot a site to her, which was then challenged by the respondent before the Karnataka State Consumer Dispute Redressal Commission, Bengaluru, in Appeal No.2289/2009, which was allowed on 16.10.2009. She contends that since the cancellation of the allotted site is without notice to her, the same is liable to be set aside. She contends that in similar circumstances, a Division Bench of this

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Court in W.A.No.1417/2008 had held that the allotment of a site cannot be cancelled on a mere ground that the petitioner therein did not make a number of attempts.

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The learned counsel for the petitioner while reiterating the statements asserted in the writ petition submitted that the allotment of the site in favour of the petitioner is cancelled without even issuing a show cause notice. He contends that in similar circumstances, the Division Bench has given relief to an allottee and therefore prays that the petitioner may also be treated alike.

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(i) The writ petition is opposed by the respondent,

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who has inter alia contended that the petitioner did not furnish her caste certificate though she claimed that she belonged to backward tribe category and therefore, she was treated in general category. It is contended that for an applicant to qualify for allotment of a site in the backward tribe category, he or she has to make a minimum of 3 attempts. However, in the instant case, the petitioner had only made one attempt seeking allotment of a site but it was wrongly reflected in the system that the petitioner had made eight attempts and it was on that

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premise that a site was allotted to her, which was later realized and hence, the same was corrected by canceling the allotment made in favour of the petitioner.

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(ii) It is also contended that the petitioner had approached the Consumer Forum and found success initially as the District Forum directed the respondent to allot the site, which was thereafter challenged before the Karnataka State Consumer Dispute Redressal Commission, Bengaluru, in Appeal No.2289/2009, which was allowed and the complaint filed by the petitioner was dismissed as barred by time. It contends that after dismissal of the consumer dispute, the petitioner again approached the authority to reconsider and review its earlier order canceling the allotment of a site and that the said request was also rejected in terms of the endorsement dated 12.04.2013.

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The learned counsel for the respondent reiterated the contentions urged in the statement of objections.

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A perusal of the impugned endorsement issued by the respondent canceling the allotment of site in favour of the petitioner would go to show that it was cancelled on the ground

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that the petitioner had made only one attempt seeking allotment of a site and that it was wrongly reflected in the system that the petitioner had made eight attempts. The petitioner does not dispute the fact that she had made only one attempt seeking allotment of a site and not eight attempts. Therefore, the mistake if any in allotting a site to the petitioner cannot be perpetuated by directing the respondent to conclude the allotment of a site by executing a deed of conveyance or concluding the allotment. If it is a mistake, which has resulted in some favour or benefit to the petitioner, the respondent is entitled to revisit the same and recall it. However, the same must have been done by issuing a show cause notice. Be that as it may, since the petitioner does not dispute the fact that she had only made one attempt seeking allotment, and the allotment being made due to a mistake, the cancellation of the allotment by the respondent cannot be faulted. As regards the order passed in W.A.No.1417/2008, the same is distinguished on facts as a threshold eligibility was fixed for government employees to seek allotment of a site but the BDA had allotted a site to someone who had made lesser attempts. The Division Bench noticed that an order passed by a learned Single Judge

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in W.P.No.8493/2007 in respect of similarly placed person, was accepted by the BDA. However, the allotment in the instant case was cancelled due to a mistake in the system that the petitioner had made only one attempt in the general category. Allowing such a claim would only embolden the officials of the BDA to indulge in underhand dealings in bypassing seniority and those waiting for a site would wait endlessly.

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In that view of the matter, no relief can be granted to the petitioner to direct the respondent to allot a site. However, the respondent having received the money from the petitioner is bound to restore the same and since the same has not done soon after the allotment of a site was cancelled, the respondent is bound to make good for the time and opportunity lost.

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In that view of the matter, the respondent is directed to refund the allotment price received from the petitioner along with interest at the rate of 9% per annum from the date of rejection till the date of payment. This shall be complied within a period of three months, failing which, the respondent shall pay interest at the rate of 12% per annum

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from the date of cancellation till the date of payment and the excess interest paid shall be recovered from the person

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responsible for the delay.

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Sd/(R. NATARAJ) JUDGE

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BKN List No.: 1 Sl No.: 34

Smt. Vijayarajashekhar v. the Commissioner

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Smt. Vijayarajashekhar v. the Commissioner

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