Smt. Yashodama Vs the Bangalore Development Authority

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-M DATED 30.07.2014 BEARING NO.BDA: COMMISSIONER/263/2014-15, ANNEXURE-N DATED 05.02.2013 BEARING NO.BDA:UKA-1:3010:2012-13 AND ANNEXURE-P DATED 06.05.2015 NO.BDA/AYU/UKA-1: 485/2015-16, BEING WHOLLY WITHOUT JURISDICTION SINCE THE ALLOTMENT CAN BE CANCELLED ONLY BY THE COMMISSIONER AFTER GIVING HEARING AND THE UNDER SECRETARY HAS NOT POWER TO CANCEL THE ALLOTMENT AND ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2026:KHC:34683 WP No. 33293 of 2015

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has sought for writ in the nature of certiorari to quash the communication bearing No.BDA: Commissioner/263/2014-15, dated 30.07.2014, an endorsement bearing No.BDA:UKA-1:3010/2012-13 05.02.2013 and another endorsement bearing No.BDA: Commissioner/UKA-1:485/2015-16 dated 06.05.2015 issued by the respondent. The petitioner has also sought for a writ in the nature of mandamus directing the respondent to withdraw the order of cancellation of allotment of a site and direct the respondent to execute a lease-cum-sale agreement or a deed conveying the site allotted after receiving the entire allotment price.

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The petitioner applied to the respondent for allotment of a plot. She was allotted a plot bearing No.485, 6^th 'B' Block, further extension of Banashankari 6^th stage, Bengaluru, measuring 15x24 meters and deposited a sum of ₹28,600/- towards the initial cost. She claims

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that when she was preparing to deposit the balance amount of ₹7,56,000/-, her husband suffered a stroke and later he underwent a kidney transplantation for which she spent huge amount and later her husband died on 05.02.2010. She contends that due to her inability to pay the balance allotment price, she submitted representations dated 20.09.2004, 09.11.2006, 06.05.2008, 15.09.2010, 29.12.2012, 27.06.2013 and 24.07.2013 seeking extension of time to pay the balance amount. She also submitted representation to His Excellency, Governor of Karnataka and the Ministers in the Government of Karnataka. The respondent replied to one such representation by an endorsement dated 30.07.2014 informing the petitioner that she had failed to pay the further installments and that the allotment was cancelled. The petitioner claims that she was not served with any order of cancellation and she was not notified of any such cancellation. She claims that she was under a bona fide

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belief that all her representations were under

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consideration.

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Following the above endorsement issued by the respondent, the respondent addressed one more letter dated 30.07.2014 to the Transport Minister in the Government of Karnataka that the allotment of site made in favour of the petitioner is cancelled in the year 2004 itself. The petitioner claims that though the respondent claimed that the allotment was cancelled and the same was communicated to the petitioner on 30.11.2010, but it was never communicated to her. The petitioner is therefore before this Court challenging the order of cancellation of the allotment of the site and has also sought for a further direction to the respondent to withdraw the order of cancellation and execute a leasecum-sale agreement and convey the allotted site.

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The petition is opposed by the respondent who has filed a statement of objections contending that though the petitioner was allotted a site bearing No.485 in terms

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of a letter of allotment dated 01.02.2004. It is claimed

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that the said allotment was made to the petitioner in the General Category as per the terms of the BDA (Allotment of Sites) Rules, 1984 (‘Rules’ for short). It is claimed that as per the conditions of allotment, the petitioner was required to pay the sital value of ₹7,56,000/- within 60 days from the date of letter of the allotment. In case the petitioner failed to deposit the sital value, the time for payment could be extended at the request of the petitioner for the first 30 days along with interest at the rate of 18% per annum and interest at the rate of 21% per annum for the next 90 days on the balance sital value. It is claimed that Rule 13(1) of the Rules, mandates that if the petitioner failed to pay the amount within the extended period also, the respondent was entitled to forfeit the registration fee and also cancel the allotment without any prior intimation. It is contended that the petitioner had paid an initial sum of ₹37,800/- and was

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liable to pay the balance amount of ₹7,18,200/- within the

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outer limit prescribed under Rule 13(1) of the Rules.

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It is further claimed that the petitioner did not

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come forward to pay the balance sital value and no communication whatsoever was addressed by the petitioner during the relevant period seeking extension of time. Therefore, a show cause notice was issued to the petitioner on 05.05.2004 calling upon her to show cause why the allotment should not be cancelled. The petitioner submitted a response although belatedly on 12.07.2004 stating that her husband was unwell and sought extension of 2 months time to pay the balance sital value. It is claimed that the husband of the petitioner underwent a kidney transplantation on 05.02.2002 while the allotment

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was made two years thereafter, in February 2004. Therefore, it is claimed that the contention of the petitioner that she could not pay the balance sital value in view of the ill-health of her husband and also on the ground that her husband underwent kidney transplantation

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are far from truth and not justified. It is also claimed that

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an order of cancellation was communicated to the petitioner. It is further claimed that despite the order of cancellation, the petitioner continued to submit multiple representations not only to the respondent but also to the Hon'ble Chief Minister and His Excellency, the Governor of Karnataka and various Ministers in the State Cabinet. At every stage, the respondent has maintained and justified its action in cancelling the allotment by issuing replies and reminders to the petitioner as well as various authorities. It is also claimed that though the petitioner was aware of the cancellation of the allotment in the year 2004, she has failed and neglected to raise any challenge within a reasonable time and the present petition is filed after nearly a decade and therefore, the petition is also hit by delay and laches.

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Along with the statement of objections, the learned counsel for the respondent has furnished a copy of the show cause notice issued to the petitioner on

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05.05.2004 and a reply submitted by the petitioner as well

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as the order of cancellation of the allotment.

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The learned counsel for the petitioner reiterated the above contentions and submitted that the petitioner was unable to deposit the balance sital value and therefore, prays that an opportunity be granted to the petitioner to pay the sital value. He contends that under similar circumstances, the respondent has condoned the delay in depositing the sital value and has executed various deed of conveyances in favour of various allottees. He therefore prays that the petitioner may also be treated alike.

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Per contra, learned counsel for the respondent submitted that even as per the conditions of allotment, the petitioner was required to deposit the balance sital value within 60 days and within the extended period along with interest at the rate of 21% per annum. She contends that the petitioner did not seek for extension of time and even within the extended time, the petitioner did not take any

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steps for payment of the balance sital value even after receipt of a notice from the respondent. She therefore contends that the petitioner has not been diligent in paying the allotment price within the time prescribed. She also contends that the petition is filed after nearly 10 years from the date of cancellation of the allotment of the site in question.

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Learned counsel for the respondent relied upon the judgment of the Apex Court in the case of THE COMMISSIONER, BENGALURU DEVELOPMENT AUTHORITY VS. T. SEETHARAMAPPA (DEAD), THROUGH LRS., in SLP (C) NOs.13871-13872 OF 2021 and contends that in precisely similar facts and circumstances, the Hon'ble Apex Court has overturned the judgment passed by the Division Bench of this court in Writ Appeal No.2770/2019, in which the order of the learned Single Judge directing restoration of the allotment in favour of the allottee was upheld. She therefore contends that no indulgence can be shown to the petitioner in this petition.

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I have considered the submissions of the learned

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counsel for the petitioner, learned counsel for the respondent and perused the material on record.

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The fact of allotment of the site in question to the petitioner is not in dispute. It is also not in dispute that the petitioner did not pay the balance sital value within the interest free period of 60 days from the date of the allotment. She also did not take any steps for seeking extension of time to deposit the balance sital value. It is also not in dispute that the respondent had issued notice to the petitioner on 05.05.2004 calling upon her to show cause as to why the allotment should not be cancelled and the petitioner submitted a reply stating that her husband was unwell and sought extension of 2 months time to pay the balance sital value. Even thereafter, the petitioner did not take any steps to deposit the sital value which perforced the respondent to pass an order of cancellation of allotment of site. The order of cancellation is addressed to the petitioner at Door No.7 MIG, KHB Colony, 1^st A

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cross, 7^th Block, Koramangala, Bangalore. The show cause notice was also issued to the said address. This Court called upon the petitioner to disclose whether the address of the house mentioned in the order of cancellation is a property owned by the petitioner or her husband. In this regard, an Affidavit is filed by the learned counsel for the petitioner stating that the petitioner was residing in the house which was taken on rent. Therefore, the petitioner is not diligent in making the payment even after receipt of a notice to cancel the allotment of the site. She did not deposit the amount within the time allowed under the Rules and within 2 months which she requested in response to the notice of cancellation. She has also slept over for nearly a decade after cancellation of the allotment.

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Since the petitioner has not deposited the sital value within the time prescribed in the letter of allotment and also within the extended time, but the petitioner has slept over her rights and has approached this Court after

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nearly 10 years from the date of the order of cancellation, it would be inappropriate to undo the order of cancellation at this length of time. This only demonstrates that the petitioner did not have a pressing need to get a site. Therefore, as rightly contended by the learned counsel for the respondent, the petitioner not having availed the opportunity of depositing the balance sital value within a reasonable time, cannot be extended any protection.

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In that view of the matter, the writ petition is

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dismissed . Any amount deposited by the petitioner shall be refunded along with interest at the rate of 12% per annum from the date of order of cancellation of allotment of the site till the date of refund. This entire exercise shall be completed within a period of two months from the date of receipt of a certified copy of the order.

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Sd/(R. NATARAJ) JUDGE

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DL

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List No.: 1 Sl No.: 28

Smt. Yashodama v. the Bangalore Development Authority

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Smt. Yashodama v. the Bangalore Development Authority

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