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2015 DIGILAW 1278 (KAR)

C. S. Nagesh v. Commissioner, Bangalore Development Authority

2015-11-24

B.V.NAGARATHNA

body2015
ORDER : B.V. Nagarathna, J. 1. Petitioner has assailed endorsement dated 22/01/1994 issued by the respondent (Annexure-N). He has also sought a direction to respondent to consider his representations dated 10/06/2010 and 10/11/2014 (Annexures-S and T) to issue possession certificate. 2. The aforesaid prayers are made in respect of site bearing No. 1848, measuring 25 x 40 ft. at Kengeri Satellite Town, Bangalore. The said site was allotted to the petitioner pursuant to allotment letter dated 16/12/1978 (Annexure-B). Thereafter, the petitioner has paid a sum of Rs. 1,889/- being the balance payment to be made to the respondent, which, according to the petitioner is 50% of the sital value, which the petitioner was liable to pay as there was a concession regarding payment of balance 50% of the sital value given to him on the premise that he belonged to weaker section of the society. Thereafter, there was no further action taken by the respondent with regard to execution of a lease-cum-sale deed. The petitioner then sought for 50% concession in respect of his sital value by his letter dated 6/1/1988. Subsequently, the Chairman of the respondent had sought for details of action taken on the representation made by the petitioner. When the matter stood thus, one more representation was made by the petitioner on 8/10/1993 in response to which, endorsement dated 22/1/1994 was issued stating that the allotment in favour of the petitioner has been cancelled way back on 12/12/1984. It is that endorsement, which is assailed in this writ petition while seeking other prayers including allotment of an alternative site. 3. I have heard the learned counsel for petitioner and learned counsel for the respondent as well as perused the material on record. 4. Petitioner's counsel brought to my notice the fact that the petitioner was entitled to 50% concession in the matter of payment of sale consideration in respect of the allotment of site and he had, accordingly, paid the remaining amount to the respondent authority. But the latter did not take steps to execute lease-cum-sale deed. He submitted that only in the year 1994 did the petitioner come to know about the cancellation of the site having been made on 12/12/1984. He contended that after coming to know about the cancellation vide endorsement dated 22/1/1994, he made correspondence with the respondent-authority and sought for details and since nothing fructified, he has approached this court. He submitted that only in the year 1994 did the petitioner come to know about the cancellation of the site having been made on 12/12/1984. He contended that after coming to know about the cancellation vide endorsement dated 22/1/1994, he made correspondence with the respondent-authority and sought for details and since nothing fructified, he has approached this court. Hence there is no delay in approaching this court. 5. Per contra, learned counsel for respondent-authority, with reference to the statement of objections has contended that there is inordinate delay in approaching the court and that the petitioner who had sought 50% concession in deposit of the sital value, did not produce any income certificate in support of that claim for concession and therefore, no such concession was available to the petitioner. Since he did not pay the entire sital value, allotment was cancelled way back in the year 1984. This fact was informed to him as early as in the year 1994, but the petitioner has approached this court only in the 2014. There is no explanation whatsoever for the gross delay of two decades in approaching this court. He, therefore, submitted that there is no merit in the writ petition and that the writ petition may be dismissed in limine, on the ground of delay and laches. 6. Having heard the learned counsel for the parties and on perusal of the material on record, it is apparent that while the site was allotted on 16/12/1978 to the petitioner, the cancellation of the allotment had taken place on 12/12/1984. Even if it is assumed to be true that the petitioner was un-aware of the cancellation of the allotment in the year 1984, the said fact came to the knowledge of the petitioner in the year 1994 when the endorsement dated 22/1/1994 was issued. Since then the petitioner had not taken any step to approach this court assailing the cancellation. It is only in the year 2014, this writ petition has been filed seeking a direction to consider his case for allotment of an alternative site as the aforesaid site has been allotted to a third party. While assailing the endorsement, there is no explanation whatsoever, for approaching this court, two decades after coming to know about the cancellation of the allotment. In the circumstances, the writ petition would have to be dismissed on the short ground of delay and laches. While assailing the endorsement, there is no explanation whatsoever, for approaching this court, two decades after coming to know about the cancellation of the allotment. In the circumstances, the writ petition would have to be dismissed on the short ground of delay and laches. In this context, a plethora of decisions of the Apex Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution of India, cannot extend its hands to such persons who approach the Court belatedly. In fact, the Apex Court in several decisions has held that stale claims ought not to be entertained by the High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The decisions in that regard are as follows:- a. In a recent decision of the Apex Court reported in 2011 AIR SCW 1332 [State of Orissa & Anr. Mamata Mohanty] the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the Doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches. b. In the case of Shankar Co-op Housing Society Ltd. vs. M. Prabhakar & Ors. [2011 AIR SCW 3033], the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows; "53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay." c. Similarly, the Apex Court in the case of Sawaran Latha and others vs. State of Haryana and others [ 2010 (4) SCC 532 ] has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged. d. Reference can also be made to another decision of the Apex Court in the case of State of Rajasthan & others vs. D.R. Lakshmi & others [ (1996) 6 SCC 445 ], wherein it has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India. e. Reliance may be placed on another decision of the Apex Court in M/s. Rup Diamonds and Others vs. Union of India and Others [ (1989) 2 SCC 356 ], wherein the petitioners therein had sought relief in terms of the order passed by the High Court of Judicature at Bombay, for issuance of appropriate writs to the authorities to revalidate the import licence, based on earlier order passed by a learned Single Judge of the Bombay High Court, which was affirmed by the Division Bench of the said Court and also by the Apex Court. It was contended that the petitioners therein were similarly placed and that the petitioners in the earlier cases were granted relief by the Bombay High Court and therefore, the said relief should be given to them also. The petitioners therein had in fact directly filed a writ petition invoking Article 32 of the Constitution before the Apex Court. The said writ petitions were rejected and the Apex Court declined to interfere in the matter by stating that the petitioners were re-agitating claims which they had not pursued for several years. The petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. According to the Apex Court, their case could not be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. The Apex Court held that there was an unexplained, inordinate delay in preferring the writ petition which was brought a year later. Therefore, the delay in filing the writ petition persuaded the Apex Court to decline to interfere with the case and rejected the writ petition. Even though certain persons were granted reliefs in the matter of import facility, a similar relief was not granted to the petitioners therein by the Apex Court, having regard to the delay and latches in approaching the Court. f. Similarly, in the case of The Municipal Council, Ahmednagar & Anr. vs. Shah Hyder Beig & Ors. Even though certain persons were granted reliefs in the matter of import facility, a similar relief was not granted to the petitioners therein by the Apex Court, having regard to the delay and latches in approaching the Court. f. Similarly, in the case of The Municipal Council, Ahmednagar & Anr. vs. Shah Hyder Beig & Ors. [(2002) 2 SCC 48], it has been opined thus:- "The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay." g. In the case of Ramana Dayaram Shetty v. International Airport Authority of India and Others [ (1979) 3 SCC 489 ], the Supreme Court held that the writ petition was filed more than five months after the acceptance of the tender, during which period the successful tenderer had incurred considerable expenditure and had made arrangements and therefore, it would be most iniquitous to set aside the contracts. It was also clarified that the position would have been different if the challenge to the tender had been made immediately. Therefore, the Supreme Court declined to interfere and grant relief in the writ petition by not exercising discretion under Article 226 of the Constitution of India. h. Similarly, in the case of State of M.P. And Others v. Nandlal Jaiswal and Others [ (1986) 4 SCC 566 ], the Supreme Court held that the policy decision with regard to the grant of licence for construction of distilleries for manufacture of Country liquor was taken on 30/12/1984 and the first writ petition was filed on 28/11/1985 about 11 months after the impugned policy decision followed by other Writ Petitions. Under the circumstances, the Supreme Court held that that there was gross delay in filing the writ petitions and that it was unbelievable that the petitioners did not know that new distilleries were being constructed at the new sites by the successful tenderers, namely respondents No. 5 to 11 therein. Under the circumstances, the Supreme Court held that that there was gross delay in filing the writ petitions and that it was unbelievable that the petitioners did not know that new distilleries were being constructed at the new sites by the successful tenderers, namely respondents No. 5 to 11 therein. The Supreme Court also opined that if the policy decision dated 30/12/1984 was to be set aside at the instance of the petitioners, it would work immense hardship to respondents No. 5 to 11 therein and cause grave injustice to them, since enormous amount of time, money and energy spent by them in setting up the distilleries would be totally wasted. i. Also, in Netai Bag And Others v. State of W.B. And Others [ (2000) 8 SCC 262 ], the Supreme Court observed that inaction of the appellants in approaching the Court, almost after three years of the impugned lease deed is an additional circumstance to doubt their bona fides in challenging the impugned action. It was also observed that interference at that stage will not only adversely affect the business of Respondent 5 but would also render a large number of people unemployed and deprive the State its cherished desire of developing industrial growth. j. In Chairman & MD, BPL LTD. v. S.P. Gururaja And Others [ (2003) 8 SCC 567 ], the Supreme Court has observed that the High Court had committed a manifest error in so far as it had failed to take into consideration that the delay in the said case had defeated equity. The allotment of land was made in the year 1995, the writ petition was filed one year thereafter by them. The allottee had not only taken possession of the land but also made sufficient investment. According to the Supreme Court delay of this nature should have been considered by the High Court to be of vital importance. k. Infact in S.S. Balu and others v. State of Karnataka [ (2009) 2 SCC 479 ], it has been held that delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the courts in time. The aforesaid decisions are squarely applicable to the facts of the present case. 7. Writ petition is dismissed on the ground of delay and laches.