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Karnataka High Court · body

2015 DIGILAW 69 (KAR)

RAJENDRA v. STATE OF KARNATAKA

2015-01-12

A.N.VENUGOPALA GOWDA

body2015
ORDER Belgaum Urban Development Authority (for short ‘the Authority’), allotted the site in question, on 17.04.1998, to the petitioner. Allotment cost of Rs. 2,20,000/- having been deposited, lease-cum sale agreement was executed on 14.09.1999 and was registered in the office of Sub-Registrar, Belgaum. Possession of the site was delivered on 28.09.1999. On the ground that construction was not made within the stipulated period of three years, allotment was cancelled, on 08.01.2007, vide Annexure-D. Unilaterally, the Authority, registered lease cum sale cancellation agreement dated 23.01.2007, vide Annexure-F, on 29.01.2007, in the office of Sub-Registrar, Belgaum. The said fact having been notified to the petitioner, on 12.04.2007, vide Annexure-E, this writ petition was filed on 16.07.2007, to quash Annexures-D and F. On 01.08.2007, interim stay of all further proceedings pursuant to Annexure-D was ordered. 2. Sri. S.S. Badawadagi, learned Advocate, contended that the Authority has committed error and illegality in sending a cyclostyled and stereotyped order, by filling the gaps in a printed Form vide Annexure-D. He submitted that lack of application of mind on the part of the Authority being apparent and there being violation of principles of natural justice, interference is called for. By placing reliance on an order dated 24.02.2001, passed in W.P. No.2075/2008, he submitted that the petitioner, if granted with an year time, will put up construction on the site. He further submitted that the petitioner is entitled to similar benefit as was extended to the petitioner in W.P. No.2075/2008 and several other allottees of the respondent-Authority. 3. Sri. M.A. Huliyal, learned Advocate appearing for the respondent-Authority, on the other hand, made submissions in support of the decision to cancel the allotment. He submitted that in the facts and circumstances of the case the petitioner is not entitled to any relief. 4. Perused the record. Point for consideration is, ‘whether the impugned action is arbitrary and illegal?’ 5. Authority has sent a cancellation order, vide Annexure-D. It is a printed Form. The blanks therein, have been filled by hand. It is a stereotyped one and only the gaps have been filled up. Making of such an order, cannot be countenanced. In pursuance of Annexure-D, Authority has unilaterally registered a cancellation deed vide Annexure-F. Non application of mind to the matter and arbitrariness on the part of the respondent No.2/Authority, in the matter of Annexures-D and F, is apparent. It is a stereotyped one and only the gaps have been filled up. Making of such an order, cannot be countenanced. In pursuance of Annexure-D, Authority has unilaterally registered a cancellation deed vide Annexure-F. Non application of mind to the matter and arbitrariness on the part of the respondent No.2/Authority, in the matter of Annexures-D and F, is apparent. Petitioner was not granted with reasonable opportunity of hearing prior to the cancellation vide Annexure-D and the principles of natural justice has been violated. Petitioner being an allottee and having remitted Rs. 2,20,000/- and also having the benefit of possession of the site from 28.09.1999, could not have been deprived of the same, without following the principles of natural justice. In the said background, learned Advocate for the petitioner is justified in criticizing the impugned action of respondent –Authority as wholly arbitrary. Illegality on the part of the respondent No.2 being apparent, Annexures-D and F are liable to be quashed. 6. Cancellation of a site allotment by the respondent-Authority, on the ground that the allottee had failed to put up the construction in terms of the lease cum sale agreement, when assailed in W.P. No. 2075/2008, this Court has granted an year’s time, to put up construction, with a rider that in case of default, the respondent/Authority would be entitled to take action for cancellation of the allotment. By directing the writ petitioner, to file an undertaking in the form of affidavit, the Authority was directed to grant permission to put up construction on the site, by quashing cancellation order and the writ petition was disposed of on 24.02.2011 accordingly. Sri. S.S. Badawadagi, submitted that the petitioner would construct the building within a period of one year. He submitted that the petitioner being similarly placed like the petitioner in W.P. No. 2075/2008, be extended the same benefit. Sri. M.A. Huliyal, did not dispute the fact that the instant case is identical to W.P. No. 2075/2008, decided on 24.02.2011. For the foregoing discussion, Annexures-D and F are quashed. Petitioner is permitted to submit before 16.02.2015, an application for sanction of plan and issue of building licence to respondent No.2, and construct the building within a period of one year from the date the plan is sanctioned and licence is issued. For the foregoing discussion, Annexures-D and F are quashed. Petitioner is permitted to submit before 16.02.2015, an application for sanction of plan and issue of building licence to respondent No.2, and construct the building within a period of one year from the date the plan is sanctioned and licence is issued. Liberty is reserved to the respondent No.2, to take action against the petitioner for cancellation of the allotment of the site, in case, the petitioner does not submit application for sanction of plan and fails construct the building within the period allowed. No costs.