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2019 DIGILAW 716 (KAR)

Murugayya v. State Of Karnataka

2019-03-22

KRISHNA S.DIXIT

body2019
JUDGMENT : V Krishna S. Dixit, J. Petitioner having lost his property in CTS No. 199A/A/1/9 in Ward No. 10 of the Bagalkot Town on application had been allotted an alternate site vide order dated 16.07.2013 followed by the Hakku Patra dated 03.06.2014. Subsequently, the petitioner had made an application on 02.06.2014 seeking allotment of site in category 'B' or 'C' since the one allotted in category 'A' was too small. He had also paid a sum of Rs. 9,000/- for this special allotment on 15.02.2016. 2. Instead of making the special allotment as sought for, in the application, the third respondent vide impugned order dated 27.06.2016 at Annexure- 'A' cancelled the very allotment itself. By the said order, not only the site allotted has been cancelled but even the order favouring the special request for allotment of some other site also came to be rejected. Therefore, the petitioner is before this Court. 3. The respondent No. 1 after service of notice has entered appearance through Addl. Government Advocate Sri. A. R. Rodrigues; respondent Nos. 2, 3 & 4 entered appearance through their panel counsel Sri. Anand R.Kolli. 4. The learned counsel for the petitioner banking upon the Rule 4 of Allotment of Site Rules, 1993, submits that the allotment of sites in question cannot have been cancelled on the ground stated in the impugned order namely that the major son of the petitioner was allotted a site already; under the text of said Rule every major member of the Divided Family is entitled to allotment and such right avails to the tenant of such a member as well and therefore, the allotment made in favour of the major son of the petitioner cannot be the ground for canceling the allotment; petitioner is also entitled to have his claim duly considered for allotment of a site in category 'B' or 'C' since his money of Rs. 9,000/- paid on 15.02.2016 admittedly still remains with the answering respondents. 5. 9,000/- paid on 15.02.2016 admittedly still remains with the answering respondents. 5. Per contra, the learned panel counsel for the contesting respondents makes submission in justification of the impugned order stating that the sites available for alternate allotment being limited, every member of the family or every tenant of such members cannot be granted one; the rule banked upon by the petitioner needs to be interpreted, keeping the limited availability of the sources in mind failing which the persons who are genuinely entitled to the allotment may run the risk of not being allotted any site at all. He also points out from the impugned order itself that the petitioner is entitled to refund of Rs. 9,000/-. So arguing he seeks dismissal of the writ petition. 6. I have heard the learned counsel for the petitioner; learned counsel for the state and the answering respondent. I have perused the petition papers. 7. The contention of the petitioner that every member of the divided family subject to complying with certain conditions, and also the tenants of such members are entitled to allotment of alternate sites is substantiated by the text of Rule 4 which aspect has already been considered by this Court in a cognate Writ Petition No. 63143/2012 disposed off by this court on 21.03.2019. The contention of the other side to the contrary cannot be countenanced since matter is no longer res integra. 8. The argument on behalf of the petitioner that he is entitled to have alternate allotment of site in category 'B' since he has already paid a sum of Rs. 9,000/- which even today has not been refunded, has some force. However, the claim needs to be considered by the answering respondents keeping in view the availability and such other relevant considerations. In the above circumstance, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order dated 27.06.2016 made by the second respondent Chief Engineer at Annexure-'A'; a Writ of Mandamus also issues to the respondent Nos. 2 and 3 to consider the claim of the petitioner for allotment of a site in category 'B' in lieu of the one already allotted in category-'A'. 9. However, if the said site in category B is already allotted to some other person then, the respondent Nos. 2 and 3 to consider the claim of the petitioner for allotment of a site in category 'B' in lieu of the one already allotted in category-'A'. 9. However, if the said site in category B is already allotted to some other person then, the respondent Nos. 2 and 3 to take all steps to allot to the petitioner any site in unit 2 in category 'B ' or some other appropriate site within a period of eight weeks. 10. It is open to the answering respondent Nos. 2 and 3 to solicit any information or records from the side of the petitioner as are required for accomplishing the task mandated above.