Shivamallaiah vs Executive Engineer
2022 Latest Caselaw 8489 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF JUNE, 2022

                       BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

     WRIT PETITION NO.47935 OF 2014 (LB-RES)

BETWEEN:

SHIVAMALLAIAH
S/O LATE RAMAIAH,
AGED ABOUT 77 YEARS,
OCC: RETIRED EMPLOYEE,
R/AT NO.169, SMIG-B-SF,
II FLOOR, BLOCK No.11,
5TH PHASE, YELAHANKA (NEW TOWN),
BANGALORE-560064.
                                     ...PETITIONER
(BY SRI. N. RAVINDRANATH KAMATH, ADVOCATE)

AND:

1.     EXECUTIVE ENGINEER
       KARNATAKA HOUSING BOARD,
       METROPOLITAN-1 DIVISION,
       YELAHANKA, BANGALORE-560064

2.     THE MANAGER
       PLANNING DIVISION,
       KARNATAKA HOUSING BOARD,
       YELAHANKA UPANAGAR,
       BANGALORE-560064
                                   ...RESPONDENTS

(BY SRI. NIRANJAN SWAMY, ADVOCATE FOR RESPONDENT
NOS.1 AND 2)
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     THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER    BEARING     No.KHB/GOVT/751/PLANNING/2004-05
DATED 17.03.2004 PASSED BY THE RESPONDENTS VIDE
ORDER ANNEXURE-C AND ORDER DATED 25.10.2010 IN MISC.
APPEAL 75/2004 PASSED BY THE DISTRICT JUDGE, CCH-42,
BANGALORE VIDE ANNEXURE-D AND ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:


                            ORDER

The petitioner applied for the allotment of a house

under MIG-II Scheme at Housing Colony, Yelahanka. The

cost of the house was fixed at a sum of Rs.1,00,000/- and

it was represented to the petitioner that the house would

be allotted once the buildings reached the roof level and

that the petitioner had to pay the balance value of the

building in equal monthly installments from the date of

execution of the lease cum sale agreement.

2. The petitioner claims to be a pensioner. He had

deposited a sum of Rs.63,575/- towards the cost of the

house, following which, the respondents had executed a

lease cum sale agreement on 17.06.1999. The

respondents had also handed over the possession of the

house in the month of August-1999. The petitioner

contends that as against a sum of Rs.1,00,000/- that was

the allotment price, the respondents fixed the price at a

sum of Rs.2,54,300/-. The petitioner contends that the

revision in the cost of the house was not due to reasons

attributable to the petitioner but was due to the reasons

solely attributable to the respondents, who took 11 years

to place the petitioner in possession of the house. The

petitioner contends that in terms of an order of

cancellation dated 17.03.2004, the respondents cancelled

the allotment of the house on the ground that the

petitioner failed to deposit the amount in time. This was

challenged by the petitioner before the XLI Additional City

Civil Judge, Bengaluru City, Bengaluru in Miscellaneous

Appeal No.75/2004. The appeal filed by the petitioner was

dismissed and therefore, the petitioner has filed this writ

petition. The petitioner contends that the respondents

have demanded compound interest and penal interest at

the rate of 21.5% p.a., which is illegal. The petitioner

contends that in similar circumstances, many writ petitions

were filed before this Court in WP.Nos.37248/2010 and

37247/2010, which were disposed off on 13.03.2012 and

25.08.2012 directing the allottees therein to pay interest.

The petitioner therefore seeks for similar treatment by

quashing the impugned order of cancellation and to direct

the respondents to conclude the allotment process.

3. Learned counsel for the petitioner reiterated

his contentions and submitted that the benefit of the order

in WP.Nos.37247/2010 and 37248/2010 may be granted

to the petitioner.

4. The learned counsel for the respondents did

not dispute the fact that under similar circumstances, a co-

ordinate Bench of this Court has quashed the order of

cancellation and directed the conclusion of the allotment

process by collecting the balance value with interest.

5. The documents placed on record would

disclose that the notification inviting applications for

allotment of houses by the respondents was issued in the

year 1988. The petitioner made an initial deposit of

Rs.5,000/- and later, deposited a sum of Rs.63,575/-.

From the year 1988, the respondents did not allot the

house but did so in the year 1999 by executing a lease

cum sale agreement. Therefore, the petitioner cannot be

held liable to pay the interest for the delayed payment of

the balance allotment price. As rightly contended by the

learned Senior Counsel for the petitioner, a co-ordinate

bench of this Court in similar circumstances had allowed

the writ petition in WP.No.37247/2010 and other

connected petitions and quashed the order of cancellation.

This Court does not find any exception but to follow the

judgment passed in the aforesaid writ petitions.

6. In view of the above, this writ petition is

allowed and the impugned order of cancellation dated

17.03.2004 passed by the respondents is quashed.

The respondents are directed to forthwith conclude

the allotment process by executing appropriate deeds of

conveyance after collecting the balance allotment price

along with interest as per the Circular of the respondents

dated 23.05.2011, within a period of three months from

the date of receipt of a certified copy of this order.

Sd/-

JUDGE

NR/-