Karnataka High Court
Shrishail vs The State Of Karnataka And Anr on 12 December, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 203324 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 203324 OF 2023 (LB-RES)
BETWEEN:
SRI.SHRISHAIL
S/O SHARANABASAPPA BUSA,
AGED ABOUT 34 YEARS,
OCC: AGRICULTURE,
R/O AT POST KIRANAGI,
TQ: KALABURAGI,
DIST: KALABURAGI-585 308.
...PETITIONER
(BY SRI. MAHESH PATIL AND
SRI. TULASIRAM K. JOGI, ADVOCATES)
AND:
Digitally signed
by SACHIN 1. THE STATE OF KARNATAKA,
Location: HIGH
COURT OF REPRESENTED BY ITS SECRETARY,
KARNATAKA URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
2. KALABURAGI URBAN DEVELOPMENT AUTHORITY,
REPRESENTED BY ITS COMMISSIONER,
NEAR MINI VIDHANA SOUDHA,
STATION ROAD, KALABURAGI-585 102.
...RESPONDENTS
(BY SRI. G. B. YADAV, HCGP FOR R1;
SRI.SHIVAKUMAR R. TEGLI, AGA FOR R2)
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WP No. 203324 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF MANDAMUS/DIRECTIONS TO
THE RESPONDENTS TO CONSIDER HIS REPRESENTATION
DATED 20.07.2021 AT ANNEXURE-C AND DATED 07.02.2022
ANNEXURE-E AND TO DIRECT THE RESPONDENTS TO EXECUTE
THE SALE DEED IN HIS FAVOUR IN RESPECT OF HIS ALLOTTED
SITE NO.613 MEASURING 6 x 9 MTRS IN MSK MILL HOUSING
PROJECT KALABURAGI AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel Sri Mahesh Patil and
Sri Tulsiram on behalf of petitioner, learned High Court
Government Pleader for respondent no.1/State and
learned counsel Sri Shivakumar Tengli for respondent
no.2.
2. This petition is filed by the petitioner seeking
writ of mandamus for a direction to respondents to
consider the representations dated 20.07.2021 and
07.02.2022 vide Annexures-C and E and also for a
direction to the respondents to execute a sale-deed in
favour of petitioner for allotment of site/plot No.613
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measuring 6X9 meters in M.S.K.Mill, Kalaburagi Housing
Development Project, Kalaburagi.
3. It is the contention of learned counsel for
petitioner that the petitioner was allotted a plot/Site
no.613 measuring 6X9 meters by the second respondent-
authority for a total sale consideration amount of
`43,000/- vide Annexure-A by way of an allotment letter
dated 29.04.2006.
4. Prior to date of allotment, by way of earnest
money deposit (EMD) the petitioner paid a sum of
`4,400/- on 30.11.2005 and thereafter the petitioner after
the allotment was required to deposit the balance sale
consideration amount within a period of 90 days. The
petitioner has deposited the following sums :
Challen No. Date Amount in `
EMD 30.11.2005 4,400/-
65 19.02.2009 25,000/-
71 21.09.2010 15,000/-
Total 44,400/-
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The petitioner in all deposited a total amount of `44,400/-
as on 21.09.2010 which is the entire amount of the sale
consideration on the basis of the information provided by
the staff of respondent no.2.
5. It is contended by learned counsel for petitioner
that petitioner made several representations to respondent
no.2 to execute the sale-deed in his favour as the entire
amount has been deposited to respondent no.2. One such
representation is produced at Annexure-C dated
20.07.2021.
6. Being aggrieved by the inaction of the
respondents, petitioner preferred a petition in
W.P.No.200359/2022 seeking a writ of mandamus against
respondent no.2. The said petition came to be allowed by
an order dated 04.02.2022 directing respondents therein
to consider the representation of 20.07.2021 made by the
petitioner, in accordance with law.
7. Pursuant to the disposal of the above said writ
petition, the petitioner made a representation at
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Annexure-E dated 07.02.2022 requesting the respondents
to execute the sale-deed in accordance with the order
passed by Coordinate Bench of this Court as mentioned
supra.
8. Petitioner paid an earnest money deposit (EMD)
amount of `4,400/- on 30.11.2005 prior to allotment and
thereafter from time to time, he has deposited the
required amount to the second respondent - authority.
Some of the payments by way of receipts are produced at
Annexure-B.
9. Several writ petitions were filed in the similar
circumstances by the allottees who did not adhere to the
timelines for payment of sale consideration amount and
they exceeded the timeline in making the payment and
the petitions being allowed were challenged before the
Hon'ble Division Bench of this Court by the respondents,
wherein costs were imposed on the basis of the
measurement of the sites considering the facts and
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circumstances of each case. In the present case the
admitted facts are as under :-
The allotment is made to the petitioner on
29.04.2006 for a total sale consideration of `43,000/-.
Petitioner had paid a sum of `4,400/- as EMD prior to the
allotment on 30.11.2005. Thereafter, the petitioner
periodically has made a payment as mentioned earlier in
the tabular column mentioned that in all he has paid a
sum of `44,400/- as on 21.09.2010.
10. The fact remains that the petitioner has paid a
sum of `44,400/- as on 21.09.2010 and he has made oral
request to respondents-authorities to execute the sale-
deed. The petitioner has also made a representations at
Annexure-C dated 20.07.2021 and 07.02.2022 at
Annexure-E requesting the respondents-authorities to
execute the sale-deed in favour of petitioner. No action
was taken by the respondents, per-forcing the petitioner
to prefer the writ petition before this Court in
W.P.No.200359/2022 which came to be allowed and it is
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only thereafter when the petitioner made a representation
on 07.02.2022 to respondent no.2, The respondent/
authorities expressed their inability on the basis of the
rules of allotment not to execute the sale-deed in favour of
the petitioner as the petitioner did not comply the
timelines for payment of sale consideration amount.
11. The fact remains that the petitioner has made
the payment of sale consideration amount of `44,400/-
after a period of almost four years six months whereas the
petitioner ought to have made the payment within 120
days from the date of allotment as per the rules. Be that
as it may, the respondents-authorities have received the
amount periodically paid by the petitioner.
12. On perusal of the records, it is seen that
respondent no.2 has not acted diligently for cancellation of
the allotment made in favour of petitioner despite the
petitioner having not paid the sale consideration amount
well within the time and even thereafter the respondents-
authority has not bothered to cancel the allotment or
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refuse to accept the payment periodically made by the
petitioner time and again till 21.09.2010 wherein a
payment of `44,400/- was made by the petitioner. Even
thereafter i.e., from 21.09.2010, there is no
communication by respondent no.2 with regard to
cancellation of the allotment made in favour of petitioner
whereas petitioner, to show his diligence made a
representations vide Annexure-C dated 20.07.2021 and
Annexure-E dated 07.02.2022 requesting the authorities
to execute the sale-deed for having collected the entire
amount from the petitioner. No action was taken by the
respondents.
13. Thereafter, the petitioner approached this Court
by filing a writ petition in W.P.No.200359/2022 which was
duly represented by respondents and the petition came to
be allowed for consideration of the representation so made
by the petitioner. Despite the petition being allowed, no
action was taken by the respondents. Due to the inaction
of respondents, petitioner filed a representation on
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07.02.2022 vide Annexure-E requesting the respondents
to execute the sale-deed for having collected the total sale
consideration amount.
14. It is at this stage and pursuant to the order of
the Coordinate Bench of this Court directing the
respondents to consider the representation by issuing a
writ of mandamus the second respondent woke-up from
deep slumber and respondents-authorities stating that the
petitioner's request cannot be exceeded to in view of total
sale consideration amount having not been paid well
within time as per the rules of allotment.
15. Admittedly, there is a delay by the petitioner in
payment of the sale consideration amount, but however
periodically the petitioner has made good the entire sale
consideration amount along with interest on 21.09.2010
for a sum of `44,400/-. From 21.09.2010 till 07.02.2022,
no action is taken by respondent no.2 for cancellation or
termination of the allotment made to petitioner for delayed
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payment or non-payment of sale consideration amount
well within time as per rules of allotment.
16. Apparently, it is seen that it is only after the
Coordinate Bench issued a writ of mandamus directing the
respondents to consider the representation of the
petitioner dated 20.07.2021 and on the basis of the said
order passed by Coordinate Bench of this Court on
04.02.2022 pursuant to which a representation being
made by the petitioner on 07.02.2022, the
respondents/authorities expressed the inability not to
register the sale-deed due to violation and non-payment of
sale consideration amount to respondents. Hence, it is
evident from the records and the action of respondent
no.2 that it is only after the orders passed by this Court,
they have expressed not to registered the sale-deed.
Therefore, it is evident on the face of the records that
there is a gross delay on the part of respondents -
authority for not registration of the sale-deed in favour of
petitioner and no documents are also placed by
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respondents-authority to show that they have cancelled
the allotment, made in favour of the petitioner.
17. No doubt, there is a delay on the part of
petitioner in making the payment of sale consideration
amount. Even if it is considered that the petitioner is
defaulter in making the payment and delayed in making
the payment and the interest amount has not been paid
properly, but admittedly as on 21.09.2010 an amount of
`44,400/- has been paid and accepted and received by
respondent no.2-authority.
18. On the contrary, there is an exorbitant delay on
part of respondent no.2-authority in expressing the
inability to register the sale-deed due to violation of terms
and conditions of the rules of allotment. However, the
respondent no.2 has till date not cancelled the allotment
made in favour of petitioner.
19. It is relevant to refer the judgment of the
Hon'ble Apex Court in the case of Chhedilal Yadav and
others vs. Hari Kishore Yadav (Dead) through Legal
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Representative and others1 wherein at para 10 and 13,
it is held as under :-
"10. In Advanced Law Lexicon by P.
Ramanatha Aiyar, 3rd Edn., "reasonable time" is
explained as follows :
"That is a reasonable time that preserves
to each party the rights and advantages he
possesses and protects each party from losses
that he ought not to suffer."
Thus, time must be reckoned reasonably, not only in
order to preserve rights and advantages a party
possesses, but equally to protect each party from the
losses he ought not to suffer. Thus, whether an
action has been taken within a reasonable time,
must also be viewed from the point of view of the
party who might suffer losses.
11. xxx
12. xxx
13. In our view, where no period of limitation
is prescribed, the action must be taken, whether suo
motu or on the application of the parties, within a
reasonable time. Undoubtedly, what is reasonable
time would depend on the circumstances of each
(2018) 12 SCC 527
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case and the purpose of the Statute. In the case
before us, we are clear that the action is grossly
delayed and taken beyond reasonable time,
particularly, in view of the fact that the land was
transferred several times during this period,
obviously, in the faith that it is not encumbered by
any rights."
20. Learned counsel Sri Shivakumar Tengli, for
respondent no.2 relies on the judgment of the Division
Bench of this Court in W.A.No.200162/2019 and
W.A.No.200206/2022 in support of his case and contends
that cost of `5,00,000/- imposed for a site measurement
of 40"x60" and `2,50,000/- for a site measurement of
30"x40", should be made applicable even in the present
case on hand.
21. I have gone through the judgments relied by
the learned counsel for respondent no.2 and the facts and
circumstances narrated therein. Though the similar
situated petitioners had approached and the Hon'ble
Division Bench of this Court taking into consideration the
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facts of each case has imposed the cost of `5,00,000/- and
`2,50,000/- for the relevant measurement of the sites.
22. The question that requires to be considered in
this case is whether equal amount of delay is caused by
the petitioner and whether there is a diligence shown by
respondent no.2-authority in cancellation of the allotment
made to the petitioner.
23. In the present case, as per the records and also
the submission that the allotment made in favour of
petitioner has not been cancelled till date, in not executing
the sale-deed in favour of petitioner by respondent no.2
which is also pursuant to an order passed by this Court in
W.P.No.200359/2022 and the representation made
thereafter by the petitioner at Annexure-E dated
07.02.2022. Despite the representation at Annexure-E, the
respondent no.2 has not bothered to cancel the allotment
except expressing the inability to not to register sale-deed
in favour of petitioner for not having paid the sale
consideration amount within the stipulated time.
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24. In the facts and circumstances of this case what
is to be considered is the negligence or delay on the part
of both the parties. The hardship and inconvenience that
would be caused to the petitioner the diligence that is
shown by respondent no.2-authority and whether the sale
consideration amount is paid by the petitioner - allottee.
25. Admittedly, the plot measuring 6X9 meters, the
total sale consideration amount of `43,000/-, the
petitioner has paid `44,400/- as on 21.09.2010. The
amount paid by the petitioner has been used by
respondent no.2-authority. The respondent no.2-authority
has not acted within time and there is gross delay in
executing the sale-deed which is more than 12 years from
the date of making payment of amount of `44,400/-.
26. Looking into the aspect of delay and equity, this
Court is of the opinion that no doubt there is a delay on
the part of the petitioner in making payment of the sale
consideration amount, but there is inordinate and gross
delay on the part of respondent no.2-authority in
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executing the sale-deed which is 12 years later to the
payment of `44,400/- made by the petitioner and despite
the order of the Coordinate Bench of this Court issuing a
writ of mandamus, the cancellation of allotment made in
favour of petitioner has not been passed till date.
27. Under the circumstances, this Court is of the
opinion that there would be severe hardship and
inconvenience that would be caused to the petitioner,
there is a gross delay on the part of respondent no.2-
authority and even after collecting the amount of
`44,400/- as on 21.09.2010, no action has been taken by
respondent no.2-authority. The equity will weigh more in
favour of petitioner than the second respondent-authority.
Under the circumstances, I pass the following :
ORDER
(i) The writ petition is partly allowed.
(ii) A writ of mandamus is issued to
respondents-authorities to consider the
representations dated 20.07.2021 vide
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Annexure-C and dated 07.02.2022 vide
Annexure-E submitted by the petitioner.
(iii) The petitioner is directed to pay a sum of
`1,00,000/- as costs to respondent no.2-
authority within a period of six weeks from
the date of receipt of certified copy of this
order.
(iv) The respondent no.2-authority shall
execute the conveyance deed/sale-deed in
favour of petitioner within a period of six
weeks thereafter.
(v) In case, the petitioner does not comply the
above stated direction within the specified
time, the respondent no.2-authority is at
liberty to initiate suitable action in
accordance with law.
Sd/-
JUDGE
SN
