Karnataka High Court
The Gulbarga Urban Development ... vs Shivaraj S/O Mallikarjun on 6 December, 2023
Author: R.Devdas
Bench: R.Devdas
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NC: 2023:KHC-K:9034-DB
WA No. 200147 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT APPEAL NO. 200147 OF 2019
BETWEEN:
THE GULBARGA URBAN DEVELOPMENT AUTHORITY,
REPRESENTED BY ITS COMMISSIONER,
KALABURAGI-585102.
...APPELLANT
(BY SRI. ANANTH S. JAHAGIRDAR, ADVOCATE)
AND:
SHIVARAJ S/O MALLIKARJUN,
AGED ABOUT 40 YEARS, OCC: SERVICE,
R/O H.NO.62, MAHALAXMI LAYOUT,
NEW BHOVI GALLI, BAMBOO BAZAR,
Digitally signed by
SOMANATH KALABURAGI-585102.
PENTAPPA MITTE
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SMT. HEMA L.K. AND
SRI. MANJUNATH GINNI, ADVOCATES)
THIS WRIT APPEAL IS FILED U/SEC. 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO, ALLOW THIS
APPEAL AND SET ASIDE THE FINAL ORDER DATED 25.06.2019
PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.204871/2016 (LB-RES) AND TO PASS ANY SUCH
APPROPRIATE ORDERS AS THIS HON'BLE COURT MAY DEEM
FIT IN THE FACTS AND CIRCUMSTAANCES OF THE CASE, IN
THE INTEREST OF JUSTICE.
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WA No. 200147 of 2019
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
R.DEVDAS, J., DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J., (ORAL);
The Gulbarga Urban Development Authority is before
this Court aggrieved of the impugned order passed by the
learned Single Judge in W.P.No.204871/2016 dated
25.06.2019.
2. The respondent, an allottee of 12 X 18 meters
(40 X 60 feet) approached the learned Single Judge
seeking to set aside the impugned order dated 09.09.2016
passed by the respondent canceling the allotment of site
No.356 situated at MSK Mill, II Stage, Madarasana Halli,
Gulbarga Taluk and district. The undisputed facts are that
the respondent was allotted plot No.356 measuring 12 X
18 meters in terms of allotment letter dated
03/21.09.2011 fixing the cost of the site at Rs.4,80,000/-.
The petitioner had paid Rs.19,100/- as EMD amount along
with the application. After receipt of the intimation from
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the appellant-authority, the respondent paid a sum of
Rs.2,00,000/- on 20.12.2011, which was the last of the 90
days that were available to the respondent for payment of
the balance sital value. It is admitted by the appellant-
authority that when the respondent insisted that the
authority should collect the sital value and execute a
lease-cum-sale agreement in his favour, the appellant-
authority issued an endorsement on 09.09.2016 stating
that the respondent failed to pay the balance sital value on
or before 90 days as provided in the Rule 19(1) of the
Karnataka Urban Development Authority (Allotment of
Sites) Rules, 1991 (hereinafter referred to as 'the Rules,
1991' for short) and therefore, there was a deemed
cancellation of the allotment and the authority was entitled
to forfeit the EMD amount of Rs.19,100/-. However, it was
also stated in the endorsement that the said site was not
allotted to any other person or sold in auction. Being
aggrieved of the said endorsement, the respondent filed
the writ petition challenging the endorsement. Learned
Single Judge held that the authority had not taken into
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consideration the additional amount paid by the
respondent namely Rs.2,00,000/-, which was paid on
20.12.2011 and no notice was issued to the respondent for
payment of the remaining amount. Therefore, the learned
Single Judge held that without giving such demand notice,
the order of cancellation passed by the appellant-authority
by way of issuing an endorsement could not be sustained.
Accordingly, a direction was issued to the appellant-
authority to collect the balance amount along with interest
as permissible under law and directed that the authority
should pass appropriate orders with regard to the
allotment of the site in favour of the respondent herein in
accordance with law within two months from the date of
receipt of a copy of this order.
3. Although, the learned counsel for the appellant-
authority contended that the provision does not enable the
appellant-authority to collect the balance sital value after
the period of 90 days and there is a deeming provision
which would enable the authority to cancel the allotment
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made in favour of the respondent, we noticed that such a
provision was not indeed available even in terms of Rule
19 of the 1991 Rules. We find that the unamended
provision in Sub-Rule(1) of 19 of 1991 Rules provided that
the allottee was required to deposit 15% of the sital value
within a period of 60 days and failure of compliance of the
said provision would render the allotment cancelled
automatically. Provision was made to pay the balance sital
value within 90 days thereafter. However, we find that the
said provision underwent amendment and with effect from
23.06.2005, the provision reads as follows:
"19. (1) After the receipt of the allotment letter
the allottee shall pay to the Authority sital value after
deducting the initial deposit made by him within 90
days. Thereafter, the authority shall call upon the
allottee to execute a lease-cum-sale agreement in Form
III. If the allottee fails to execute the lease-cum-sale
agreement within 60 days after the authority has called
upon him to execute such agreement, the registration
fee paid by the allottee may be forfeited, and the
allotment of the site cancelled, and the amount paid by
the allottee, may be refunded by the Authority after
deducting such expenditure as might have been
incurred by the Authority:
Provided that the authority may extend the time-
limit specified in sub-rule (1), by 30 days and levy an
interest at 18% for the extended period:
Provided that the authority may on application of
the allottee permit him/her to execute a lease-cum-sale
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agreement in Form III in the joint name of the allottee
and him/her spouse."
4. A plain reading of Sub-Rule (1) of Rule 19,
2005 Rules, in the first sentence would pertain to the
payment of the balance sital value within a period of 90
days. The second sentence and two provisos only speak of
the authority calling upon the allottee to execute a lease-
cum-sale agreement in Form-III. The succeeding
sentences also do not say anything in respect of the failure
on the part of the allottee and the consequence of non-
payment of the balance sital value within a period of 90
days. During the course of arguments, it was brought to
the notice of this Court that the respondent has tendered a
Demand Draft in a sum of Rs.2,80,000/- on 15.07.2019, in
terms of the directions issued by the learned Single Judge.
However, learned counsel for the appellant-authority has
submitted that the authority has not encashed the same.
5. In the considered opinion of this Court, the
authority has wrongly read the provision and issued the
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impugned endorsement applying the rule which was not in
fact applicable to a situation where the allottee failed to
pay the balance sital value within a period of 90 days. We
are therefore constrained to hold that there is no deeming
provision which would enable the appellant-authority to
hold that on failure of the allottee to pay the balance sital
value within a period of 90 days, there shall be a deemed
cancellation of the allotment and forfeiture of the entire
amount already paid by the allottee.
6. We have to notice on the basis of the material
available on record that in the impugned endorsement, the
appellant-authority has informed the respondent that the
authority is entitled to forfeit the EMD amount of
Rs.19,100/-, but it does not call upon the respondent to
take back the rest of the amount namely Rs.2,00,000/-,
which were deposited by the respondent on 20.12.2011.
That is probably the reason why in the endorsement it is
also stated that the site allotted to the respondent was not
allotted to any other person or put in auction.
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7. This Court is also one with the respondent that
the appellant-authority, under similar circumstances, has
complied with the directions issued by this Court in
W.A.No.200148/2019 dated 26.02.2020. In the said writ
appeal, this Court had noticed that in two other matters,
namely, in W.P.No.15603/2012 and W.P.No.204871/2016,
this Court had directed the appellant-authority to collect
the balance sital value along with interest at the rate of
9% per annum. If such orders have been complied by the
appellant-authority, the respondent cannot be singled out
for different treatment.
8. In that view of the matter, we proceed to pass
the following:
ORDER
i) The Writ Appeal is dismissed.
ii) The appellant-authority, if it has not
encashed the Demand Draft dated
15.07.2019, it shall return the Demand
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Draft to the respondent within a period of
two weeks from the date of receipt of a
copy of this order.
iii) If the Demand Draft is returned to the
respondent, the respondent shall get the
same revalidated or shall tender the
balance sale consideration along with
interest calculated at the rate of 9% per
annum commencing from the date when
which it was payable to the appellant-
authority, till the date of payment. This
exercise shall be completed as
expeditiously as possible and at any rate,
within a period of four weeks from the date
of receipt of a copy of this order.
iv) On receipt of the balance sale consideration
along with interest as directed herein
above, the appellant-authority shall
execute the lease-cum-sale agreement in
favour of the respondent within a period of
four weeks from the date of receipt of
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balance sale consideration at the hands of
the respondent.
v) Ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
NR/-
