Karnataka High Court

M/S Divyajyothi Vidya Kendra vs Karnataka Housing Board on 10 October, 2023

Bench: Chief Justice, Krishna S Dixit

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                                                       NC: 2023:KHC:36781-DB
                                                           WA No. 873 of 2023



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 10TH DAY OF OCTOBER, 2023

                                           PRESENT

                   THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE

                                              AND

                           THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                            WRIT APPEAL NO. 873 OF 2023 (GM-RES)

                   BETWEEN:

                   M/S DIVYAJYOTHI VIDYA KENDRA
                   A SOCIETY REGISTERED UNDER
                   THE PROVISIONS OF THE KARNATAKA SOCIETY
                   REGISTRATION, 1960,
                   HAVING ITS REGISTERED OFFICE
                   AT No.22A, SECTOR-B,
                   YELAHANKA UPANAGARA,
                   BENGALURU - 560 064.
                   REPRESENTED BY ITS PRESIDENT
                   SRI.M MUNINARSIMHA,
                   AGED ABOUT 59 YEARS,
Digitally signed
by SHARADA                                                       ...APPELLANT
VANI B             (BY SRI. K DIWAKAR., SENIOR COUNSEL FOR
Location: HIGH         SRI. NEERAJ RAJIV SHIVAM.,ADVOCATE)
COURT OF
KARNATAKA
                   AND:

                   1.    KARNATAKA HOUSING BOARD
                         CAUVERY BHAVAN, KG ROAD,
                         BENGALURU-560 009.
                         REP HEREIN BY ITS COMMISSIONER.

                   2.    THE ASSISTANT EXECUTIVE ENGINEER
                         KARNATAKA HOUSING BOARD,
                         YELAHANKA PLANNING OFFICE,
                         BENGALURU-560 024.
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                                              NC: 2023:KHC:36781-DB
                                                WA No. 873 of 2023



3.   THE SYSTEM ANALYST,
     KARNATAKA HOUSING BOARD,
     3RD FLOOR, CAUVERY BHAVAN,
     KG ROAD, BENGALURU-560 009.
                                                      ...RESPONDENTS

     THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE FINAL ORDER
DATED 04/07/2023 PASSED BY THE LEARNED SINGLE JUDGE
IN WP NO.50859/2018 AND ALLOW T HE WRIT PETITION.

    THIS APPEAL COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:

                            JUDGMENT

This intra-Court appeal seeks to call in question a

learned Single Judge's order dated 04.07.2023 whereby

appellant's W.P.No.50859/2018 (GM-RES) challenging the

cancellation of allotment of the subject land has been

dismissed, with a direction to the respondent Karnataka

Housing Board to pass orders determining the quantum of

forfeiture and refund of remaining amount to the appellant

within a period of four weeks.

2. Learned Senior Advocate argues that the allotment

of subject civic amenity site was made vide letter dated

16.12.2003 and that the appellant has paid the allotment

price of Rs.53,10,293/- along with interest of

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Rs.7,11,157/-; a conditional sale deed dated 20.10.2005

has been executed and registered by the Housing Board

on 20.10.2005, subject to the condition that the allottee

should construct the school building within a period of 5

years and that should he fail to do it, the allotment would

stand rescinded. The counsel submits that because of

"shortage of funds and unavailability of loans or credit",

the structure could not be constructed though BBMP had

issued the khata. He also highlights his client's application

dated 09.01.2014 for the grant of BBMP Approval and

Sanction of Building Plan. Lastly, he argued that the

impugned order which ignores several relevant factors that

resulted into the building having not been put up within

the stipulated period, have remained unconsidered and

therefore the impugned order is liable to be voided.

3. Having heard learned counsel for the appellant

and having perused the appeal papers, we decline

indulgence in the matter being broadly in agreement with

the reasoning of the learned Single Judge. Admittedly, the

subject property is a huge civic amenity site formed in the

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layout concerned. The allotment of the same was made to

the appellant vide allotment letter dated 16.12.2003

followed by the sale deed dated 20.10.2005. The

allotment was for the specified purpose of establishing an

educational institution by constructing a building therein

within a period of five years. That has not happened,

admittedly.

4. There is no dispute that the subject property is

a public property that was earmarked as a civic amenity

which obviously includes establishment of school.

Catering education to the masses is a constitutional

imperative in terms of Article 21 and 21A as expansively

interpreted by the Apex Court in a catena of decisions,

beginning with UNNI KRISHNAN J.P. vs STATE OF A.P.,

(1993) 1 SCC 645 and reiterated as recently in JANHIT

ABHIYAN vs UNION OF INDIA (EWS RESERVATION),

(2023) 5 SCC 1. When the State is not in a position to

cater to the educational needs on its own, it does it with

the mediation of private agencies and that is how the civic

amenity sites are earmarked for allotment to the intending

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caterers. This site has remained unutilized for a period of

more than two decades that is, till date after it was

allotted to the appellant. As a consequence, the right to

education of those who would have studied, should the

school or educational institution was established in this

site in terms of stipulation of allotment, has been

brutalized, to say the least. All such persons are the

inarticulate stakeholders in the allotment and the

execution of the purpose for which such allotment was

made. Had the site in question been allotted to some

worthy person, that would have served the public purpose

for which it was earmarked.

5. It is pertinent to reproduce what Mahatma

Jyotiba Phule, a great Social Reformer of yester century

in his "Shetkaryaca Asud" (1881 publication) had

profoundly said in Marathi:

व े वना मती गेल ।

म त वना नीती गेल ।

नी त वना गती गेल ।

ग त वना व गेले।

व ा वना शू खचले।

इतके अनथ एका अ व ेने केले

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Its near English translation is "Without education, wisdom was lost; without wisdom, morals were lost; without morals, development was lost; without development, wealth was lost; without wealth, misfortune was brought upon the mistreated and the downtrodden; so much has happened through lack of education."

Jean Dreze and Amartya sen in their "An Uncertain Glory:

India and Its Contradictions" (Princeton & Oxford) at page

107 have reproduced what Rabindranath Tagore had said:

"In a powerful diagnosis, Rabindranath Tagore said:'in my view the imposing tower of misery which today rests on the heart of India has its sole foundation in the absence of education...."

Along these lines, what the US Supreme Court had

observed in BROWN vs. BOARD OF EDUCATION OF

TOPEKA, 1954 SCC OnLine US SC 44 regarding the

importance of education also finds relevance; it reads as

thus:

"Today, education is perhaps the most important function of State and local governments .... It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these

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days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

This decision has also got the imprimatur of the Apex

Court in MAJOR SAURABH CHARAN vs. NCT OF DELHI,

(2014) 6 SCC 798.

6. The vehement submission of learned counsel for

the appellant that the impugned order could not have

directed cancellation of sale deed and such a course is not

available to Writ Court, is bit difficult to countenance and

reasons for this are not far to seek:

(i) firstly, it is a public property and the allotment

was subject to the condition that a building should come

up within five years; admittedly that has not happened;

the sale deed dated 20.10.2005 is admittedly a conditional

Sale Deed; its very title reads "CONDITIONAL SALE

DEED". Condition No.1 at page No.3 stipulates

construction of the building within a period of two years

for the purpose for which it is allotted. If this condition is

breached with no plausible explanation whatsoever

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therefore, the allotment is liable to be voided and as a

consequence, the conditional sale deed becomes liable to

be set at naught.

(ii) The so-called Sale Deed is liable to be voided

because it is only an off-shoot of the allotment letter which

stipulated the condition of allotment. It is more so because

the Karnataka Housing Board is a creature of law namely,

the Karnataka Housing Board Act, 1962; the allotment of

sites and execution of sale deeds are done in terms of

statutory policy and not as a private arrangement. In

other words, they have abundant public law elements and

therefore, they are liable to suffer judicial scrutiny of the

Writ Court under Articles 226 and 227 of the Constitution

of India. Added, the regular and absolute Sale Deed is not

the case of appellant. By taking recourse to the decision of

the Apex Court in KORUKONDA CHALAPATHI RAO vs.

KORUKONDA ANNAPURNA SAMPATH KUMAR, 2021

SCC OnLine SC 847, a reading of the Sale Deed gives an

impression that it is only a lease-cum-sale, its

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nomenclature notwithstanding. Condition 8 of the Sale

Deed which reads as under lends support to this view:

"8. The allotment of C.A. Site is on Lease Cum Sale basis for a period of five years from this day. The allottee shall pay the entire cost of the C.A. Site on or before in one lump. During this period the allottee shall put the land in use for the purpose for which it is allotted. After completion of period of 5 years, the allottee shall apply for issue of Absolute Sale Deed. Failure to comply with any one of the conditions of this deed the allotment will be cancelled without any notice and the board has right to resume back the said site in its possession."

7. The submission of learned Senior Advocate that

the appellant had the financial difficulty and therefore he

could not undertake construction, is not legally tenable as

a justification for not complying with the stipulation of

allotment. Condition No.2 in the Sale Deed specifically

enabled the appellant to raise loan by mortgaging the site

in question, for constructing the school building. It reads:

"2. The second party shall not alienate the schedule property except for mortgaging or creation of charge or lien in favour of schedule bank or any statutory lending agencies for raising loan to for the construction of buildings in the schedule property."

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Why that was not done remains a mystery wrapped in

enigma. Therefore, the contention that the funds were not

available for taking up construction of the building falls to

the ground.

8. The submission of learned Senior Advocate for

Appellant-Society that construction of the structure has

begun and that the same would be completed within a

month or two, is nothing but an unconstitutional

afterthought. What is found to be a non-compliance of a

conditional allotment of site, does not wither away by

highly belated efforts of compliance. What the court has to

see is whether the structure is built within two years as

stipulated in the so-called conditional sale deed and

nothing beyond that. No rule of binding conduct or ruling

is brought to our notice which authorizes the extension of

stipulated period or for the condonation of enormous delay

in endeavouring the compliance of condition. One has to

keep in mind that the allotment of the civic amenity sites,

although creates interest to an extent, is onerous and the

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allottee holds the property in a kind of public trust so that

the property is put to specified use.

9. Learned Single Judge has also made certain

observations at para 20 of the order as to why no relief

could be granted to the appellant. The same reads as

under:

"20. Apart from above, petitioner had occupied Krishnarajendra Kushala Karmi Tarabethi Kendra established by Government in Nelamangala and failed to pay rent. Eviction notices issued by department were questioned and pending in W.P.no.39278/2018. It was submitted that petitioner was involved in several other irregularities. Such being case, when several governmental agencies which required land for location of their offices were forced to operate form distant/rented premises, permitting non-compliant allottees to continue to occupy valuable civic amenity sites would be contrary to objective of forming C.A. sites."

No explanation is offered by the appellant as to why the

above observations are unsustainable

10. There is one other important factor which we

cannot leave unsaid: where the public property is allotted

for a specified purpose and that purpose remains

unaccomplished, the retention of such allotment militates

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against the public interest. Where such a purpose has

constitutional flavour like the one catering to the

educational needs of the society, this proposition assumes

imperative character. If leniency is shown in matters of