Judgment:
(Prayer: This Writ Appeal filed u/s 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition 17036/10 dated 22/9/10.)
1. The legality and correctness of the order passed by the Learned Single Judge in W.P.No.17036/2010 dt.22nd September 2010 is called in questioning this appeal.
2. A civic amenity site allotted to the appellant for a period of 30 years commencing from 7.5.2002 has been cancelled by the respondent-BDA on the ground that the appellant-society has failed to construct the building and further failed to use the site for the purpose of which it was leased. The order of cancellation was questioned by the appellant before the learned Single Judge. The learned Single Judge has dismissed the Writ Petition. Challenging the same, the present appeal is filed.
3. We have heard Mr. Udaya Holla, learned Senior counsel for the appellant and Sri. Shankara Narayana Rao, learned counsel appearing for the B.D.A.
4. After hearing we have noticed the following undisputed in this appeal:
The appellant is an Education society running a School at Koramangala. For the benefit of the appellant-Society, civic amenity site bearing No.4, HSR layout, Sector-VI was allotted to the appellant under a lease agreement dt.7.5.2002 for a sum of Rs.4,52,827/- for a period of 30 years from the date of commencement of the registration. The appellant was also required to construct the building within a period of 2 years from the date of registration. The appellant in addition to the consideration of Rs.4,52,827/- is also required to pay a sum of Rs.279/- p.a. as additional lease amount. Though possession certificate was issued to the appellant on 27.6.2002, unfortunately the respondent-BDA by its letter dt.4.10.2002 has permitted M/s Rao Constructions to utilize the site which was allotted to the appellant to construct the Labour Sheds or camp in order to construct a shopping complex of the BDA. Annexure-E is the letter of BDA dt.4.10.2002 directing M/s Rao Constructions to put up labour sheds. The appellant requested the BDA vide letter dt.12.11.2002 as per Annexure-F to hand over possession of the site to it after removing the sheds constructed by M/s Rao Constructions. But the BDA has failed to take action and site was not handed over to the possession of the appellant. Thereafter a show cause notice was issued on 8.10.2009 on the ground that the appellant has failed to construct the building within two years and therefore show cause notice was issued to show cause why the site in question should not be cancelled. For which a detailed reply was furnished by the appellant stating that on account of handing over the site to M/s Rao Constructions by the BDA as the contractor M/s Rao Constructions have dumped all construction materials and constructed sheds, the appellant could not take up construction and requested the BDA to hand over possession and grant permission to construct the buildings. But unfortunately without considering the reply of the appellant, site allotted to the appellant-Society was cancelled by its order dt.19.4.2010. Aggrieved by the same, the Writ Petition was filed. The learned Single Judge has dismissed the petition on the ground that the commercial complex was completed by the Contractor M/s Rao Constructions in 2004 and that the appellant has failed to construct the building, therefore, he failed to exercise the discretion vested in him under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. Challenging the legality and correctness of the same, the present appeal is filed.
5. Mr. Udaya Holla, learned counsel appearing for the appellant submits that when possession has been wrongly taken by the respondent in 2002, when the Contractor has not yet cleared the materials dumped by him and has failed to demolish the shed constructed by him and when the BDA has in turn has failed to hand over possession in the appellant, the cancellation of the site by the appellant is arbitrary, unfair and capricious. According to him, when M/s Rao Constructions have failed to vacate the premises even though the appellant has obtained the plan to construct the building, construction could not be taken on account of the respondent handing over possession to M/s Rao Constructions, which only shows the conduct of the respondent in erroneously canceling the site even though the fault lies on it and not on the appellant.
6. Mr. Shankara Narayana Rao, learned counsel for the respondent made an effort to contend that the Contractor completed the building in 2004 and that the appellant has failed to construct the building within 2 years. Therefore, he supports the order of cancellation.
7. Having heard the counsel for the parties, the only point to be considered by us in this appeal is whether the order of cancellation of the C.A. site allotted to the appellant is on account of the latches on the part of the appellant or the BDA is responsible for non-construction of a building by the appellant due to handing over of the site by the BDA to a contractor.
8. The learned counsel for the respondent is not disputing that adjoining to the site in question, the BDA has constructed a commercial complex for which the BDA has permitted the Contractor, M/s. Rao Constructions to utilise the site in 2002 which only indicate that the BDA without any authority of law has illegally permitted its Contractor to utilise the site which was allotted to the appellant. The appellant immediately resisted the action of the BDA. But the BDA has failed to rectify the mistake committed by it. In other words, the conduct of the respondent would only show that being a statutory authority as a trespasser has trespassed into the property of the appellant. Even if we accept the arguments of Mr. Shankara Narayana Rao, that the complex has been completed long back, when the appellant contends that M/s Rao Constructions has not removed the sheds and lifted the building materials, it was for the BDA to see that the Contractor shall vacate the site and it is further the duty of the BDA to put the appellant in possession of the same. Without doing so, the respondent went to the extent of canceling the site and blaming the appellant without rectifying the mistake committed by it. The conduct of the BDA would only reflect the callous act of the official in handing over the site of the appellant to M/s Rao Constructions and not re-delivering the possession to the appellant. Added to that, the BDA went to the extent of canceling the allotment for no fault of the appellant. Therefore, the respondent has to pay compensation to the appellant. In addition to that as the appellant is deprived of using the site for a period of 10 years out of 30 years of lease, such lease period has to be further extended by the BDA as 1/3 of the lease period could not be utilised by the appellant on account of the act of the BDA. The learned Single Judge without considering this crucial point has proceeded as if the appellant was in possession of the property and did not construct the building. Therefore, we are of the view that an error is committed by the learned Single Judge in dismissing the Writ Petition.
9. In the result, the appeal is allowed. The order of the learned Single Judge is set aside. Consequently the Writ Petition filed by the appellant in W.P.No.17036/10 is hereby allowed. The order of cancellation dt.19.4.2010 as per Annexure-K is quashed. The BDA is directed to sanction the plan and permit the appellant to complete the building within two years from the date of sanctioning of the plan. 3 months time is granted to the appellant to submit or resubmit the plan.
In addition to that the respondent shall extend the lease period for a further period of 10 years from today as the appellant could not utilise the lease period of 10 years on account of handing over possession to a contractor without any authority of law.