Karnataka High Court
Smt. B.K. Parvathamma vs Bangalore Development Authority, ... on 16 January, 1998
Equivalent citations: 1998(4)KARLJ57
ORDER
1. By this petition under Article 226 of the Constitution of India, the petitioner has sought for issuance of writ of certiorari for quashing the order Annexure-L dated nil, as per copy to the writ petition and praying for a writ of mandamus directing the respondent to grant sale deed in favour of the petitioner.
2. This case by itself is a sample to exhibit how our institutions under the Constitution are forgetting the concept of justice social, economic and political at times have caused social injustice against poor and downtrodden people. The people, who belong to the weaker sections not simply based on castes, but those suffering from economic disability.
3. The petitioner's case is that petitioner was allotted site bearing No. 652, 4th Block, West of Chord Road, 3rd Stage measuring East to West 20 feet and North to South 25 feet, more specifically described in the schedule. The grant certificate was issued on 12-8-1975, copy of which is Annexure-A and the possession certificate was issued on 8-6-1981. The lease-cum-sale deed agreement was entered into between the parties as per Annexure-C, to this writ petition registered in the Office of Sub-Registrar, Bangalore, on 29-1-1981. There is no dispute that petitioner had paid the entire amount due to the respondent-B.D.A. and there was nothing due or payable to B.D.A. thereafter. Petitioner has mentioned the circumstances that her husband was working in the Corporation Girls High School, as a Peon in 1984. Her husband fell ill, he could not attend duties. Thereafter, though, he had applied for leave with medical certificate, but he was subjected to disciplinary proceedings for the alleged unauthorised absence for more than a year. The further plea was that due to the paucity of money and circumstances prevailing in the family and serious illness of the husband of the petitioner, petitioner could not construct house and in 1993, petitioner was served with a notice by B.D.A., as to why the allotment should not be cancelled, as no house had been constructed during the stipulated period as per terms and conditions mentioned in the agreement. No doubt, petitioner has stated that when she met the authorities, they exhibited some sympathy only and she was told that she could put the construction of the house happily and the B.D.A. will not trouble her. In view of this sympathetic approach, the petitioner applied for sanction of the building plan to the Bangalore Development Authority and the same had been sanctioned by the Bangalore Development Authority. The petitioner's case is that in pursuance thereof, she constructed the building. According to petitioner, her plan was sanctioned on 7-3-1996. The petitioner's case is that somehow or the other, she could construct the house with tin shed. The petitioner's case is that she had deposited the property tax and she has filed the receipts of payment of tax, the copies of which have been annexed as Annexures-D, E, F, G, H and J. The petitioner's case is that when she was likely to hypothecate the house to earn the loan to perform the marriage of her daughter, she came to know that B.D.A. had already passed an order cancelling the allotment. Petitioner's case is that after show-cause notice and reply given by her, no order cancelling the allotment had ever been communicated to her or in any case, no order was served, whereby the allotment could be said to have been cancelled. Petitioner stated that to her best rememberance, she had not received any order of cancellation and asserted that at no occasion, she came to know about the cancellation of that allotment. The petitioner's case is that she had raised the construction of house with tin shed, and the respondent may be directed not to implement that order as well as she has prayed for quashing the order of cancellation of that allotment, as the authorities have not duly applied their minds to the circumstances narrated by her in the reply. The petitioner has also filed the copies of photographs and the plan showing the existence of the building at the place or at the site allotted to her vide the affidavit dated 5-11-1997.
4. On notice being issued, the statement of objections has been filed on behalf of the respondents. The respondents have stated that respondents were not aware of the illness or voluntary retirement of petitioner's husband, but they have asserted that petitioner has not constructed the house and violated the terms and conditions of the allotment and lease cum sale agreement. Respondents stated that one of the conditions of allotment and lease-cum-sale agreement has been that the lessee/purchaser shall construct a building on the site as per plan within 2 years from the date of lease-cum-sale agreement. In the event of allotee failing to fulfil the conditions mentioned in the said agreement and commits breach of the terms of the agreement, respondent is empowered by the provisions of Rule 13(6) of the B.D.A. Allotment of Sites Rules, 1984, to cancel the allotment and the lease-cum-sale agreement and to forfeit 12 1/2% of sital value and resume the site. Respondent's case that such a power is conferred and has also been conferred under the then City Improvement Trust Board Allotment Rules, 1972. Respondents have stated that show-cause notice having been issued to the allottee to show-cause why the allotment should not be cancelled for violation of conditions of the allotment rules and sale-cum-lease agreement, as the petitioner has not made the constructions within the period specified. That notice was served on the petitioner on 20-10-1993. The copy of that show-cause notice is at Annexure-R1, no doubt, reply of the petitioner dated 26-10-1993, is annexed as Annexure-R2. Subsequently, on 26-3-1994, the applicant also moved an application for grant of further time to construct the house stating that the petitioner could not put the construction of the house on the site due to financial problem, illhealth and daughters' marriages and so, sought permission for extension of time to construct.
5. Respondent has stated in its objection that the order of cancellation of allotment had been issued and sent to petitioner by registered acknowledgement due on 7-3-1994, but it has at nowhere been stated that registered A.D. post was served on the petitioner.
6. From the perusal of the original record produced before the Court by the respondent's Counsel, it comes out that there is an envelope whereunder, something had been sent on 9th July, 1994 and with that, the A.D., is there which is blank which does not bear the seal of either the post office nor bear the signature of the addressee, so as to indicate that it was served. If it is delivered to the addressee, the signature of addressee is taken, but that is blank from the A.D. produced before me by the respondent's Counsel. No A.D. and envelope have been filed showing that it had been sent by registered A.D. post on 7-3-1994. So, it appears that before the letter dated 26-3-1994 was addressed, no communication had been served on the petitioner including any order cancelling allotment. No doubt, the petitioner has annexed copy of the application dated 26-3-1994, as Annexure-R3. Respondent's case is that respondent considered the application and decided that no further time can be granted for construction of house and issued endorsement dated 6-7-1994, at Annexure-R4, said to be the copy of that communication, which will be referred at the appropriate place. The respondent has admitted that the plan submitted by the petitioner for construction of the house had been sanctioned as alleged in the petition in 1996. It has also been admitted that payment of property tax had been made from time to time, but the respondent alleged that it was impermissible in law and subordinate officials of the Board could not revoke the cancellation order passed, as such, petitioner cannot be entitled to any relief on the ground that plan had been sanctioned and tax paid.
7. In para 10 of the objections, it has been asserted that the petitioner had been aware of the order of cancellation which according to the respondent have been suppressed by petitioner for 3 years. The respondent submits that order was passed after giving opportunity to the petitioner and the cancellation order was just and in accordance with law.
8. No rejoinder has been filed.
9. I have heard the learned Counsel for the petitioner Sri Vinod Prasad and Sri R.S. Hegde and Raghavendra Kulkarni.
10. The petitioner's case is that no order of cancellation had been communicated. The cancellation came to the notice only when the petitioner wanted to mortgage the house to earn some loans for the marriage of the daughter.
11. A copy as per Annexure-L is nil dated and also another copy per se cannot be said to be the order of cancellation itself, they only indicate that as per order dated 20-12-1993, the allotment of the site in 4th Block, 3rd Stage, West of Chord Road, Bangalore, had been cancelled by the Chairman of the authority, as the petitioner neither constructed the house within 2 years in accordance with the sanctioned plan or had sought extension of time, so violated the terms and conditions of the lease agreement and it is on this ground, it is alleged by the respondent that it had been cancelled.
12. In her reply to show-cause notice, the petitioner had mentioned that for several years, she had been suffering from severe arthritis and bed-ridden and on account of ill-health, she could not construct. She prayed that the amount deposited may not be confiscated. She requested that no action be initiated and requested that she will be starting construction within a short time. The order of cancellation of allotment, no doubt, might have been passed by the authority has not been communicated, what has been communicated is, Annexure-L appears to be only an intimation to the effect that on 20-12-1993, Chairman has passed the order cancelling the allotment irrespective of the fact that the petitioner had intimated the authority that due to ill-health and financial difficulty, she could not construct and now she has intention to construct and it has been further mentioned that no letter or correspondence will be considered in this behalf by the authority and so, this is an information that she should not address any letter. Thus, considering the material on record, it appears firstly, that the order whatsoever had been passed by the Chairman of the Authority on 20-12-1993 itself, had not been communicated by the authority nor copy of that order was furnished to the petitioner. Further, it has nowhere been proved that order had been communicated and served on the petitioner. That to also that another copy is only the second hand information and not the order dated 20-12-1993. It is not established that it has been served, as in the counter affidavit it has been stated that it was sent by registered A.D. post dated 7-3-1994, but it has not been served on the address, no acknowledgement due has been filed with the affidavit. Learned Counsel for the respondent, no doubt placed before me the record, there appears some envelope and acknowledgement intended to be sent to the petitioner, but it appears that A.D. was not used and it did not contain any seal of any post office on it. The envelope along with it appears to have been sent on 9th July, 1996. As such, there is no proof that order of cancellation have been issued or served on the petitioner. Order having effect of civil consequence or adversely affecting the right of the person, become operative only when it is communicated to the party. If an order is passed and kept in the drawer or always kept in the office without it being sent or served on the person concerned, the order cannot be said to be effective.
13. In this view of the matter, in my opinion firstly, the alleged order of cancellation did not become effective, as the same was not communicated to the petitioner.
14. When I perused the lease-cum-sale agreement which was entered into after the allotment of site, between the parties, I find that due compliance with the requirements of terms of Clause 10 of the agreement has not been made.
15. Clause 10 of the agreement reads:
In the event of lessee/purchaser committing default in the payment of rent or committing breach of any of the conditions of this agreement or the provisions of the City of Bangalore Improvement (Allotment of Sites) Rules, 1972, the lessor/vendor may determine the tenancy at any time after giving the lessee/purchaser 15 days notice ending with the month of the tenancy, and take possession of the property. The lessor/vendor may also forfeit 12 and 1/2 per cent of the amount treated as security deposit under Clause 1 of these presents.
16. B.D.A. (Allotment of Sites) Rules, 1972, had been replaced by the B.D.A. (Allotment of Sites) Rules, 1984. No doubt, when the time of the allotment of site that Rules 1972, were in operation, thereafter, the Rules of 1984, were framed known as B.D.A. Allotment Rules of 1984.
17. My attention has been invited to these rules on behalf of the respondent's Counsel, it had been contended that power to cancel the allotment did vests with the authority in view of Rule 13, sub-rule (6) of the Allotment of Site Rules, 1984. No doubt, power to cancel the allotment did vest in the authority and it had a discretion to cancel it or to extend the time of construction.
18. Rule 13(6) of the Allotment of Sites Rules reads as under:
"The allottee shall construct a building within a period of 3 years from the date of execution of agreement or such extended period as the authority may in a specified case by written order permit. If the building is not constructed within the said period, the allotment may after reasonable notice to the allottee be cancelled and the agreement revoked, the lease determined and the allottee evicted from the site by the authority after forfeiting 12 and 1/2% of the value of the site paid by the allottee. The authority shall refund the balance to the allottee".
A perusal of this rule and the term of agreement per se reveal that cancellation of allotment is not in itself sufficient to deprive the allottee of his right over the property, subject-matter of an agreement of lease-cum-sale or lease-cum-sale agreement, really, that agreement has to be revoked, the lease had to be determined in accordance with law, terms and conditions of the agreement and possession could only be taken after having paid the balance of amount deposited by the lessee or purchaser to him not in full, but after deduction of 12 and 1/2%. The remainder of the amount deposited after deduction of the 12 and 1/2%, has to be refunded by the authority to the allottee, then and then only the cancellation could be said to have been effectively done.
19. Conditions of contract of agreement provide that a notice determining the lease has to be given and the specific mode of notice has been indicated as per agreement that it shall be 15 days ending with the month of tenancy. A notice which has been issued otherwise ending prior to the last day of the month may be said not to have been made in accordance with either of law or the terms of contract and a notice is in breach of this condition, that is, 16 days notice expiring with the month of tenancy, then such a notice will be illegal and invalid, as the law authorises or permits. Certain things to be done by specifying how that thing will be done then it cannot be done otherwise than the requirements which have to be fulfilled.
20. In the present case, firstly, the alleged order of cancellation passed on 20-12-1993, appears to have never been communicated to the petitioner. Secondly, authorities did not take any step towards revocation of agreement and determination of the lease by issuing the notice nor did they even refund 87.5% of the amount deposited or paid by the allottee towards the value of the site which is a requirement as per Rule 13(10) of the Allotment of Sites Rules and as per requirements of the contract of the lease-cum-sale agreement. It appears that the authorities have not exercised their power to effectively cancel the allotment and to revoke the agreement and to determine the lease by their subsequent conduct.
21. When the petitioner applied for sanction of the plan for construction, the authorities sanctioned the plan for construction of the building which the petitioner desired to construct within 7th March, 1996. Not only that, B.D.A. continued to accept and collect the tax paid by the petitioner, it appears that there was no intention to cancel the allotment order as such. When the authorities were represented that she has put up a valid construction, they accepted the tax and sanctioned the plan, the petitioner invested the huge amount according to her capacity in the construction of the building. Now, the respondents are estopped from saying that the allotment has been cancelled, particularly when the allotment or has neither been communicated and has been kept open by the respondents with themselves. Really, when the petitioner had represented to the authority vide her representation dated 26-10-1993, as well as by her representation dated 26-3-1994, the respondents should have taken into view the concept of social and economic justice and also the basic concept that no person should be made to suffer because of disability in economy or otherwise, to the best possible extent as per provisions and spirit of the constitution. They could have clearly extended the period for construction in the circumstances indicated in the reply to the notice as well as in representation dated 26-3-1994. The authorities, it appears not to have applied their mind and had rejected. Inspite of their having rejected, they did not proceed to revoke the agreement or to determine the lease order. By their conduct, it appears, they failed to exercise their right to determine the lease and revoke the agreement with due compliance of law or rules.
22. Now once, the construction has been put and huge amount has been invested by the allottee, according to her capacity, it does not appear just and proper that this authority be allowed to interfere with her house or building etc., on the ground that the constructions were not made within two years of the agreement of lease being entered into.
23. In this view of the matter, in my opinion, it is a fit case to hold that order dated 20-12-1993, even if not quashed, is to be declared as illegal, void and inoperative and that respondents are debarred from enforcing that order. No doubt, if the petitioner further commits any default in making any deposits, it is always open to them to act according to Rule 13 of the agreement, but for the present, it is suffice to say that order dated 20-12-1993, has ceased to be operative and respondents are estopped by their subsequent conduct to enforce that order.
24. The writ petition is allowed. It has to be clarified that lease-cum-agreement having not been revoked and determined, it continues to be operative. The agreement provides further that, if petitioner purchases and the sale deed of the property being executed in favour of the petitioner and petitioner's case is covered by conditions of Clause 12 and if she is found to be entitled, the respondent may execute the sale deed in her favour in terms of Clause 12 and in terms of Rule 13(7)(i) of the Sites Allotment Rules, 1984. It is also clarified that order dated 20-12- 1993, alleged to have been passed by the Chairman and not communicated to the petitioner shall not be taken as a bar or as something disqualifying the petitioner from being entitled to get the sale deed executed in her favour, because this order of cancellation, cancelling the allotment had never been communicated to the petitioner and not having been communicated, it has to be taken as ineffective order and shall not affect the petitioner's right to get the sale deed. This writ petition as such, is hereby allowed with the following directions:
25. The order dated 20-12-1993, shall be deemed to be ineffective and inoperative, as it had never been communicated to the petitioner and lease shall not be deemed to have been cancelled by an effective order of cancellation, and the petitioner shall not incur any disqualification on the basis of that order.
26. So far as the question of his right to claim the sale of the property is concerned, order dated 20-12-1993, shall be deemed to be ineffective from the very beginning and in every case, shall be deemed to have been made ineffective from the date the B.D.A., had granted permission for construction of the building as well.
27. It is open to the petitioner to approach the authority seeking execution of the sale deed in his favour and if he is not otherwise disqualified and subjected as mentioned above, the respondent may consider the case of the petitioner for grant of sale deed or execution of sale deed in her favour. It is clarified that order dated 20-12-1993, shall not be taken as imposing any disqualification on the petitioner in view of the above. Costs of the petition are made easy.
28. Let a writ in terms of the above directions be issued to the respondent.