Karnataka High Court
M/S. K. K. Appaiah Charitable Trust vs The Commissioner on 8 November, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
WP No. 18670 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 18670 OF 2019 (LB-RES)
BETWEEN:
M/S. K. K. APPAIAH CHARITABLE TRUST
(REG NO.209/98-99) NO.1686
2ND STAGE, 2ND CROSS
6TH MAIN, VIJAYANAGAR
MYSORE-570 024.
REPRESENTED BY ITS PRESIDENT
MR K.A. PRASHANTH DEVIAH
S/O K.K. APPAIAH.
...PETITIONER
(BY SRI. AJIT P.B., ADVOCATE)
AND:
1. THE COMMISSIONER
MYSORE URBAN DEVELOPMENT AUTHORITY
J L B ROAD
MYOSRE-570 024.
2. THE COMMISSIONER
MYSORE CITY CORPORATION
SAYYAJI ROA ROAD
AGRAHARA, CHAMRAJPURA
MYSURU-570 024.
...RESPONDENTS
(BY SRI. T P VIVEKANANDA, ADVOCATE FOR R1;
SMT. GEETHADEVI M.P., ADVOCATE FOR R2)
-2-
WP No. 18670 of 2019
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 23.02.2017 AND 07.03.2017
PASSED BY THE R-1 VIDE ANNEXURE-J; DIRECT THE R-1 TO
ISSUE 'NO OBJECTION CERTIFICATE' FOR THE PURPOSE OF
OBTAINING APPROVAL OF THE PLAN FROM THE R-2.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The present petition is filed by the petitioner being aggrieved by the order dated 23.02.2017 issued by the respondent No.1 at Annexure-J and also for issuance of writ of mandamus directing the respondent No.1 to issue No objection certificate for the purpose of obtaining approval of the plan from respondent No.2.
2. It is the case of the petitioner that it is a Charitable Trust registered under Indian Trust Act, 1882 with an objects which includes establishment of Schools, Colleges, Educational institutions, Hostels and to render medical relief/services for poor, aged, needy etc., That in furtherance of the object of the trust, the petitioner -trust being entitled for an allotment of a commercial site made -3- WP No. 18670 of 2019 an application to the respondent No.1 on 10.07.1998. In response thereon, respondent No.1 -authority vide its letter dated 28.06.1999 as per Annexure-B allotted the site to the petitioner bearing site No.14D, measuring 65 X (28.5+30.2)/2 meters totally measuring 1901.25 sq. mts, situated at Vijayanagar 3rd phase, A block, Mysore for a 30 years lease. That the petitioner -trust had paid a sum of Rs.10,64,700/- as lease amount as demanded by the respondent No.1. That respondent No.1 had issued possession certificate on 19.10.2006 as per Annexure-D. Thereafter, respondent No.1 had issued a show cause notice dated 05.08.2011 calling upon the petitioner to show reasons as to why the site allotted to him should not be cancelled for the petitioner had violated the terms of allotment by not putting up construction of building within three years from the date of delivery of possession, to which the petitioner had issued a reply by giving explanation and in that he also tendered arrears of annual fee of Rs.11,418/- through demand draft bearing No.626667, dated 13.10.2012 and sought for extension of -4- WP No. 18670 of 2019 time. The respondent No.1 without providing any opportunity of hearing, by its letter dated 24.06.2015 as per Annexure-F returned the demand draft. That the author of the trust Sri. K.K.Appaiah had passed away on 10.12.2016 due to which the petitioner-trust could not undertake appropriate action. Trustees had passed resolution delegating powers to the president of the trust to take further action in the matter. Respondent No.1 without providing any opportunity in the matter passed the impugned order dated 2302.2017 canceling the allotment of the aforesaid site as per Annexure-J. Being aggrieved by the same, the petitioner is before this Court.
3. Learned counsel for the petitioner reiterating the grounds urged in the writ petition submits that though the subject site was allotted on the basis of lease deed dated 20.09.2006 for a period of 30 years with a stipulation that petitioner shall carry on the construction within the period of two years from the date of the lease, the petitioner-trust could not commence construction as -5- WP No. 18670 of 2019 the layout was not provided with any basic amenities. Therefore, it was not viable for the petitioner to put up a hostel. That after expiry of 10 years, petitioner indeed approached the respondent seeking permission to commence construction which was not considered. That the petitioner had issued a reply to the show cause notice of the respondent. Without considering the same, the respondent No.1 had cancelled the allotment. Hence, he submits that there is a violation of principles of natural justice, warranting interference.
4. On the other hand, learned counsel for the respondents filed statement of objection contending inter alia that allotment was made on the basis of lease agreement dated 20.09.2006 which categorically provides that construction was to be completed within a period of three years from the date of registration of the lease deed. Since the petitioner did not take any action, the respondent was constrained to issue a show cause notice on 05.08.2011. In response to the said notice, the petitioner had issued a reply as referred in the writ -6- WP No. 18670 of 2019 petition which did not satisfy the requirement of the Karnataka Urban Development Authorities (Allotment of Civic Amenities Sites)Rules, 1991. Finding no other alternate the respondent No.1 proceeded to pass impugned order as per Annexure-J by canceling the allotment. Hence, he submits that there is no merit in the petition.
5. He further submitted that Trust is a private family trust and does not appear to be one formed for the purposes of objects which are enunciated therein. Hence, he submitted that petitioner is not entitled for any further time.
6. Heard the learned counsel for the parties and perused the records.
7. The petitioner -trust is constituted in terms of deed of trust at Annexure-A. A perusal of the Trust Deed would reveal that K.K.Appaiah is the author of the trust and his family members are the trustees. The objects of the trust as shown is for establishment of Schools, -7- WP No. 18670 of 2019 colleges, Hostels and carrying out such other social charitable activities. Nothing has been produced before this Court with regard to any activities being carried on by the petitioner-trust in furtherance to its objects. Admittedly, the subjected site was allotted acting upon the representation of the petitioner that same would be utilized for constructing a commercial building in furtherance to the object of trust. Admittedly no construction has been commenced within the period stipulated under the lease agreement.
8. The lease agreement is dated 20.09.2006. The show cause notice was issued on 05.08.2011. Except furnishing so called reply to the show cause notice, no application is even made for extension of time. It is relevant at this juncture to note the Rule 10(7) of the Karnataka Urban Development Authorities (Allotment of Civic Amenities Sites)Rules, 1991, which is as under;
"10. Conditions of allotment of Civic Amenity Sites :-
1) to 6 xxx -8- WP No. 18670 of 2019
7) The lessee shall complete the construction of the building within a period of three years from the date of registration of the lease agreement or such extended period provided the total period does not exceed 10 years, as the Authority may in any specified case by written order permit. If the building is not constructed within the said period, the allotment may, after giving reasonable notice to the institutions, be cancelled, the agreement revoked and the lessee evicted from the site by the authority and after forfeiting twelfth and half percent (12 ½) of the lease amount paid by the institution the authority shall refund the balance to the institution".
9. A perusal of the aforesaid Rule makes it clear that construction of the building shall be completed within three years or within 10 years of extended period. The question of extension, as rightly pointed out by learned counsel appearing for the respondent No.1, would arise only on an application made in this regard that too after commencement of construction.
10. In the instant case, even after issuance of the show cause notice, except giving a reply to the show cause notice no attempt is made by the petitioner seeking extension of time. The petitioner was given sufficient opportunity by issuing of notice as noted above and the -9- WP No. 18670 of 2019 impugned order had been passed after considering the reply to the show cause notice furnished by the petitioner.
11. In view of the facts and circumstances of the case, this Court is of the considered view that petitioner has not complied with the terms of the allotment and no infirmity or illegality can be found with the impugned order of cancellation passed by the respondent No.1. Hence, the petition is dismissed.
12. Having said that it is not in dispute that the petitioner has paid aggregate sum of Rs.13,20,000/- towards the lease amount. The respondent-authority shall refund the said amount with permissible deduction provided under law within a period of four weeks from the receipt of the copy of this Order.
Sd/-
JUDGE RU