Karnataka High Court
B K Lakshmi Bai vs Mysore Urban Development on 10 July, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY , 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION Nos.6220-6221/2015(LB-RES)
BETWEEN
1. B.K. LAKSHMI BAI,
W/O LATE B.S. KANTHARAJASETTY,
AGED ABOUT 83 YEARS,
#2, PRASEEDA,
VARDHAMANIAH-BLOCK,
KARNIC ROAD,
SHANKARAPURAM,
BENGALURU - 560 004.
2. SATHYAPREMA KUMARI. M.P.
W/O PARTHASARATHI. M.M.,
AGED ABOUT 60 YEARS,
#2, PRASEEDA,
VARDHAMANIAH-BLOCK,
KARNIC ROAD,
SHANKARAPURAM,
BENGALURU - 560 004.
...PETITIONERS
(BY SRI. K.R. LINGARAJU, ADVOCATE)
AND
MYSORE URBAN DEVELOPMENT
AUTHORITY,
REPRESENTED BY ITS COMMISSIONER,
J.L.B. ROAD,
MYSURU - 570 005.
...RESPONDENT
(BY SRI. I.G.GACHCHINAMATH, ADVOCATE FOR R1)
Date of order :10.07.2017 in W.P Nos.6220-21/2015
B.K. LAKSHMI BAI AND ANOTHER vs.
MYSORE URBAN DEVELOPMENT AUTHORITY
2/9
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DATED 01.09.2014 ISSUED BY THE
RESPONDENT AUTHORITY VIDE ANNEX-A ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Mr.K.R.Lingaraju, Advocate for Petitioners. Mr.I.G.Gachchinamath, Advocate for Respondent.
1. The petitioners Smt.B.K.Lakshmi Bai, wife of late Mr.B.S.Kantharajasetty and her daughter Smt.Sathyaprema Kumari.M.P have filed this petition in this Court on 13.02.2015 praying, interalia for quashing of impugned Endorsement at Annexure-A dated 01.09.2014 issued by the respondent- Mysore Urban Development Authority (MUDA) refusing to effect transfer of the industrial site bearing No.34/2 in Bannimantap 'A' Extension, Mysore city after expiry of the husband of Petitioner No.1 and father of Petitioner No.2- Mr.B.S.Kantharajasetty on 26.11.2006.
2. The said industrial site was allotted in favour of his husband Mr.B.S.Kantharaja Setty vide allotment letter at Annexure-B dated 19.03.1979 and the Agreement executed Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 3/9 between the parties on 26.06.1997. The said Agreement, interalia, required vide Clause-V thereof that the allottee-first party shall start the construction of the industry and shall start the industry within one year from the date of agreement. It is the case of the petitioners that the deceased allottee on account of medical ailment could not complete the construction of said industry within the stipulated time and after his death, the industrial site deserved to be transferred in favour of the present petitioners. Hence, the present writ petition has been filed before this Court.
3. Learned counsel for the petitioners has urged before the Court relying upon the two decisions, viz.,
i) NAZIR AHMAD vs. KING EMPEROR (AIR 1936 PRIVY COUNCIL 253(2)
ii) C.S.NARAYANA RAO vs. CITY IMPROVEMENT TRUST BOARD (1969(1) MYS.L.J 237) That without resuming the industrial site by the allotting Public Body, i.e., Muda even if assuming that the condition for setting up of industry was not satisfied by the petitioners or the husband of the petitioner No.1, unless the land in question is Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 4/9 resumed by the respondent - MUDA in terms of the Agreement, they cannot refuse to transfer the industrial site in question in favour of the legal heirs of the deceased allottee.
4. The attention of the Court is drawn towards the representation at Annexure-K dated 09.04.2012 filed by the petitioners before the respondent-MUDA. The learned counsel for the petitioner also pointed out that the so called dispute raised by the widow Smt.P.Usharani to Sri.Devarajulu Naidu who claimed that the land in question was transferred by the husband of Petitioner No.1 Mr.B.S.Kantharajasetty to the said Sri.Devarajulu Naidu but no document was even produced by them was no reason to refuse and neither any civil suit was filed by any of the said parties nor such third party can claim any right over the said industrial site in question and the respondent-MUDA cannot refuse to effect transfer of industrial site in question in favour of the present petitioners.
5. On the other hand, Mr.Gachchinamath, learned counsel appearing for the respondent-MUDA has submitted that the conditions of the allotment and the conditions of the Agreement Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 5/9 at Annexures-B and D clearly shows that the construction of the industry was to be completed within a period of one year from the said Agreement dated 26.06.1997 which has admittedly not been done by the petitioners or her husband Mr.B.S.Kantharajasetty and no cogent evidence has been adduced for such non-establishment of the industry seeking a waiver or regularization of such condition of the agreement. He submitted that even though nothing about the dispute purportedly raised by third party, viz., Mr.Devarajulu Naidu and his wife Smt.P.Usharani has been stated in the Statement of Objections filed by the respondent-MUDA in this Court, but in the representation filed by the petitioners themselves vide Annexure-K dated 09.04.2012, they have referred to such dispute even though the learned counsel for the petitioners now contends otherwise.
6. Having heard the learned counsels for the parties, this Court is of the opinion that Annexure-A, Endorsement dated 01.09.2014 challenged in the present writ petition cannot be quashed by this Court. The undisputed fact is that the petitioners are wife and daughter of late Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 6/9 Mr.B.S.Kantharajashetty and he did not develop any industry on the said industrial site No.34/2 in Bannimantap 'A' Extension, Mysore city. It was for the petitioners or the allottee-husband to establish proper reasons for delay in setting up such industry or even not setting up at all to save such allotment in favour of Mr.B.S.Kantharajashetty in which inheritable rights are now claimed by the present petitioners, seeking transfer or mutation of the industrial site in question in their name. It is true that the respondent-MUDA could have also taken steps to resume the land back from the allottee, if the conditions of the Agreement, viz., completion of the industry within one year of such allotment was not satisfied by the allottee. But merely because the respondent-MUDA failed to resume the said land in question, it cannot be said that on the contrary, there should be mandate to effect the transfer of the industrial site in question in favour of the present petitioners.
7. As far as third party rights or claims are concerned, there is nothing on record from the side of the respondent-MUDA about the existence of any such dispute. The petitioners themselves have referred to this alleged claim of such third Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 7/9 parties in their representation vide Annexure-K dated 09.04.2012. Whether any litigation in this regard is pending or not is not known.
8. Be that as it may. In the facts and circumstances of the case, this Court is of the opinion that respondent-MUDA can not be mandated, quashing the impugned endorsement at Annexure 'A' dated 01.09.2014 to effect the transfer of industrial site from the deceased allottee in favour of the present petitioners who claim to be the legal representatives of such deceased allottee Mr.B.S.Kantharajashetty. If the petitioners can have any legal right in the said industrial site, they have to establish their legal entitlement in a properly instituted civil suit and only if they obtain a decree in this respect against the respondent-MUDA and if third parties are not involved in the matter, they can get a suitable relief in this regard. In the absence of the same, as far as the facts presented or narrated in the present writ petition are concerned, no such mandamus direction as prayed can be issued.
Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 8/9
9. The judgments relied upon by learned counsel for the petitioners are of little help to the petitioners in which it has been observed by the High Court of Mysore in C.S.NARAYANA RAO vs. CITY IMPROVEMENT TRUST BOARD (1969(1) MYS.L.J 237) that if the Trust Board has not invoked its powers to resume the land in question for a period of 12 years, they shall be presumed to have abandoned their such power. There is no such fact situation in the present case as in the present case, the respondent/MUDA has communicated to the petitioners by the impugned endorsement at Annexure-A on 01.09.2014 that the transfer in their names cannot be effected for violation of the conditions of the allotment for not establishing the industry within the stipulated time.
10. The Privy Council decision in NAZIR AHMAD vs. KING EMPEROR (AIR 1936 PRIVY COUNCIL 253(2) cited by the learned counsel for the petitioners in the context of a criminal trial about the discretion of the learned Magistrate under Section 164 of the Criminal Procedure Code, 1898 about the use of words 'may' to be construed as 'must'. The said interpretation Date of order :10.07.2017 in W.P Nos.6220-21/2015 B.K. LAKSHMI BAI AND ANOTHER vs. MYSORE URBAN DEVELOPMENT AUTHORITY 9/9 of word 'may' in Section 164 of the Cr.P.C., also does not enure to the benefit of the present petitioners in the case on hand.
11. The petition is accordingly disposed of with the aforesaid observations.
Sd/-
JUDGE bnv*