S VENKOJI RAO Vs. BANGALORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) Industrial Site No. 80/E, Industrial Suburb II Stage in the layout formed by the Bangalore Development Authority (for short 'BDA'), was allotted to one Kulle Gowda, S/o. Yalakki Gowda and put in possession under Possession Certificate dated 25.02.1981 Annexure-"A" on a lease for 10 years. It appears that the Respondent - BDA executed and lodged for registration a conditional deed of sale dated 6.2.1987 Annexure-"B" conveying the property in question to the allottee, for a valuable consideration including the lease rentals for the period 12.01.1981 to 11.01.1991, entitling the allottee to exercise absolute and full ownership rights over the property conveyed, however, with a condition to put up construction within the period specified under the lease-cum-sale agreement or such further period as may be allowed by the BDA in terms of the lease-cum-sale agreement dated 12.01.1981. Thereafterwards, one K.T. Gowda, claiming to be the son of the allottee, executed a sale deed dated 12.02.1987 conveying the property in favour of the Petitioner for a valuable consideration. The BDA having accepted the sale deed conveying the property in favour of the Petitioner, issued a Katha certificate dated 16.03.1991 Annexure-"D" certifying that the katha of the property was changed to the name of the Petitioner and thereafterwards issued property tax challans in the name of the Petitioner, who paid the taxes. The site having fallen within the territorial jurisdiction of the BBMP, the Petitioner paid taxes as acknowledged by the BBMP. Years rolled by but the industrial building was not erected though a condition in the allotment of the site. The BDA, by show cause notice dated 7.1.2010 Annexure-"M", proposed cancellation of the site for violation of the condition in not erecting the building within the time stipulated in the lease-cum-sale agreement and sought an explanation within seven days which was promptly responded to by reply dated 11.01.2010 Annexure-"M1" of the Petitioner interalia contending that though the plan was approved for construction of the building, nevertheless, due to inadequate financial support from Banks and ill health, the Petitioner again made an unsuccessful attempt in the year 2001 since there was recession and his children were unable to assist him as they were pursuing studies, was unable to put up the construction. In addition, it was stated that a borewell was installed and a compound wall erected and that Kulle Gowda to whom the notice was addressed, was not the owner. It is also stated that the Petitioner's son is returning after having studied abroad and intends to start a design and consultancy business and that a portion of that site is intended to be gifted to a charitable institution for construction of a Prarthana Mandir as the Petitioner has promised his Guru and therefore, there is no violation of the conditions of allotment. Lastly it is stated that he has filed an application for change of land use by which a portion will be put to use for public purpose and the remaining for construction of an office. The BDA did not take kindly to the explanation offered and by order dated 28.04.2010, Annexure-"N", cancelled the allotment. Hence, this writ petition.

(2.) Petition is opposed by filing Statement of objections interalia admitting the fact of allotment of the sale and that the original allottee Kulle Gowda having violated the conditions of allotment, the notices issued on 21.04.1988 and 20.06.2000 whence no reply was received and therefore, the Commissioner, by order dated 2.1.2010, directed issue of yet another show cause notice to the Petitioner on 7.1.2010 for violating the condition of allotment. The failure to put up construction of an industrial building in the industrial suburb is the cause for the cancellation.

(3.) Having heard the learned Counsel for the parties and perused the pleadings, the following two questions arise for decision making: