Title: M/S Divyajyothi vidya Kendra v. Karnataka housing board and others
Decided on: 10th October 2023
WRIT APPEAL NO. 873 OF 2023 (GM-RES)
Coram: HON’BLE MR PRASANNA B. VARALE, CHIEF JUSTICE & HON’BLE MR JUSTICE KRISHNA S DIXIT
Introduction
Divyajyothi vidya Kendra’s appeal challenging the cancellation of allotment of the subject land has been dismissed by the Karnataka high court, with a direction to the respondent-Karnataka Housing Board to pass orders determining the quantum of forfeiture and refund of remaining amount to the appellant within a period of four weeks.
Facts of the case
Allotment of a civic amenity site was made vide letter dated 16.12.2003 and the appellant has paid the allotment price of Rs.53,10,293/- along with interest of Rs.7,11,157/-. A conditional sale deed dated 20.10.2005 was executed and registered by the Housing Board on 20.10.2005, subject to the condition that the allottee should construct the school building within a period of 5 years and failure to do so, the allotment would stand rescinded. Due to shortage of funds and unavailability of loans or credit, the structure could not be constructed though BBMP had issued the khata.
Court Analysis and Decision
The division bench declined indulgence in the matter being broadly in agreement with the reasoning of the learned Single Judge and observed that the subject property is a huge civic amenity site. The allotment was for the specified purpose of establishing an educational institution by constructing a building therein within a period of five years which has not happened. The site has remained unutilized for a period of more than two decades after it was allotted to the appellant. As a consequence, the right to education of those who would have studied, if the educational institution was established in the site in terms of stipulation of allotment, has been brutalized. Had the site been allocated to some worthy person, that would have served the public purpose for which it was earmarked.
When a public property is allotted for a specified purpose and that purpose remains unaccomplished, the retention of such allotment militates against the public interest. Where such a purpose has constitutional flavor like the one catering to the educational needs of society, this proposition assumes imperative character. If leniency is shown in matters of breach, that would be tantamount to placing premium on illegality & would be a case of misplaced sympathy too. The petitioner is a society registered under the provisions of the Karnataka Registration of Societies Act, 1960 and it claims to run educational institutions. Permitting such entities to retain allotment of the site despite breach of the statutory conditions, would lay a bad precedent which has abundant abuse potential.
The appeal being devoid of merits was rejected and the Respondent-Board is directed to comply with the order concerning determination of quantum of forfeiture and refund of amount, as directed by the Single Judge. Accordingly the society would deliver the possession of the property in an ‘as is where is’ position to the Board, which should take back the possession within four weeks.
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Written by- K R Bhuvanashri
