Sri S. Venkatesh vs The Commissioner Bangalore Development Authority Bangalore -560020

Ashok B. Hinghigeri

The petitioner has called into question the order, dated 28.5.2010 (Annexure-W) cancelling the allotment of an industrial plot made in favour of one M. Venkatachalam.

The facts of the case in brief are that the Bangalore City Improvement Trust Board [for short ''CITB'' (respondent''s predecessor)] executed an agreement in favour of one M. Venkatachalam in 1962 in respect of an industrial plot bearing No.78, Small Scale Industrial Area. Rajajinagar, Bangalore. The agreement contained the following conditions:

The plans of the buildings for the small scale industry, which should conform to the Mysore Factories Act or any other law controlling the small scale industries, should he got approved by the Chairman. City Improvement Trust Board. Bangalore or person authorised on his behalf.

The area granted should not be sub-divided.

The site should not be alienated without the specific permission by the City Improvement Trust Board or person authorised in that behalf and in writing.

The grant of the site is subject to the condition that if the site be intended to be sold or otherwise disposed of by the grantee there will be a pre-emption clause in favour of Board at the rate that may be fixed by the Board which shall be final

The building constructed on the said site shall be used only for small scale Industries purposes.

The grantee should start the construction of the factory/Industry within six months of possession and the construction is to be completed within a period of one year or such period as may be permitted by the Board.

The allottee should shift the industry from the present place to the newly allotted site within a period of one year from the date of allotment.

the allottee should strictly conform to the design and plan approved by the Board.

The industrial plot changed the hands. The said Venkatachalam sold it to P. Kodandaraman in 1963, who in turn sold it to the petitioner''s mother Smt. S. Devaki Animal in 1964. Smt. Devaki Animal executed a gift deed in favour of her son, the petitioner herein. The petitioner approached the BDA in the year 2008 for the execution of the sale deed in his favour. The respondent issued the show cause notice, dated 12.1.2009 and cancelled the allotment on 28.5.2010 (Annexure-W). It is this cancellation order, which is being assailed in this petition.

Sri S.V. Giridhar, the learned counsel for the petitioner submits that the agreement, dated 3.5.1962, the terms of which are extracted hereinabove, is virtually in the nature of conveyance only. He submits that the Bangalore Development Authority (''BDA'' for short) has not raised any objection to the subsequent sale transactions. He submits that the industrial shed 10 put up alter taking the approval of the building plan from the Excise Department. He submits that it was used for industrial operations till recently. He further submits that the respondent cancelled the allotment when the petitioner''s request itself was only for the execution of the sale deed.

Sri B.V. Shankaranarayana Rao, the learned counsel appearing for the respondent submits that, as Venkatachalam himself had not become the absolute owner, the question of his transferring the property to Kodandaraman cannot arise at all. As the sale deed executed by Venkatachalam in favour of Kodandaraman itself is void ab initio, the subsequent sale deeds cannot be validated, so contends Sri Shankaranarayana Rao.

it is not in dispute that the CITB made over the industrial plot imposing certain conditions to Venkatachalam if Venkatachalam had violated any of the conditions, it becomes not only the power, but the duty of the CITB (BDA at present) to effect the cancellation of allotment but in a manner known to law. The same has to be done within a reasonable time. Having allotted the industrial plot in 1962, CITB/BDA did nothing to monitor the project-implementation for a period of 46 long years. No explanation whatsoever is forthcoming for inaction and lack of diligence by the BDA in the matter. The BDA appears to have woken up only when it received the request for the execution of the sale deed.

The show cause notice requires the petitioner to explain as to why the lease agreement should not be cancelled. There is no lease agreement as such. The agreement at Annexure-R1 defies all classifications, but by no stretch of imagination it can be held to be a lease agreement. The show cause notice states that (he condition imposed is that within six months the Industry ought to have been established and within two years the construction of the industrial building ought to have been completed.

While issuing the show cause not ice and the impugned order, the respondent has not noticed the note prepared on the basis of the spot-inspection (Annexure-S4). The said not states that an A/C sheet industrial shed is constructed. The relevant material is not taken into consideration. The note at Annexure S4 is not noticed by the decision-maker. If he had only noticed it, he may have arrived at a different decision. On the short ground of the non-consideration of the relevant material, the impugned order is liable to be quashed.

Yet another aspect, which cannot be lost sight of is that the agreement, dated 3.5.1962 (Annexure-R1) does not provide for the cancellation of the allotment; nor the respondent has sought to justify the cancellation of the allotment with reference to the allotment Rules. If the conditions of allotment are violated, the respondent may have to approach the Civil Court for seeking the appropriate reliefs. Because the agreement at Annexure R1 does not provide for re-entry by CITB/BDA on the plot, if he commits breach of its conditions.

Viewed from any angle, the impugned order, dated 28.5.2010 is not sustainable and is liable to be quashed and accordingly it is quashed.

As the petitioners valuable rights in the immovable properties are involved, the matter requires meaningful reconsideration. It would be appropriate for the petitioner to give a representation on his entitlement to the execution of the sale deed and for the respondent to consider the same after affording an opportunity of hearing to the petitioner in the matter if is also open to the respondent to impose such terms that it deems fit and which are permissible in law on the petitioner, if it decides to execute the sale deed in favour of the petitioner.

This petition is accordingly allowed. No order as to costs.