Nagamma vs Karnataka Housing Board Represented

Ram Mohan Reddy, J.—Petitioner claiming to be the widow of State Government Employee who served the Special Task Force at Malemahadeshwara Hills, Chamarajanagar District, having noticed a vacant apartment MIG-FLAT-N-MIG-B bearing No. 675GF, Yelahanka V Phase, constructed by the respondent/Karnataka Housing Board, for short ''KHB'', made a representation on 22.2.2013 for its allotment. Petitioner having come to know that the said apartment was allotted to the 2nd respondent, has presented this petition on the premise that the allotment is in violation of the Karnataka Housing Board Act, 1962 and the Karnataka Housing Board [Allotment] [Amendment] Regulations, 2002, for short ''Regulations'', to quash the temporary allotment letter dated 11.2.2013 Annexure-B and the intimation letter dated 22.2.2013 Annexure-C and for a writ of mandamus to direct the 1st respondent to consider petitioner''s representation Annexure-A and pass orders thereon and for yet another direction to the 1st respondent to dispose of the said apartment by public auction.

First respondent filed a synopsis dated 30.10.2014 enclosing copies of documents Annexures-R1 to R12 and a comprehensive statement of objections of even date, inter alia, denying the allegations while admitting the fact that the allotment of the apartment in favour of the 2nd respondent, though, pursuant to the Board Resolution dated 4.1.2013 Annexure-R4, since 2nd respondent sought allotment of the said flat by letter dated 11.2.2013 and on the very same day, a temporary allotment letter was issued. There afterwards, the 2nd respondent, it is said, made an application bearing No. 60345 in the prescribed form received on 22.2.2013, following which the intimation of allotment dated 22.2.2013 confirmed the allotment of the flat in question in favour of the 2nd respondent on ''full payment sale''. The 2nd respondent having deposited `3,75,650/- towards sale consideration, the sale deed dated 23.8.2013 was registered with the Sub-Registrar, and on 18.9.2013, was issued with a possession certificate and possession of the flat delivered. It is stated that since petitioner''s representation though dated 22.2.2013 was submitted on 23.2.2013, by which time the allotment was confirmed in favour of the 2nd respondent on 22.2.2013 and therefore was not entitled for allotment. It is lastly stated that the petitioner did not produce documents in support of the fact that her husband served in Special Task Force formed for operations in Malemahadeshwara Hills, Chamarajnagar District.

Petition is also opposed by filing statement of objections of the 2nd respondent, inter alia, admitting the temporary allotment letter and the intimation letter as well as execution of the sale deed, payment of consideration and delivery of possession as set out in the statement of objections of the 1st respondent.

Having heard learned Counsel for the parties, perused the pleadings, the only question for decision making is whether the allotment of the residential apartment MIG-FLAT-N-MIG-B bearing No. 675GF, Yelahanka V Phase, in favour of the 2nd respondent is in accordance with Regulation 9A of the ''Regulations''?

Regulation 9A provides for disposal of stray site/house by ''KHB'' to certain categories of persons based upon quantum of each category and reads thus:

In the instant case, even according to learned Counsel for the 1st respondent, the flat in question was the only flat available as a ''stray'' flat since it was once allotted to one A.V. Shanbhag who failed to comply with the terms of allotment and when cancelled, fell within the definition of the term ''stray site/house'' under Regulation 2[n] of the ''Regulations''. If that is so, then the question of complying with Regulation 9A did not arise as one ''stray'' flat could not have been divided so as to sell 40% by public auction; 30% by allotment to eminent persons and others and the balance 30% at the discretion of the Government.

Learned Counsel is candid in his submission that Regulation 9A could not have been followed in the allotment of ''stray'' flat in favour of the 2nd respondent.

The resolution dated 4.1.2013 Annexure-R4 of the 1st respondent/''KHB'' states and authorizes the Commissioner to follow the ''Regulations'' in the matter of allotment of ''stray'' sites and nowhere states that the allotment must be made in contravention of Regulation 9A of the ''Regulations''. Although learned Counsel for the 1st respondent extensively read out the entire resolution to submit that the authorization is to dispose of ''stray'' site even if it is only one, is unacceptable. Neither the Karnataka Housing Board Act, 1962 nor the ''Regulations'' invests jurisdiction in the Board to dispose of one ''stray'' site'' contrary to the provisions of the ''Regulations''. Regulation 9A was not framed with the purpose of disposal of only one ''stray'' site, but disposal of large number of ''stray'' sites, since 40% of the ''stray'' sites have to be set apart for public auction, 30% for Eminent Persons and others and balance 30% at the discretion of the Government.

In the circumstances, the temporary allotment letter dated 11.2.2013 Annexure-B and the intimation of allotment dated 22.2.2013 Annexure-C in favour of the 2nd respondent are illegal and unsustainable. Sequentially, execution of the sale deed, delivery of possession and issue of possession certificate in favour of the 2nd respondent are also illegal.

Learned Counsel for 1st respondent submits that notice is issued to the 2nd respondent on 28.11.2014 to show cause as to why allotment should not be cancelled. In the circumstances, that is a futile effort, but is certainly in the direction of establishing that the 1st respondent accepted the fact that allotment in favour of the 2nd respondent is illegal.

In the result, this petition is allowed in part.

The allotment of apartment known as MIG-FLAT-N-MIG-B bearing No. 675GF, Yelahanka V Phase, in favour of the 2nd respondent is illegal. Annexures-B and C are quashed. The sale deed and delivery of possession are declared null and void. The 1st respondent is directed to reimburse all expenses, amount paid towards stamp duty for registration of the sale deed in favour of the 2nd respondent and the sale consideration. 2nd respondent is directed to deliver and handover vacant possession of the said apartment to the 1st respondent forthwith. 1st respondent is directed to allot the said apartment strictly in accordance with Regulation 9A of the-. ''Regulations'' and in the light of what is noticed supra.

In the facts and circumstances, the relief for a writ of mandamus to direct consideration of petitioner''s application does not survive for consideration.