MALLIKARJUN M KALASRAY Vs. COMMR BELGAUM DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) By this petition, the petitioner has prayed for issuance of writ, order end direction in the nature of writ of certiorari quashing the impugned order dated 19-11-1991 passed by the respondent. That order has been annexed as Annexuie 'A' to the writ petition and the petitioner has further claimed the writ in the nature of mandamus directing the respondent to collect the initial deposit of 250 of the site value from the petitioner and to handover the possession of the site bearing No. 553 under Scheme No. 13 as well as o issue any other writ or order as this Court deems fit.

(2.) The facts of the case in brief are that the petitioner had applied for allotment of site measuring 60 x 40 ft. under Scheme No. 13 and paid registration fee of Rs. 500/- on 30-4-1988 vide receipt No. 16047. According to the petitioner's case he had paid initial deposit of Rs. 6,250/- vide receipt No. 2690 on 8-8-1990 and subsequently petitioner again on 16-10-1992 registered with the respondent for allotment as per notification dated 16-10-1991 and vide receipt No. 10414, the difference of amount of Rs. 625 /- was also paid. According to petitioner's case when petitioner was out of station and was not in Belgaum (instead he was in connection with contract work at Hubli) the petitioner has come to know by the order Annexure 'A' that site bearing No. 553 under Scheme No. 13 was allotted to the petitioner on 10-11-1990. The petitioner's cage is that he had received an intimation and bill dated 19-11-1991 from respondent whereby petitioner was informed that petitioner having failed to make deposit of 25% of the site value i.e., an amount of Rs. 7,500/- within a period of 15 days from the date of receipt of intimation of allotment, the respondents had cancelled the allotment of site measuring 40 x 60 which had been made in favour of the petitioner. The petitioner had annexed a copy of the order as Annexure 'A'. The petitioner's case is that in fact he had not received any intimation of allotment except the communication dated 19-11-1991, as he had been out of station at Hubli in connection with his contract work. The petitioner submitted that he made representation to the Commissioner on 6-12-1991 wherein it has been stated that the letter dated 19-11-1991 had been received by him on 17-11-1991 from the office of BIJDA stating that allotment of site No. 553, under Scheme No. 13 had lien cancelled fide resolution dated 28-12-1991 and he made the prayer that in the circumstances of the case, his case may be considered sympathetically and that the plot No. 553 under Scheme No. 13 be allotted to him. The petitioner's case is that he made another representation to the Hon'ble Minister on 29-1-1992 to the same effect and lastly he made a fresh representation to the Commissioner on 12-8-1992. The petitioner's case is that his grievances were not made and he did not receive any letter of allotment or communication in that regard from the opposite parties. The petitioner having found no other relief available to him, filed this petition under Articles 226 and 227 of the Constitution of India.

(3.) That on behalf of the opposite parties, appearance have been put up by Sri Basava Prabhu Patil, an Advocate of this Court. The learned counsel for the petitioner had submitted that the petitioner did not receive any intimation or information regarding allotment of the site No. 553 in his favour and as such he could not make the requisite deposit. The submission of the petitioner's counsel is that he had been out of station and so he could not get any information or any notice and any intimation if sent was not served on him. The learned counsel for the petitioner submitted that in this view of the matter and in the circumstances mentioned above, the requisite amount of 25% could not be deposited within the time. Sri Patil, counsel for the respondents submitted and placed before me a photostat copy of the envelope in which notice was kept and sent to petitioner and later on returned to respondent as unserved or unclaimed in support of his contention to the effect that intimation was sent to the petitioner by registered post on the petitioner's address given by the petitioner i.e., which he had supplied to the office of the Commissinner and which is same as mentioned in the writ petition. Sri Patil submitted before me that as for 15 days from the date of giving of the intimation or notice of allotment to the petitioner, the petitioner did not make any deposit as required under Rule 22(1) of Karnataka Improvement Board Rules, 1996, the opposite parties validly cancelled the allotment order. Sri Patil very strenuously urged that in view of Rule 22(1) of Karnataka Improvement Board Rules, 1976, once the notice had been addressed and posted after, mentioning the correct address of the petitioner, the notice of allotment should be deemed to have been given to and served on the petitioner in view of provisions of Section 27 of the Karnataka General Clauses Act as well and it is an admitted fact that the 121/2% of the balance of 25% of the initial amount not having deposited within a period of 15 days the authorities rightly cancelled the allotment. The learned Counsel for the petitioner further urged that the order impugned i.e., the order of cancellation of the allotment, had not been passed after having served a prior notice to the petitioner to show cause and so cancellation order passed without giving a prior show cause notice was wrong bad in the eye of law as mentioned in para 12 of the writ petition. Sri Patil in reply to the above contention of the petitioner submitted that there is no doubt that Annexure 'A' does not indicate that any prior show cause notice was addressed to the petitioner before cancellation of the allotment order but this fact has not been asserted by the petitioner specifically in the narration of facts except that in the grounds and therefore it involves the question of fact that it need not be considered. But he says that it is no doubt true that if an order which has got civil consequences has been passed in violation of the principles of natural justice without giving show cause notice to person concerned the said order cats be said to be void and Sri Patil has been very fair I may mention in making submission in this regard as regards the proposition of law. Shri Patil submitted if it is thought necessary to decide the petition on this point, he may be allowed to ascertain if any show cause notice was given to petitioner before the passing order of cancellation as allegations of para 12 of writ petition are vague not very specific: