- 1 - NC: 2025:KHC:4152 WP No. 11997 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 11997 OF 2023 (LB-RES) BETWEEN: 1. M/S NETHAJI EDUCATIONAL SOCIETY VINOBHA NAGAR, SHIMOGA-577201 REPRESENTED BY ITS SECRETARY, SRI K.S. RANGANATH. …PETITIONER (BY SRI. T.P.VIVEKANANDA., ADVOCATE) AND: 1. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, 4TH FLOOR, BANGALORE-560001 REPRESENTED BY ITS SECRETARY. 2. SHIMOGA-BHADRAVATHI URBAN DEVELOPMENT AUTHORITY SHIMOGA-577201 REPRESENTED BY ITS COMMISSIONER …RESPONDENTS (BY SRI. BOPANNA BELLIAPA., AGA FOR R-1; SRI. A.V.GANGADHARAPPA., ADVOCATE FOR R-2) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE DIRECTION TO Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4152 WP No. 11997 of 2023 THE R1 TO CONSIDER THE REPRESENTATION DATED 05.09.2020 AT ANNEXURE-AE AND DIRECT THE R2 TO EXECUTE THE ABSOLUTE SALE DEED IN RESPECT OF THE PETITION SCHEDULE SITE TAKING NOTE OF THE ORDER DTD 12.06.2009 IN W.P.NO.3237/2007 AT ANNEXURE-Y, JUDGMENT DATED 02.11.2010 IN W.A.NO.2859/2009 AT ANNEXURE-Z. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA ORAL ORDER 1. The prayer in this petition is for issuance of a direction to respondent No.1 to consider the representation dated 05.09.2020 copy of which is produced at Annexure “AE” and also to direct respondent No.2 to execute the absolute sale deed in respect of the petition schedule site. 2. The facts in brief are that, on 07.01.1985, the petitioner had applied for allotment of a site from the then City Improvement Trust Board (“CITB”), Shimoga. CITB resolved to allot a plot measuring - 3 - NC: 2025:KHC:4152 WP No. 11997 of 2023 28x18 meters in favour of the petitioner for the purpose of constructing a school building on lease- cum-sale basis. 3. A lease-cum-sale agreement was also executed in favour of the petitioner on 26.09.1987 after the petitioner had paid the requisite allotment price. This registered lease-cum-sale agreement, as could be seen from Annexure ‘J’, is referable to Rule 22(4)1 of the Karnataka Improvement Boards Rules, 1976 (for short, ‘the 1976 Rules’), which prescribes Form No.II, for executing a lease-cum-sale agreement in respect of the site allotted by the erstwhile CITB. 1 22. Conditions of allotment and Sale of site :- The allotment of a site under these rules shall be subject to the following conditions: (1) x x x (4) After the payment under sub-rule (2) is made, the Board shall intimate the allottee the actual measurement of the site and the particulars thereof and a lease- cum-sale agreement in Form II shall thereafter be executed by the allottee and the Board and registered by the allottee. If the agreement is not executed within forty- five days after the Board has intimated the actual measurements and price of the site to the allottee, the earnest money paid by the allottee may be forfeited, the allotment of the site may be cancelled and the amount paid by the allottee after deducting the earnest money be refunded to him. Every allottee shall construct a building on the site in accordance with the plan and design approved by the Board. If in any case it is considered necessary to add any additional conditions in the agreement, the Board may make such conditions. Approval of the concerned Municipal Council or Corporation of the plans and designs shall be necessary when the layout in which the site is situated is transferred to the control of the said Municipal Council or Corporation. - 4 - NC: 2025:KHC:4152 WP No. 11997 of 2023 4. Clause 12 of the said lease-cum-sale agreement reads as follows: “12. If the Lessee/Purchaser has performed all the conditions mentioned herein and committed no breach thereof the Lesser/Vendor shall at the end of ten years referred to in clause I2 sell the property to the Lessee/Purchaser and all attendant expenses in connection with such sale, such as stamp duty, registration charges, etc., shall be borne by the Lessee/Purchaser.” 5. As could be seen from Clause 12, on the lessee performing all the conditions mentioned therein and having committed no breach, the vendor is mandatorily required to execute a sale deed in favour of the lessee—purchaser at the end of ten years. 2 “1. The Lessee/Purchaser is hereby put in possession of the property and this Lessee/purchaser shall occupy the property as a tenant thereof for a period of ten years from (here enter the date of giving possession) 26.09.1987 or in the event of lease being determined earlier till the date of such termination. The amount deposited by the Lessee/Purchaser towards the value of the property shall during the period of tenancy, be held by the Lessor/Vendor as security deposit for the due performance of the terms and conditions of these presents.” - 5 - NC: 2025:KHC:4152 WP No. 11997 of 2023 6. In other words, as per this registered lease-cum-sale agreement, the CITB undertook that it would execute a sale deed at the end of ten years in favour of the petitioner if all the conditions of lease had been complied with. 7. On the completion of ten years, the petitioner made an application for execution of the sale deed, but this was refused by the Authority on the ground that the sale deed could not be executed in respect of a civic amenity site. 8. It appears that, thereafter one more request was made by the petitioner in the year 2009 and the authorities sought a clarification from the Government and the Government vide communication dated 15.02.2010 directed the Authority to dispose of the said request at its level itself. 9. The Authority proceeded to issue an endorsement dated 23.03.2010 stating that they would be - 6 - NC: 2025:KHC:4152 WP No. 11997 of 2023 agreeable to extend the lease period for a further period of thirty years, but they would not be prepared to execute a sale deed. 10. It appears that the Authority requested the Government to permit them to extend the lease period in favour of the petitioner for a further period of thirty years and the Government by its communication dated 28.06.2024 granted its prior approval for extension of the lease period. 11. The petitioner has thereafter submitted one more representation and since the same was not considered, he has approached this Court by way of this writ petition. 12. It is the case of the petitioner that the allotment was made by the erstwhile CITB which was constituted under the Karnataka Improvement Boards Act, 1976 and consequently, the allotment of sites was as per the Rules framed under the said Act. - 7 - NC: 2025:KHC:4152 WP No. 11997 of 2023 13. It is sought to be contended that under the 1976 Rules, there could be an allotment of site under either Rule 8 or under Rule 10 and in both these cases, the Rules mandated that the initial allotment would be for a period of ten years and on the expiry of ten years, the allottee was entitled to get a sale deed. 14. It is contended that the 1976 Rules are applicable to all kinds of properties that are allotted inasmuch as a site referred to in Rule 8 or Rule 10 has not been defined under the Rules to mean only a residential site. 15. It is contended that since the lease-cum-sale agreement was also executed in the Form prescribed under the Rules and Rule 22 and Clause 12 of the lease-cum-sale agreement also stated in categorical terms that on the expiry of 10 years, the sale deed was to be executed, the Authority was bound to execute the sale deed. - 8 - NC: 2025:KHC:4152 WP No. 11997 of 2023 16. The learned counsel for the Authority, on the other hand, contends that the site in question was essentially a civic amenity site and therefore, there is no question of conveying a civic amenity site. It is also sought to be contended that the petitioner’s request for conveying the property was refused twice and these orders had not been challenged and therefore, the present writ petition would not survive for consideration. 17. In response to the said contentions regarding not challenging the earlier Resolution, the learned counsel for the petitioner submits that a mere rejection by the Authority contrary to the Rules would be non est. It is contended that since the petitioner has clearly made out a case that a property even if allotted for constructing a school can be conveyed, the said argument would be of no consequence. - 9 - NC: 2025:KHC:4152 WP No. 11997 of 2023 18. It is also sought to be highlighted that in respect of two similar educational institutions, the Authority itself has executed a sale deed in respect of those two institutions. 19. Sri.A.V.Gangadharappa, learned counsel for respondent No.2/Authority, however, responds by stating that these two properties were conveyed to two other institutions because of a direction issued by the Government and not by the Authority itself. 20. In light of the arguments advanced, the question that will have to be considered is: “Whether the Authority can refuse to execute the sale deed firstly after it made an allotment as per the 1976 Rules and after it had executed a lease-cum-sale agreement in the form prescribed under the said Rules.” 21. The Karnataka Improvement Boards Rules, 1976 are the Rules framed in exercise of power under Section - 10 - NC: 2025:KHC:4152 WP No. 11997 of 2023 69 of the Karnataka Improvement Boards Act, 1976 (for short, ‘the 1976 Act’). These Rules provide for several matters relating to the improvement boards including the matter relating to the allotment of sites. 22. Rule 8 of the 1976 Rules provide for offer of site for allotment and stipulate that whenever the Board has formed a residential layout in pursuance of any scheme, it may, subject to general or special orders of the Government, offer any site in such a layout for allotment under these Rules. 23. It is pertinent to state here that though a stray site has been defined under Rule 2(12), a site as such has not been defined under the 1976 Rules. 24. It may also be pertinent to state here that Rule 11 of the 1976 Rules contemplates disposal of sites for charitable purposes i.e., the sites which were allotted on a lease basis to registered charitable institutions for the purpose of construction of schools, colleges, - 11 - NC: 2025:KHC:4152 WP No. 11997 of 2023 play grounds, hostels, temples, community centres, etc. 25. It may be pertinent to state here that even in this Rule 11, which relates to allotment of property for the purpose of construction of schools, colleges, play grounds, etc., which are obviously not for residential purpose, the Rule uses the term sites. It is therefore clear that the term site used in the 1976 Rules would be applicable to all kinds of sites, whether it is residential or non-residential, which can be allotted by the Authority. 26. In that view of the matter, it really would be of no significance as to whether the site that had been allotted by the Board was for a residential or for non- residential purpose. As a consequence, if a site is allotted, the conditions that are to be applied for allotment of a site can only be as per Rule 22. 27. Sub-clause (7) of Rule 22 of the 1976 Rules reads as follows: - 12 - NC: 2025:KHC:4152 WP No. 11997 of 2023 “22. Conditions of allotment and Sale of site.- The allotment of site under these rules shall be subject to the following conditions:- (1) x x x (7) (a) On the expiry of the period of ten years and if the allotment has not been cancelled or the lease has not been determined in accordance with these rules or the terms of the agreement in the meanwhile the Board shall by notice call upon the allottee to get the sale deed of the site executed at his own cost within the time specified in the said notice, (b) If the allottee fails to get the sale deed executed within the time so specified, the Board shall itself execute the sale deed and recover the cost and other charges, if any, incidental thereto from the allottee as if the said amount is due to the Board.” 28. It is thus clear that even the statutory rule clearly states that on the expiry of the period of ten years, if the allotment has not been cancelled, the Board is required to call upon the allottee to get the sale deed - 13 - NC: 2025:KHC:4152 WP No. 11997 of 2023 executed at his own cost and sub-clause (b) of Rule 22(7), in fact, goes to the extent of saying that if the allottee fails to get the sale deed executed within the time specified, the Board shall by itself execute the sale deed and recover the cost and other charges, if any, from the allottee in this regard. 29. This therefore clearly indicates that the Authority is bound to execute a sale deed on the expiry of ten years in favour of the allottee and if the allottee does not come forward to get the sale deed executed, it is obliged to execute the sale deed in favour of the allottee and recover the cost thereof. 30. As already stated, since the 1976 Rules contemplate allotment of a site and a site includes a site which has to be allotted for non-residential purposes, it is obvious that Rule 22(7) of the 1976 Rules would apply even in respect of the sites which are allotted for the purpose of running schools. - 14 - NC: 2025:KHC:4152 WP No. 11997 of 2023 31. At this stage, it is relevant to notice Rule 11 of the 1976 Rules. Rule 11 reads as follows: “11. Disposal of sites for charitable purposes.- Notwithstanding anything contained in these rules, sites may be allotted on lease basis, to registered charitable institution for purposes of construction of schools, colleges, playgrounds, hostels, temples, community centres and recreation clubs on such rent as may be fixed by the Board. The Government may call for the records and revise the rent if it is satisfied that the rent fixed is too low. After the expiry of the lease period the entire land with Buildings and constructions therein shall vest in the Board free from all encumbrances. But, such sites may be conveyed by the Board to such institutions, after recovering such expenditure, if any, as it may have incurred: Provided that no amount towards such expenditure shall be recovered by the Board in the case of persons belonging to backward class, Scheduled Castes and - 15 - NC: 2025:KHC:4152 WP No. 11997 of 2023 the Scheduled Tribes if so directed by Government.” (emphasis supplied) 32. As could be seen from Rule 11, in order to attract Rule 11, the allotment should be to a registered charitable institution for the purpose of constructing a school or such other purposes as provided therein. 33. Thus, only if the allotment is sought to be made to a registered charitable institution for any purposes mentioned in Rule 11, can Rule 11 be applicable. 34. Admittedly, in the instant case, it is not the case of the Authority that the petitioner is a registered charitable institution. It is therefore clear that no reliance can be placed on Rule 11 of the 1976 Rules to contend that on the expiry of the lease period, the property would vest with the Board. 35. In this view of the matter, it is clear that there is an obligation on the part of the Authority to execute a - 16 - NC: 2025:KHC:4152 WP No. 11997 of 2023 sale deed in favour of the petitioner on the expiry of the period of ten years. 36. As far as the argument of the Authority that the earlier claim of the petitioner was rejected not once but twice and the same having not been challenged, the petitioner cannot seek for a mandamus in this regard, is concerned, it has to be stated here that if it is the statutory obligation of the Authority to execute a sale deed on the expiry of ten years, as contemplated under Rule 22(7)(a) and (b) of the 1976 Rules, it would be impermissible for the Authority to put forth the contention that it had rejected the claims of the petitioner earlier and therefore, that has become final. 37. 37. If the statute creates an obligation on the Authority, the Authority cannot get over the statutory obligation by placing reliance on its understanding of the Rules and to contend that it had rejected the request of the petitioner. I am therefore of the view that this - 17 - NC: 2025:KHC:4152 WP No. 11997 of 2023 argument of the respondent Authority cannot be accepted. 38. It may also be pertinent to state here that the Authority itself has executed two sale deeds in respect of the two educational institutions. 39. It may no doubt be true that the Authority had secured the concurrence of the Government for conveying the said property to schools. However, the Rules, as such, do not prescribe any requirement of obtaining a sanction of the Government for conveying the property. 40. Another argument of the learned counsel for the Authority that Rule 10 of the Karnataka Urban Development Authorities (Allotment of Civil Amenities Sites) Rules, 1991 prohibits conveyance of civic amenities and only enables the properties to be leased and hence, the prayers of the petitioner cannot be considered. - 18 - NC: 2025:KHC:4152 WP No. 11997 of 2023 41. In my view, this argument is completely misconceived. Admittedly, the Urban Development Authorities Act, 1987 came into force only in the year 1987 and the Karnataka Urban Development Authorities (Allotment of Civil Amenities Sites) Rules, 1991 were framed in the year 1991 and in this case, the allotment was made in the year 1985 under the then prevalent Karnataka Improvement Boards Rules, 1976. 42. It is obvious that a statutory Rule which came into force nearly six years after the allotment was made cannot be pressed into service and the Authority cannot contend that the allotment made earlier would require the application of subsequent Rules. 43. As already narrated above, the 1976 Rules are clear that on the expiry of ten years, the Authority is bound to execute a sale deed. Therefore, the question as to whether the Government was required to grant approval or not would be an improper - 19 - NC: 2025:KHC:4152 WP No. 11997 of 2023 argument to be advanced by the Authority. The question for consideration is answered accordingly. 44. In the result, the following: ORDER (a) The writ petition is allowed. (b) The respondent—Authority is directed to execute a sale deed in favour of the petitioner within a period of two months from the date of receipt of a copy of this order. Sd/- (N S SANJAY GOWDA) JUDGE RK List No.: 1 Sl No.: 35