'Right To Education Brutalised': Karnataka HC Upholds Land Allotment Cancellation Over Society's Failure To Construct School For Two Decades

A Division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit dismissed the appeal filed by M/s Divyajyothi Vidya Kendra challenging a single judge bench order which had dismissed its petition questioning the order of cancellation of the allotment of the subject land. Further it had directed the 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.

The bench noted that admittedly the subject property is a huge civic amenity site formed in the layout concerned. The allotment of the same was made to the appellant vide allotment letter dated 16.12.2003 followed by the sale deed dated 20.10.2005. The allotment was for the specified purpose of establishing an educational institution by constructing a building therein within a period of five years. That has not happened.

Observing that catering education to the masses is a constitutional imperative in terms of Article 21 and 21A, the Bench said, “This site has remained unutilized for a period of more than two decades that is, till date after it was allotted to the appellant. As a consequence, the right to education of those who would have studied, should the school or educational institution was established in this site in terms of stipulation of allotment, has been brutalised, to say the least.”

It added “All such persons are the inarticulate stakeholders in the allotment and the execution of the purpose for which such allotment was made. Had the site in question been allotted to some worthy person, that would have served the public purpose for which it was earmarked.”

Rejecting the contention of the appellant that the impugned order could not have directed cancellation of sale deed, the bench said, “It is a public property and the allotment was subject to the condition that a building should come up within five years; admittedly that has not happened; the sale deed dated 20.10.2005 is admittedly a conditional Sale Deed.”

It held “If this condition is breached with no plausible explanation whatsoever therefore, the allotment is liable to be voided and as a consequence, the conditional sale deed becomes liable to be set at naught.”

Further it held “Karnataka Housing Board is a creature of law namely, the Karnataka Housing Board Act, 1962. The allotment of sites and execution of sale deeds are done in terms of statutory policy and not as a private arrangement. In other words, they have abundant public law elements and therefore, they are liable to suffer judicial scrutiny of the Writ Court under Articles 226 and 227 of the Constitution of India.”

The court also refused to accept the appellant's contention that he had financial difficulty and therefore he could not undertake construction. It said “Condition No.2 in the Sale Deed specifically enabled the appellant to raise loan by mortgaging the site in question, for constructing the school building. Why that was not done remains a mystery wrapped in enigma. Therefore, the contention that the funds were not available for taking up construction of the building falls to the ground.”

The court also rejected the claim made by the appellant that construction of the structure has begun and that the same would be completed within a month or two. Terming it as an unconstitutional afterthought, the bench observed,

“What is found to be a non-compliance of a conditional allotment of site, does not wither away by highly belated efforts of compliance. What the court has to see is whether the structure is built within two years as stipulated in the so-called conditional sale deed and nothing beyond that. No rule of binding conduct or ruling is brought to our notice which authorises the extension of stipulated period or for the condonation of enormous delay in endeavouring the compliance of condition. One has to keep in mind that the allotment of the civic amenity sites, although creates interest to an extent, is onerous and the allottee holds the property in a kind of public trust so that the property is put to specified use.”

Dismissing the appeal the court said, “If leniency is shown in matters of breach, that would be tantamount to placing premium on illegality. It would be a case of misplaced sympathy too. What we cannot lose sight of is that the petitioner is not a poor person or a mendicant; nor he is a farmer hailing from a rural background. It is a society registered under the provisions of the Karnataka Registration of Societies Act, 1960 vide Certificate of Registration dated 28.09.1991 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.”

Appearance: K DIWAKAR., SENIOR COUNSEL FOR SRI. NEERAJ RAJIV SHIVAM.,ADVOCATE for Appellant.

Citation: 2023 LiveLaw (Kar) 394

Case Title: M/s Divyajyothi Vidya Kendra And Karnataka Housing Board & Others

Case No: WRIT APPEAL NO. 873 OF 2023

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