Karnataka High Court
Sri. H.T. Ramesh vs The State Of Karnataka on 17 November, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.25585 of 2019 (LB-RES)
BETWEEN
1. SRI H T RAMESH
S/O SRI THIMMEGOWDA
AGED ABOUT 39 YEARS
RESIDING AT SHANTHINAGAR
BELURU-HALEBEEDU MAIN ROAD
BELUR TOWN-573 115
HASSAN DISTRICT
2. SMT. B C MOHAN KUMARI
W/O LATE B C MANJEGOWDA
AGED ABOUT 59 YEARS
RESIDING AT KANAKADASA STREET
KOTE, BELUR TALUK-573 115
HEBBAL POST, HASSAN DISTRICT
3. SRI DHARME GOWDA
S/O SRI SANNEGOWDA
AGED ABOUT 59 YEARS
RESIDING AT SHIVALADAHALLI VILLAGE
HEBBAL POST
HALEBEEDU HOBLI
BELUR TALUK-573 115
HASSAN DISTRICT
...PETITIONERS
(BY SRI N R NAIK., ADVOCATE, thro' VC)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
2
URBAN & RURAL DEVELOPMENT DEPARTMENT
VIDHANA SOUDHA
BENGALURU-560 001
2. THE DIRECTOR
URBAN RURAL PLANNING DEPARTMENT
BENGALURU-560 007
3. THE MEMBER SECRETARY
BELURU-HALEBEEDU PLANNING AUTHORITY
NEAR TALUK OFFICE
CHIKKAMAGALUR ROAD, BELUR
HASSAN DISTRICT-577 201
4. THE ASSISTANT COMMISSIONER
SAKALESHAPURA SUB-DIVISION
SAKALESHAPURA
HASSAN DISTRICT-573 201
5. THE CHIEF EXECUTIVE OFFICER
MUNICIPALITY
BELUR, HASSAN DISTRICT-573201
...RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, AGA for
R.1, R.2 & R.4
SRI A RAVISHANKAR, ADVOCATE for R.3 & R.5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
READ WITH ARTICLE 14 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT RESPONDENT NO.2 TO PASS APPROPRIATE ORDER ON THE
RECOMMENDATION MADE BY RESPONDENT NO.3 WHICH IS PRODUCED
AT ANNEXURE-D AND CLARIFY THE SAME; DIRECT RESPONDENT NOS.3
AND 5 TO APPROVE THE PLAN SUBMITTED BY THE FIRST PETITIONER IN
RESPECT OF SITE BEARING NO.22, FORMED IN SY.NO.66, KATHA
NO.5379/4219/B MEASURING INTO EXTENT 30X50 FEET OF BELUR
VILLAGE, BELUR TALUK, HASSAN DISTRICT VIDE ANNEXURE-G.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
Petitioners, in this writ petition, seek for a direction by issuance of a writ in the nature of mandamus directing the second respondent to pass appropriate orders on the recommendation made by the third respondent in respect of Site bearing No.22 formed in Survey No.66, measuring 30ft. x 50ft., at Belur Village, Belur Taluk, Hassan District.
2. Heard Sri N R Naik, learned counsel appearing for the petitioners, Smt. Prathima Honnapura, learned Additional Government Advocate appearing for respondent Nos.1, 2 and 4 and Sri A Ravishankar, learned counsel appearing for respondent No.3 and 5.
3. Brief facts leading to the filing of the present petition as borne out from the pleadings are as follows;
The second petitioner claims to be the owner of Site bearing No.22 in Katha No.5379/4219/B, measuring 30ft. x 50ft. The petitioner comes in possession of the said property pursuant to a layout formed by the land owner, which was approved by the Belur- Halebeedu Planning Authority. While the approval of the plan was 4 granted, a portion of the property was earmarked for the purpose of civic amenity-park area. The park area comprised of three sites i.e. Site Nos.21, 22 and 23. It transpires that, subsequently, the park that was supposed to be in the area that was earmarked earlier was shifted away and Site Nos.21 and 23 were granted approval for constructions to be made. The petitioner also submitted an application seeking approval of a plan for construction in the property at Site No.22 which she owns on the ground that Site Nos.21 and 23 were accorded approval by the Planning Authority for such construction. The Assistant Commissioner, Sakaleshpura Sub-Division, also recommended the case of the petitioner noticing the fact that the park area which was in the approved plan had been shifted elsewhere and there was no impediment for grant of approval for construction to the petitioner. This having not been considered by the Planning Authority, the third respondent herein, the petitioners have knocked the doors of this Court seeking a direction to consider and pass appropriate orders.
5
4. Learned counsel Sri N R Naik appearing for the petitioners would submit that the third respondent Planning Authority is practicing invidious discrimination as Site Nos.21 and 23, which are adjacent to the site of the petitioner at Site No.22, have been accorded approval for construction and the petitioner cannot be denied of a approval on the plea of parity and would contend that the park itself is not now in the plan and shifted elsewhere. Therefore, the impediment that existed earlier is no longer in existence and seeks writ petition to be allowed by directing the third respondent to approve the plan.
5. On the other hand, learned counsel Sri A Ravi Shankar would vehemently refute the submission and contend that the entire layout formed is illegal as the entire layout is formed on a temporary plan. There was final approval granted for the formation of the layout. The construction in Site Nos.21 and 23 are also of a similar nature where a temporary draft plan was submitted for approval and the same had been approved and would submit that merely because a mistake has been committed by the Planning Authority in the case of Site Nos.21 and 23, it would enure to the 6 benefit of the petitioner to contend that he be granted the same benefit.
6. I have given my anxious consideration to the submissions of the respective learned counsel and have perused the material on record.
7. The afore-narrated facts not being in dispute need not be iterated. It is not in dispute that the layout is formed out of a draft approved plan submitted and a temporary approval granted. The plan that was submitted by the owners of the property bearing Site Nos.23 and 21 were also granted approval on the basis of the draft layout plan or plan that was submitted by these owners for its approval. The sanction of plan to Site Nos.21 and 23 have not yet come about as could be seen in the affidavit filed by the third respondent Planning Authority. The third respondent Planning Authority has also, in its statement of objections, contended that approval granted to Site Nos.21 and 23 was a mistake on the part of the Authority.
7
8. A perusal at the plan appended to the objections filed by the Planning Authority would clearly indicate Site Nos.21, 22 and 23 being in the area to be reserved for civic amenity and park etc. The said area is in Sy.No.67/4, it is where the properties of the petitioners are also situated. The plan that is appended to the writ petition is not the one that has to be taken into consideration, but the plan that is appended to the statement of objections, for the reason that, it is the plan that is approved by the authority, albeit being a temporary approval.
9. The issue now remains, is as to how the authority could have granted approval to site owners in Site Nos.21 and 23 while those sites were also in Survey No.67/4 which were in the civic amenity area. The contention of learned counsel for the petitioners is that on parity, the petitioner's area which is Site No.22 also should be approved is unacceptable as the sites that are approved at Site Nos.21 and 23 are admittedly in a area earmarked for civic amenity. Therefore, if any illegality is crept-in in the approval of Site Nos.21 and 23, the same illegality cannot be directed to be 8 committed by this Court, by directing approval of the property of the petitioner, as it would amount to perpetuation of such illegality.
10. Article 14 of the Constitution of India which the learned counsel for the petitioners seeks to press into service cannot operate in an area where the result of such direction issued would result in an illegality. Equality is a positive concept, there can be no negative equality in law; two wrongs can never make a right. The view of mine, in this regard, is fortified by plethora of judgments of the Hon'ble Apex Court where the Apex Court delineates the concept negative equality in law, to quote a few, the Apex Court in the case of Union of India and Another vs. International Trading Co. and another reported in (2003) 5 SCC 437, has held as follows;
"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that 9 aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."
Later, the Apex Court in the case of Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore vs. President, Indore Development Authority reported in (2006) 2 SCC 604, has held as follows;
"8. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically 10 denied by the Authority, to be true that does not confer any right on the appellant. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality."
In a later judgment, the Apex Court in the case of Vishal Properties (P) Ltd. Vs. State of Uttar Pradesh and others reported in (2007) 11 SCC 172, the Apex Court holds as follows;
"13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality 11 and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In Sushnta Tagore v. Union of India this Court rejected such a contention as sought to be advanced in the present case by observing:
"36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality."
14. This view also finds support from the judgments of this Court in Sneh Prabha v. State of U.P., Secy. Jaipur Development Authority v. Daulat Mal Jain, State of Haryana v. Ram Kumar Mann and Faridabad CT Scan Centre v. D.G. Health Services.
12
15. In Financial Commr. (Revenue) v. Gulab Chand this Court rejected the contention that as other similarly situated persons had been retained in service, persons senior to the petitioner could not have been discharged during the period of probation observing that even if no action had been taken in similar situation against similarly situated persons then too it did not confer any legal right upon the petitioner.
16. In Jalandhar Improvement Trust v. Sampuran Singh and Union of India vs. Rakesh Kumar this Court held that courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.
17. Any action/order contrary to law does not confer any right upon any person for similar treatment. (See State of Punjab v. Dr. Rajeev Sarwal, Yogesh Kumar v. Govt. of NCT, Delhi,; Union of India v. International Trading co. and Anand Buttons Ltd. V. State of Haryana."
11. In light of the aforesaid judgments of the Apex Court which delineate that equality being a positive concept and that there cannot be negative equality in law. No right can be claimed by the petitioners, even for issuance of a mandamus for the purpose of 13 committing the very same wrong that has been committed in granting approval to Site Nos.21 and 23. It is for the authority to take such remedial action and not shut its eyes towards illegality in such layouts which come about on draft plans or temporary approvals. It is high time that the third respondent authority sets its house in order and not perpetuate such illegalities on temporary approval and permit constructions to come up in terms of temporary approvals that are granted.
12. For the aforesaid reasons, I do not find any merit in the writ petition. Accordingly, the writ petition stands dismissed.
Sd/-
JUDGE mv