Karnataka High Court
Smt N Kumari vs City Municipal Council on 27 July, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 15800 OF 2010 (LB-RES)
BETWEEN
Smt. N.Kumari,
W/o. B. Nagaraju,
Aged about 49 years,
Opp.Theosophical Society,
Shidlagatta Road,
Chintamani - 563 125
Chikkaballapur District. ... PETITIONER
(By Sri. Subramanya.R, Adv.
for M/s.A.H. Law Firm)
AND :
1. City Municipal Council,
Chintamani
Chickballapur District,
Represented by its
Commissioner
2. Deputy Commissioner
Chickballapur District,
Chickballapura
3. State of Karnataka
Represented by its
Principal Secretary,
2
Urban Development Department
Vidhana Soudha
Dr. Ambedkar Veedhi,
Bangalore - 560 001. ... RESPONDENTS
(By Sri. Ashok S Mensinkai, Adv. for R1
Sri. N.B. Viswanath, AGA for R2 & 3)
This Writ petition is filed under Articles 226 & 227
of the Constitution of India praying to quash the order
dated 14.07.2005 (Produced vide Annexure-A) passed
by the 1st Respondent. Quash the order on the appeal
No. MUN/APPEAL/10/2005-06 dated 31.03.2010
(Produced vide Annexure-B) passed by the 2nd
respondent, and etc.
---
This Writ Petition coming on for Order this day,
the Court made the following:
ORDER
The petitioner claiming to be the owner in occupation of an immovable property on Siddalaghatta road, Chintamani, of Chikkaballapur district, asserts that a conservancy lane adjoining her property, since in disuse when acts of nuisance were committed by anti- 3 social elements, fenced the lane and constructed a shed measuring 38 feet x 7 feet.
2. It is the allegation of the petitioner that a rival businessman having lodged a complaint with the Lokayuktha over the illegal construction on the conservancy lane, action was directed to be taken against the petitioner, whence the petitioner is said to have made a representation to the first respondent to allot the conservancy lane at an upset price or at the rate fixed by the Town Municipality, as claimed by similarly circumstanced persons. It is stated that the Registrar of Lokayuktha addressed a letter to the Director of Municipal Administration to take action to pull down illegal construction in the conservancy lane. The City Municipal Council ordered the demolition of the structure.
3. Petitioner having filed a writ petition, was directed to approach the Deputy Commissioner under 4 Section - 306 of the Karnataka Municipalities Act, 1964 (for short 'Act'), by order dated 21.07.2005. The Deputy Commissioner by order dated 31.03.2010, confirmed the order of the first respondent and directed demolition of the shed by dismissing the appeal.
4. According to the petitioner, the State Government by circular Annexure - G, permitted the Town Municipalities in the State to allot lands by collecting in addition an amount equivalent to 20% of the value fixed by the Sub-Registrar in the particular locality. The first respondent - Town Municipality, it is further stated, on 28.01.2006, discussed the allotment of the conservancy lane to all the owners of properties adjoining the lanes and resolved to do so.
5. It is reiterated that the State Government empowered the Town Municipalities to allot lanes by following the procedure enumerated in the Circular and in the wake of the resolution of the Town Municipality to 5 allot the lane to the petitioner, has presented this petition, calling in question the order dated 31.03.2010, at Annexure-B of the Deputy Commissioner, in appeal, and for a writ of mandamus to the first respondent, to consider the petitioner's representation dated 09.01.2004, Annexure -C and allot the portion of conservancy lane adjoining the petitioner's property in the light of the circular and resolution Annexure-G.
6. Petition is opposed by filing statement of objections of the first respondent interalia, not disputing the facts, but that the State Government in its Circular dated 02.06.2003, Annexure-R1 prohibited the allotment or selling of any property belonging to local bodies in favour of private individuals and in that view of the matter, the petitioner can derive no benefit from the circular Annexure - G issued in the year 2001 and the resolution passed thereafter.
6
7. For a better understanding of the law governing disposal of public properties by the State and local authorities more appropriately the respondent - Town Municipal Council, it is useful to refer to the relevant provisions of the Karnataka Municipalities Act, 1964 (for short 'Act'). "Conservancy lane" is not defined in the Act, but the term 'street' is defined under sub section - (26) of Section - 2 of the Act to mean - any road, footway, square, court, alley or passage accessible whether permanently or temporarily to the public, ether throughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly and or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon, if it is used by any person as a means of access to or from any public place or throughfare, whether such persons be occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a 7 right at all hours to prevent all other persons from using as aforesaid;
8. Chapter - IX of the Act deals with powers and offences, and powers in respect of 'streets', vesting the jurisdiction in the Town Municipality to make new public street and to construct tunnels and other subsidiary works in respect of streets or close any such streets, and subject to the provisions of sub-sections (1), (2) and (3) of Section - 72 to lease or sell any such land theretofore used or acquired by the municipal council for the purposes of such streets, as may not be required for any public street or for any other purpose of the Act.
9. The proviso to sub-section (1) of Section - 175 states that no public street vesting in the Municipal Council shall be diverted, discontinued or closed before the Municipal Council publishes its intention of doing so and calls for objections and obtains the approval of the Government or such other Officers as may be 8 authorised by the Government to whom a copy of the resolution of the council and the objections thereto shall be forwarded.
10. Regard being had to definition of the word 'street' it is needless to state, takes into its fold a conservancy lane, which it is not in dispute in public property held in trust by the respondent - Town Municipal Council. In the light of the Section - 175(1), what emanates is that the Municipal Council is the trustee of the public property including a 'street' meaning thereby, in the facts of this case a 'conservancy lane' and if not required for any public purpose or for a purpose mentioned under the Act, may dispose of by lease or sale, subject to Section - 72 (1) (2) & (3) of the Act. Further, the proviso to Section - 175(1) requires the Municipal Council before closing a street to publish its intention of so doing, call for objections and seek approval of the Government.
9
11. Section - 72 of the Act deals with competency of the Municipal Council to lease, sell or contract. Sub- section - (1) empowers the Municipal Council to lease, sell and contract the lands belonging to it, insofar as it is not inconsistent with the provisions and purposes of the Act, to enter into and perform all such contracts as it may consider necessary and expedient in order to carry into effect the said provisions and purposes.
12. Sub-section (2) to Section - 72, states that no free grant of immovable property whatever may be its value, no grant for an upset price and no lease for a term exceeding five years, and no sale or other transfer of immovable property exceeding Rs.25,000/- in value shall be valid unless the previous sanction of the Government is obtained.
13. Rule - 39 of the Karnataka Municipalities (Guidance of Officers, Grant of Copies and Miscellaneous Provisions) Rules, 1966, provides the 10 procedure in respect of lease, sale or auction of the movable or immovable properties.
14. Section - 72 (1) (2) and (3) and Rule - 39 of the Rules having came up for interpretation, a Division Bench in the case of Mohan P. Sonu vs. State of Karnataka And Others reported in 1992(2) KLJ 245 (DB) observed thus :
"We find it very difficult to uphold this submission. The object of Rule 39 has been stated in the Judgment of the learned Single Judge of this Court in Jaichand v Town Municipality, Robertsonpet and Others, 1976(1) Kar.L.J.30. We are in agreement with the view there expressed. The object of giving due publicity to the proposal to dispose of rights in respect of a property belonging to a local authority before it is so disposed of is quite obvious. The publication is necessary in order to realise the highest possible income and to prevent persons in-
charge of the Municipal Council from disposing of the rights in favour of persons in whom they are interested. Disobedience of 11 the provisions of Rule 39 cannot be overlooked. It is a mandatory rule intended to protect public revenue. Matters relating to public revenue cannot be dealt with arbitrarily and in the secrecy of an office. Whatever done in that regard should be done in accordance with law, which, in the instant case, requires due publicity to be given to dispose of the property in the prescribed manner."
5.Section 72 is a further safeguard. Publicity given to the proposal of Municipal Council to dispose of property rights under Rule 39 would attract offers from persons interested in acquiring such rights and these offers would enable the State Government io decide whether the sanction of the State Government that is complementary to Section 72 should or should not be given. Rule 39 is, therefore, complementary to Section 72 and both operate together."
15. Viewed in the light of what is aforestated, the circular Annexure - G, of the State Government empowering Municipalities to dispose of public 12 properties at a rate fixed by it (Government) following which, the Town Municipal Council passed a resolution Annexure - H to sell the conservancy lanes at a fixed price, cannot but be held to be illegal and opposed to Rule of Law.
16. It is no doubt true that the State Government by another Circular dated 02.06.2003 Annexure-R1 to the statement of objections of the first respondent retracted from vesting power in the local authority under the Circular dated 09.02.2001, Annexure - G, to dispose off public property, by way of allotment at the rates fixed by it.
17. From the facts narrated in the memorandum of writ petition what is discernable is that the petitioner took law into her hands, put up construction of a shed measuring 28 feet x 7 feet without authority of law so as to close the conservancy lane which actions are in violation of the Rule of Law. If as alleged illegal activities 13 were carried on in the conservancy lane, petitioner's duty was to appraise the State Administration and the State Constabulary which would ensure policing of the area, and not for the petitioner to usurp public property on the premise of trying to put an end to alleged illegal activities.
18. The conduct of the petitioner in usurping public property deserves to be deprecated. In the circumstances, the Deputy Commissioner was fully justified in dismissing the appeal and directing demolition of unauthorised structure put up by the petitioner on the conservancy lane by the order impugned.
19. According to the petitioner a representation was made in the year 2004, stating that she has put up a shed in the conservancy lane and if that is so, she is liable to pay damages for use and occupation of the public property without authority of law. Although a 14 faint effort is made by Shri.Subramanya.R., learned counsel for the petitioner to submit that the petitioner did not make use of the illegal shed, nevertheless there is no material to establish that after the construction of the shed and encompassing the entire conservancy lane by way of fence the petitioner did not put it to use, hence that submission is meritless.
20. In the circumstances, the respondent - Town Municipality Council is directed to issue notice forthwith to the petitioner, assess the area put to use by the petitioner after the construction of the illegal shed and quantify the damages for use and occupation from the year 2004, upto the date of handing over possession of the said property and recover same from the petitioner by way of arrears of land revenue.
21. In the result, petition devoid of merit is rejected. Cost quantified at Rs.20,000/- payable to the Karnataka Children Fund under the Department of 15 Women and Child Welfare, Government of Karnataka, M.S. Building, Bangalore.
Sd/-
JUDGE JJ