Karnataka High Court
Urban Development vs The Karnataka And Anr on 4 March, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC-K:1940
WP No. 207268 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
WRIT PETITION NO. 207268 OF 2017 (GM-RES)
BETWEEN:
URBAN DEVELOPMENT AUTHORITY VIJAYAPUR,
BASAVAN BAGEWADI ROAD, VIJAYAPUR
REPT BY ITS COMMISSIONER.
...PETITIONER
(BY SRI. S. S. HALALLI, ADVOCATE)
AND:
1. THE KARNATAKA STATE
COMMISSION FOR SCHEDULE CASTE
AND SCHEDULE TRIBE No.14/3, 2ND FLOOR,
CFC BUILDING NRUPATUNGA ROAD,
BANGALORE-500001.
REPT BY ITS SECRETARY
Digitally signed
by SHILPA R
TENIHALLI
2. THE PRESIDENT
Location: High
Court Of SINDAGI TALUKA BANJARA SEVA SANGH
Karnataka H.No.840, KIRTI NAGAR, MANAGULI ROAD,
VIJAYAPUR-586101.
...RESPONDENTS
(BY R-1 IS SERVED
SRI. BASAVARAJ KAREDDY, ADVOCATE FOR R2,)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER ORDER IN
THE LIKE NATURE, QUASHING THE ORDER/DIRECTION
DATED-24.08.2016 VIDE CASE No.594/2016(MISC)
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NC: 2024:KHC-K:1940
WP No. 207268 of 2017
PASSED BY THE FIRST RESPONDENT AUTHORITY
(ANNEXURE-J.
THIS WRIT PETITION IS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Urban Development Authority, Vijayapura - the writ petitioner has filed this writ petition with the following prayer:
"The petitioner respectfully prays that this Hon'ble Court may be pleased to:
1. Issue a writ of certiorari or any other order in the like nature, quashing the order/Direction dated 24.08.2016 vide case No.594/2016 (Misc) passed by the first respondent authority (Annexure-J) in the interest of justice.
2. OR to pass any other order as this Hon'ble Court deems fit under the facts and circumstance of the case in the interest of justice."
2. Facts in brief are as under:
Sindagi Taluka Banjara Seva Sangha applied for a site for the purpose of establishing an Education Institution. They are entitled for the allotment at 50% of the value of -3- NC: 2024:KHC-K:1940 WP No. 207268 of 2017 the site under Rule 8 (4) (B) of The Karnataka Urban Development Authorities (Allotment of Civil Amentiy Sites) Rules, 1991. Therefore, second respondent to the writ petition, sought such benefit by approaching the first respondent.
3. First respondent after considering the requests made by the President, Sindagi Taluka Banjara Seva Sangha, directed Commissioner, Urban Development Authority, Vijayapura and passed a direction as under:
¤zÉÃð±À£À "¥Àw æ ªÁ¢AiÀÄgÀÄ PÀ£ÁðlPÀ £ÀUg À Á©üªÀÈ¢üÝ ¥Áæ¢Pü ÁgÀUÀ¼À (£ÁUÀjÃPÀ ¸ËPÀAiÀÄ𠤪ÉñÀ£U À ¼ À À ºÀAaPÉ) ¤AiÀĪÀÄ 1991gÀ 8(4)(©) gÀ£éA À iÀÄ ¤ªÉñÀ£z À À ªÉÆvÀz Û À°è 50% gÀµÀÄÖ jAiÀiÁAiÀÄw ¤ÃqÀ®Ä ¸ÀÆPÀÛ PÀª æ ÀÄ PÉÊUÉÆAqÀÄ, PÉÊUÉÆAqÀ PÀª æ ÀÄzÀ §UÉÎ 1 wAUÀ¼ÉƼÀUÁV DAiÉÆÃUÀPÉÌ ªÀg¢ À ¸À°¸ è À®Ä ªÀiÁ£Àå DAiÉÆÃUÀzÀ CzsÀåPg Àë ÀÄ ºÁUÀÆ ¸Àz¸ À ÀågÀÄUÀ¼À MmÁÖ©¥ ü ÁæAiÀÄzÉÆA¢UÉ ²¥sÁgÀ¸ÀÄì ªÀiÁqÀ¯Á¬ÄvÀÄ. CzsÀåPg Àë ÀÄ ºÉýzÀ «µÀAiÀÄUÀ¼À£ÀÄß mÉÊ¥ï ªÀiÁqÀ¯ÁVzÉ.
¸À»/- ¸À»/- ¸À»/-
¸Àz¸
À ÀågÀÄ ¸Àz¸
À ÀågÀÄ CzsÀåPÀg
ë ÀÄ"
4. Said order is under challenge in this writ petition.-4-
NC: 2024:KHC-K:1940 WP No. 207268 of 2017
5. Sri S.S. Halalli, learned counsel representing the petitioner contended that under Article 338 of the Constitution of India, the first respondent has been established and they have limited power. The commission is required to act within the powers as is enunciated under Article 338 of the Constitution of India.
6. He further contends that the first respondent in the case on hand has exceeded its limit in directing the Urban Development Authority, Vijayapura in issuing the direction against the Government which is impermissible and therefore, sought for quashing of Annexure-J.
7. Per contra, Sri Basavaraj Kareddy, learned counsel representing the second respondent supports the order at Annexure-J.
8. First respondent though served with the notice, remained absent before this Court.
9. In order to appreciate the rival contentions of the parties, it is just and necessary for this Court to cull out Article 338 of the Constitution of India which reads as under:
-5-NC: 2024:KHC-K:1940 WP No. 207268 of 2017 "338. National Commission for Scheduled Castes (1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission--
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes ;
(c) to participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
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(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio- economic development of the Scheduled Castes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any documents;
(c) receiving evidence on affidavits; -7-
NC: 2024:KHC-K:1940 WP No. 207268 of 2017
(d) requisitioning any public or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may by rule determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes .
(10)In this article, references to the Scheduled Castes shall be construed as including references to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340 by order specify and also to the Anglo-Indian community.
338A. National Commission for Scheduled Tribes.
(1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission-
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(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendation as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio- economic development of the Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the -9- NC: 2024:KHC-K:1940 WP No. 207268 of 2017 Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes."
10. On careful perusal of the aforesaid Article, it is crystal clear that the Commission has to act within the frame work as is enunciated in the aforesaid Article.
11. Nowhere in the Article there is power vested with the first respondent to issue a direction to the
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NC: 2024:KHC-K:1940 WP No. 207268 of 2017 Government. On perusal of contents, wording used in the Annexure-J is in the strict sense a recommendation (²¥sÁgÀ¸ÀÄì).
12. However, Annexure-J in the operative portion contains that it is a direction (¤zÉÃð±À£)À . The words 'Shipharassu' and 'Nirdeshana' runs contradictory to each other. May be, it is improper usage of the words instead of 'Nirdeshana', it should have been 'Shipharassu'. Therefore, Annexure-J should not be construed as a direction issued to the writ petitioner.
13. If it is to be considered as a direction, it is beyond the scope of Article 338 of Constitution of India. The operative portion read in detail, would only go to show that the first respondent has recommended the case of the second respondent to be considered for 50% concession in the sital value, if the second respondent is qualified for obtaining 50% concession.
14. Therefore, the writ petitioner is required to consider the case of the second respondent for availing 50% concession in the sital value as per the
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NC: 2024:KHC-K:1940 WP No. 207268 of 2017 recommendation of the first respondent and it should not be construed as mandatory direction.
Hence, the following:
ORDER Writ petition stands disposed of. Writ petitioner is directed to consider the case of the second respondent for grant of 50% concession in the sital value if second respondent qualifies all necessary requirements for availing 50% concession in accordance with law.
Sd/-
JUDGE MR CT:SI List No.: 1 Sl No.: 62