Karnataka High Court
Yallappa vs The Commissioner on 9 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
®
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WP No. 107883 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 107883 OF 2016 (LB-)
BETWEEN
1. YALLAPPA S/O. SOMAPPA KORI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. HIREMALLIGWAD,
TQ & DIST: DHARWAD.
2. NINGAPPA BHIMANIG HULAGANNAVAR,
SINCE DECEASED BY HIS LRS
BASAPPA S/O. NINGAPPA HULGANNAVAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. HIREMALLIGWAD,
TQ & DIST: DHARWAD.
3. NINGANGOUDA S/O. SIDDANGOUDA PATIL,
AGE: 60 YEARS, OCC: AGRICULTURE,
GIRIJA A R/O. HIREMALLIGWAD,
BYAHATTI
TQ & DIST: DHARWAD.
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
BENCH 4. HULEGAPPA S/O. BASAPPA MALLIGWAD,
SINCE DECEASED BY HIS LRS
YALLAWWA W/O. BEERAPPA KITTUR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHIKKAMALLIGWAD,
TQ & DIST: DHARWAD.
...PETITIONERS
(BY SRI. V.M. SHEELVANT, ADVOCATE)
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AND
1. THE COMMISSIONER,
KARNATAKA HOUSING BOARD,
CAUVERY BHAVAN, BENGALURU.
2. ASSISTANT EXECUTIVE ENGINEER,
KARNATAKA HOUSING BOARD,
CHANUKYAPURI, HUBBALLI,
DIST: DHARWAD.
3. ASSISTANT REVENUE OFFICER,
ALLOTMENT SECTION,
KARNATAKA HOUSING BOARD,
CHANUKYAPURI, HUBBALLI,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. BASAVARAJ V. SABARAD, SR. COUNSEL FOR
SRI. H.R. GUNDAPPA, ADV. FOR R1-R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER ORDER, DIRECTION OR
WRIT QUASHING THE NOTIFICATION DATED:03.09.2016 BEARING
NO.KHB/LAQ/88/2008-09 ISSUED BY RESPONDENT NO.1,
PRODUCED AT ANNEXURE-D IN SO FAR AS CONDITION NO.2 IS
CONCERNED; ISSUE WRIT IN THE NATURE OF MANDAMUS
DIRECTING THE RESPONDENTS TO ALLOT 40% SHARE IN
COMMERCIAL AND CORNER SITES ALSO TO THE PETITIONERS.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 07.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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CAV ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
The petitioners in this petition have prayed this Court
to issue a writ of certiorari or any other order, direction or
writ quashing the notification dated 03.09.2016 bearing
No.KHB/LAQ/88/2008-09 issued by the respondent No.1
produced at Annexure-D insofar as condition No.2 is
concerned and also sought for issuance of writ in the
nature of mandamus directing the respondents to allot
40% share in commercial and corner sites also to the
petitioners and other suitable order as deemed fit in the
circumstances of the case.
2. The factual matrix of the case of the petitioners
in the petition that they are the owners of lands described
in paragraph No.1 of the petition in different survey
numbers and that there was a proposal for housing
scheme by the Karnataka Housing Board (for short, 'KHB')
and approval was also obtained from the KHB for purchase
of 300 acres of land for the purpose of housing scheme.
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As the KHB had issued notification in Kannada daily
newspaper calling for applications for general allotment,
the said notification was challenged by the petitioners
herein and 5 others in W.P.Nos.109723-727/2015 and in
W.P.Nos.109839-842/2015 before this Court on the
ground that respondents in the said petitions did not keep
up their promise of 60:40 joint venture and as the request
of the petitioners were turned down, they filed the writ
petitions. The said writ petitions were disposed of on
31.08.2016 as the respondent No.1 herein vide
proceedings dated 19.10.2015 bearing No.459 agreed to
allot 40% of the sites to the respective owners. The copy
of the order is also produced at Annexure-A.
3. It is contended that the petitioner No.1 herein
applied to the respondent No.1 to know as to which are
the sites allotted to him as per joint venture, the
respondent No.1 replied that totally 9 sites will be allotted
to him and on verification from the layout map, the
petitioner No.1 came to know that he is not allotted corner
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sites. Out of total extent of land taken under joint
venture, the land losers are entitled for 40% of developed
plot as their share in the layout. The respondents are
projecting that they are giving only residential sites on one
side which is remote even though the land of the
petitioner is coming in the corner sites. The KHB is
auctioning the corner sites to the public and petitioners
are deprived of 40% share in the commercial or corner
sites. Hence, petitioner Nos.1 to 4 made representation in
terms of Annexures-B, B1, B2 and B3 to allot corner sites
or commercial sites in the scheme of 60% x 40% and the
respondent cannot say that the petitioners are entitled to
only residential sites. It is also contended that by
retaining all commercial sites for themselves, the KHB is
not only cheating the land losers but acting contrary to the
scheme. The respondent taking undue advantage of their
position are allotting sites which are valueless and are
denying the petitioners a share in the corner and
commercial sites. The copy of symbolic allotment of sites
is produced as Annexure-C.
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4. It is also contended that respondent No.1
issued a notification vide Annexure-D denying corner sites
and commercial sites to the petitioners vide condition
No.2. It is also contended that respondent No.2 issued
paper publication dated 09.09.2016 that the applicants will
be allotted sites by drawing lottery on 16.09.2016 and on
17.09.2016 at Annexure-E.
5. It is contended that there are 100 residential
sites and commercial sites in the lay out and the land
losers are entitled to 40% share in all the sites irrespective
of the nature of the sites. The respondent now cannot say
that only residential site and not commercial or corner
sites. Hence, it is contended that insofar as denying 40%
site in commercial or corner sites as stipulated in condition
No.2 of the notification, the petitioners having no other
efficacious remedy, have approached this Court by filing
this Writ Petition.
6. The counsel for the petitioners reiterated the
grounds urged in the petition contending that the
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respondents cannot impose condition No.2 as per
Annexure-D and petitioners are entitled for sites inclusive
of commercial and corner sites and hence, sought to
quash Annexure-D and also to give direction in the nature
of mandamus to allot 40% share in commercial and corner
sites. The counsel brought to the notice of this Court the
Annexure-A wherein a decision was taken to allot 60:40
ratio and even discussion was made with regard to the
interim order granted by this Court on 09.07.2015 and
also the decision was taken to allot 40% of developed sites
and even Annexure-A also discloses with regard to take
immediate steps for vacating the interim order granted by
this Court. In the writ petitions filed earlier the counsel
also relied upon Annexures-B, B1, B2, B3 wherein the
lands of the petitioners were included in formation of sites.
Annexure-C also relied upon regarding allotment of sites.
The counsel would vehemently contend that condition
No.2 imposed in Annexure-D is against Annexure-A.
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7. Per contra, counsel for the respondents relying
on Annexure-R1 which is the order of the Government of
Karnataka dated 02.12.2010 issuing sites in the ratio of
60:40. The counsel brought to the notice of this Court
Annexuire-R2 circular of KHB dated 20.10.2012 wherein
the model of memorandum of agreement is annexed. The
counsel also brought to the notice of this Court Annexures-
R3, R4, R5, R6, R7 and R8 are the provision selection
letters issued to the petitioners under 60:40 ratio.
Annexure-R9 is the layout map of the KHB layout and so
also Annexure-R10 and Annexure-R11. Annexure-R12 is
the copy of the Writ Petition Nos.109723-109727/2015
and Writ Petition Nos.109839-109842/2015 wherein the
petitioners were also parties to the said Writ Petitions. A
prayer was sought to include the petitioners' property
within the ratio of 60:40 but contended that till today the
respondent has neither allotted plots nor handed over the
possession of the plots but pretending not accepted the
joint venture proposal which is arbitrary and illegal. He
would further contend that there cannot be two yardsticks
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and the same is violation of Article 14 of the Constitution
of India. The respondents have filed additional statement
of objections and contended that Annexure-R13 i.e., the
certified copy of the order dated 01.09.2016 passed in
W.P.Nos.109625-28/2015 and connected writ petitions
wherein the respondents have accepted for extending the
benefit of 60:40 scheme and in view of this order,
W.P.Nos.109723-727/2015 and connected writ petitions
were also disposed of vide order dated 06.09.2016 which
is marked as Annexure-R14. The counsel relied upon
Annexure-R-15, the copy of the interim order dated
12.08.2010 passed in SLP No.13203-13312/2016. The
counsel also relied upon Annexure-R16 copy of the
judgment passed in W.A.Nos.100203-100236/. The
counsel for the respondents also produced some of the
documents along with a memo dated 22.06.2024 stating
that some of the land losers have opted sites under 60:40
scheme and the allotment of sites and executed
documents also produced along with memo. He would
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vehemently contend that the petitioners cannot seek for
corner and commercial sites.
8. The counsel would also contend that Section 16
of the Land Acquisition Act, 1894 (for short, 'the LA Act') is
very clear that when the Collector has made an award
under Section 11, he may take possession of the land,
which shall thereupon vest absolutely in the Government,
free from all encumbrances. Section 16 of the KHB Act
reads as under:
16. Delegation-- The State Government
may, by notification, authorise the delegation by
the Housing Commissioner to such person or
class of persons and subject to such conditions
as may be specified in such notification, of any
powers conferred or duties imposed upon him
by or under this Act.
2. The Board may, by notification, direct
that any power exercisable by it under this Act
except the power to make regulations may also
be exercised by the Housing Commissioner or
such other officer of the Board as may be
specified in the notification subject to such
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restrictions and conditions as may be specified
therein.
9. It is also contended that the petitioners cannot
contend that they may be allotted the commercial and
corner sites. The counsel also relied upon the Chapter IV
Section 38 of the Karnataka Housing Board Act 1962 (for
short, 'the KHB Act') and brought to the notice of this
Court power to dispose of the land. The counsel rely on
the Regulation 5 of the Karnataka Housing Board
(Allotment) Regulations, 1983 to contend that allottees to
be a lessee of the site until the lease is terminated or the
site/house is conveyed to the allottee in accordance with
the regulations.
10. The counsel referring these provisions of law
would vehemently contend that when once the property
acquired, the property vests with the State and the land
losers cannot demand particular corner as well as
commercial sites. The counsel also relied upon the letter of
the Government of Karnataka dated 06.12.1990 addressed
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to the KHB. Referring the said letter, the counsel brought
to the notice of this Court that the allotment of sites and
house constructed by KHB is revoked with immediate
effect subject to the conditions wherein held that a corner
site shall, however not be deemed to be a stray site and
shall be disposed off only through public auction. The
counsel referring this letter would contend that the corner
sites shall be disposed of only through public auction and
the same will not come in the ratio of 60:40. The counsel
in support of his arguments relied upon the judgment of
this Court in the case of M/s Sri Balaji Amenity Center
Vs. The Chairman, KIADB and others1 wherein it is
held that the communication on which the petitioner relies
does not give any right to the petitioners to invoke
doctrine of legitimate expectation. The board can decide
the manner of disposal of land by lease, lease-cum-sale
which would also include auction sale. Therefore, the
auction of plot in question cannot be faulted.
1
ILR 2007 KAR 2946
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11. The counsel also referring the judgment in the
case of Tata Cellular Vs. Union of India2 to contend
that in the administration auction there cannot be any
judicial review. The principle of judicial review is applied
by the Government bodies in order to prevent
arbitrariness or favoritism. However, there are inherent
limitations in exercise of that power of judicial review.
Government is the guardian of the finance of the state. It
is expected to protect the financial interest of the State.
There can be no question of infringement of Article 14 if
the Government tries to get the best person or the best
quotation.
12. The counsel also rely upon the judgment of this
Court dated 07.11.2012 passed in W.P.No.64417/2021
c/w W.P.No.66130/2011 wherein it was the grievance of
the petitioners that in response to the invitation to sell
corner sites by public auction, though petitioners' offers
were highest, the respondent-Belgaum Urban
2
AIR 1996 SC 11
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Development Authority declined to accept the offers. This
Court, in the said Writ Petitions made an observation that
the jurisdiction to decide the price at which the corner
sites are to be sold is that of the authority and this Court
does not sit as a court of Appeal, since it has no expertise
to correct the administrative decision, but merely reviews
the manner in which the decision is made.
13. Having heard the petitioners' counsel and also
the counsel appearing for the respondents, the questions
that would arise for consideration before this Court are:
1) Whether the petitioners are entitled for
commercial or corner sites in the ratio of 60:40
as per the decision of the respondents as
contended in the Writ Petition?
2) What order?
14. It is not in dispute that the lands were acquired
by the respondents for housing scheme. It is also not in
dispute that a decision was taken to allot 40% of the sites
in the lands of the petitioners. It is also not in dispute
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that these petitioners have earlier filed the writ petitions
before this Court and having perused the earlier writ
petitions, which is at Annexure-R12 wherein it is prayed to
issue writ in the nature of certiorari or any other
appropriate writ, order or direction and to quash the
notification dated 27.08.2015 published in Kannada daily
newspaper in "Vijayavani" dated 29.08.2015 for general
allotment issued by second respondent at Annexure-H and
also a direction was sought in the nature of mandamus
directing the second respondent KHB to handover 40%
developed plots to the petitioners in KHB layout developed
in Hiremalligawad village and thereafter to make general
allotment to the general public in the interest of justice
and equity.
15. The counsel brought to the notice of this Court
the prayer sought wherein the writ of mandamus was
sought for allotment of sites in favour of land losers at the
first instance and thereafter initiation of auction for
allotment to the general public. Having perused the writ
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petitions, nowhere it is prayed that commercial and corner
sites to be allotted in favour of the petitioners and also
these writ petitions are disposed of taking note of the
decision taken in other connected Writ Petitions as per
Annexure-R13 wherein the petitioners accepted 60:40
scheme to the petitioners-land owners. Accordingly, in
terms of Annexure-R14, the petitioners are concerned,
writ petitions were disposed of on the ground that the
present writ petitions stand squarely covered by the order
passed in the Writ Petitions as per Annexure-R13 and no
order as to allotment of commercial sites or corner sites.
16. Now the very contention of the petitioners
before this Court is to allot the commercial and corner
sites. The counsel appearing for the respondents brought
to the notice of this Court the letter of the Government of
Karnataka bearing No.JD 111 KHB 90 dated 06.12.1990
wherein a decision was taken that a corner site shall not
be deemed to be a stray site and shall be disposed off only
through public auction. It is important to note that this
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letter dated 06.12.1990 has not been challenged before
this Court. The only challenge is made with regard to
condition No.2 stipulated in Annexure-D wherein land
losers are barred from opting for corner site, commercial
site and CA site. The said condition is in accordance with
the letter dated 06.12.1990. It is also important to note
that when the property was acquired, it vests with the
State in terms of Section 16 of the LA Act and once the
Collector has made an award under Section 11, he may
take possession of the land, which shall thereupon vest
absolutely in the State and there cannot be any restriction
on KHB.
17. It is important to note that Section 38 of the
KHB Act is very clear that KHB may retain, lease, sell,
exchange or other dispose of, any land, building or other
property vesting in it and situate in the area comprised in
any housing scheme sanctioned under the KHB Act, which
is extracted below:
38. Power to dispose of land.--Subject to
any rules made by the State Government under
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this Act, the Board may retain, lease, sell,
exchange or otherwise dispose of, any land,
building or other property vesting in it and
situate in the area comprised in any housing
scheme 1 [or land development scheme]
sanctioned under this Act.
18. On reading the above Section, it is important to
note that the words used 'vesting in it' and 'situated in the
area compared in any housing scheme sanctioned under
the Act. No doubt, in the case on hand the question of
any lease for any period does not arise but Regulation
No.5 of the Karnataka Housing Board (Allotment)
Regulations 1983 is regarding lapse to the lessee, which
reads as under:
5. Allottees to be a Lessee:- Allottee of a
site/houses notified under these regulations shall
be deemed to be lessee of the site/house, until
the lease is terminated or the site/house is
conveyed to the allottee in accordance with these
regulations. During the period of the leases the
allottee shall pay the Board a rent of Rs.10 only
per annum at the beginning of each year.
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19. There is a force in the contention of the
respondents' counsel that this Court in the judgment M/s
Sri Balaji Amenity Center (supra) held that the
communication on which the petitioner relies does not give
any right to the petitioners to invoke doctrine of legitimate
expectation. The board can decide the manner of disposal
of land by lease, lease-cum-sale which would also include
auction sale. Therefore, the auction of plot in question
cannot be faulted.
20. It is also important to note that this Court while
coming to such conclusion, taken note of the judgment of
the Apex Court in the case of TATA Cellular (supra).
Regarding judicial review is concerned, this Court would
like to refer paragraph 21 of the judgment of this Court in
M/s Sri Balaji Amenity Center (supra).
"21. The scope of judicial review has been
stated by the Apex Court in innumerable
decisions. The judicial review under Article 226
of the Constitution of India is set at rest. This
Court can interefere with an administrative
action only when it is shown that the decision
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making process is wrong but not when the
decision itself is wrong. The scope of
interference in these matters, which would fall
within the realm of contract are not open to
judicial review. The Apex Court in the Case of
TATA CELLULAR vs UNION OF INDIA has stated
the following principles in respect of judicial
review.
"The principle enumerated from the
above are the modern traits in
administrative action. Note: The Court
does not sit as a Court of appeal as it
reviews in the manner in which the
decision was made. The Government must
have freedom of contract. In other words,
a fair claim is necessarily concomitant
from administrative body functioning or
quasi-administrative sphere. However, the
decision is not only tested by the
'Wednesbury principle of unreasonableness
(including its other facts) must be free
from arbitrariness and not affected by bias
actuated by malafides. Quashing of
decisions may impose heavy
administrative burden on the un-objected
expenditure".
If one were to keep these principles in
mind, judicial intervention in the present
proceedings is not at all called for."
21. Having considered the same, keeping mind the
principles laid down in the said judgment by the Hon'ble
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Apex Court, the judicial intervention in the present
proceedings is not at all called for. The Hon'ble Apex
Court also held in paragraph 94 of the judgment that the
Court cannot make any judicial review. The same is
extracted below:
94. Therefore, it is not for the court to determine
whether a particular policy or particular decision taken in
the fulfillment of that policy is fair. It is only concerned
with the manner in which those decisions have been
taken. The extent of the duty to act fairly will vary from
case to case. Shortly put, the grounds upon which an
administrative action is subject to control by judicial
review can be classified as under:
(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his decision-
making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
(emphasize supplied)
22. Having considered the principles laid down in
the judgment referred supra and also the provisions of
Section 16 of the Land Acquisition Act, it is very clear that
the lands vest with the State and in view of Section 38 of
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the KHB Act and also it has to be noted that in terms of
Annexure-A, a decision was taken to allot properties in the
ratio of 60:40. The counsel for the respondents would
vehemently contend that in the 60:40 policy, it is not
included corner or commercial site. Hence, the petitioners
are not entitled to claim corner site or commercial site.
The counsel also pointed out the letter of the Government
dated 06.12.1990 and the same was issued prior to the
acquisition of the lands of the petitioners. The counsel
would also point out that the said letter has not been
questioned and only KHB has to act in terms of
Government Order dated 06.12.1990 and the same cannot
be the subject matter of judicial review as held by the
Apex Court in TATA Cellular's case. It is important to
note that in terms of Annexure-A, some of the land losers
have also entered into an agreement and also respondents
have given an opportunity to opt for the intermediate
sites. It is the grievance of the petitioners that no
opportunity was given before allotting the sites to the
general public and in that regard earlier direction was
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sought in the earlier Writ Petition. However, in the case on
hand also the petitioners an opportunity was given to the
petitioners to opt for sites in the layout plan particularly in
the developed sites before allotment to the general public.
23. Admittedly, in the present case also first
petitioner withdrawn the writ petition accepting the
proposal and opted for allotment of intermediate site.
When such being the case, law does not permit and also
the letter of the Government is very clear that corner site
has to be auctioned. It is the contention of the petitioners
that the only reason for the auctioning corner site is to get
more fund in favour of the KHB and no doubt, there is a
force in the contention of the petitioners' counsel that the
KHB is not meant for making profit and to allot the sites to
the general public, but KHB has to develop the sites and
incur expenses for development. Hence, the decision is
taken to allot sites in the ratio of 60:40 and the same has
not been objected by the petitioners and even they
themselves have approached the Court to include
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themselves in 60:40 and after including in the scheme of
60:40, they are claiming commercial and corner sites, the
same is not permissible.
24. This Court cannot make any judicial review as
held by the Apex Court as well as by this Court in the
judgment referred supra. When such being the case, I do
not find any merit in the petition to quash Annexure-D
insofar as condition No.2 is concerned and to issue writ in
the nature of mandamus directing the respondents to allot
40% share in the commercial and corner sites to the
petitioners. Hence, the point No.1 is answered in the
negative.
25. In view of the discussions made above, I pass
the following:
ORDER
Writ Petition is dismissed.
Sd/-
(H.P. SANDESH) JUDGE Naa List No.: 3 Sl No.: 2