Karnataka High Court
Madhuraj C M vs State Of Karnataka on 19 June, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.21936 OF 2011 [LB-RES]
C/W
WRIT PETITION NOS.22404 OF 2011, 22405 OF 2011
WP No.21936/2011
BETWEEN:
Sri C M Madhuraj,
S/o Muttu Madha Setty,
Aged about 53 years,
R/at No.8, 1st H Cross,
Sharada Colony, 8th Main
Basaveshwar Nagar,
Bangalore. ...Petitioner
(By Sri L Sudharshan, Advocate)
AND:
1. State of Karnataka,
Represented by its Secretary and Commissioner,
Department of Housing,
M.S.Building, Bangalore.
2. Karnataka Housing Board,
3rd Floor, Kaveri Bhavan,
Bangalore.
Represented by its Commissioner. ... Respondents
(By Sri N.B.Vishwanath, AGA for R1;
Sri Basavaraj V.Sabarad, Advocate for R2)
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This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to direct the respondents issue
allotment letter and to confirm the site No.265/A, SFS 407
Yelahanka New Town, Bangalore in favour of the petitioner as
per Annexure-H and etc.
WP No.22404/2011
BETWEEN:
Smt.Mangala,
Aged about 31 years,
W/o Mayanna,
No.174/A, 1st Main Road,
Kamalanagar,
Bangalore - 560 079. ... Petitioner
(By Sri R S Hegde, Advocate)
AND:
1. The State of Karnataka,
Represented by Secretary,
Housing Department,
Vikas Soudha, Bangalore - 560 001.
2. Karnataka Housing Board,
Cauvery Bhavan,
Bangalore - 560 009.
Represented by Housing Commissioner.
3. Sri Krishnanad Mavina Kurve,
Age Major,
S/o Mavina Kurve,
C/o K Mohan Dev Alva,
No.352, 8th Cross, 6th Main,
M.S.R. Nagar, Mathikere,
Bangalore - 560 054. ... Respondents
(By Sri N B Vishwanath, AGA for R1;
Sri Basavaraj V Sabarad, Advocate for R2;
Sri K V Narasimhan, Advocate for R3)
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This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the records relating to
the case of the petitioner from the R1 and R2 and etc.
WP No.22405/2011
BETWEEN:
Sri S.Chikkaraju,
Aged 59 years,
S/o Late Siddegowda,
Working as Work Inspector,
Karnataka Housing Board,
Cauvery Bhavan, Bangalore - 560 009,
R/o No.1, 3rd Block, KHB Quarters,
1st Main, Vijayanagar,
Bangalore - 560 040. ... Petitioner
(By Sri R.S.Hegde, Advocate)
AND:
1. The State of Karnataka,
Represented by Secretary,
Housing Department,
Vikas Soudha, Bangalore - 560 001.
2. Karnataka Housing Board,
Cauvery Bhavan,
Bangalore - 560 009.
Represented by Housing Commissioner.
3. Sri Krishnanad Mavina Kurve,
Age Major,
S/o Mavina Kurve,
C/o K Mohan Dev Alva,
No.352, 8th Cross, 6th Main,
M.S.R. Nagar, Mathikere,
Bangalore - 560 054. ... Respondents
(By Sri N B Vishwanath, AGA for R1;
Sri Basavaraj V Sabarad, Advocate for R2;
Sri K V Narasimhan, Advocate for R3)
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This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the records relating to
the case of the petitioner from the R1 and R2 and etc.
These writ petitions coming on for preliminary hearing this
day, the Court made the following:
ORDER
These three batches of writ petitions are heard together and are being disposed of by this common order, as the questions of law and fact involved are similar.
2. Writ Petition No.21936/2011 is filed seeking the allotment of site bearing No.265/A in lieu of Site No.2283/A, as the latter is a subject matter of O.S.No.7248/2008. The site was allotted to the petitioner by the Government in exercise of its discretion conferred by Regulation 9A(C) of the Karnataka Housing Board (Allotment) Regulations, 1983.
3. Sri L.Sudarshan, the learned counsel for the petitioner submits that the petitioner has already deposited the substantial amounts of the allotment consideration. He submits that the petitioner is constrained to seek the allotment of alternative site, as the site originally allotted to him is litigious. He also submits that the Legal Section of the Karnataka Housing Board ('K.H.B.' 5 for short) has tendered the opinion on 7.2.2011 that it is open to the K.H.B. to allot an alternative site.
4. Sri Basavaraj V. Sabarad, the learned counsel appearing for the respondent No.2 submits that the question of allotting an alternative site has to be considered by the Government, but only after the petitioner surrenders the earlier allotment. He submits that in the instant case, the allotment of the earlier site itself is not surrendered by the petitioner.
5. Sri N.B.Vishwanath, the learned Additional Government Advocate appearing for the respondent No.1 submits that the Government has exercised its discretion as provided by Regulation 9A(C) of the said Rules.
6. Writ Petition No.22404/2011 is filed by the allottee of site No.265/A under the discretionary quota.
7. Sri R.S.Hegde, the learned counsel for the petitioner submits that even when the said site is lawfully allotted to the petitioner, it is subsequently allotted to the third respondent without even putting the petitioner on notice. He would therefore pray for the cancellation of the allotment made in 6 favour of the respondent No.3 and the confirmation of the allotment made in favour of the petitioner.
8. Sri Sabarad, the learned counsel for the second respondent K.H.B. submits that there is no allotment as such in favour of the petitioner and that the allotment made in favour of the respondent No.3 is valid. He prays for the dismissal of this writ petition.
9. Sri K.V.Narasimhan, the learned counsel appearing for the respondent No.3 submits that the absolute discretion is vested in the Government for deciding the discretionary allotment. He submits that site No.265/A is allotted to the third respondent, who has rendered yeoman service to the society. He submits that the third respondent is in public life. He submits that there has been no order whatsoever in favour of the petitioner allotting the site. When the vires of Regulation 9A(C) is not challenged, the petitioner cannot question the discretion exercised by the Government in favour of the third respondent. Based on the petitioner's ipse dixit, the allotment to the third respondent cannot be denied. He submits that the discretionary quota need not be exercised on the basis of seniority. 7
10. In the course of the rejoinder, Sri Hegde, the learned counsel for the petitioner submits that the allotment in favour of the petitioner is firmed up, as is evident from the letter, dated 5.10.1999 (Annexure-A).
11. The petitioner in Writ Petition No.22405/2011 is an employee (Work Inspector) of the K.H.B. He is also agitating his right for the allotment of the site No.265/A. He is already allotted the site bearing No.249/B. He proposes to surrender it, if the alternative site bearing No.265/A is allotted to him.
12. Sri R.S.Hegde, the learned counsel for the petitioner submits that the petitioner has been struggling for getting the allotment of right site for over two decades. He takes exception to the allotment of site bearing No.265/A in favour of the third respondent under the discretionary quota.
13. Sri Basavaraj Sabarad, the learned counsel appearing for the respondent K.H.B. submits that the petitioner has no vested right to demand that a particular site be allotted to him. It is all the more so when the allotment is in the discretionary quota. He takes exception to the conduct of the petitioner in not 8 surrendering the allotment of site bearing No.249/B made in High Income Group and still agitating for the allotment of an alternative site.
14. The question that falls for my consideration is whether any relief can be granted to the petitioners based on the Government's selection of the recipients for its largess. This Court has held in the case of SRI K.RAJU vs. B.D.A. reported in ILR 2011 KAR.120 that the discretion can not be exercised according to private opinion. For the allotment of sites, a transparent and an objective criteria, based on reason and fair play, has to be evolved .
15. It may be helpful to refer to the Apex Court's judgment in the case of AKHIL BHARATIYA UPBHOKTA CONGRESS .vs. STATE OF MADHYA PRADESH AND OTHERS reported in (2011) 5 SCC 29. It is held therein that the allotment of lands must be founded on a sound, transparent, discernible and well- defined policy. It is further held that the unfettered discretion is totally incompetable with the doctrine of equality; the exercise of unfettered discretion is the anti thesis to the concept of rule of law.
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16. The Apex Court's judgment in the case of CENTRE FOR PUBLIC INTEREST LITIGATION AND OTHERS v. UNION OF INDIA AND OTHERS reported in (2012) 3 SCC 1 is also of immense value for deciding this case. The relevant paragraphs of the said judgment are extracted hereinbelow:
" 75. The State is empowered to distribute natural resources. However, as they constitute public property/ national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best sub-serve the common good.................
14. Under our constitutional and statutory framework, there is nothing known as prerogative. Our Constitution recognises no prerogative whatsoever; it recognises merely rights, duties and discretions. The difference between 'prerogative' and 'discretion' is clear. A person who has a prerogative can act arbitrarily or irrationally and yet his decision must be treated as legal and valid. On the other hand, if a person has the discretion, and not the prerogative, to make a decision, the discretion can 10 only be exercised fairly and reasonably; otherwise his act is void on the ground that there was no valid exercise of discretion in the eye of law.
99.....................When it is clearly demonstrated that the policy framed by the State or its agency/ instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters.
17. All the eligible persons desirous of getting the sites are to be given fair, equal and similar opportunity in the matter of allotment of sites. Even assuming that Rule 9A(C) of the said Rules conferring discretion on the Government is upholdable, then also the discretion can not be exercised in an arbitrary manner. It is not known whether there are any guidelines prescribed or any norms evolved for making the discretionary allotments of sites. The Government is in no position to indicate the basis for selecting the beneficiaries of allotment under the discretionary quota. I have therefore no hesitation in holding that no rights can crystallize based on the directions issued by the Government in exercise of its unfettered discretion. Not finding any justificatory basis for making the discretionary 11 allotment of sites, I decline to give any relief to any of the petitioners.
18. These petitions are dismissed. No order as to costs.
Sd/-
JUDGE VGR/MD