Karnataka High Court
M/S Hennur Porperties Pvt Ltd vs State Of Karnataka on 5 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1858, 2019 (4) AKR 851
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION No.8691 OF 2018(LB-BMP)
BETWEEN:
M/s Hennur Properties Pvt. Ltd.,
Having office at,
No.19 J.C.Road, Bangalore 560 002,
Represented by its GPA Holder,
M/s Pride and Expert Properties Private Limited,
A Company incorporated under,
The Companies Act 1956,
Having office at,
Pride Hulkul, No.901, 9th Floor,
116, Lalbagh Road, Bangalore-560 001,
Represented by its Director,
Mr. B.R.Ravindra. ... Petitioner
(By Sri. Vijay Shankar, Senior counsel for
Sri.Srinivas Rao H., Advocate)
AND:
1. State of Karnataka,
Represented by its Principal Secretary,
Urban Development Department,
4th Floor, Vikas Soudha,
Ambedkar Veedhi,
Bangalore-560 001.
2
2. Deputy Commissioner,
Bangalore District,
Bangalore.
3. Bruhat Bangalore Mahanagara Palike,
N.R. Square, Bangalore-560 002,
Represented by its Commissioner.
4. Joint Director,
Town Planning (North),
Bruhat Bangalore Mahanagara Palike,
Annexe Building, N.R. Square,
Bangalore-560 002. ... Respondents
(By Sri.Anandishwara, HCGP. for R1 & R2:
Sri. Anoop Kumar M.V., Advocate for R3 & R4)
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the
endorsement dated: 09.10.2017 bearing No.BBMP/ADDL/
DIR/JDNORTH/LP/0451/2013-14 issued by the 4th
respondent vide Annexure-J & direct the respondent Nos.
3 & 4 to issue the commencement certificate in favour of
the petitioner.
This writ petition, having been heard and reserved
for orders on 19.08.2019, coming on for pronouncement
this day, the Court, made the following:
ORDER
This writ petition is directed against the endorsement dated 09.10.2017 issued by the fourth respondent and the show-cause notice dated 21.08.2018 issued by the third respondent vide Annexures J and K, respectively. 3
2. The brief case of the petitioner is that the petitioner is the owner of the land bearing Sy.No.115/1 measuring 1 acre 31 guntas situate at Bhairathi Village, Bidarahalli Hobli, Ward No.54, Bangalore. The said property was converted from agricultural to the residential purpose vide Official Memorandum dated 03.10.2008.
3. The petitioner made an application dated 29.03.2014 to the BBMP seeking for sanction of building plan for construction in the schedule property. Pursuant to the petitioner's request the fourth respondent has issued a demand notice dated 08.09.2014 directing the petitioner to pay certain amounts towards the licence fee and other charges. Accordingly, the petitioner made payment on 17.11.2014. After receiving the payment, after verifying the documents submitted by the petitioner and inspecting the schedule property, building plan was sanctioned by the fourth respondent on 05.02.2015 vide Annexure-B. 4
4. It is the further case of the petitioner that there is a road adjacent to the petitioner's property which was being used by the public. Since there is no specific order from the competent authority for reserving that road for public purpose, the petitioner and adjacent land owners have filed an application before the Deputy Commissioner requesting to assign the land situated in Sy.No.28 measuring 1 acre 1.5 guntas as a public road. On receipt of the said representation the Deputy Commissioner while exercising the power under Section 71 of the Karnataka Land Revenue Act, 1964 de-reserved the gomal land for the purpose of public road by order dated 12.06.2015 vide Annexure-C.
5. In view of the plan sanction, the petitioner vide letter dated 15.04.2016 (Annexure-D) requested the fourth respondent to issue Commencement Certificate to proceed further with the construction as per the sanction plan. Pursuant to the petitioner's request the fourth respondent issued a letter dated 31.05.2017 vide 5 Annexure-F directing the petitioner to produce the relevant documents. Accordingly, the petitioner has furnished the documents vide letter dated 09.06.2017 (Annexure-G). Even after submitting the necessary documents the fourth respondent has not issued the Commencement Certificate for the project of the petitioner. Hence, the petitioner has filed a writ petition before this Court in W.P.No.35453/2017. This Court by order dated 09.08.2017 disposed of the said writ petition directing the fourth respondent to consider the representation made by the petitioner within four weeks from the date of receipt of a copy of that order. Pursuant to the request made by the petitioner the respondent has issued the impugned endorsement dated 09.10.2017 vide Annexure-J rejecting the request of the petitioner for issuing the Commencement Certificate. Being aggrieved by the same, the petitioner has filed this writ petition.
6. After service of notice the respondents have filed the statement of objections along with the show-cause 6 notice issued by the respondent dated 21.08.2014. After receipt of the notice, the petitioner has filed an application for amending the writ petition challenging the show-cause notice vide Annexure-K dated 21.08.2018. This Court, by order dated 08.01.2009 allowed the application and the petitioner was permitted to amend the writ petition. Hence Annexures J and K are the impugned orders in this writ petition.
7. Sri Vijay Shankar, the learned Senior Counsel appearing for the petitioner firstly submits that the impugned orders are hit by legal malice. To support his contention, he has contended that the impugned order at Annexure-J is passed on the ground that the petitioner has obtained the plan suppressing the true fact and showing the Government land as a connected road to the property. This finding of the authorities was contrary to the material available on records. He contended that Annexure-J is issued with the intervention of the Corporator who is the opposition leader in the Corporation. He took me through 7 Annexure-E where the Joint Director, fourth respondent has sought for report from the Tahasildar on the basis of the letter written by the Corporator. He further contended that before issuing the plan the authority has conducted the spot inspection and after verifying all the relevant records, has issued the plan. In support of his contentions, he has relied on the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER OF POLICE, BOMBAY vs. GORDHANDAS BHANJI reported in AIR (39) 1952 SC 16 and in the case of KALABHARATI ADVERTISING vs. HEMANT VIMALNATH NARICHANIA AND OTHERS reported in (2010) 9 SCC 437.
8. Secondly, he contended that the impugned orders at Annexures J and K are not speaking orders and the same are passed without application of mind. In support of his contention, he submitted that the Deputy Commissioner, by exercising the power under Section 71 of the Karnataka Land Revenue Act, 1964 has de-reserved 8 the 33 guntas of the gomal land in Sy.No.28 for the purpose of public road by order dated 12.06.2015 and he further submitted that pursuant to the request made by the fourth respondent vide Annexure-E the Tahasildar has submitted a report. The same is produced along with a memo dated 28.01.2019. The Tahasildar, in his report dated 20.03.2017 has specifically stated that for Sy.Nos.115/1 and 115/2 there is a connecting road and the Deputy Commissioner by order dated 12.06.2016 has de-reserved the gomal land for the purpose of public road and he has specifically stated that there is a public road. Inspite of these documents, the respondents, without application of mind passed the impugned order as per Annexure-J.
9. Thirdly, he contended that before issuing the plan the authority has followed all the procedures of law as prescribed under the Karnataka Municipal Corporations Act, 1976 (for short, 'the KMC Act') and also as per the Building Bye-laws of 2003. He has referred to Clauses 4 9 and 5.2, 5.3, 5.4 of the Building Bye-laws of 2003 and also Sections 299, 301 and 303 of the KMC Act. Now the respondents have no authority to pass the impugned orders on the ground that plan is issued contrary to the law. Hence, he sought for allowing the writ petition.
10. Per contra, Sri Anoop Kumar M.V., the learned counsel appearing for the respondent Corporation submitted that the petitioner has made an application for sanction of the plan on 29.03.2014. In that application he has specifically stated that there is a road in western side. But the Deputy Commissioner has passed an order only on 12.06.2015. As on the date of filing of the application for sanction of plan there is no such road. Hence, he submits that they have obtained the plan by 'misrepresentation' and giving a false information. Secondly, he contended that the impugned order at Annexure-K is only a show- cause notice. Hence, the writ petition is not maintainable.
11. In reply to the same, the learned Senior Counsel for the petitioner submitted that the plan has been 10 sanctioned after following the due procedure of law. He further relied on additional affidavit filed along with the documents on 17.08.2019 in which he has produced number of sale deeds executed from the year 1977 in respect of the very same property. It is very clearly mentioned in the schedule as 'west by road'. Therefore, he contended that the road was in existence which was being used by the public from so many years. Now, by order dated 12.06.2015 the Deputy Commissioner has reserved the said road for public purpose. What is shown in the application is that there is a road by user. Therefore, there is no misrepresentation or fraud played by the petitioner. To substantiate his contention, he has relied on Sections 17 and 18 of the Contract Act and also Section 25 of the Limitation Act. He further contended that even though, the impugned order as at Annexure-K is styled as a notice, it is like a final order. Before issuing this notice the respondents have already made up their mind. Therefore, if the matter is remanded, no purpose would be served. To substantiate this contention he has relied on 11 the judgments of the Apex Court in the case of SIEMENS LTD. vs. STATE OF MAHARASHTRA AND OTHERS reported in (2006) 12 SCC 33 and in the case of ORYX FISHERIES PRIVATE LIMITED vs. UNION OF INDIA AND OTHERS reported in (2010) 13 SCC 427. Hence, he sought for allowing the writ petition.
12. Heard the learned counsel for the parties and perused the documents produced along with the writ petition.
13. Detailed narration of facts would not call for reiteration. In respect of the first contention raised by the learned Senior Counsel regarding the legal malice is concerned, there is no pleading in the writ petition alleging that the impugned order is passed at the instance of the Corporator, who is the leader of the opposition in the Corporation. Without there being any foundation in the pleadings regarding the legal malice, on the ground that the impugned order is passed at the instance of the Corporator, and to prove malafides on the part of the 12 decision maker. Mere allegation or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and it should be established that action has been taken malafide for any such consideration or by fraud on power or colourable exercise of power. The allegation of malafide are more easily made than proved. Therefore the petitioner has failed to prove that impugned orders are hit by legal malice. Hence the impugned Annexure-J passed by the respondent No.4 was not vitiated by malice-in-law, in the case involving malice-in-law, administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind. This has been considered by the Hon'ble Apex Court in the case of ADDITIONAL DISTRICT MAGISTRATE, JABALPUR vs. SHIVKANT SHUKLA reported in AIR 1976 SC 1207 as follows:
"410. Between 'malice in fact' and 'malice in law' there is a broad distinction 13 which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the flaw and can only act within the law. He may, therefore, be guilty of 'malice in law', although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. 'Malice in fact' is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act."
14. Reference may also be made to the decision of the Hon'ble Apex Court in the case of STATE OF AP AND OTHERS vs. GOVERDHANLAL PITTI reported in (2003) 4 SCC 739, where the difference between malice-in-fact and malice-in-law was summed up in the following words:
"11. The legal meaning of malice is "ill- will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means 'something 14 done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others'. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989].
Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with a oblique or indirect object..."
15. To the same effect is the decision of the Hon'ble Apex Court in the case of RAVI YASHWANT BHOIR vs. DISTRICT COLLECTOR, RAIGAD AND OTHERS reported in (2012) 2 SCC 407, where the Court observed:
"MALICE IN LAW:
37. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice-in fact or in law.15
Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law."
16. In the case on hand, the Corporator, who is a public representative and a leader of opposition in the Corporation has brought to the notice of the competent authority of the BBMP that there is an illegal encroachment 16 of land in respect of Sy.No.28 situated in Bhairathi Village which belongs to the Government. On the basis of the same, the fourth respondent has written a letter to the Tahasildar vide letter dated 25.08.2016 vide Annexure-F seeking for the report whether there is any public road existing in that survey number. Pursuant to that, the Tahasildar has submitted a report on 20.03.2017 stating that there is a public road existing and he refers to Deputy Commissioner's order that the Deputy Commissioner, by exercising the power under Section 71 of the Karnataka Land Revenue Act has de-reserved the gomal land for the purpose of public road. The fourth respondent has independently exercised his power and passed the order which is impugned herein. By looking into Annexure-J it is clear that the order is not passed at the instance of a Corporator. Nothing is the instance case was done without a reasonable or probable cause which is the very essence of the doctrine of malice-in-law vitiating administrative actions. On the other hand, the petitioner has not pleaded and proved the allegation that the impugned order 17 Annexure-J is passed at the instance of the Corporator. The Hon'ble Apex Court in catena of decisions held that Court should be slow in drawing conclusions when it comes to holding allegations of malafides to be proved and only in the case where based on the material placed before the Court or facts are admitted leading inevitable inferences supporting the charge of malafides that the Court should record a finding in the process ensuring that while it does so. The judgments relied upon by the learned Senior Counsel in respect of legal malice is not applicable to the facts of the case. In the cited judgments there is a specific pleading and that allegations have been established by producing the necessary documents. Hence, the contention of the learned Senior Counsel that the impugned orders are hit by legal malice is not well founded.
17. In respect of the second contention that the impugned order at Annexure-J is not a speaking order and the same is passed without application of mind, in the 18 impugned order Annexure-J, the only reason given by the fourth respondent is that the plan has been obtained by suppressing true facts and showing the Government land as a connecting road. In fact, the petitioner has produced Annexure-C which is the order passed by the Deputy Commissioner dated 12.06.2015 by exercising power under Section 71 of the Karnataka Land Revenue Act which clearly shows that 33 guntas of gomal land situated in Sy.No.28 of Bhairathi Village has been de-reserved for the purpose of public road and also pursuant to letter written by the fourth respondent at 'Annexure-E' to the Tahasildar requesting to submit a report regarding existence of road in Sy.No.28. The report submitted by the Tahasildar dated 20.03.2017 clearly mentions regarding the order passed by the Deputy Commissioner dated 12.06.2015. These documents are very much available with the fourth respondent. Pursuant to the application filed by the petitioner for issuance of Commencement Certificate vide Annexure-D dated 15.04.2010 the fourth respondent has issued a notice 19 dated 31.05.2017 requesting the petitioner to furnish the necessary documents, the petitioner has submitted necessary documents as required by the fourth respondent. While passing the impugned order at Annexure-J the fourth respondent has not considered all these documents. There is no reference to that effect in the impugned order at Annexure-J. Therefore, it is clear that the impugned order at Annexure-J is passed without application of mind and the same is not a speaking order. Hence, Annexure-J is not sustainable and the same requires to be quashed and the matter requires for reconsideration by competent authority.
18. In respect of the third contention raised by the petitioner is concerned, it is no doubt true that as per the provisions of Section 299 of the KMC Act, if any person wants to construct or reconstruct a building, has to obtain approval of the plan from the competent authority. Pursuant to that, the petitioner has filed application under Section 299 of the KMC Act and the authority has issued a 20 plan vide Annexure-B. In terms of the Building Bye-laws of 2003 with a condition that in case of any false information, misrepresentation of facts or pending Court cases the plan sanction is deemed cancelled.
19. As regards Annexure-K show-cause notice is concerned, it has been issued on the ground that the plan has been obtained by 'misrepresentation of the facts' and false information. The learned Senior Counsel appearing for the petitioner has submitted that since the plan has been issued after following all procedure of law and after conducting spot inspection of plot now they cannot cancel the same by exercising the power under Section 443(4) of the KMC Act. He has also contended that petitioner has produced the registered sale deeds from the year 1977 of the same property. It is very clear that even before passing the order by the Deputy Commissioner vide Annexure-C the road has been used by the public as a public road and the petitioner has not played any fraud or misrepresentation while obtaining the plan. He further 21 contented that both the impugned orders Annexures J and K are passed at the intervention of the Corporator and Annexure-K even though styled as a notice, it is a like a final order since the authority has already made up the mind for cancellation of the licence, under these circumstances, if the matter is remanded no purpose would be served, the judgments relied upon by the learned Senior Counsel in respect of this contention are not applicable to the facts of this case. Annexure-K is a show-cause notice issued by the authority on the ground that the petitioner has obtained the plan by submitting a false information and misrepresenting the facts and sought reply from the petitioner and it is not a final order, it is only a show-cause notice. Pursuant to that the petitioner has already submitted his reply on 05.09.2018 and the respondent has not made up mind to dismiss the petition. The petitioner can also submit the additional documents including the sale deeds, which he has placed before this Court, by filing additional representation before the authority. Since the issue is whether the road was in 22 existence at the time of the petitioner obtaining the plan or they have obtained the plan by submitting a false information or misrepresentation of facts, it is purely a question of fact which cannot be gone into under Article 226 of the Constitution of India. In view of the above contention of the petitioner that the authorities already made up a mind cannot be accepted. Under these circumstances, I am of the opinion that since the petitioner has already submitted a reply to Annexure-K, in addition to that he can submit additional documents along with the additional representation. The authority shall consider the same and pass appropriate order. The petitioner has not made out any ground to quash Annexure-K. Hence, I pass the following order:
(i) The writ petition is allowed in part;
(ii) The impugned order dated 09.10.2017 passed by the fourth respondent vide Annexure-J is quashed;
(iii) Since Annexures J and K are issued by different authorities, both the cases are interlinked together & both the matters remanded back to the fourth respondent Joint 23 Director, Town Planning (North), BBMP to consider the case of the petitioner afresh in accordance with law;
(iv) The petitioner is permitted to file additional representation along with all the relevant documents within one week from the date of receipt of a copy of this order;
(v) The fourth respondent is directed to consider the case of the petitioner in respect of issuance of Commencement Certificate and also the reply submitted in respect of show-cause notice vide Annexure-K in accordance law within a period of four weeks from the date of the receipt of additional representation to be submitted by the petitioner.
Sd/-
JUDGE Cm/-