Karnataka High Court
Smt. Lalitha Bai vs City Corporation Of Gulbarga And Ors. on 6 February, 1996
Equivalent citations: ILR1996KAR2421, 1996(3)KARLJ285, 1996 A I H C 4976, (1996) 3 KANT LJ 285
JUDGMENT A.B. Murgod, J.
1. The petitioner has prayed for (a) quashing the Sale Deed executed in favour of the fourth respondent with registration No. 3843/1995-96 dated 30-11-1995 at Annexure-C as void and (b) a direction to the respondents not to change the nature of the land and consequential reliefs.
2. The contention of the petitioner is that she is the tenant of Survey Number 21, measuring 12 acres 10 guntas in Badepur village and has been cultivating the same with possession. According to the petitioner, her petition for occupancy rights was dismissed by the Land Tribunal and the dispute is pending before this Court in Civil Petition No. 3340 of 1991. Petitioner has alleged that the portion measuring 200' X 100' from this land has been illegally and arbitarily sold by the first respondent in favour of the fourth respondent at an upset price and that the first respondent is not competent to dispose of any portion of the said land and it has no rights over the same. The sale is contended to be contrary to the provisions of Section 176 of the Karnataka Municipal Corporations Act, 1976 (the Act of 1976 for short:) The second contention taken up is that the land sold being an open space, sale thereof being contrary to Section 8(2) of the Karnataka Parks, Play fields and Open. Space (Preservation and Regulations) Act, 1985 is null and void. In the statements filed on behalf of the first and the fourth respondent, it is contended that the petitioner has no right over the property and she was never the tenant and her claim has been rightly turned down by the Land Tribunal. According to them, the land bearing Survey Number 21 was acquired long back in the year 1964 by the first respondent and a lay-out has been formed and sites have been allotted to various persons and the open site in question has been sold at concessional price to the fourth respondent with prior sanction of the Government permissible under Section 176 of the Karnataka Municipal Corporations Act, 1976. It is also contended that the provisions of Karnataka Parks, Play-fields and Open Space (Preservation and Regulations) Act, 1985 are not attracted and the open space in question is not declared as such as required under the Act.
3. Subsequently an application to raise the additional grounds was filed and was allowed. Under this application the petitioner has prayed for quashing the order of sanction issued by the Government-respondent-3 for sale of the open site at concessional rate by the first respondent in favour of the fourth respondent. The ground raised in that behalf is that the sanction order is illegal and arbitrary and violative of Section 176 of the Karnataka Municipal Corporation Act.
4. Having heard the counsel on both sides, the points that arise for consideration are:-
(1) Whether the sale of the site in favour of the fourth respondent by the first respondent is hit by Section 176 of the Karnataka Municipal Corporation Act, 1976?
(2) Does the sale violate Section 8(2) of the Karnataka Parks, play-fields and Open Space (Preservation and Regulations) Act 1985?
(3) Has the petitioner locus standi to maintain this petition?
5. Point No. 1:- The first submission of the petitioner is that under Section 176(6)(b)(i) of the Act of 1976 the respondent No. 1 cannot sell immovable property for an upset price and the sale therefore is illegal. The facts disclose that respondent-1 Corporation after acquiring Sy.No.21 as owner of the open site has sold an open site measuring 200' X 100' from out of a lay-out formed in Survey No. 21 at a concessional price of Rs. 1,20,000/- with the previous sanction of the Government produced at Annexure-R4. This sale is contended to be illegal in view of the provisions found in Section 176(6)(b)(i) of the Karnataka Municipal Corporations Act of 1976 according to which notwithstanding anything contained in the Act no property movable or immovable of whatsoever value shall be transferred free of cost or for an upset price. To understand this argument, it is necessary to set out the wording of Sub-section (6) of Section 176 of the Karnataka Municipal Corporations Act, 1976. It beads as under:-
(6) Notwithstanding anything contained in this Act. --
(a) no movable property exceeding such sum in value as may be prescribed shall be sold otherwise than by public auction;
(b) (i) no property whether movable or immovable of whatever value shall be transferred free of cost or for an upset price:
(ii) no lease of any immovable property exceeding five years shall be granted;
(iii) no immovable property shall be disposed of by sale or by other transfer, except with the previous sanction of the 'Government.
6. Relying on Sub-clause (b)(i) the contention urged is that there is total prohibition of sale of immovable property free of cost or for an upset price by the Corporation. On the other hand, the learned Counsel appearing for all the respondents submitted that the last clause "except with the previous sanction of the Government" found above has to be read with reference to each of the above three clauses. They therefore maintained that the sale with prior sanction of the Government for market value or upset price or even the transfer free of cost is permitted under law and the impugned sale deed suffers from no illegality.
7. The learned Counsel for the petitioner maintained relying on the decisions reported in JAICHAND v. TOWN MUNICIPALITY, ROBERTSONPET AND ORS., 1976(1) Kar.L.J. 30, and (2) GOPALA KRISHNA NELLI v. STATE OF KARNATAKA AND ORS., 1989(3) Kar.L.J. 312, which have interpreted Rule 39 of the Karnataka Municpalities (Guidance of Officers, Grant of Copies and Miscellaneous Provision) Rules, 1966 that the object of Rule 39 is to secure maximum revenue to the Corporation and therefore sale has to be by public auction and not for upset price or free of cost and therefore the impugned sale is illegal and opposed to the provisions of Section 176 of the Karnataka Municipal Corporations Act, 1976.
8. Reading of Section 176 of the Karnataka Municipal Corporations Act, 1976 shows that it permits sale of movable property by the Commissioner subject to certain conditions and it is also permitted to lease the immovable property for less than 12 months on his own and in case of lease for a period not exceeding three years he has to obtain the sanction of the standing committee.
If the argument of the petitioner is to be accepted, that amounts to placing total prohibition on transfer of immovable property free of cost or for an upset price or a lease of immovable property exceeding five years. But Clause (iii) of Sub-section 6(b) of the Act permits disposal of immovable property by sale or other transfer with the previous sanction of the Government. When sale of immovable property is permissible under Clause (iii) with previous sanction of the Government, it does not stand to reason to interpret or infer a total prohibition in respect, of lease exceeding five years.
Clause (iii) of Sub-section (6)(b) contemplates disposal of immovable property by sale or other transfer and this would include transfer for value or free of cost as transfer would include gift also. When such disposal by sale or other transfer with prior permission of the Government is permissible and when the words "other transfer"
would include gift or sale for upset price it would be illogical to interpret Clause (i) as prohibiting transfer of immovable property at an upset price and this clause has to be read along with the last clause followed by Sub-clause (iii). The very fact that the clause except with the previous sanction of the Government' is placed at the end of Clauses (i), (ii) and (iii) of Sub-section (6) (b) indicates, it is to be read along with each of the three clauses and the semicolons placed at the end of the first and second clauses of Sub-section 6(b) have to be understood as only commas as done at the end of third clause.
9. The analogous provision under Section 72(2) of the Karnataka Municipalities Act, 1964 which 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 twenty-five thousand rupees in value, shall be valid unless the previous sanction of the Government is obtained, gives an indication as to how Sub-section (6) of Section 176 has to be interpreted. The previous sanction of the Government contemplated under Sub-section (2) of Section 72 is in respect of free grant of immovable property irrespective of its value, grant of immovable property for an upset price or lease of property for a term exceeding five years and sale or other transfer of immovable property exceeding twenty-five thousand rupees in value. Therefore having regard to the reasons stated above, sale of the site under the impugned Sale Deed does not contravene any of the provisions of Section 176(6) of the Karnataka Municipal. Corporations Act, 1976 and the contention raised in that behalf fails.
10. Point No. 2:- Section 8(1) of the Karnataka Parks, Play-fields and Open Space (Preservation and Regulations) Act, 1985 prohibits construction of any building or structure likely to affect the utility of the park, play-field or open space specified in the list published under Section 4 or Section 5.
11. "Open, Space" as defined in Clause (f) of Section 2 of the Karnataka Parks, Play-fields and Open Space (Preservation and Regulations) Act, 1985 means any land on which there are no buildings or of which nor more than one twentieth part is covered with buildings and the whole or the remainder of which is used or meant for purposes of recreation, air or light or set apart for civic amenity purposes.
12. The impugned sale deed refers to the property sold as the open site and on that basis the petitioner has constructed an argument that the sale deed is in respect of open space as defined in the enactment referred above and therefore petitioner has contended that it is for the respondent to show that it is not an open space so defined in the enactment. This argument is not sound. It is for the petitioner to show that it is an open space as defined under the enactment and it is so-included in the list prepared under the Sections 4 and 5 of the Karnataka Parks, Play-fields and Open Space (Preservation and Regulations) Act, 1985. In the absence of such material, the argument is unsustainable. The reference to property as open site is merely descriptive in the sale deed under challenge and it does not go by the definition of 'open space' found in the enactment relied on by the petitioner.
13. Point No. 3:- The petition averments show that the petitioner has approached the Court claiming tenancy interest in the property in Survey No. 21 in which a Iay-out is stated to have been formed by the first respondent and the open space is part of that lay out. When the respondents came out with the version of acquisition of Survey No. 21 as far back as 1964, the petitioner at the time of argument contended that she can challenge the sale deed as a person interested in exposing illegal sales by the first respondent-corporation. There is no averment in the petition giving any indication as to the public interest espoused by the petitioner. Even in the application for amendment of the petition filed as late as last week of January 1996, the petitioner has not averred anything about the public interest pursued by her. It is observed in Dr. NANDJEE SINGH v. P.G. MEDICAL STUDENTS' ASSOCIATION, that cases seeking to convert what is strictly an individual dispute into a public interest litigation should not be encouraged. This observation squarely applies to the facts of the case on hand. The petitioner cannot at this stage be allowed to contend that she can maintain the petition as a public interest cause when she has given up her contention based oh occupancy rights claimed by her.
14. All these three contentions urged on behalf of the petitioner fail and therefore the petition stands dismissed.