Karnataka High Court
Smt Indramma vs State Of Karnataka on 27 September, 2012
Equivalent citations: 2012 (4) AIR KAR R 559
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.6187/11
& 6188-6196/11
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
WRIT PETITION No. 6187 OF 2011 (LB-RES)
AND
W. P. Nos. 6188-6196 OF 2011
BETWEEN
1 SMT INDRAMMA
W/O. SRI. SIDDARAMAIAH
AGED ABOUT 37 YEARS
4TH MAIN, N.R.COLONY
KOTHITHOPU, TUMKUR
2 SMT. APARNA
W/O. LATE PARAMASHAIRH
AGED ABOUT 45 YEARS
6TH CROSS, MANJESHWARI
S.S.PURAM, TUMKUR
3 SMT. B.L.INDUMATHI
W/O. SRI.T.G.HANUMANTHA RAO
AGED ABOUT 57 YEARS
M/S. ANNAPURNESHWARI WINES
SBW COMPLEX, BEHIND PRASHANTHA TALKIES
RANGAMANDIRA ROAD, TUMKUR
4 SRI. HANUMANTHARAJA
S/O. HANUMAIAH
AGED ABOUT 35 YEARS
N.R.COLONY, TUMKUR
2
W.P.6187/11
& 6188-6196/11
5 MS. B.S.KUSUMA
D/O. B.V.SHANMUKHAPPA
AGED ABOUT 45 YEARS
14TH CROSS, S.S.PURAM, TUMKUR
6 SRI.L.PARTHASARATHI
S/O. L.V.LAKSHMAIAH
AGED ABOUT 50 YEARS
K.R.EXTENSION, TUMKUR
7 SRI.T.N.CHANDRASHEKAR
S/O. SRI.NARASIMHAIAH
AGED ABOUT 45 YEARS
SHARADADEVINAGAR, TUMKUR
8 SRI. MOHAMMED ASLAM
S/O. MOHAMMED HUSSAIN
AGED ABOUT 48 YEARS
FAYAZ MANZIL, KYATASANDRA, TUMKUR
9 SRI. MUNAWAR KHAN
S/O. T.R.YOUSUF KHAN
AGED ABOUT 39 YEARS
BISMILLA MANZIL, KYATASANDRA
TUMKUR
10 SRI. IFTHEKARUDDIN
S/O. LATE BASHA MOHIDDIN
AGED ABOUT 40 YEARS
BARLINE, TUMKUR
... PETITIONERS
(BY SRI. MANJU & MANJU ASSOCIATES, ADVS.)
AND
1. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA, BANGALORE
BY ITS SECRETARY
3
W.P.6187/11
& 6188-6196/11
2. THE DEPUTY COMMISSIONER
AND THE PRESIDENT
ISDMT DIST CO-ORDINATION COMMITTEE
TUMKUR DISTRICT, TUMKUR
3. THE TUMKUR MAHANAGARA PALIKE
TUMKUR CITY, TUMKUR
BY ITS COMMISSIONER
... RESPONDENTS
(BY SRI. R.OMKUMAR, AGA FOR R1 & 2
INDUS LAW, ADV. FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER ART. 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE RESPONDENTS TO ALLOT THE SHOPS TO THE
PETITIONERS IN NEWLY CONSTRUCTED COMMERCIAL
COMPLEX IN PRIVATE BUS STAND TUMKUR & ISSUE
ALLOTMENT LETTER AS PER PROCEEDINGS DT.8.12.06 &
20.7.07 AT ANN-A & B; AND ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioners claim a legal right to allotment of shops in the new commercial complex in the private bus stand in Tumkur constructed by the 3rd respondent - Tumkur Municipality (though described as Tumkur Mahanagara Palike). According to the petitioners, the 2nd respondent- Deputy Commissioner acting as the President of the 4 W.P.6187/11 & 6188-6196/11 Integrated Development of Small & Medium Town, for short 'IDSMT', prevailed upon the petitioners to handover possession of the premises in a dilapidated condition for construction of the new complex with a promise to let out the shops on the making of a deposit of 25% as "goodwill amount" within the period from 2/5/2006 to 12/5/2006. Petitioners along with others claim to have deposited a total sum of Rs.9,74,01,599/- from out of which Rs.55,00,000/- is said to be allotted to the Public Works Department, Tumkur, to construct the private bus stand and commercial complex, which in fact when completed during the year 2008 was handed over to the 3rd respondent - Municipality during October 2010. The 2nd respondent - Committee is said to have held meetings on 8/12/2006 and 20/7/2007 and prepared a list of 54 and 10 allottees respectively in terms of the resolution passed on 27/4/2006 as also the list dt. 8/12/2006 disclosing the name of the petitioners as well as some other persons. The 3rd respondent is said to have communicated the 5 W.P.6187/11 & 6188-6196/11 same to the petitioners vide letters dt. 14/2/2007 - Annex.F1 to F7. On the allegation of failure to implement the resolution, these petitions are presented for a writ of mandamus.
2. Petitions are not opposed by filing statement of objections.
3. Having heard the learned Counsel for the parties, perused the pleadings, what is evident is the fact that the immovable property in question belongs to the 3rd respondent - Tumkur Municipality which holds it intrust for the public and answerable to the public. To a question of this court as to, whether the petitioners had a subsisting lease or license as on the date the premises was handed over to the Municipality for demolition and construction of a new complex, learned Counsel submits that there was no lease agreement. In the absence of relevant material constituting substantial legal evidence of the fact of a subsisting lease/rental agreements extending 6 W.P.6187/11 & 6188-6196/11 the period of permission to use and occupy the premises as on the date of handing over of possession of the building in a dilapidated condition for construction of a new complex, the petitioners cannot claim to have a legal right to re-possess the property after its construction.
4. Regard being had to the fact that Public Trust Doctrine applies to the 3rd respondent - Municipality in respect of the properties belonging to it, the disposal of the properties or the right to use the properties necessarily requires to be compliant with the mandate of Sec.72 of the Karnataka Municipalities Act, 1964, for short the 'Act', r/w Rule 39 of the Karnataka Municipalities (Guidance of Officers, Grant of Copies & Miscellaneous Provisions) Rules, 1966, as held by a Division Bench of this court in MOHAN P. SONU VS. STATE OF KARNATAKA reported in (1992) 2 KLJ 245. The Division Bench further observed in that decision, that the Act and Rules, act as a safeguard in the matter of disposal of municipal properties 7 W.P.6187/11 & 6188-6196/11 by holding a public auction so as to attract funds from members interested in acquiring such rights as mandated by the rule in order to protect public revenue and enable the State Government to decide whether sanction of the State Government contemplated under Sec.72 should or should not be extended. This opinion of the Division Bench was followed by another coordinate Division Bench in A.S.PARAMESHWARAIAH & ORS. VS. STATE OF KARNATAKA & ORS. reported in 2010 (2) KCCR 1125 (DB).
5. The Apex Court in SAROJ SCREENS PVT.LTD. VS. GHANSHYAM & ORS. reported in AIR 2012 SC 1649, having considered all its earlier decisions on the issue as to whether the State and or its agency/ instrumentality can transfer the public property or interest in public property in favour of a private person by negotiation or in a like manner and answered in negative, culled out the following propositions:
8W.P.6187/11
& 6188-6196/11 "What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non- arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/ instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/ instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging 9 W.P.6187/11 & 6188-6196/11 competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution."
6. In the factual matrix, the assertion that the 3rd respondent - Municipality passed resolutions, while the 2nd respondent - Deputy Commissioner acting as a President of the IDSMT, extended a promise to the petitioners to be put in possession of the shops after construction of the new complex, not being Act and Rules compliant and contrary to Rule of Law as well as in violation of the sole of the equality clause embodied in Art.14 of the Constitution, coupled with the fact that there can be no estoppel against statute, petitioners cannot seek to enforce such resolutions or promises. Any sanction even by the State of Karnataka contrary to Rule of Law and the principles embodied in Art.14 of the Constitution of India, cannot invest a legal right in the petitioners to 10 W.P.6187/11 & 6188-6196/11 seek allotment of shops other than by a process known to law, ie., by public auction.
7. If the petitioners have deposited certain moneys with the 3rd respondent which had no authority of law to receive such deposits, it is needless to state that the 3rd respondent ought to refund the amount together with interest at 18% p.a. from the date of deposit up to the date of payment or in the alternative may appropriate the same in the event petitioners are successful bidders in the public auction of the right to use the shop in the new commercial complex.
Petitions are ordered accordingly.
SD/-
JUDGE rd/-