IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NOS.1525/2019 & 3264/2019 (GM-KSSIDC) BETWEEN M/S. JNANA BHARATHI PRAKASHANA ® NO.1/1, 1ST FLOOR, 6TH CROSS, 8TH MAIN MALLESWARAM, BANGALORE-560 003 REPRESENTED BY TRUSTEES BOOVARAHA MAJOOR PURANIK B SHANKARA NAYAK …APPELLANT (BY SRI RAMESHCHANDRA, ADVOCATE) AND 1. M/S MEDIWINGS BIO-SCIENCE PVT LTD. HAVING ITS OFFICE AT SUBODH BHAVAN NO.13/1, 2ND KV TEMPLE STREET SOURASHTRAPET, OPPOSITE STREET CHICKPET POLICE STATION BANGALORE-560 053, REP BY ITS DIRECTOR SRI ARVIND KUMAR JAIN S/O MOOLCHAND PORWAR 2. STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF COMMERCE AND INDUSTRIES ROOM NO.136, VIKAS SOUDHA BANGALORE-560 001 3. THE KARNATAKA STATE SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LTD, A O BUILDING INDUSTRIAL ESTATE, RAJAJINAGAR BANGALORE-560 010 REP BY ITS MANAGING DIRECTOR 4. THE ASSISTANT GENERAL MANAER (IE(S)), KARNATAKA STATE SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LTD, A O BUILDING, INDUSTRIAL ESTATE RAJAJINAGAR, BANGALORE-560 010 …RESPONDENTS (BY SRI I THARANATH POOJARY, AGA FOR R-2) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE IN W.P.NOS.29958 AND 30653 OF 2011 (GM-KSSIDC) DATED 14.03.2019 AND DISMISS W.P.NOS.29958 AND 30653 OF 2011 (GM-KSSIDC).
THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT The appellant who is the fourth respondent in the writ petitions filed by the first respondent has taken an exception to the order dated 14th March 2019 passed by the learned Single Judge. The first respondent filed writ petitions under Article 226 of the Constitution of India challenging the allotment order dated 18th August 2010 issued by the fourth respondent herein by which, allotment of two cement godowns was made to the appellant. The second prayer in the writ petitions was that the same godowns be directed to be allotted to the first respondent. By the impugned order, the learned Single Judge proceeded to set aside the allotment made to the appellant on the ground that the fourth respondent had not issued any notification for inviting applications for allotment of godowns in question and therefore, the allotment could not have been made either in favour of the first respondent or the appellant.
2. The submission of the learned counsel appearing for the appellant is that the ground on which the allotment made to the appellant is set aside was not even pleaded in the writ petitions. He submitted that even the first respondent applied for allotment and the grievance in the writ petitions was that instead of allotting the godowns to the first respondent, it has been allotted to the appellant. He further submitted that the grounds taken in the writ petitions will show that it was contended that the allotment was contrary to the notification issued by the fourth respondent on 17th January 2011. He submitted that the allotment made to the appellant was prior to the said date and therefore, the same could not be relied upon. He invited our attention to Clause 87 of the Articles of Association of the Karnataka State Small Industries Development Corporation Limited (KSSIDCL). He also submitted that the State Government could have always issued a direction in exercise of the powers under Clause 87 to allot a particular property to a particular person. He would submit that though Clause 87 refers to Hon’ble Governor, it is ultimately the advise of the State Government on the basis of which the Hon’ble Governor would act. He submitted that a contention which was never raised in the petitions has been considered. Even otherwise, the order impugned could not have been passed by treating the writ petitions filed by the first respondent as a public interest litigation.
3. We have considered the submissions. Perusal of the impugned judgment shows that the learned Single Judge relied upon various decisions including the decisions of the Apex Court in the cases of R.D.SHETTY vs INTERNATIONAL AIRPORT AUTHORITY OF INDIA1, KASTURILAL LAKSHMY REDDY vs
STATE OF J & K2 as well as the decision in the case of AKHIL BHARTI UPBHOKTE CONGRESS vs STATE OF MADHYA
PRADESH3. The relevant finding recorded by the learned Single Judge in paragraph 10 reads thus:
“10. In view of the aforesaid well settled legal principles, it is evident that the public owned property has to be dealt with bearing in mind the public interest and one of the methods to secure public interest is to dispose of the property by selling the same by way of public auction or by inviting tenders. Now, I may advert to facts of this case. Admittedly, respondent No.3 has not issued any notification by inviting applications for allotment of the godowns in question. The allotment in favour of the petitioner as well as respondent No.4 have been made on the basis 1 AIR 1979 SC 1628 2 AIR 1980 SC 1992 3 AIR 2011 SC 1834 of application filed by them. The aforesaid action of respondent No.3 in dealing with the public property by allotting the same property to the petitioner as well as respondent No.4 for a consideration of Rs.1,13,36,200/- cannot but be termed as arbitrary and irrational, which is not permissible in view of the aforesaid well settled legal principles.”
(underline supplied) 4. The learned Single Judge was exercising power under Article 226 of the Constitution of India. His attention was invited to the law laid down in a well settled decision of the Apex Court in the case of AKHIL BHARTI UPBHOKTE CONGRESS (supra) in which it is held that allotment of a property vesting in the State can be made only by following a fair and transparent process which will include the process of informing everyone who is entitled to apply for allotment so that applications can be made by those who are eligible to apply for allotment. After noticing that the fourth respondent had not invited applications for allotment of the said two godowns, the learned Single Judge proceeded to hold that the allotment is illegal being completely contrary to the law laid down by the Apex Court in series of judgments. Noting that the claim of the first respondent was that it ought to have been granted allotment on the basis of the recommendation made by the Hon’ble Chief Minister, he has declined to pass any order in favour of the first respondent of directing allotment of the godowns made to the appellant. The effect of the impugned order is that allotment of a public property made without following a fair and transparent procedure has been set aside.
5. It is true that in the writ petitions, the contention regarding failure to advertise godowns for allotment may not have been raised. However, the learned Single Judge was dealing with writ petitions under Article 226 concerning a public property as KSSIDCL is ‘State’ within the meaning of Article 12 of the Constitution of India, the same being a Government of Karnataka undertaking. All that the learned Single Judge has done is to follow the well settled law in relation to the disposal of public properties. Therefore, in these writ appeals, no interference can be made with the impugned order especially, when the learned Single Judge has declined to grant any relief to the first respondent –writ petitioner.
6. Hence, there is no scope to interfere with the discretionary order passed by the learned Single Judge in exercise of the powers under Article 226 of the Constitution of India. Accordingly, the appeals are dismissed.
The pending interlocutory applications do not survive and are accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv