Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST 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 PETITION NO.16568/2006 (GM-RES) C/W WRIT PETITION NO.15129/2007 (GM-RES-PIL) IN W.P.NO.16568/2006 BETWEEN SRI ASHOK KUMAR JAJEE S/O SRI KASHAPPA JAJEE AGED ABOUT 55 YEARS R/AT OLD JAJEE BLOCK STATION AREA, GULBARGA (BY SRI HARSHA D JOSHI, ADVOCATE) AND 1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT M.S. BUILDING, DR. AMBEDKAR VEEDHI BANGALORE – 560 001 ….. PETITIONER 2. THE SUPER MARKET COMMITTEE OFFICE OF THE DEPUTY COMMISSIONER MINI VIDHANA SOUDHA, STATION ROAD GULBARGA, BY ITS PRESIDENT 3. THE SECRETARY SUPER MARKET COMMITTEE OFFICE OF THE EXECUTIVE ENGINEER GULBARGA SUB DIVISION, GULBARGA 4. SRI VISHWANATH B NADAGOUDA S/O SRI BASAWARAJAPPA AGED ABOUT 44 YEARS R/A M B NAGAR, GULBARGA ….. RESPONDENTS (BY SRI B V KRISHNA, AGA FOR R-1 TO 3;
SRI P CHANDRASHEKAR, ADVOCATE FOR R-4) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS DATED 22.07.2004 (ANNEXURE-K) AND SALE DEED DATED 12.10.2006 (ANNEXURE-M) AND ETC.
IN W.P.NO.15129/2007 BETWEEN SRI S K KANTHA S/O KARISIDDAPPA KANTHA AGED ABOUT 68 YEARS FORMER LABOUR MINISTER OF STATE OF KARNATAKA PRESIDENT OF THE ASSOCIATION OF KARNATAKA CIVIL RIGHTS, LIBERTIES AND RESPONSIBILITIES HAVING ITS REGISTERED OFFICE AT GULBARGA …. PETITIONER (BY SRI S S KOTI & SRI VINAYAKA S. KOTI, ADVOCATES) AND 1. THE STATE OF KARNATAKA REP BY THE PERSONNEL SECRETARY DEPARTMENT OF PWD GOVERNMETN OF KARNATAKA URBAN DEVELOPMENT M S BUILDING, BANGALORE 2. THE STATE OF KARNATAKA REP BY THE SECRETARY DEPARTMENT OF REVENUE GOVERNMETN OF KARNATAKA M S BUILDING, BANGALORE 3. THE SUPER MARKET COMMITTEE GULBARGA REP BY ITS CHAIRMAN THE DEPUTY COMMISSIONER GULBARGA DISTRICT, GULBARGA 4. THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (C&B) NORTH DHARWAD DISTRICT, DHARWAD 5. THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, GULBARGA 6. CHIEF MINISTER OF KARNATAKA GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BANGALORE 7. MINISTER FOR PUBLIC WORKS DEPARTMENT AND ENERGY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BANGALORE 8. SRI VISHWANATH NADAGOWDA MAJOR, OCC: BUSINESSMAN RESIDENT OF M B NAGAR GULBARGA – 05 9. SRI CHANDRASHEKHAR PATIL REVOOR, MAJOR MEMBER OF LEGISLATIVE ASSEMBLY ADARSH MEDICAL STORES SUPER MARKET, GULBARGA ….. RESPONDENTS (BY SRI B V KRISHNA, AGA FOR R-1, 2 & 4 TO 7;
SMT. VIJETHA R NAIK, ADVOCATE FOR RAVI B NAIK ASSOCIATES, ADVOCATES FOR R-8; R-3 & 9 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-M THE LETTER DATED 15.10.2005 ADDRESSED TO THE SECRETARY, PWD, RECOMMENDING THE PROPOSAL FOR SALE OF SITES NOS.145, 146 AND 147 AT THE MARKET VALUE SPECIFIED THEREIN AND ETC.
THESE WRIT PETITIONS COMING ON FOR HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER As far as W.P.No.15129/2007 is concerned, it is a petition filed in the nature of a public interest litigation wherein the challenge, in substance, is to the allotment of site Nos.145, 146 and 147 subject matter of this petition which were vesting in the State Government to the eighth respondent by way of sale. As far as W.P.No.16568/2006 is concerned, the challenge is to one of the three sale deeds executed in favour of the eighth respondent in W.P.No.15129/2007. The petitioner therein is claiming allotment of the said site for the reasons which are set out in the writ petition.
2. It is a well settled law that the State is always a trustee of the property held by it and therefore, when the property held by the State Government is to be alienated, it can be done only by following a fair and transparent process. The discussion made in this judgment and the reasons which we have recorded will show that this is one of the classic cases where a very valuable property of the State Government has been sold to an individual without following a fair and transparent process. FACTS IN W.P. NO.15129 OF 2007 3. It will be necessary to advert to few facts. As stated earlier, W.P.No.15129/2007 relates to site Nos.145, 146 and 147. The said sites are situated at Gulbarga. A reference is made to the Government Order dated 27th July 1964 which accords approval to the scheme of remodelling and converting the Central Jail Premises in Gulbarga into a supermarket. In the preamble of the Government Order which is a part of the proceedings of the Government of Mysore, it is stated that Gulbarga which is a place of historic importance is growing day by day, but the topographical conditions of the city have prevented further expansion of the city. With a view to overcome this aspect and to provide for a spacious supermarket for the city of Gulbarga, pursuant to the instructions given by the Hon’ble Minister for Public Works, a scheme was prepared for remodelling the Central Jail Premises which measured about 40 acres into a supermarket for meeting the demand for space for commercial and educational activities. The proposals incorporated in the scheme contemplated auctioning the frontages of the jail buildings and the opposite area for fashionable shops, business offices etc. The Government order approves the scheme for remodelling and converting the central jail premises at Gulbarga into a supermarket. By the same order, the construction of a new jail building was approved. One of the conditions in the order was that it being a self-supporting scheme, the amount of auction sale of the sites should be actually realized first before any fund under the head XXVII-Civil Works Miscellaneous is used.
4. On 17th December 2004, the eighth respondent in W.P.No.15129/2007 and the fourth respondent in W.P.No.16568/2006 applied to the then Hon’ble Minister of Public Works for allotment of Site Nos.145, 146 and 147 situated at Old Jail area of Gulbarga City. He stated that he was willing to pay higher amount than the earlier auction bid. He sought a direction from the Hon’ble Minister to allot the sites on the ground that his own shop is likely to be affected by the master plan. Thereafter, there was a correspondence between the Superintending Engineer and the Chief Engineer of the Public Works Department. In the meanwhile, the said three sites were put to auction. On the basis of the letter dated 15th October 2005 addressed by the Chief Engineer of the Office of C & B North, Dharwad to the Secretary of the Public Works Department stating that the sites should be sold to the applicants at the prevailing market price, a note was drawn by the Section Officer of the Public Works Department which records that the said three sites were sold on 10th April 1989 in a public auction, but the bidders did not deposit the value. It also records that if the said sites were to be sold to the eighth respondent in W.P.No.15129/2007 and the fourth respondent in W.P.No.16568/2006 (hereinafter called as “the allottee”), the opinion of the Hon’ble Minister for Public Works and Energy may be obtained. The said note proposed for submitting the file to the Hon’ble Minister of the Public Works Department. It appears that on 29th November 2005, the note was approved by the same Hon’ble Minister of the Public Works Department to whom the application was directly made by the allottee on 17th December 2004 for allotment of the sites. Annexure-P to W.P.No.15129/2007 is the opinion of the Under Secretary to the Government, Revenue Department which is approved by the Hon’ble Deputy Chief Minister on 10th January 2006. It records an opinion that it may not be proper to sell the sites to an individual and an action to sell the sites in public auction should be taken. It appears from Annexure-S to the said writ petition that paragraphs 36 and 37 were added to the note which record that the proposal for allotting the three sites to the alloteee has already been approved by the Hon’ble Minister for Public Works Department and therefore, in paragraph 37, it is recorded that the Revenue Department cannot take any action.
5. Annexure-V is a letter dated 18th February 2006 addressed by a Member of the Legislative Assembly to the Hon’ble Chief Minister of the State Government stating that the file of allotment of sites to the allottee is still pending and the allotment is being delayed. Therefore, a request was made to the Hon’ble Chief Minister to allot the sites to the said allottee. The said Member of the Legislative Assembly is the ninth respondent in W.P.No.15129/2007. Annexure-W is a further noting which records the opinion of the Revenue Department that it is not proper to sell the sites to an individual. The noting also records that the Secretary of the Hon’ble Chief Minister has asked the Secretary of the Public Works Department to submit the concerned case file to the Hon’ble Chief Minister for consideration. Annexure-X is the noting dated 12th May 2006 which records that the Hon’ble Chief Minister has approved the proposal of the Chief Engineer dated 15th October 2005 regarding sale of the sites at the market value. This is how by a communication dated 20th May 2006 (Annexure-Y), the Secretary of the Public Works Department informed the Chief Engineer, Communication and Building (North), Dharwad that the Government has granted permission to sell the three sites to the allottee at the rates mentioned therein. Thereafter, the sale deeds were executed by the Executive Engineer of the Public Works Department, Gulbarga. The sale deeds as regards Plot Nos.146 and 147 are Annexure-Z2 and Annexure-Z2a respectively which show that the Executive Engineer purported to execute the sale deeds on behalf of the Hon’ble Governor of the Government of Karnataka. The prayers in the writ petition are for quashing the letter dated 15th October 2005 addressed by the Chief Engineer and also for quashing the proceedings dated 29th October 2005 as well as 29th November 2005 and in substance, the decision of the Hon’ble Chief Minister to allot the sites to the allottee. There is also a prayer for quashing the sale deeds.
6. Objections have been filed in this petition by the allottee. In the objections, it is claimed that by executing the sale deeds from December 2008 onwards, the allottee has sold the developed site Nos.145 and 146 to individual owners. It is contended by the allottee that the sites have been purchased by him as per the market value fixed by the authorities. It is pointed out that till the year 2005, the sites could not be sold in public auction and therefore, he applied to the Hon’ble Minister of the Public Works Department for allotment of the said sites as his own shop was going to be affected by the master plan. In fact, a copy of the letter dated 17th December 2004 addressed by him to the Hon’ble Minister is annexed to the objections.
FACTS IN W.P. NO.16568 OF 2006 7. Turning to W.P.No.16568/2006, in substance, the challenge is to the sale of Plot No.148 to the same allottee. The petitioner’s case is that in the public auction, he purchased plot No.148. The contention of the petitioner is that the possession of Plot No.148 was never handed over to him. He is relying upon the stand taken by the second respondent in the petition regarding non-existence of Plot No.148 and the decision of the Committee to change the allotment of site from Plot No.148 to Plot No.147. In substance, the prayer in the petition was for setting aside the allotment made to the allottee and for a writ of mandamus to allot Plot No.147 to him.
8. We may note here that in RSA No.2127/2007, by the judgment and order dated 7th December 2011, the respondents therein (the President of the Super Market Committee and the Deputy Commissioner, and the Executive Engineer of the Public Works Department) have been directed to execute the correction deed by incorporating Plot No.147 in the sale deed executed in favour of the petitioner and to place the petitioner in possession of Plot No.147. The learned counsel appearing for the petitioner states that the petitioner has put the decree to execution and the same is pending.
SUBMISSIONS 9. The learned counsel appearing for the petitioner in W.P.No.15129/2007 submitted, in substance, that as per the scheme of the Government Order, the sites can be sold only by a public auction. He submitted that without following the fair and transparent process, on the basis of the applications made either by the allottee or at the instance of the allottee to the Hon’ble Minister for Public Works Department and the Hon’ble Chief Minister that the allotment of the three sites has been made to the allottee which is completely illegal. He relied upon various decisions including the decision of the Apex Court in the cases of COMMON CAUSE A REGISTERED SOCIETY vs UNION OF INDIA AND OTHERS1, SHIVSAGAR TIWARI vs UNION OF INDIA AND OTHERS2 and NEW INDIA PUBLIC SCHOOL AND OTHERS vs HUDA AND OTHERS3.
10. The learned counsel appearing for the petitioner in W.P.No.16568/2006 relied upon the aforesaid decree passed in RSA No.2127/2007 and submitted that now as per the decree, allotment of Plot No.147 will have to be made to him.
11. The learned counsel appearing for the allottee submitted that firstly, the Government Order dated 27th July 1964 does not contemplate allotment of the sites only by auction and in fact, outright sale of the plots was permissible. Her submission is that there are no takers for the sites, but the allottee has paid the price which was much higher than what was offered in the earlier auction. She would submit that the sites have been sold to the petitioner at the market value as determined by the Public Works Department. Her submission is that as the Government order did not prohibit the sale of the plots at the market value, there is no 1 AIR 1996 SC 3538 2 (1996) 6 SCC 558 3 AIR 1996 SC 3458 illegality about the allotment of the three sites to the allottee by way of sale. Her further submission is that in fact, there were no takers for the sites in the public auction and the State has acted in a bona fide manner as the market value has been paid by the allottee. She further submitted that Site Nos.145 and 146 have been already transferred by the allottee.
12. The learned Additional Government Advocate opposed the petitions and supported the decision of the allotment of the three sites to the allottee. He pointed out that the State will be bound by the decree passed in RSA No.2127/2007.
CONSIDERATION OF SUBMISSIONS 13. We have considered the submissions. As far as the disposal of a property vesting in the State is concerned, the law is no longer res integra right from the decision of the Apex Court in the case of RAMANA DAYARAM SHETTY vs INTERNATIONAL AIRPORT AUTHORITY OF INDIA AND OTHERS4, In the said decision, the Apex Court has held that the State cannot act like a private individual and deal with any person which pleases. It was further held that the action of the State cannot be arbitrary and irrational and must be confined and structured by rational, 4 (1979) 3 SCC 489 relevant and non-discriminatory standards or norms.. However, it will be sufficient if we make a reference to the very well known decision of the Apex Court on this subject in the case of AKHIL BHARTIYA UPBHOKTA CONGRESS vs STATE OF MADHYA PRADESH AND OTHERS5. Paragraphs 65 to 67 of the said decision are relevant which read thus:
“65. 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/decision of the State and/or its agencies/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 favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
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