IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.12905 OF 2019 (GM-RES) PIL BETWEEN:
SRI PAMPAPATHI S. KARAMADI ADVOCATE AGED ABOUT 45 YEARS NEAR KOPPA TANK DHARWAD - 580008 ... PETITIONER (BY SRI MOHAN K.N., ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT M.S. BUILDING AMBEDKAR VEEDHI BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. THE COMMISSIONER HUBBALLI DHARWAD MUNICIPAL CORPORATION HUBBALLI – 580 020 3. THE ADDITIONAL COMMISSIONER, DEPARTMENT OF PUBLIC INSTRUCTIONS DHARWAD – 580 008 4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS DHARWAD – 580 008 5. THE BLOCK EDUCATION OFFICER DHARWAD – 580 008 6. THE PRESIDENT ROTARY CLUB K.C. PARK ROAD DHARWAD – 580 008 ... RESPONDENTS (BY SRI B.V. KRISHNA, AGA FOR R1 AND R3-R5; SRI I.G. GACHCHINAMATH, ADVOCATE FOR R2; SRI ARAVIND M NEGLUR, ADVOCATE FOR R6) *** THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R1 AND R2 TO CANCEL THE LEASE DATED 06.08.1967 GRANTED IN FAVOUR R-6 PRODUCED AT ANNEXURE C FOR THE VIOLATION OF CONDITIONS OF THE RESOLUTION NO.2375 DATED 19.07.1967 AT ANNEXURE-B; DIRECT THE R-3 TO R-5 TO CANCEL THE CERTIFICATE DATED 26.03.2002 PRODUCED AT ANNEXURE-F; DIRECT THE R-3 TO R-5 TO NOT TO GIVE PERMISSION TO R-6 TO RUN SCHOOL IN THE NAME OF PAUL HARRIS MEMORIAL ROTARY EDUCATION SOCIETY IN THE LAND GRANTED UNDER LEASE DATED 06.08.1967 BY THE R-2; DIRECT THE R-2 TO TAKE FURHTER ACTION AGAINST THE R-6 PURSUANT TO THE NOTICE DATED 10.08.2018 ISSUED BY THE R-2 AT ANNEXURE-R; GRAND AN INTERIM ORDER DIRECTING THE R-3 TO R-5 NOT TO GIVE PERMISSION FOR THE ACADEMIC YEAR 2019-20 TO R-6 TO RUN SCHOOL IN THE LAND GRANTED UNDER LEASE DATED 06.08.1967 BY R-2.
THIS PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE, ORDERED THE FOLLOWING:
ORDER Heard the learned Counsel appearing for the petitioner, the learned AGA appearing for the first, third and fourth respondents, the learned counsel appearing for the second respondent and learned counsel appearing for the sixth respondent.
2. The lands, subject matter of this writ petition, is having an area of 7600 Sq.Ft., which is out of the Kittur Channamma Park at Dharwad City. The second respondent is the Commissioner of Hubli – Dharwad Municipal Corporation, which was established under the Bombay Provincial Corporations Act, 1949, which is now governed by the Karnataka Municipal Corporation Act of 1976 (for short ‘the said Act of 1976’). A resolution was passed by the Standing Committee of the said Municipal Corporation on 19th July 1967, by which it was resolved to grant lease of the schedule land to the 6th respondent – Rotary Club, Dharwad with a condition that the land should be used exclusively for the construction of a Children’s Library and a Children’s Theatre. The land was granted on lease for a period of 99 years. The annual rent was fixed at Rs.25/-.
3. The grievance made in this petition is that instead of using the subject land exclusively for the Children’s Library and Children’s Theatre for the benefit and enjoyment of the children, the 6th respondent has constructed a school on the said land in breach of the terms and conditions of the allotment. The petitioner is relying upon the show cause notice dated 10th August 2018 issued by the 2nd respondent calling upon the 6th respondent to show cause as to why the land, subject matter of the lease, shall not be resumed.
4. The submission of the learned counsel appearing for the petitioner that there is an admitted violation by the 6th respondent of the terms and conditions on which the lease was granted. He submitted that though a specific show cause notice was issued by the Municipal Corporation to the 6th respondent for committing breach of terms and conditions, no action has been taken on the basis of the show cause notice. He submitted that the violations are admitted by the 6th respondent and therefore, the lease ought to have been cancelled.
5. The learned counsel appearing for the 6th respondent invited our attention to the statement of objections filed, in which, it is accepted that the land was leased in favour of the 6th respondent with a condition to establish Children’s Library and Children’s Theatre. It is submitted that a resolution has been passed on 21st February 2019 by the Municipal Corporation, by which it was resolved to grant the lease of the said land to the 6th respondent for running a school subject to the approval by the State Government.
6. We must note that the learned counsel appearing for 6th respondent submitted that a representation has been made to the first respondent – State Government seeking allotment of the schedule land. The submission is that there is a writ of mandamus issued by the Dharwad Bench of High Court of Karnataka, directing the State to take a decision. He submitted that no interference is called for. His last submission is that the land was granted for use the said land for the benefit of the children. Therefore, by running a school for the children, the use was not changed. Hence, there is no breach of the conditions.
7. The learned counsel appearing for the Commissioner of the Municipal Corporation supported the resolution dated 21st February 2019 and submitted that no inference is called for.
8. We have considered the submissions. There is no dispute that the said Municipal Corporation granted lease in respect of subject land on terms and conditions which are incorporated in the resolution of the Standing Committee dated 19th July 1967. Clauses 2 and 3 of the said resolution reads thus:
“(2) The land shall be used exclusively for the purpose of construction of Children’s Library and Children’s Theatre strictly according to the plans approved by the Commissioner and neither the land nor the building shall be sublet to any body and in any manner and no profit shall be derived by the Club, by way of sub-lease, etc of any part of the land or the building. The lessee shall not sell or dispose of the lease hold rights to any other party in any manner whatsoever.
(3) The Library and Theatre to be constructed shall be used exclusively for the benefit and enjoyment of the children and no programmes meant for adults shall be allowed to be arranged in the building and the Rotary Club shall not hold Rotary Club meeting in the said building.”
(underlines added) 9. Thus, it is clear that the land could be used exclusively for construction of Children’s Library and Children’s Theatre. The word ‘exclusively’ is used in Clause (2) in the resolution dated 19th July 1967 and therefore, the land cannot be put to any other use such as running a school. In the objections filed by the 6th respondent, the said action of using the land for school is sought to be justified. In fact, in Paragraph – 9 of the objections filed by the 6th respondent, it is stated thus:
“It is submitted that it is true that when the land was leased in favour of this Respondent a condition was imposed to establish a children’s library and children’s theatre. The document available with this respondent would depict that children’s library and children’s theatre were in fact built on the land. In the year 1970, the then Chief Minister, Shri Veerendra Patil laid the foundation stone for construction of a library and theatre. The construction completed in 1973. It was inaugurated by the then Chief Minister Shri Devaraj Urs. The Library and theatre were constructed in such a way that they face Kittur Channamma Park to attract children visiting the Park. However, for a long period of 12 years i.e., starting from 1972 till 1982 children did not evince any interest even in visiting the library and park let alone being benefited by the facilities available therein. Therefore, the members of the Rotary Club proposed to start a Kinder Garden school for children whereby the intended section of society would get the benefit of learning while playing, reading in library and watching motion picture in the theatre. Therefore, the Rotary Club, Dharward, in the fond memory of its Founder, Shri Paul Harris established an educational institution in the name, “Paul Harris Memorial Rotary Education Society”. The Society was registered in 1982. Since the kinds have been using all the facilities available in the place which include education in Kinder Garten and activities of park, library and theatre. The education institution has been running the school since past 35 years without collecting any donation from parents. The Institution has been admitting poor students also under Right to Education Act. Unfortunately, the second respondent built a wall separating the school from rest of the park in 2005. Since then Park has been separated from the School.”
(underline supplied) 10. Thus, the stand taken is that for a long period the children did not evince any interest in visiting the Library, and therefore, the 6th respondent – Rotary Club in the fond memory of its founder Sri Paul Harris has established an educational institution on the land.
11. The question, which arise in this petition is, whether there is a change of dominant user.
12. As noted earlier, the word ‘exclusively’ has been used in the resolution of the Standing Committee while allotting the site to the 6th respondent. When there is a stipulation in the resolution the land shall be used exclusively for construction of Children’s Library and Children’s Theatre, the dominant use of the land is running Children’s Library and Children’s Theatre. Diverting the said land to use as a school cannot said to be a use of the said land for an ancillary purpose. Thus, on the face of it, the 6th respondent has committed a gross breach of the 2nd condition incorporated in the order dated 19th July 1967 (Annexure-B). In fact, for that purpose, a show cause notice was also issued by the 2nd respondent to the 6th respondent. However, show cause notice was not taken to its logical end.
13. Then comes the resolution passed by the General Body of the Municipal Corporation on 21st February 2019. The relevant part of the Resolution reads thus:
”In respect of Ward No.2 the inner area of Kittur Rani Chennamma Park to the extent of 7600 sq. feet of CT Sy. No.45 measuring 7600 sq. feet has been leased out on lease amount of Rs.25/- per year in favour of Rotary Club, Dharwad as per the proposal of the Commisisoner dated 14.04.1967 and Resolution dated 19.07.1976 of the Standing Committee subject to certain conditions. But the said institution instead of using the area for children library have unauthorizedly established school and are using the Kittur Channamma Park as thought it is their authorized ground in violation of the conditions hence in that view of the matter the Commissioner is directed by the Hon’ble Mayor that the proposal has to be sent to the Government and subject to the approval of the Government the area has to allotted to the Rotary club and necessary steps in this regard has to be taken.”
When the resolution was passed, the show cause notice was already issued on 10th August 2018. The resolution does not refer to exercise of any statutory power under which a proposal to the State Government for regularization could be submitted.
14. Thus, we find that there is an admitted breach of terms and conditions on which the lease was granted to the 6th respondent. The dominant purpose of granting the lease was to construct Children’s Library and Children’s Theatre and therefore, concessional amount of rent in the sum of Rs.25/- was fixed. A show cause notice has already been served by the 2nd respondent to the 6th respondent. The said show cause notice will have to be taken to its logical conclusion.
15. So far as the representation made by the 6th respondent to State Government for allotment is concerned, it is for the State Government to decide the same. However, while the said application is decided, the State Government will have to consider the fact that the 6th respondent has committed breach of terms and conditions on which the lease was granted.
16. Therefore, we dispose of the petition by passing the following order:
(1) We direct the second respondent to pass an appropriate order in accordance with law on the show cause notice dated 10th August 2018 in the light of the observation made in this order. An appropriate order shall be passed within a period of two months from today;
(2) We make it clear that while passing the order, the second respondent shall not be influenced by the resolution dated 21st February 2019, inasmuch as, the said resolution itself records the breach of terms and conditions made by the sixth respondent;
(3) This order will not preclude the State Government from considering the application made by the sixth respondent for grant of said land. However, while considering the application, the State Government is bound to consider the effect of breach committed by the sixth respondent of the terms and conditions on which the land was leased for a period of 99 years;
(4) The petition is partly allowed on the above terms.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK