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Chandra Suvarna v/s State of Karnataka, Rep by under Secretary to Government, Bangalore & Others

    Writ Petition No. 19527 of 2021 (GM-RES)
    Decided On, 24 November 2022
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE M. NAGAPRASANNA
    For the Petitioner: Parameshwar N. Hegde, Advocate. For the Respondent: R1 to R3, B.V. Krishna, AGA, R4, S.K. Acharya, Keshava Bhat, Advocates.


Judgment Text
(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 23.09.2021 (Annexure-A) passed by R1 etc.)

1. The petitioner is before this Court calling in question order dated 23-09-2021 which allots 700 sq.mts. of space in the port of Malpe Beach to the 4th respondent.

2. Shorn of unnecessary details, the facts in brief, are as follows:

The petitioner and respondent No.4 are applicants for grant of lease in respect of an area measuring 700 sq.mts. of land in Sy.No.262/1C1 at Fish Conservation Centre, Malpe, Udupi for establishment of Ice Unit/Cold storage of fish. Both the applications of the petitioner and respondent No.4 were considered and rejected or returned. The reason for return was that the land had to be allotted only by way of public auction. The rejection/return of the application of the 4th respondent comes about on 16.08.2021 and that of the petitioner on 21.09.2021. After the rejection, it appears that both the petitioner and the 4th respondent knocked the doors of political representatives. The political representatives issued certain notes/communications to the Department directing allotment of 700 sq.mts. of land on lease in favour of the 4th respondent as a special case. Pursuant thereto a communication is issued on 17.09.2022. The said communication resulted in the impugned order being issued on 23-09-2021 allotting 700 sq.mts. in Sy.No.262/1C1 to the 4th respondent on lease as a special case. The issuance of the order drives the petitioner to this Court in the subject petition.

3. Heard Sri Parameshwar N.Hegde, learned counsel appearing for the petitioner, Sri B.V.Krishna, learned Additional Government Advocate for respondents 1 to 3 and Sri S.K.Acharya, learned counsel appearing for respondent No.4.

4. The learned counsel appearing the petitioner would contend with vehemence that out of the applications of the petitioner and the 4th respondent which were turned down by the competent authority, the application of the 4th respondent is considered and granted only at the behest of the political representative and therefore, it is contrary to law.

5. The learned Additional Government Advocate appearing for the State would contend that the application of the petitioner is also pending consideration and he would also be granted with land. But, he is not in a position to defend the action of granting public property sans auction.

6. The learned counsel appearing for the 4th respondent would contend that political pressure was brought in both the petitioner and the 4th respondent but the order comes about in favour of the 4th respondent and if the petitioner is also to be a beneficiary no prejudice would be caused to him. He would also contend that during the pendency of the petition, Government is not stopping at allotment as it has again allotted land to some other person on 9-09-2022. This allotment is for 300 sq.mts. as a special case but would submit that the petition be dismissed as the petitioner himself is now the beneficiary of the very same political interference.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

8. Both the petitioner and the 4th respondent were applicants for grant of 700 sq.mts. of land in Sy.No.262/1C1 at Fish Conservation Centre, Malpe, Udupi for establishment of Ice Unit/Cold storage. It is not in dispute that it is a public property. Applications of both the 4th respondent and the petitioner were considered and turned down by communications dated 16.08.2021 and 21-09-2021 respectively. The reason that runs through both the rejection orders are as follows:

“KANNADA”

The reason is that the property will have to be put to tender/ public auction and only then such allotment can be made. This is not challenged by the petitioner or the 4th respondent. What they would do is again knock the doors of political representatives. In fact prior to rejection of their applications, the petitioner and the 4th respondent had knocked the doors of political parties. The issue is bought back to life despite rejection.

9. One Sri Lalaji R.Menden, Member of Legislative Assembly communicates to the Joint Director of Fisheries, Udupi to take steps to allot 700 sq.mts. of land, notwithstanding it being rejected on 16-08-2021. The communication is sent on 31.08.2021. The communication reads as follows:

“KANNADA”

Yet another communication comes about from one Sri K.Raghupathi Bhat, again a political representative. The communication reads as follows:

“KANNADA”

This communication directs that lease should be granted for 10 years. Both these communications result in the Joint Director of Fisheries issuing emergent official memorandum dated 17.09.2021. The said official memorandum reads as follows:

“KANNADA”

This results in issuance of the impugned order dated 23.09.2021. One communication made by the political representative was to the effect that steps be taken by the administration to allot 700 sq.mts. of land in favour of the 4th respondent on lease and another communication is to lease the said property for a period of 10 years; the Joint Director of Fisheries issues an emergent official memorandum for the purpose, as if, otherwise the heavens would fall. Immediately thereafter the impugned order comes about.

10. It is an admitted fact, as observed hereinabove, that the land is a public property. Public property is sought to be distributed away, by interference of politicians in the administration. Public property, is trite to be leased out only by way of public auction/tender failing which it would become an arbitrary exercise of power. Public property cannot be bartered away at the whim and fancy of interested persons without even the public coming to know availability of such property. The irony in the case at hand is the competent authority has already rejected the applications of both the petitioner and the 4th respondent holding that allotment would be only by way of public auction. Notwithstanding this the impugned order comes about purely on political interference.

11. Political interference of any kind in public administration would put such administration in peril. A classic illustration of the said statement is the case at hand. The application that has come to be rejected is immediately processed and allotted to the 4th respondent only because the same has been recommended for such allotment as a special case. Where from special case would spring in, is unknown. It cannot have any backing in law. The case which is directed to be considered as special case is, on the face of it, arbitrary as it takes away the right of participation by others. Political interference is not stopped even during the pendency of the petition. The learned counsel for the 4th respondent has placed on record a memo to demonstrate that is has become a norm for the State to act upon political interference in granting public properties, as special cases, to the favoured lot.

12. It need no emphasis that the State is governed by ‘rule of law’ and not by ‘rule of men’. A few men at the helm of affairs or the powers that be, cannot be seen to act in a manner that would thwart the rule of law and generate a concept “you show me the person; I will tell you the law”. This Court would not permit the State Government to act in a partisan manner in favour of any applicant.

13. There are number of public properties which can be leased out to entrepreneurs. There should be uniformity in grant of such lands. Such uniformity will come about only when there is transparency in procedure; transparency in procedure can come about only when the properties are put to public auction and every citizen is permitted to participate in the auction. Therefore, the 1st respondent/State shall forthwith stop issuing allotment orders of public properties, as special cases, as a product of favouritism or political interference and allot them o

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nly by way of public auction. This case would form the last straw of admonishing the State for bartering away public property at its whim and fancy. Any such iteration would, without doubt, be viewed seriously, as such actions cannot bear any sanction under any law. Rule of law is insurmountable. 14. For the aforesaid reasons, I pass the following: ORDER (i) Writ Petition is allowed and the impugned order dated 23-09-2021 stands quashed. (ii) Quashment of the order impugned will not come in the way of the petitioner and the 4th respondent participating in the public auction. (iii) State shall allot public properties only by way of public auction including the subject property. Consequently, I.A.No.1/2022 also stands disposed. Registry is directed to communicate a copy of this order to the Chief Secretary, Government of Karnataka.
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