w w w . L a w y e r S e r v i c e s . i n



Indian Gymkhana, Represented by its Secretary, M. Gopala Reddy v/s The State Of Karnataka Department Of Housing & Urban Development, Bengaluru & Others


Company & Directors' Information:- HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED [Active] CIN = U74899DL1970GOI005276

Company & Directors' Information:- HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED [Active] CIN = L74899DL1970GOI005276

Company & Directors' Information:- KARNATAKA URBAN DEVELOPMENT CORPORATION LIMITED [Active] CIN = U45202KA1970ULL001975

Company & Directors' Information:- GOPALA HOUSING PRIVATE LIMITED [Active] CIN = U45400WB2007PTC120656

Company & Directors' Information:- S S M HOUSING (KARNATAKA) PRIVATE LIMITED [Active] CIN = U45201KA2006PTC038284

Company & Directors' Information:- REDDY HOUSING PRIVATE LIMITED [Active] CIN = U45200KA2012PTC064521

    Writ Petition No. 21179 of 2017 (LB-BMP)

    Decided On, 31 August 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA

    For the Petitioner: S.S. Naganand, Senior Counsel, R. Subramanya, Advocate. For the Respondents: R1 & R2, A.S. Ponnanna, Additional Advocate General a/w Prathima Honnapura, AGA, R3, K.N. Puttegowda, R4, K.H. Somasekhara, 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 passed by the R-2 dated 24.04.2017 vide Annexure-A and Declare that the Respondent Nos.1 To 3 have no power and authority to interfere with the right and interest of the petitioner - association in the light of the lease deed dated 14.12.2010 executed in favour of the petitioner pursuant to the Government Order dated 7.5.2010.)

1. The petitioner in the above writ petition has sought for writ of certiorari to quash the impugned order/proposal made by the 2nd respondent - Additional Chief Secretary made in No.UDD 299 MNG 2015 as per Annexure-A and declare that Respondent Nos.1 to 3 have no power and authority to interfere with the right and interest of the petitioner - Association in the light of the lease deed dated 14.12.2010 executed in favour of the petitioner in terms of the Government Order dated 7.5.2010.

I FACTS OF THE CASE

2. It is the case of the petitioner - Indian Gymkhana that it is an Association formed in the year 1931 for promoting sports activity. The erstwhile Bangalore City Municipality has leased 4 acres 28 guntas of land situated at Wheelers Road, Cox Town, Bangalore to the petitioner - Association for a period of 5 five years in the year 1932. Subsequently on 14.12.1937, the lease was renewed for a further period of five years. On 15.12.1954, the lease period was extended for a further period of 15 years. Likewise, the lease period was further extended by five years on 29.8.1969. On 8.2.1978, the period of lease came to be extended for a further period of 35 years w.e.f 20.3.1973. Thereafter, the Commissioner, Bangalore City Corporation considering the request made by the petitioner accorded permission to put up additional construction on the land leased on 22.8.1978. Subsequently, the petitioner approached the Corporation in the year 1991 with a detail construction plan for construction of Sports Complex in the area leased. The said request of the petitioner was not considered by the Corporation. Thereafter the petitioner approached the State Government. On 2.9.1993, the State Government by its letter directed the Corporation Commissioner to grant approval to the plan submitted by the petitioner. Accordingly, the Bengaluru City Corporation has sanctioned the plan for construction of the Sports Complex on 2.10.1993. After obtaining the sanctioned plan, the petitioner - Association commenced the construction of the Sports Complex and the construction was completed in the year 1994 and in the said Sports Complex, the petitioner - Association has accommodated indoor games such as Badminton, Billiards, Snooker, Table Tennis and Carom.

3. It is further case of the petitioner that the State Government by an order dated 16.11.1994 confined the lease of land to an extent of 1 acre 4 guntas as against 4 acres 28 guntas. Therefore the petitioner was constrained to file Writ Petition No.34586/1994 before this Court. This Court by an order dated 16.4.2003 allowed the writ petition holding that the State Government has no power to limit the extent of land leased by altering the terms of the lease. Ultimately, the petitioner - Association filed Special Leave Petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court by an order dated 15.12.2005 allowed the Civil Appeal No.4116/2003 observing that the order passed by this Court does not take into consideration the provisions of Section 176 of the Karnataka Municipal Corporations Act, 1976.

4. It is further contended that the lease period which was extended for a period of 35 years w.e.f. 20.3.1973 came to an end in the year 2008. Before expiry of the said lease period, the petitioner requested the 3rd respondent - Bruhat Bengaluru Mahanagarapalike ('BBMP' for short) for extension of lease for a further period of 35 years on the same terms and conditions as that of the earlier lease deed by letters dated 24.12.2007 and 2.7.2008. It appears the Commissioner, BBMP placed a note before the Administrator who was functioning in the absence of the Elected Body recommending renewal of lease to an extent of 1 acre 8 guntas as against 4 acres 21 guntas. However the State Government exercising its powers under Sections 96 and 98 of the Karnataka Municipal Corporations Act, 1976 issued a Government Order dated 7.5.2010 and renewed the lease to an extent of 4 acres 21 guntas for a period of 35 years from 20.3.2008 subject to the condition that the petitioner shall pay Rs.60,000/- per acre towards annual lease and further subject to enhancement of the same by 15% once in three years. Accordingly, the Corporation Council has passed a resolution on 29.9.2010 as per Annexure-S accepting the Government Order dated 7.5.2010. Subsequently, the 3rd respondent - BBMP executed lease deed in favour of the petitioner - Association on 14.12.2010 for a period of 35 years w.e.f. 20.3.2008.

5. When things stood thus, the State Government without notice and giving an opportunity of being heard, proceeded to pass another Government Order dated 19.9.2015 modifying the Government Order dated 7.5.2010, granting lease to the reduced extent of 1 acre 8 guntas on a revised lease amount. That was the subject matter of Writ Petition No.45070/2015 before the Division Bench of this Court and this Court after hearing both the parties by the order dated 27.9.2016 disposed of the writ petition in view of the concession made by the learned Additional Advocate General on behalf of the state and set aside the Government Order dated 19.9.2015 impugned therein and remitted the matter to the 1st respondent - State Government to reconsider the matter in accordance with law after affording an opportunity of hearing to the petitioner and Respondent Nos.3 and 4 and all the contentions of both the parties are kept open. In the said writ petition, this Court also directed the petitioner not to put up any further construction in the leased area which was cancelled on 19.9.2015, till the matter is reconsidered by the State Government. In pursuance of the said order, the 2nd respondent - Additional Chief Secretary initiated proceedings, conducted enquiry and placed the proposal/ matter before the Government/Cabinet for decision. Hence the present writ petition is filed for the relief sought for.

II STATEMENT OF OBECTIONS FILED BY THE STATE GOVERNMENT

6. The State Government filed statement of objections and contended that the writ petition filed against the impugned proposal/proceedings is premature since the 2nd respondent is not the Government/Authority to take decision. The 2nd respondent has referred the matter for decision of the Cabinet since the previous decisions/Government Orders were passed by the Cabinet. So far as the continuation of the status-quo order by the 2nd respondent was only following the decision of the Division Bench of this Court. Therefore the writ petition filed by the petitioner is premature and not maintainable. It is further contended that the lease deed alleged to have been executed by the BBMP cannot be considered at this stage in view of the remand order made by this Court. It is also contended that the allegation that the entire area, which is leased in favour of the petitioner has been utilized is not correct and accurate. There are some open spaces in the area and more importantly, there are some unauthorized structures built by the petitioner without sanction plan by the BBMP, which the 2nd respondent has rightfully ordered to be removed. The writ petition is filed only to protract the proceedings. The Action Plan proposed by the 2nd respondent to be placed before the Cabinet for legal process to be completed in terms of the provisions of Karnataka Government (Transaction of Business) Rules 1977, which specifies that for modification of order of the Cabinet, the matter has to be placed before the Cabinet for decision. Therefore petitioners are not entitled to any relief before this Court under Articles 226 and 227 of the Constitution of India and sought for dismissal of the writ petition.

III STATEMENT OF OBECTIONS FILED ON BEHALF OF THE 3RD RESPONDENT - BBMP

7. The 3rd respondent -BBMP also filed statement of objections raising various contentions with regard to lease, powers of the Government for extension of lease in respect of the property belonging to BBMP and the extent of mis-utilisation by the petitioner and contended that the petitioner - Association is not giving free membership to the residents of the area and is collecting huge amount towards membership fee. The common people and poor students are not in a position to become the members of the Association. Just for the benefit of about 1500 members belonging to creamy class, the entire extent of land cannot be given to the petitioner Association. The petitioner - Association is using 1 acre 8 guntas of land exclusively for the purpose of its members i.e., for Bar & Restaurant, playing cards, indoor games and nothing else. It is further contended that the 2nd respondent - Addl. Chief Secretary has made proposal after giving sufficient opportunity of hearing to all the petitioners and the proposal made is in accordance with law. Therefore the petitioner is not entitled to any relief and sought for dismissal of the writ petition.

IV. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES TO THE LIS:

8. I have heard the learned counsel for the parties to the lis.

9. Sri S.S.Naganand, learned Senior Counsel for the petitioner contended that the second respondent/Addl. Chief Secretary who heard the matter is the Government and he has to pass orders and there is no need to go to the cabinet. On that ground alone the impugned order passed by the second respondent is liable to be quashed. He further contended that the second respondent having heard the matter, has not decided the issue under Section 176 of the Karnataka Municipal Corporations Act, 1976. Section 176(6)(b)(iii) of the KMC Act contemplates that 'no immovable property shall be disposed of by sale or by other transfer, except with the previous sanction of the Government'. Therefore, the impugned order passed by the second respondent as per Annexure-A cannot be sustained. He further contended that the person who is the authority to take a decision, has to hear the petitioner before passing any orders.

10. The learned Senior counsel further contended that Rule 20(1)(a) of the Karnataka Government (Transaction of Business) Rules, 1977, is mandatory in nature, whereas Rule 20(1)(b) is optional, and Rule 20(1)(b) contemplates that, the cases other than those specified in the First Schedule to the Rules shall be brought before the Cabinet by the direction of - (i) Chief Minister, or (ii) the Minister-in-charge of the Department. He relied upon Rule 7A of the Karnataka Government (Transaction of Business) Rules, 1977.

11. The learned Senior Counsel further contended that the second respondent cannot go beyond the earlier order passed by the State Government on 07.05.2010. Therefore, he sought to quash the impugned order passed by the second respondent by allowing the present writ petition. In support of his contentions, learned Senior counsel relied upon the following judgments:

(i) AIR 1959 SC 308, para-3,18,19,31.

(ii) (2008) 8 SCC 725, para 24, 31, 35.

(iii) (2011)13 SCC 733, para 24.

(iv) Unreported judgment of this Court in W.P.No.40527-528/2011 dated 08.12.2012, para 5 and 12.

12. Per contra, Sri A.S.Ponnanna, learned Addl. Advocate General, sought to justify the proceedings initiated by the second respondent and contended that the Government Orders dated 07.05.2010, Annexure-P and 19.09.2015, Annexure-AB, were passed by the State Government after the cabinet decision. Therefore, the very writ petition filed by the petitioner against the impugned proceedings/proposal made by the second respondent is pre-mature and on that ground alone the writ petition is liable to be dismissed as not maintainable. He further contended that the Division Bench of this Court made in W.P.No. 45070/2015, by the Order dated 27th September 2015 set-aside the order dated 19.09.2015 on the basis of the concession made on behalf of the Government and recorded the statement of Addl. Advocate General that the matter will be heard on behalf of the State Government by the Addl. Chief Secretary, Urban Department, Vikasa Soudha, Bengaluru, and the proceedings will commence from 03.10.2016. Both the learned counsel for the petitioner and respondent Nos.3 and 4 submitted that their clients will appear before the Addl. Chief Secretary. Therefore, it is not open for the petitioner to contend contrary to the findings recorded by the Division Bench on the basis of the concession made by learned counsel for both the parties. On that ground also, writ petition is liable to be dismissed.

13. The learned Addl. Advocate General further contended that in terms of the agreement/concession made by both the parties at para 6 of the judgment of the Division Bench was not at all challenged either by the petitioner or the State Government. Therefore, the same is binding on the petitioner. As per Annexure-A, the proceedings has been commenced and conducted by the Addl. Chief Secretary after giving sufficient opportunity of hearing, as contemplated under law. Therefore, it is for the Government to take a decision on merits of the proposal made by the Addl. Chief Secretary, as per Annexure-A. Therefore, the very challenge to Annexure-A made is pre- mature and liable to be rejected. He further contended that in the absence of any statutory provision, the concept of providing an opportunity of hearing was provided by the Division Bench of this Court in W.P.No.45070/2015 on the concession made on behalf of the Government and there is no provision under the Karnataka Government (Transaction of Business) Rules, 1977, to provide an opportunity of hearing either by the Minister or the Cabinet. Therefore, he sought to dismiss the writ petition.

14. While replying to the judgment relied upon by the learned Senior Counsel for the petitioner, learned Addl. Advocate General contended that the judgment in Gullapalli Nageswara Rao and others vs. A.P. State Road Transport Corporation and another reported in AIR 1959 SC 308, was a case where the Motor Vehicle Rules provided for personal hearing and that was tried to deviate in the said case. The Supreme Court held that it is the duty of the authority to provide an opportunity of hearing before proceeding. Therefore, the said judgment has no application to the facts of the present case. He further contended that in the case of Dev Dutt vs. Union of India and others reported in (2008) 8 SCC 725, the question as to what is natural justice? is answered as, "the Rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarized in one word: fairness. In other words, what they require is fairness by the authorities concerned. Of course, fair would depend on the situation and the context". Admittedly in the present case, the Addl. Chief Secretary has given sufficient opportunity to the petitioner to put forth its case in the proceedings commenced in pursuance of the directions issued by the Division Bench of this Court. Therefore, the said judgment is not applicable to the facts and circumstances of the present case. Therefore, he sought to dismiss the writ petition.

15. Sri K.N.Puttegowda, learned counsel for respondent No.3/BBMP adopted the arguments advanced by the learned Addl. Advocate General appearing on behalf of the State and contended that the very writ petition filed is pre-mature and petitioner is not entitled to any relief under writ jurisdiction of this Court. He sought to dismiss the writ petition.

16. Sri Somasekhara K.H., learned counsel for the fourth respondent, while adopting the arguments advanced by the learned Addl. Advocate General, contended that the petitioner is misusing the Government land for their personal gains and petitioner cannot be benefited at the cost of the general public at large and therefore the petition filed against the impugned order is not maintainable and sought to dismiss the writ petition.

V. POINT FOR CONSIDERATION:

17. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:

"Whether the petitioner has made out a case to interfere with the proceedings /proposals made by the Addl. Chief Secretary dated 24.04.2017 made in UDD 299 MNG 2015, in the facts and circumstances of the present case?"

VI. CONSIDERATION:

18. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, including original records, carefully.

19. Though according to the petitioner, on the earlier occasion, the matter went upto Supreme Court, the fact remains that the State Government, by the order dated 07.05.2010 renewed the lease in respect of 4 acres 28 guntas of land in favour of the petitioner Society for a period of 35 years subject to the petitioner paying Rs.60,000/- per acre on annual lease and enhancement of 15%, once in every three years. It is also not in dispute that subsequently, in pursuance of the said order, the Corporation also passed resolution on 29.09.2010 accepting the Government Order and subsequently, executed lease deed on 14.12.2010.

20. It is an undisputed fact that the State Government after obtaining opinion from the Law Department on the basis of the direction issued by the Upalokayuktha, has proceeded to pass another order on 19.09.2015 reducing the activities of the club to an extent of 1 acre 8 guntas i.e., 52.272 sq.ft. on the existing market value of Rs.2,800/- per sq.ft. i.e., on annual lease of Rs.1,46,36,160/-. The said Government Order was subject matter of W.P.No.45070/2015 before the Division Bench of this Court. In view of the submission made by the learned counsel for the petitioner therein that the order passed by the Government was without affording an opportunity of hearing to the petitioner who is beneficiary under the order dated 07.05.2010, sought to set-aside the order dated 19.09.2015 with liberty to the State Government to reconsider the matter in accordance with law, after affording an opportunity of hearing. The said statement made by the learned counsel for the petitioner was acceded fairly by the learned Addl. Advocate General and submitted that the impugned order dated 19.09.2015 may be set- aside with liberty to the State Government to reconsider the matter in accordance with law, after affording opportunity to the petitioner as well as respondent Nos.3 and 4 including BBMP.

21. In view of the aforesaid submissions and after hearing learned counsel for both the parties, the Division Bench of this Court in W.P.No.45070/2015 at paragraph 5 and 6 passed the order as under:

"5. In view of the above, we make the following order:

(i) Government Order No....152/MNG 2014 dated 19.09.2015 (Annexure-C) is set aside. The matter is remitted to respondent No.1 for reconsideration in accordance with law after affording an opportunity of hearing & 4. All contentions of both the parties are kept open.

(ii) In the interest of justice, till the mater is reconsidered by the State Government, the petitioner shall not put up any further construction in the leased area which was cancelled by the aforesaid impugned order dated 19.9.2015, which is now set aside by this order.

6. At this stage, the learned AAG submits that the matter will be reconsidered by the State Government and an appropriate order will be passed in the matter as expeditiously as possible, and in any event within three months from the date of receipt of a copy of this order. He further submits that the matter will be heard on behalf of the State Government by the Additional Chief Secretary, Urban Development Department, Vikasa Soudha, Bengaluru, and the hearing will commence from 03.10.2016 at 3.00 p.m. Learned counsel for the petitioner and respondent Nos.3 & 4 submits that their clients will appear before the Additional Chief Secretary, Urban Development Department, Vikasa Soudha, Bengaluru, on 03.10.2016 at 3.00 p.m. The submissions are placed on record."

22. A careful perusal of the order passed by the Division Bench of this Court clearly depicts that it is the specific case of the petitioner that the impugned order dated 19.09.2015 was passed without affording an opportunity of hearing. It was submitted on behalf of the State Government that the said order may be set-aside with liberty to the Government to reconsider the matter. Accordingly, the Division Bench of this Court set-aside the Government Order dated 19.09.2015 and remitted the matter to the first respondent Government for reconsideration in accordance with law, after affording an opportunity of hearing to the petitioner as well as the respondent Nos.3 and 4 and all the contentions of both the parties were kept open, and also directed the petitioner not to putforth any further construction in the leased area till the matter is reconsidered by the State Government.

23. The order passed by the Division Bench further clearly depicts that the matter will be heard on behalf of the State Government by the Addl. Chief Secretary, Urban Development Department, Vikasa Soudha, Bengaluru. Accordingly, both the counsel for the petitioner and respondent Nos.3 and 4 submitted that their clients will appear before the Addl. Chief Secretary, Urban Development Department, Vikasa Soudha, Bengaluru on 03.10.2016 at 3.00 pm. On the basis of the said submission, writ petition was disposed of on 27.09.2016. The said order passed by the Division Bench of this Court based on the concession made by both the parties for reconsideration by the State Government has reached finality.

24. In pursuance of the order passed by the Division Bench of this Court, the second respondent initiated proceedings and heard both the parties on 14.10.2016. Further the matter was extensively heard on 28.10.2016, 11.11.2016, 18.11.2016, 09.12.2016, 24.01.2017 and 10.02.2017. Considering the rival contentions of the parties, by the impugned order/proposal, the Addl. Chief Secretary submitted the matter to the cabinet /Government, for a decision. The proceedings initiated by the second respondent is in consonance with the directions issued by the Division Bench of this Court stated supra. Both the parties having given consent for reconsideration by the Government and the petitioner having participated in the proceedings, now it is not open for the petitioner to contend that the Chief Secretary who heard the matter is the Government and he has to pass orders and the matter need not go to the cabinet. The said submission cannot be accepted in view of the earlier two Government Orders dated 07.05.2010 and 19.09.2015 which were passed by the State Government on the basis of the cabinet decision. The writ petition filed by the petitioner against the proposal is liable to be dismissed on the ground of law of estoppel.

25. Admittedly, what is challenged in this writ petition is only proceedings/proposal dated 24.04.2017 by the Addl. Chief Secretary. The same has to be culminated into the Government Order in terms of the provisions of the Karnataka Government (Transaction of Business) Rules, 1977, and the Government has to take a decision in terms of the directions issued by the Division Bench of this Court on the concession made by both the parties to the lis. Therefore, the very writ petition filed by the petitioner is pre-mature and not maintainable and liable to be dismissed on the ground that the impugned order/proposal made by the second respondent is in consonance with the directions issued by this Court and in accordance with law. If the contention of the learned Senior Counsel for the petitioner is accepted that the Addl. Chief Secretary is Government and need not go to the Government, then indirectly it nullifies two Government Orders dated 07.05.2010 and 19.09.2015 passed by the State Government after cabinet decision, which is impermissible.

26. Though the learned Senior Counsel for the petitioner and the Addl. Advocate General relied upon Rules 4, 5, 7, 7A, 11, 14, 20 and 30 of the Karnataka Government (Transaction of Business) Rules, 1977, this Court desist to deal with the Rules relied upon by both the counsel, since the matter has not reached that stage, in view of the fact that the proposal made by the second respondent/ Addl. Chief Secretary is only a 'proposal'. It is for the Government to consider the same and pass appropriate orders in accordance with law. The interpretation of the provisions relied upon by the learned counsel for the parties stated supra is premature and the same will have to be considered only at the appropriate and relevant stage, when the proposal submitted by the second respondent as per Annexure-A culminates into decision by the State Government.

27. Insofar as the contentions of the learned counsel for the petitioner with regard to the judgment relied upon, no doubt, the person who is affected are benefited

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under a particular order. When that particular order has to be modified or set-aside by the same authority, the principles of natural justice has to be followed. If the Minister concerned or cabinet, are the statutory authorities under any statute, naturally they have to provide fair and natural justice to the parties before passing any statutory order. Admittedly, in the present case, the Government is yet to pass appropriate administrative Government Order in consonance with the directions of the Division Bench of this Court and in terms of the earlier two orders passed by the State Government dated 07.05.2010 and 19.09.2015 and said stage has not yet been reached in the present writ petition as what is challenged is only a proposal made by the Addl. Chief Secretary to the State Government/Cabinet. On that ground also writ petition is liable to be dismissed as not maintainable. 28. Admittedly, as agreed by both the parties before the Division Bench of this Court in the earlier proceedings i.e., in W.P.No.45070/2015, Government alone has to take a decision to reconsider the matter, and as agreed by both the parties, the Addl. Chief Secretary has commenced the proceedings and provided opportunity of hearing and accordingly he has sent the impugned proposal and it is not the case of either of the parties that the Addl. Chief Secretary has not provided an opportunity to putforth their case in the proceedings conducted by him in pursuance of the directions issued by this Court. Therefore, it is too pre- mature for this Court to say anything about the principles of natural justice. Yet a decision has to be taken by the State Government on the proposal made by the Addl. Chief Secretary, as per Annexure-A. On that ground also, the writ petition is liable to be dismissed. VII. CONCLUSION 29. For the reasons stated above, the issue raised in the present writ petition has to be answered in the negative holding that the petitioner has not made out any ground to interfere with the proceedings/proposals dated 24.04.2017 made by the Addl. Chief Secretary, at this stage, in exercise of powers under Articles 226 and 227 of the Constitution of India. 30. In view of the aforesaid reasons, the writ petition filed by the petitioner is dismissed as pre-mature, reserving liberty to both the parties to urge all the contentions at the appropriate relevant point of time only, when the impugned proposal made by the second respondent culminates into a decision of the State Government. 31. However, the interim order granted by this Court shall enure to the benefit of the parties to the lis till a Government Order is passed by the first respondent/State on the proposal made by the second respondent/Additional Chief Secretary, in accordance with law. Ordered accordingly.
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