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Jeelani Mosque Committee (R) Vs. the Shimoga Urban Development Authority and the Shimoga Urban Development Authority and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 4155 of 2005
Judge
Reported inILR2005KAR5819; 2006(2)KarLJ579
ActsKarnataka Societies Registration Act, 1960; Karnataka Urban Development Authorities Act, 1987 - Sections 2, 10(2), 15, 16, 17, 39, 69 and 78(4)
AppellantJeelani Mosque Committee (R)
RespondentThe Shimoga Urban Development Authority and the Shimoga Urban Development Authority and anr.
Appellant AdvocateS.V. Prakash, Adv.
Respondent AdvocateC.M. Desai, Adv.
Excerpt:
.....authority act, 1987-sections 2(h)), 10(2), 15, 16, 18, 39, 78(4) (c)- area reserved for 'community hall'-does it fall within the definition of 'civil amenity' under section 2(h) of the act-whether the urban development authority is empowered to change the user of the site earmarked for community hall, by the state government, while according sanction to the plan-held-section 39 imposes a fetter on the urban development authority not to sell or otherwise dispose off the reserved area for any other purpose as any such disposition is declared to be null and void. it is true that community hall does not find a place in the definition of 'civil amenity' while section 39 prohibits disposed of the civil amenity site for any other purpose. there is no provision of the kuda act, which..........kuda act do not prohibit the passing of a resolution to change the user of the site from community hall to school and that the resolution dated 30.12.1991 annexure e, is not quashed in its entirety in the order dated 3.12.1996, annexure f of this court in wp 6387/92 since what essentially that fell for consideration was non consideration of the application of the petitioner for allotment of the site and not the change of user of the site.7. sri c.m desai, learned counsel for the 2nd respondent, would seek to support the allotment in its favour as being well merited and not calling for interference. in addition, it is contended that the petitioner having applied for allotment of site for public purpose, with the knowledge that it was earmarked for school, cannot air a grievance of.....
Judgment:
ORDER

Ram Mohan Reddy, J.

1. The petitioner aggrieved by the cancellation of the allotment of a site by the 1st respondent, and the subsequent allotment of the very same site to the 2nd respondent, followed by the execution of a lease-cum-sale agreement, is before this Court invoking the writ jurisdiction.

2. Briefly stated, facts not in dispute are:

(i) The Petitioner is a Society registered under the Karnataka Societies Registration Act, 1960, incorporated on 07.12.1990 with the objects, preaching Islamic principles, promote education, establish madarasa, amongst other objects as set out in the Memorandum, Annexure-B.

(ii) The layout plan Annexure D for formation of a residential layout in the name of 'Dr. Ram Manohar Lohia'. was accorded sanction by the State of Karnataka, at the instance of the erstwhile City Improvement Trust Board, for short CITB, on 27.01.1987. The 1st respondent authority was constituted on 25.09.1988, consequent upon the notification, duly gazatted, extending the applicability of the Karnataka Urban Development Authorities Act, 1987, for short KUDA Act, to the District of Shimoga. The assets, liabilities, contracts etc., of the erstwhile CITB as on 25.09.1988, stood transferred and vested in the 1st respondent, by the application of Section 78(4)(c) of the KUDA Act. Certain sites in the layout plan, Annexure D were reserved for Community Hall, Post Office, Bank, School, etc.,

(iii) The 1st respondent issued a notification dated 07.09.1990, Annexure C, describing the site at item No. 3 to be reserved for Community Hall, while inviting applications for allotment of sites mentioned therein, The petitioner being the only applicant for the said site, was not allotted the site, The petitioner alleging that the 2nd respondent who was an applicant for the site reserved for a school, was allotted the site reserved for Community Hall, by changing the user of the said site, by resolution dated 30.12.1991 Annexure E, challenged the said resolution in WP 6387/1992, which was allowed by order dated 3.12.1996, Annexure F, quashing the resolution and declaring all subsequent acts of the 1st respondent as illegal and inoperative. The said judgment was unsuccessfully carried in WA Nos. 1193/97 and 203/1997 by both respondents 1 and 2. The Division. Bench of this Court by order dated 26.5.2000 Annexure G confirmed the order of the learned Single Judge.

(iv) The 1st respondent issued a notification dated 16.09.2000 Annexure Q, inviting applications for allotment of sites while describing the site in question as reserved for 'public' and not for Community Hall. The petitioner and 2nd respondent being the only two applicants for the said site, the 1st respondent by resolution dated 23.06.2001 Annexure H resolved to allot the site in favour of the petitioner, subject to the condition of establishing a school with Kannada as the medium of instruction. In order to comply with the condition, the petitioner's application for permission to the Education Department resulted in the issue of endorsement dated 12.10.2001 Annexure J, that the authority was not empowered to grant permission to establish a Madarasa. The 1st respondent by endorsement dated 6.12.2001. Annexure K called upon the petitioner to produce the necessary documents within three days, to which the petitioners. Responded by the representation dated 11.12.2001 Annexure L, requesting for completion of the allotment.

(v) The 1st respondent passed a resolution date 12.12.2001 Annexure N resolving to cancel the allotment in favour of the petitioner and allotted the said site in favour of the 2nd respondent, followed by the execution of a 'lease-cum-sale agreement' dated 8.1.2002, Annexure V and an endorsement dated 7.1.2002 Annexure P, cancelling the allotment in favour of the petitioner.

3. The petition is opposed by the 1st respondent by filing its objection statement dated 6.7.2005/11.07.2005, interalia advancing two contention namely that as there were no takers for the site reserved for Community Hall and the Central Government having not come forward to open a Post Office, the council of the 1st respondent, by resolution dated 30.12.2001, Annexure Rl, which is referred to at Annexure E to the writ petition, changed the user of the site to public purpose for a school. The change of land user according to the 1st respondent is permissible as no prohibition is prescribed under the KUDA Act. The petitioner cannot make out a grievance as it was fully aware of the aforesaid fact of change in user of the land for school purpose and had applied for the same. A specific contention is taken in the statement of objections which reads thus:

'Plence, the then council of the Shimoga Urban Development Authority passed a resolution on 30.12.1991 to modify the usage of the above said site. The copy of the said resolution is produced herewith and marked as Annexure R1. It is pertinent to note that this resolution has not been brought to the notice of this Hon'ble either in this writ petition or was it brought to the notice of this Hon'ble Court in the earlier writ petitions.'

4. The 2nd respondent, in its statement of objections dated 17.6.2005 states that it is one of the oldest Muslim Minority Institution in Shimoga district having established various educational institutions in and around shimoga. The 2nd respondent seeks to sustain the action, impugned, as being well merited and not calling for interference. In addition, it is contended that the huge amounts are invested in the construction of the school building after obtaining all necessary permissions of the authority.

5. Sri S.V. Prakash, Learned Counsel for the petitioner advances the following contentions:

(i) That the change of land user from Community Hall to that of school, by the 1st respondent, is. without authority of law;

(ii) The learned counsel points out to Sections 15, 16 and 18 of the KUDA Act, and submits that once the site is reserved for Community Hall, in the layout plan, approved by the Government, the 1st respondent has no authority to change the user of the land and that Section 39 declares the disposition of a civil amenity site as null and void;

(iii) The resolution dated 30.12.1991 Annexure E which is the same as Annexure Rl having been quashed by the order dated 3.12.1996, Annexure F in WP 6387/ 1992 and confirmed in WA Nos. 1193/97 and 203/97, Annexure G, the 1st respondent has no authority of law to allot the site of for purpose of a school;

(iv) Relevance is placed upon the ruling of this court in Sg Heble v. Bangalore Development Authority : ILR1997KAR2707 and that of the Supreme Court in Mi Builders (P) Ltd., v. Radheyshyam Sahu and Ors. : [1999]3SCR1066 '

6. Per contra, Sri Mahesh, learned counsel for the 1st respondent contends that the provisions of the KUDA Act do not prohibit the passing of a resolution to change the user of the site from Community Hall to school and that the resolution dated 30.12.1991 Annexure E, is not quashed in its entirety in the order dated 3.12.1996, Annexure F of this court in WP 6387/92 since what essentially that fell for consideration was non consideration of the application of the petitioner for allotment of the site and not the change of user of the site.

7. Sri C.M Desai, learned Counsel for the 2nd respondent, would seek to support the allotment in its favour as being well merited and not calling for interference. In addition, it is contended that the petitioner having applied for allotment of site for public purpose, with the knowledge that it was earmarked for school, cannot air a grievance of illegality in the allotment in favour of the 2nd respondent.

8. Having heard the Learned Counsel for the parties and perused the pleadings, the following questions arise for decision making in this writ petition;

(1) Whether the 1st respondent is empowered to change the user of the site, earmarked for Community Hall, by the State Government, while according sanction to the plan Annexure 'D', for formation of Dr. Ram Manohar Lohia Nagar?

(2) Whether the action of the 1st respondent in allotting the site reserved for community Hall, to the 2nd respondent for purpose of a school, is without authority of law?

(3) Whether the petitioner is entitled to the relief sought for?

9. In the admitted facts noticed supra, the site reserved for Community Hall, in the layout plan, Annexure D sanctioned by the State Government in the Scheme for formation of a residential layout in the name of Dr. Ram Manohar Lohia Nagar stood transferred as such, on 25.09.1988 by operation of Section 78(4)(c) of the KUDA Act, to the 1st respondent authority, on extending the application of the KUDA Act, to shimoga district. The learned counsel Sri Mahesh, does not dispute that the original scheme, duly sanctioned by the State Government includes a Community Hall and that the site in question is reserved for that purpose. According to the learned counsel 'Community Hall' does not fall within the defination of 'Civil Amenity' under sub section (h) of Section 2 of the KUDA Act, empowering the 1st respondent to deal with the said site, under Section 10(2) of the KUDA Act, to call for tender or enter into any contract or any agreement the value of which does not exceed Rs. 25 lakhs. The question for consideration is the authority of the 1st respondent to change the user of the site and not as regards its powers to enter into contracts or arrangements. Hence the contention that Section 10(2) of the KUDA Act authorises the 1st respondent to change the land user is misconceived.

10. Section 39 imposes a fetter on the 1st respondent not to sell or otherwise dispose off the reserved area for any other purpose as any such disposition is declared to be null and void. It is true that Community Hall does not find a place in the defination of 'Civil Amenity', while Section 39 prohibits disposal of the civil amenity site for any other purpose. The Learned Counsel for the 1st respondent was not able to point out to any other provision of the KUDA Act, which couched the authority with the power to change the user of the site from the purpose for which it is reserved. The legislature having not empowered the 1st respondent to change the user of the site, reserved for Community Hall, the action of the 1st respondent tantamounts to breach of public trust.

11. A faint attempt was made by Sri Mahesh to contend that the resolution dated 30.12.1991 Annexure E effecting the change in land user was submitted to the State Government, for approval under Section 69 of the KUDA Act, and that as the State Government having not annulled or cancelled the said resolution, the 1st respondent complied with the procedure for change of land user. This contention is noticed only to be rejected. The 1st respondent has not placed any material to establish that the resolution Annexure E was, in fact forwarded to the State Government, for its approval, on and after 30.12.1991. Yet another reason to reject the said contention, is, the order dated 3.12.1996 in WP 6387/1992, Annexure F, which reads thus:

'The resolution dated December 30,1991 passed by the first respondent to allot 3711 Sq. Mtrs. of site in Ram Manohar Lohia I Stage, in favour of the second respondent is hereby quashed and all the subsequent acts of the first respondent are declared illegal and inoperative. A direction shall issued to the first respondent to allot the site in question in accordance with law.'

Suffice it to state that the quashing and the declaration has the effect of negating the resolution Dt. 30.12.1991, Annexure E in its entirety and not restricted to the allotment of the site in favour of the 2nd respondent.

12. In the fact circumstances, the observations of the Supreme Court in the case of Bangalore Medical Trust v.. B.S. Muddappa : [1991]3SCR102 is apposite. (Paragraph 24).

'Protection of the environment, open spaces for recreation and fresh air, play grounds for childern, promenade for the residents and other conveniences or amenities are matters of great public concern and of vital interest to be taken care off in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the development authority. The public interest in the reservations and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirement. Further more, it would be in direct conflict with the constitutional mandate to ensure that any state action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all citizens.'

(emphasis supplied)

(At Paragraph 25)

'Reservation of open spaces for parks and play grounds is universally recognized as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanization.'

13. Applying the said observations to the facts of this case, the reservation of the site for the purpose of Community Hall, by the State Government in the layout known as Dr. Ram Manohar Lohia Nagar, as admitted by the 1st respondent, was for the benefit of the residents of the locality and the 1st respondent can ill afford to canvass a contention that it could unilaterally decide to change the nature of the user of the site to one for purpose of a school. The action of the 1st respondent tends to defeat the aforesaid purpose and hence is invalid.

14. The 1st respondent in its statement of objections specifically contends that the resolution Annex E is not brought to the notice of this Court in this petition as well as in WP 6387/92. This statement while being outrageous is misleading in view of the order dated 3.12.1996, passed in WP 6387/92, Annexure F, of this Court. The 1st respondent was a party respondent in the said writ petition and being aggrieved by the quashing of the resolution Annexure E, filed a writ appeal which was dismissed by order dated 26.5.2000 Annexure G, the verifying affidavit of one Sri P G Ramesh, s/o P G Reddy, the Commissioner of the 1st respondent Authority, to the statement of objections has sworn to a false statement of fact, which needs to be taken seriously and deprecated. The deponent, apparently has scant regard for truth The statement made on oath knowing it to be false, it is needless to state, amounts to perjury. The conduct of the 1st respondent in harping on the existence of the resolution dated 30.12.1991 Annexure E, though quashed by this Court, which has attained a finality, amounts to disrespecting the majesty of law and justice, while being contemptuous.

15. The sequence of events as noticed supra, clearly disclose a concerted effort on the part of the 1st respondent to ensure the 2nd respondent is allotted the site by devising a method which is both, illegal and is in breach of public trust. In the notification dated 16.09.2000 Annexure Q the 1st respondent has described the site in question as reserved for public, without disclosing that the site is reserved for Community Hall. It is apparent that the misdescription of the reservation of the site is patently to suit the interests and convenience of the 2nd respondent. The condition to establish a school with Kannada as medium of institution, for the allotment of the site in favour of the petitioner is also one of the method adopted by the 1st respondent to eliminate the petitioner and ensure the allotment in favour of the 2nd respondent. The action of the 1st respondent authority is nothing short of being arbitrary, capricious and amounts to colorable exercise of power.

16. The 1st respondent has failed to comply with the direction of this Court in its order dated 3.12.1996 Annexure E passed in WP 6387/92 'to allot the site in question in accordance with law.' The action of allotting the site for purpose of a school in favour of the 2nd respondent, is deliberate, in flagrant violation of the rule of Law and the order of this Court which speaks volumes of the business carried on by the 1st respondent authority.

17. This is a fit case for applying the principles laid down by the Apex court in M I Builder's case (Supra 2). The Supreme Court having considered all important earlier pronouncements which have a bearing on its decision making held that the change of land user from a park to a shopping complex was illegal and directed the construction to be pulled down. Following the dictum in M.C Mehata v. Kamalnath (Known As Span Case) 1997 1 SCC 38, the Apex Court applied the 'Doctrine of Public trust.

18. Their lordships followed the observation in the following two cases (i) in Kramadas Shenoi v. Chief Officers Town Municipal Council, Udupi : [1975]1SCR680 , which reads thus:

'An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema buidling. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by the Municipalities in such cases.

The Court enforce the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.'

(ii) In GN Khajuria v. Delhi Development Authority, wherein the Supreme Court observed thus:

'Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the officer of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot-free. This should not, however, have happened for two reason. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.'

19. The members of the 1st respondent council, and the officer who made the illegal allotment and permitted the unauthorised construction of a 'school building' on a site reserved for 'Community Hall', should not be permitted to go scot free. It is the members of the council and the officer concerned to be blamed for the illegal action, calling forth punitive action, in accordance with law, so as to ensure complete justice.

20. The contention of Sri. C M Desai, learned counsel for the 2nd respondent that huge sum of money is invested in the contraction of the building for running a school, cannot be countenanced. This cannot but be construed as a narrow consideration when the allotment and construction is in clear violation of the KUDA Act. The decision to allot the site for purpose of a school was in itself illegal and if allowed to stand, would perpetuate an illegality. It was always open to the 2nd respondent to await the decision of this Court before proceeding with the construction instead of pleading equity in its favour. Upholding the action of the 1st respondent would amount to an imprimatur of this Court to the illegality and misplaced sympathy to the 2nd respondent. as held by the Supreme Court in the case of Virendar Gaur v. State Of Haryana : (1995)2SCC577 referred to in M.I Builder's case. The construction requires to be pulled down so as to bring back the site to the condition in which it existed prior to the allotment.

21. in the light of the observations of the Supreme Court in M.I. Builder's case, referred to supra, and applying the same to the facts of this case, the action of the 1st respondent authority in changing the land user from Community Hall, as reserved, to that of a school, and allotting the same in favour of the 2nd respondent, followed by the execution of the lease cum sale agreement Annexure V, is without authority of law, illegal and the construction of the building for a school, as a consequence is also declared illegal. Hence points 1 and 2 answered accordingly.

22. The petitioner having applied for the allotment of site for purpose of a school, is not entitled to the relief of a direction to the 1st respondent to allot the site in its favour for the purpose of construction of a Community Hall.

23. For the reasons stated supra, the writ petition is allowed in part. The impugned endorsement dated 6.12.2001, Annexure K, the resolution dated 30.12.2001, Annexure N, the endorsement dated 7.1.2002, Annexure P and the lease cum sale agreement dated 8.1.2002 Annexure V, are quashed and all subsequent acts of the 1st respondent are declared to be null and void. The respondents are directed to pull down the structure and bring back the site to the condition in which it existed prior to the allotment, in any event within six months from today. A further direction is issued to the 1st respondent to invite applications from public and allot the sites reserved for Community Hall, Post Office and Bank, as found in the Layout Plan Annexure ')', strictly in accordance with law.

Let a copy of this order be forthwith forwarded to the Chief Secretary of the State of Karnataka, for taking necessary action.


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