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2008 DIGILAW 427 (KAR)

Shabeer Ahmed v. Town Municipality Bantwala

2008-08-15

RAM MOHAN REDDY

body2008
ORDER Ram Mohan Reddy, J. The petitioner claiming to have carried on business of vending mutton in a stall belonging to the 1st respondent Town Municipality for several years, aggrieved by the proclamation dated 22.2.2008 Annexure -A for auction sale of the privilege to occupy the Mutton Stall at item No.1, amongst others, has presented this petition. 2. The petition is opposed by filing statement of objections dated 31-3-2008 of the respondents inter alia contending that being a statutory authority constituted under the Karnataka Municipalities Act, 1964 for short the Act, is empowered by Section 244 of the Act to dispose of by public auction or otherwise the privilege of occupying any stall or space for carrying on business and in the instant case, item No.1 being a mutton stall meant only for the purpose of retail vending of mutton is put up for auction for the period 1.4.2008 to 31.3.2009. It is further stated that the petitioner having participated in the earlier public auction in respect of the same stall, for the period 1.4.2007 to 31.3.2008 offered the highest bid of Rs. 84,100/-. It is lastly contended that nine stalls are notified for public auction and the claim of the petitioner that all the stalls have been leased on ground rent basis is refuted. 3. The proposition of law as advanced by the learned Counsel for the petitioner that the 1st respondent is guilty of hostile discrimination in the matter of issuing the proclamation to hold a public auction of the right to use the mutton stall while the use of all other stalls are not put to similar such public auction, cannot be counteneneed. 4. Indisputedly the notice Annexure-A is to dispose off by public auction the privelege of occupying the nine stalls including the mutton stall at Sl. No.1, of which the petitioner, being the highest bidder, was in occupation for the period 1.4.2007 to 31.3.2008. Undoubtedly, the privilege to use public property is to be disposed off by public auction, for the dominant consideration of securing the best price for the said property, which can be achieved when there is maximum public participation and everybody has an opportunity to make an offer. Undoubtedly, the privilege to use public property is to be disposed off by public auction, for the dominant consideration of securing the best price for the said property, which can be achieved when there is maximum public participation and everybody has an opportunity to make an offer. In the instant case too, the 1st respondent in exercise of power under Sec.72 of the Act r/w Rule 39 of the Karnataka Municipalities (Guidance of Officers, Grant of Copies and Miscellaneous Provision Rules, 1966 for short Rules, issued the public auction notification Annexure-A. Section 72 of the Act, provides for the competence of Muncipal Council to lease, sell and contract, or otherwise transfer any movable or immovable property belonging to it, while Rule 39 of the Rules provides for the procedure in respect of lease sale or auction of movable and immovable properties of the municipality. The methodology adopted by the 1st respondent TMC in the disposal of the privilege to use its property cannot but be said to be legal and valid. 5. The observations of Division Bench of this Court in Mohan P. Sonu -Vs- State of Karnataka & Others (1992 (2) Kar. L.J. 245 (DB)) following the decision in Jaichand -Vs- Town Municipality Robertsonpet (1976 (1) Kar. L.J. 30), while interpreting the said provisions, in the circumstances is apposite:- “xxxxxx xxxxxxx xxxxxxx The object of giving due publicity to the proposal to dispose of rights in respect of a property belonging to a local authority before it is so disposed of is quite obvious. The publication is necessary, in order to realise the highest possible income and to prevent persons in-charge of the Municipal Council from disposing of rights in favour of persons in whom they are interested. Disobedience of the provisions of Rule 39 cannot be overlooked. It is a mandatory rule intended to protect public revenue matters relating to public revenue cannot be dealt with arbitrarily and in the secrecy of an office. Whatever done in that regard should be done in accordance with law, which, in the instant case, requires due publicity to be given to dispose of the property in the prescribed manner. “Section 72 is a further safeguard. Whatever done in that regard should be done in accordance with law, which, in the instant case, requires due publicity to be given to dispose of the property in the prescribed manner. “Section 72 is a further safeguard. Publicity given to the proposal of Municipal Council to dispose of property rights under Rule 39 would attract offers from persons interested in acquiring such rights and these offers would enable the State Government to decide whether the sanction of the State Government that is contemplated by Section 72 should or should not be given. Rule 39 is, therefore, cpmlementary of Section 72 and both operate together.” 6. The petitioner having participated in the public auction held in the year 2007, and being the highest bidder for the use of the Mutton Stall for the period 1.4.2007 to 31.3.2008, has no legal right to continue in the stall beyond the said period. Thus the petitioner cannot thwart the action of the Municpality to secure the highest bid for the privilege of occupying the Mutton Stall for the year 2008-09, in a public auction. 7. The contention of discrimination, in the circumstances, is an extreme proposition, the fallacy of which is writ large in its superficial and cursory nature, without reference to relevant material. Even assuming that the Muncipality did away with the privilege of use of other stalls in the same locality otherwise than by a public auction, that by itself and nothing more, cannot permit the perpetuation of an illegality, by applying the postulates of Art. 14 of the Constitution, in respect of the stall in question. The petitioner cannot be heard to have a grievance of dicrimination under Art. 14 of the Constitution, more so when none of the stall holders are made parties to this petition. 8. It is true that the guarantee of equal protection embraces the entire realm of “State action”, when an individual is discriminated against in the matter of exerciswe of his rights or in the matter of imposing liabilities upon him, as also in the matter of granting privileges, exemptions and concessions etc. This position is well settled by a catena of judicial dicta. This position is well settled by a catena of judicial dicta. What Article 14 mandates in that there should be no discrimination between one person and another, if as regards the subject matter of the legislation is the same, in other words the action must not be arbitrary, but must be based on some valid principle which itself must not be irrational or dicriminatory. 9. The Apex Court in Gurusharan Singh Vs. New Delhi Municipal Committee and Others ( (1996) 2 SCC 459 ) observed thus: “xxxxx xxxxx xxxxx Neither Article 14 of the Constitution conceives within equality clause this concept nor Art. 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld it must be established by the petitioner that his claim being just and legal, has been denied to him, while it was been extended to others and in this process there has been a discrimination. xx xxx xxxx”. 10. Again in Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others ( (1997) 1 SCC 35 ), considering the scope of Art. 14 of the Constitution, regarding concept of equality held thus:- “xxxx xxxx xxxxx Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents.” 11. In State of Haryana and Others Vs. Ram Kumar Mann, ( 1997 (3) SCC 321 ), the Apex Court observed thus:- “xxxx xxxx xxxx The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsover and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously “No”. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. xxxx xxxx xxxxx” 12. The concept of equality under Article 14, being a positive concept, and when an authority is shown to have committed an illegality or irregularity in favour of an individual or a group thereof, as in the instant case, the petitioner cannot claim the same illegality or irregularity on the ground of denial thereof to him, since the concept cannot be enforced in a negative manner, by invoking the writ jurisdiction of this Court. The contention advanced by the Learned Counsel for the petitioner, despite the declaration of law, in the matter of concept of equality under Article 14 of the Constitution, in the circumstances is not only a fantastic plea, but is frivolous. 13. Sufficient public time is consumed in considering the frivolous proposition advanced by the petitioner, contrary to law declared by the Apex Court in several judicial pronouncements. In the circumstances, I deem it fit to impose exemplary cost while dismissing the petition. The writ petition is without merit and is dismissed with cost of Rs.5000/- payable to the respondent - municipality.