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2011 DIGILAW 1049 (KAR)

Ajit Kalyan, Bangalore v. State of Karnataka

2011-10-31

A.S.BOPANNA, VIKRAMAJIT SEN

body2011
Judgment :- VIKRAMAJIT SEN, AG.C.J. 1. This writ petition under Article-226 of the Constitution prays for quashing of Order passed by the Government of Karnataka bearing No. RD/33/Mu.Aaa.Bi/2007, Bangalore dated 01.07.2009, whereby approval had been granted for the sale of 6000 square feet of land belonging to Sri Kadu Malleshwaraswamy Temple, Malleswaram, Bangalore City. The consideration for the sale is a sum of Rs.1,44,00,000/- at the rate of Rs.2,400/- per square feet being the alleged market price. The sale has been sanctioned in favour of the Respondent Sri Sai Mandali, Bangalore. The State Government has purportedly exercised powers under the proviso to Section-62 (3) of the Karnataka Hindu Religious Institutions & Charitable Endowment Act 1997 (hereinafter referred to as the ‘1997 Act’). 2. This writ petition has already had a chequered history. It was filed before the learned Single Judge and after few hearings, it was listed before the Division Bench, consequent upon a statement made by learned counsel for the petitioner that similar grievances had been ventilated in Writ Appeal No.2063/2007. The said Appeal was dismissed for non-prosecution and in that context, this writ petition was again directed to be posted before the learned Single Judge according to the extant roster. The said W.A.No.2063/2007 was however subsequently restored and was disposed of on merits by Order dated 08.08.2011. However, the said Appeal as well as the Writ Petition did not pertain to the sale which is impugned in the instant petition, and as such, is not relevant for the present purposes. Be that as it may, when the instant petition was listed before the learned Single Judge on 24.06.2011, it was contended that the present petition was in the nature of a public interest litigation. Hence, the learned Single Judge directed that the writ petition be listed before the Division Bench having the roster of public interest litigations. Accordingly, the instant petition is to be considered in these circumstances. 3. The contentions raised on behalf of the petitioner is that the impugned permission/approval has wrongly been granted under Section-62(3) of the said 1997 Act. This Section is reproduced for the facility of reference: “62. Accordingly, the instant petition is to be considered in these circumstances. 3. The contentions raised on behalf of the petitioner is that the impugned permission/approval has wrongly been granted under Section-62(3) of the said 1997 Act. This Section is reproduced for the facility of reference: “62. Alienation of immovable property – (1) Any exchange, gift, sale or mortgage or lease of any immovable property belonging to or given or endowed for the purpose of any Notified Institution or a Declared Institution shall be null and void unless it is sanctioned by the State Government as being necessary or beneficial to the Institution and such sanction shall be made subject to such restrictions or conditions as may be prescribed: Provided that before such sanction is accorded, particulars relating to the proposed transactions shall be published in such manner as may be prescribed, inviting objections and suggestions and all objections and suggestions received in that behalf shall be duly considered by the State Government. (2) Where it is found subsequently that the permission under sub-section (1) has been obtained by fraud or misrepresentation the State Government shall be competent to cancel the permission so granted, after giving due opportunity of being heard to all the concerned. (3) Every sale of immovable property sanctioned under sub-section (1) shall be effected by public auction in the prescribed manner and subject to confirmation by the Commissioner within a period to be prescribed: Provided that the State Government may in the interest of the Notified Institution or the Declared Institution and for reasons to be recorded in writing permit the sale of such immovable property otherwise than by public auction. (4) Whether any alienation, transfer or other act in respect of immovable property which is not valid under sub-section (1) comes to the knowledge of the Assistant Commissioner, he may after such inquiry as he deems necessary to make issue notice to the alienee or other person in possession to restore such land to the institution to which it belongs within three months from the date of service of notice and in default of compliance the Assistant Commissioner shall take steps to resume and restore such land or building to the institution in accordance with the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974.” 4. The sale of the immovable properties belonging to religious institutions has received jural attention on several occasions. The sale of the immovable properties belonging to religious institutions has received jural attention on several occasions. In Chenchu Rami Reddy and another –vs-Government of Andhra Pradesh and others [ AIR 1986 SC 1158 )-(1986) 3 SCC-391], their Lordships had observed thus: “More often than not detriment to what belongs to ‘many’, collectively, does not cause pangs to ‘any’, for no one is personally hurt directly. That is why public officials and public minded citizens entrusted with the care of ‘public property’ have to show exemplary vigilance. What is true of ‘public property’ is equally true of property belonging to religious or charitable institutions or endowments”. In that case, the Government had accorded its approval for the sale of property belonging to the Bugga Math, Thirupathi, by private negotiations. The Court was fully cognizant of the position that persons who are eager to purchase property by private negotiation should be equally willing to bid at a public auction. Since this procedure had not been adopted, and a reserve price after ascertaining the market value had not been fixed, the sale came to be quashed by their Lordships. 5. Our attention had also been drawn to a more recent decision of the Supreme Court in Aggarwal & Modi Enterprises Pvt. Ltd & another –vs.- New Delhi Municipal Council ( AIR 2007 SC 3131 ) which recognizes that normal and fair competition can ordinarily be ensured only through public auction; this ensures not only transparency but normally fetches the maximum possible return/consideration or sale price for the particular immovable property. 6. Support is also sought to be garnered on behalf of the petitioner from a Division Bench judgment in Jogendra Nath Naskar –vs- Official Receiver and others (AIR 1975 Calcutta -389) which prescribes that, to constitute legal necessity, an alienation must be for the preservation or for the ‘benefit to the estate’. In the context before us, the ‘estate’ would be Temple and not the Sri. Sai Mandali. In the context before us, the ‘estate’ would be Temple and not the Sri. Sai Mandali. Reliance has also been placed on Board of Trustees of Sri Balaji Eshwara Veerabhadra Swamy Temple and others –vs.- State of Andhra Pradesh (AIR 2000 Andhra Pradesh-277) in which the learned Single Judge had applied Section-80 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 and thereby invalidated the sale of Trust Property, inter alia for the reason that the State had failed to record any valid reasons for deviating from the path of a public auction. Our attention has also been drawn to the decision in Puran Singh –vs.- Ajaib Singh (AIR 1991 Punjab and Haryana-247) wherein the transfer of properties gifted to the Gurdwara Sahib situated in village Ghalibkalan, Tehsil Jagraon, District Ludhiana was set aside, since the transaction thereof was found not to be for the “inevitable necessity” or “legal necessity” of the Trust. 7. In this conspectus of the law, we must not fall short of diligently discharging the duties cast upon the Court, when challenge is made to the imprimatur/approval given by the Government for the sale of a Religious Trust’s land. Although the petitioner has argued that the sale consideration was approximately half of what has been notified as the market price at the relevant point of time, he has been quick to clarify that the challenge to the sale transactions is not predicated on this ground alone. The arguments advanced on behalf of the petitioner is that the mandatory provisions contained in Section-62(3) of the 1997 Act has not been complied with. In this context, we must immediately note that it has not been controverted by the respondent that the initial lease and the subsequent sale transaction was a result of a request made by Sri Sai Mandali. The sale transaction it is abundantly manifest, has not been initiated for the benefit of Sri Kadu Malleswaraswamy Temple i.e., the Notified Institution but for the Sri Sai Mandali. The notification dated 15.01.2009, which we shall immediately reproduce, amply illustrates that the sale of the Trust’s property was under consideration solely on the representation made by Sri Sai Mandali to the Government, and was for the benefit of the latter. The notification dated 15.01.2009, which we shall immediately reproduce, amply illustrates that the sale of the Trust’s property was under consideration solely on the representation made by Sri Sai Mandali to the Government, and was for the benefit of the latter. “HINDU RELIGIOUS INSITTUTIONS AND CHARITABLE ENDOWMENT DEPARTMENT, OFFICE OF THE COMMISSIONER, CHAMARAJPET, BANGALORE No.ADM/3/LND.50/97-98 DATE: 15-1-2009 NOTIFICATION The Site measuring 6000 square feet in CTS No.1408 belonging to Sri.Kadumalleshwaraswamy Temple, Malleshwaram, Bangalore has been given on lease to Sri. Sai Mandali , Sampige Road, Malleshwaram, Bangalore for the period of 15 years w.e.f. 19-6-2001 and the construction is going on in the said site and Sri. Sai Mandali have represented the Government for an absolute sale of the site and the same is under consideration of the Government. Objections/suggestions/views if any of the publics about absolute sale of the said site to Sri. Sai Mandali may be sent to the Commissioner, Hindu Religious & Charitable Endowments, Malai Mahadeshwara Vartha Bhavan, A.V. Road, Chamarajpet, Bangalore-18 within 15 days from the date of this publication. Any objections received after this date, will not be considered. Sd/- Commissioner, Hindu Religious Institutions and Charitable Endowment, Bangalore-18.” 8. Mr. Nataraj, Additional Advocate General, has requested us to peruse the files relating to the impugned transaction of sale. There are legal constraints in adopting this procedure. It is well settled that a party cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned decision. If judicial authority is required for this proposition, it can be found in the celebrated decision litted of Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 Supreme Court 851, paragraph 8 of which reads as follows: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose Judge, in Gordhandas Bhanji ( AIR 1952 SC 16 ) (at p.18): “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” 9. In Babu Verghese Vs. Bar Council of Kerala, (1999) 3 SCC 422 , the Apex Court had to consider a case under the Advocates Act, and while doing so it applied to principles of Taylor Vs. Taylor (1875) 1 Ch D 426 and in Nazir Ahmad Vs. King Emporer, AIR 1936 Privy Council 253. The Apex Court observed as follows: “It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule traceable to the decision in Taylor Vs. Taylor which was followed by Lord Roche in Nazir Ahmad Vs. King Emperor. 10. In Tata Cellular vs. Union of India, AIR 1996 SC 11 the Supreme Court has opined in these words: “77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision/making authority exceeded its powers? 2. committed an error of law. 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must given effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. vs. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention.” 11. Wednesbury reasonableness derives its origin in Associated Provincial Picture Homes Limited vs. Wednesbury Corporation (1947) 2 All E.R. 680 and has been explained to require that the person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. 12. In view of the expression of the law distilled above, we are not bound to peruse the files presented to us by Mr. Nataraj. The order must be self explanatory a composite. However, with a view of assuring ourselves that the subject impugned decision is not liable to be quashed only because of the failure to construct and articulate the order, we have read the documents to which our attention has been drawn. Nataraj. The order must be self explanatory a composite. However, with a view of assuring ourselves that the subject impugned decision is not liable to be quashed only because of the failure to construct and articulate the order, we have read the documents to which our attention has been drawn. The Cabinet note which we shall extract herein below, only supports the contention of the petitioner that the exercise completed by the respondents was with the purpose of keeping only the interest of Sri Sai Mandali in perspective. NO.RD 33 MuAaBi 2007 CONFIDENTIAL Cabinet Note Sub: Sale of 6000 sq.ft. of land belonging to Sri Kaadu MalleswaraSwamy Temple, situated at Malleswaram, BangaloreCity, in favour of Sri Sai Mandali, Bangalore. 1. In Government Order No. PAAE 09 AAADC 1999, dated 19-09-2001, 6000 Sq. ft. of land belonging to Sri Kaadu Malleswara Swamy Temple, situated at Malleswaram in Bangalore City Adjacent to Sri Sai Mandali Building has been given on lease to Sri Sai Mandali (Regd), Malleswaram, Bangalore for a period of 15 years subject to the condition of utilizing it for additional public activities. Approval of the Cabinet was obtained for this proposal (Cabinet case No.C.199/2001, dated 31-05-2001 Agenda No.20). 2. In letter dated: 27-05-2006, the Chairman of the Mandali while stating that Sri Sai Mandali has chalked out various programmes for public service in 6000 Sq.ft. land belonging to Sri Kaadu Malleswara Swamy Temple leased out to it and with a view to make permanent arrangement for providing free service facilities to public, has requested to sell the said land to Sri Sai Mandali. In letter dated: 01-03-2007, the Endowment Commissioner had expressed the view that the request of the Mandali of sale of the said land may be accepted as per the rules. 3. As per Section 62(3) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, if any immovable property belonging notified or declared institution has to be sold or leased out, it has to be done through public auction. But the State Government may grant permission for sale of immovable property by a means, other than public auction, in the interest of the notified or declared institution, by recording reasons in writing. 4. But the State Government may grant permission for sale of immovable property by a means, other than public auction, in the interest of the notified or declared institution, by recording reasons in writing. 4. The Inspector General of Registration and Commissioner of Stamps in his letter dated: 18-04-2007 has informed that the proposed land is situated in 15th Cross of Malleswaram and the guidance value of land is Rs.1500/-per Sq.ft.in that area. Accordingly, the market value of totally 6000 sq.ft. land is Rs.90.00 lakhs. He has further informed that if it is a commercial property 40% higher rates will have to be charged. 5. The Finance Department in its U.O.Note No.DE.683. EZANo-7/2007, dated 02-08-2007 has given its opinion on this proposal as follows:- LANGUAGE 6. Sri Sai Mandali being a religious institution, has constructed a building at an estimate of Rs.1.00 Crore on the already leased out land, has made provision for Meditation Center, arrangements for performing Pooja, homa. Under the Annabrahma Scheme of this organization, 5000 children are being provided with mid-day meal continuously, three Urdu Lower and Higher Middle Schools, one school for spastic children and Government schools in slum areas have been included in this Scheme and under Vidya Sharade Scheme, free stationery and school bags are being distributed to students of twelve Government and aided primary schools. Free religious and social serviced etc., are also being conducted through this organization. In view of the above, having taken the view that it is appropriate to sell the land to Sri Sai Mandali, the file was submitted to Chief Secretary on 11-09-2007 to place the matter before the cabinet to permit sale to Sri Sai Mandali at market price by grant of exemption from the condition of public auction as per Section 62(3) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997. The Chief Secretary after perusing the file has sought clarification on certain points. The department has examined this aspect in detail. 7. After receipt of objections/representations from public under Section 28 regarding sale of 6000 Sq.ft. land belonging to Sri Kaadu Malleswara Swamy Temple under Section 62(1) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and Rules 2002 there under, an enquiry has been conducted inviting persons who have filed objections on 28-02-2009. 7. After receipt of objections/representations from public under Section 28 regarding sale of 6000 Sq.ft. land belonging to Sri Kaadu Malleswara Swamy Temple under Section 62(1) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and Rules 2002 there under, an enquiry has been conducted inviting persons who have filed objections on 28-02-2009. Four persons have filed objections and some people have told that it is appropriate to sell the said land to Sri Sai Mandali. On Consideration of objections and suggestions, the Endowment Commissioner in his letter dated 04-03-2009 has opined that 6000 Sq.ft. land belonging to Sri Kaadu Malleswara Swamy Temple may be sold to Sri Sai Mandali at the prevailing market price per sq.ft. in economic interest of the Temple since Sri Sai Mandali is already conducting various religious, educational activities, programmes and since it has become evident during the enquiry that the Mandali will utilize the leased land for religious activities. 8. Since the said land has already been leased out to Sri Sai Mandali and the organization has constructed building in the site, the request of the petitioner will not be met if the land is sold in public action and since it is proposed to conduct religious activities here and since the site is near 14th cross of Malleswaram, concurrence of the Finance department was sought for selling this land to Sri Sai Mandali at the market value of Rs. 3000/- per Sq.ft. prescribed in Notification dated:27-02-2007 of Registration department. 9. The Finance department in its U.O.Note No.DE 375 EZAN-7/2009, dated 21-05-2009 has given its opinion on this proposal as follows:- LANGUAGE 10. In view of the Finance department’s opinion, the District Registrar, Gandhinagar Registration district, Bangalore having been requested to give details of latest market value of sites actually sold in the surrounding areas of this site, it has been reported in letter dated: 01-06-2009 that reports were given in letters dated:14-11-2007 and 17-12-2008, since then and till today there is no change in the guidance value fixed by the government and since there is no considerable increase in real estate in recent days, an amount of Rs.1,44,00,000/- at Rs.2400/- per sq.ft. for a total 6000 sq.ft. as per letter dated: 04-11-2007 may be considered. 11. for a total 6000 sq.ft. as per letter dated: 04-11-2007 may be considered. 11. On consideration of both the guidance value given by the District Registrar and the opinion of the F.D, the decision to sell the land at Rs.3000/- per sq.ft. to Sri Sai Mandali is appropriate apart from complying with the opinion of the F.D. 12. In view of the circumstances explained above, the following proposal is submitted for orders of the Cabinet:-“Approval of the Cabinet is solicited to sell 6000 sq.ft. land belonging to Sri Kaadu Malleswara Swamy Temple situated in Malleswaram in Bangalore City to Sri Sai Mandali (regd), 14th cross, Sampige road, Malleswaram, Bangalore by fixing totally Rs.1,80,00,000/- (Rupees One crore and Eighty Lakhs only) at Rs.3000/- per sq.ft. under proviso to Section 62(3) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997” 13. We have no doubts Sri Sai Mandali is indubitably deeply concerned with social causes and with pursuing measures meant for alleviating public suffering. It seems to us that at this stage the objectives and activities of Sri Sai Mandali are not focally relevant. The provisions of 1997 Act mandate that the lease as well as the sale of the immovable properties belonging to Sri Kaddu Malleswaraswamy Temple should at statutory necessity and be for its beneficial interest alone. It is also not in dispute that a Public Notice had been issued, in response to which Objections had been received from the public including the petitioner. Section-62(1) of the Act pointedly states that if the transfer of property is neither necessary nor beneficial to the Temple, it shall be null and void. There is another statutory fatality so far as the impugned decision is concerned and that is its complete non-compliance to Section-62(3) of the Act which ordains that the sale of the immoveable property is required to be affected only by public auction in the prescribed manner. We are fully mindful of the proviso to this section which vests power in the State Government to permit the sale of the Temple property otherwise than by public auction. If this path of public auction is not to be traversed, then the order itself has to be declare that it is possible or advisable to do so, and that it is not against the interest of the Temple or Notified Institution. If this path of public auction is not to be traversed, then the order itself has to be declare that it is possible or advisable to do so, and that it is not against the interest of the Temple or Notified Institution. Since these recordals are an integral and essential requirement of the statute, the Court is precluded from perusing the documents in order to satisfy itself on this count. 14. Learned counsel for Sri Sai Mandali has contended that the petition ought not to have been entertained as it suffers from laches. He further states that six months had elapsed between execution of the Sale Deed and the filing of the petition. This is not, by any yardstick, inordinate delay. Furthermore, we cannot but underscore the fact that the Sale Deed was executed on the very next date after the rejection of the Objections. Why was there such haste in the execution of this document? Was it calculated to frustrate apposition by rendering it infructuous? The objections that the petition is filed belatedly must be summarily rejected. We have already taken care to express our opinion to the effect that the activities of Sri Sai Mandali may well be genuine and laudable, but this is an irrelevant consideration, since it is the interest of the Temple, in contradistinction to that of Sri Sai Mandali which alone requires consideration. For this very reason, it is also not topical that the decision to sell the immovable property belonging to the Temple has been taken without malafides. The statute requires that the interest of this ancient Temple must be exclusively kept in perspective and in these circumstances, it may be possible to attribute lack of bonafides. We say this because, Sri Sai Mandali is avowedly and irresistibly influential, as compared to the ancient Kadumalleswaraswamy Temple, whose interest, in any event, should have been safeguarded by the State more assiduously. 15. In these circumstances, we find that the writ petition is well-founded. The impugned decision dated 01.07.2009, according permission to sell 6000 square feet of land belonging to Sri Kadu Malleswaraswamy Temple is held to be illegal, inasmuch as, the same is contrary to the provisions of Section-62 of the Act. We declare the subject Sale Deed to be null and void. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to the costs.