Judgment:
1. These three petitions, though filed a year apart from each of the previous petition, the subject matter of these three petitions is the same. The subject matter as noticed in the first writ petition is the transfer of an extent of 10000 square feet of land with a dilapidated building known as community hall by the Bruhat Bangalore Mahanagarapa Palike [for short, BBMP or civic body] in favour of a private company by name M/s Daanish Publications Private Ltd., impleaded as third respondent in WP No 15525 of 2006 and figuring respondents 4 and 2 respectively in the other two petitions, for consideration of a sum of Rs. 1.68 crore as per sale deed dated 22-2-2007, which, of course, is a development subsequent to filing of the first of these three writ petitions, but figures as subject matter in the second petition presented on 9-6-2008. These writ petitions have been treated as public interest petitions, as none of the petitioners are seeking for any personal relief, personal to any one of them, but claim to have espoused a public cause for protecting the property which belongs to the civic body –BBMP and which, according to one of the writ petitioners – petitioner in WP No 7975 of 2008 – should have been retained and preserved as a community hall for the benefit of the community at large than being sold in favour of a private individual or company.
2. In WP No 15525 of 2006, writ petitioner also purporting to espouse a public cause, has urged that according of permission of the state government in terms of government of the government to the proposal of the BBMP to transfer the subject land in favour of the third respondent in this petition was primarily in violation of and contrary to the provisions of Section 176 of the Karnataka Municipal Corporations, Act, 1976 [for short, the Act] and also contrary to the government order dated 2-6-2003 [Annexure-F to WP No 15525 of 2006]. Wherein the state government had resolved that properties belonging to public bodies should necessarily be sold by public auction, except in the case of four categories of individuals/bodies in whose favour an exception was made such as:
i) Allotment of Free land:
a) Schools/Colleges/Hostels/Hospitals/Anganawadis/Public Libraries/Destitute Homes and police Stations run by the Government.
b) Burial Ground/Graveyard/Dog Detection Centres/Registered Societies/Religious institutions/Public Toilets run by the Private Institutions.
ii) Allotment at 25% of the Market Value of the Land
a) All other Government departments except the Government Departments mentioned in para 1(a).
b) Registered Institutions/associations run by Scheduled Caste/Scheduled Tribes and the Schools run on No Profit No Loss basis Colleges/Hostels/Orphanages/Community Halls:
iii) Allotment of 50% of the Market Value of the Land
a) Hostels/Schools, colleges/Destitute Homes/Orphanages/Physically Handicapped persons, Mentally retarded persons/Old Age Homes/Sports complexes run by the charitable Institutions recognized by the State Government or registered under section 12(a) of the Income Tax act, 1961 other than the institutions run by Scheduled Caste/Scheduled Tribe.
b) Red Cross Societies/Rotary Clubs/Lion Clubs/Press Clubs.
c) Boards/Pallike Offices/Markets/Bus Stands/Electricity Board and Public sectors for construction of public infrastructure Amenities by the State Government and Central Government:
The fourth category being individuals, hospitals, hostels, schools/colleges, entertainment clubs run by religious institutions which are neither recognized by the government nor registered under Section 12-A of the Income Tax Act, 1961, which can be allotted land at market value, but in respect of any other type of transfer of properties belonging to municipal bodies or local authorities, it can only be by public auction and when such guidelines had been evolved as per this government order that transaction in the present case to transfer the subject land in favour of third respondent even at market price, but without resorting to public auction is bad in law and therefore for quashing of the proceedings leading to such transfer etc.
3. In WP No. 6901 of 2007, the prayer is slightly different and is as under:
Issue a writ or order in the nature of Mandamus or any other writ in the same nature holding the sale of corporation landsite no 1/1-2. Thimaiah Road ward No. 79 measuring 10,000 sq feet, morefully described in the sale deed produced as Annexure “B” as illegal, arbitrary, and Capricious
And direct the respondent 1 to 3 to take back the said land.
Further this Honourable Court may be pleased direct to hold an enquiry as the persons involved in such illegal transaction and punish them in accordance with law.
And pass such other orders as this Honourable Court deems fit on the fact and circumstance of the case in the interest of equity and justice.
But the grounds urged are substantially the same as noticed above in the first petition.
4. In WP No 7975 of 2008, as some more developments have taken place by he time of presenting this writ petition, the prayer is for quashing of the resolution of the BBMP passed on 26-10-2005 [Annexure-C to WP No 7975 of 2008] and also for quashing of all consequential orders and proceedings, but essentially to ensure that the property is restored to the BBMP and if at all the property is to be sold by BBMP it can only be by public auction.
5. Writ petitions had been admitted and respondents were notified. While no written statement of objections has been filed on behalf of the state government in any of these writ petitions, Sri K T Vedamurthy, learned government pleader appearing for the state, submits that the then chief minister, to whom representations had been given by the respondent-beneficiary for allotment of the subject land, has, after taking into consideration the services rendered by the applicant in the filed of journalism, had ordered allotment of the land in question and this had been communicated to the commissioner. BBMP, who has followed all necessary procedures and requirements of law in the matter of transfer of subject land in favour of the applicant-beneficiary; that necessary requirements are also made and the matter having gone before competent authorities transaction cannot be characterized as either irregular or illegal; that there is no need for interference in a matter of this nature and therefore urges for dismissal of the writ petitions.
6. However, learned government pleader has placed before the court the records of the state government leading to the order of the state government and the consequential transactions by BBMP.
7. In so far as the BBMP is concerned, a fairly detailed statement of objections have been filed in all three petitions and the action on its part is strongly defended. It is the version of the civic body that the requirement of Section 175 of the Act are all have been met and the civic body has only acted as per the orders and directions of the state government; that the civic body though had passed a resolution once earlier for acting in consonance with the endorsement made by the then chief minister for allotment of land and had processed the matter through two standing committees and the civic body itself had passed a resolution dated 26-10-2005 to seek the approval of the state government after having unanimously resolved to transfer the land in terms of the proposal made by the commissioner and which had elicited the approval of the two standing committees viz., standing committee for town planning and development and the standing committee for taxation and finance and the government also granted its sanction as per the government order dated 19-5-2006; that the civic body had a re-thinking on the matter and passed a subsequent resolution on 26-98-2006 reviewing its earlier resolution in the wake of the realization on the part of the civic body about the land being required for its won requirement such as putting up of an office building and to develop a commercial complex and had therefore passed the resolution to retain the land in question for such purpose and had forwarded this fresh resolution to the state government seeking review of its earlier order, but the commissioner of the civic body had been apprised by the state government as per its communication dated 28-12-2006/16-1-2007, a copy of which is produced as Annexure-R3 to the statement of objections dated 14-3-2011 filed on behalf of BBMP in WP No 7975 of 2008, decision of the State Government rejecting the request of the civic body and apprising that there was no sufficient ground to review the earlier decision of the state government.
8. The sum and substance of the statement of objections filed on behalf of the civic body is that notwithstanding these developments, allotment of land and the sale transaction are both valid in law, as procedures are being followed, statutory compliance is secured and therefore no need for interference and has urged for dismissal of the writ petitions.
9. Respondent-beneficiary has filed separate statement of objections and stoutly defended the validity of the orders passed by the civic body as well as the government and the validity of the transaction. It is urged that the allottee/beneficiary M/s Daanish Publications is a limited company, though a closely held family company, publishes an Urdu daily by the name The Siasat; that it has good circulation and is being published simultaneously from Bangalore and Hyderabad; that it is serving a laudable public cause of disseminating news and information amongst Urdu speaking readers; that it has been serving the society and functioning in Karnataka for the past 13 years, but has been functioning in Hyderabad for the past more than 60 years; that the present company has taken over the management of this news daily only after the year 1999 and has been carrying on the publication; that Bangalore office which was functioning in a rented building for the past about six years prior to its application seeking for allotment of the land in question; that the building had been destroyed due to a fire hazard and as the company was functioning from a temporary alternative office, it was in dire need of a place for housing an office of its own and therefore appreciating the good works done and the need for housing its organization, the then chief minister of the state ordered for allotment of a suitable land; that as the allottee had identified an available vacant land for the purpose, the subject land was ultimately allotted, though not upto the extent sought for but to the limited extent of 10000 sq feet and though recommendation of the civic body was for allotment at 50% of the market value, the state government had ultimately granted its sanction for transfer of the land at full market price; that the company has paid the market price and therefore there cannot be any exception taken for the resolution allotting the land and the transfer at market price. It is pleaded that all necessary legal requirements are met; that merely because one of the writ petitioners had sought for allotment of land for the purpose mentioned by it or for the land and building to be maintained as a community hall etc., in no way vitiates the government order or subsequent transfer of the land by the civic body at market price; that the writ petitioner in WP No 7975 of 2008 was more after chief publicity than for espousing any worthwhile public cause and has therefore urged strongly for dismissing all three petitions.
10. We have heard Ms M R Shalamala, learned counsel appearing for petitioner in WP No 15525 of 2006, petitioner in WP No 6901 of 2007 party in person is not before us and Sri M V Vedachala, learned counsel for the petitioner in WP No 7975 of 2008, as also Sri Vedamurthy, learned government pleader for the state government, Sri B V Muralidhar, learned counsel and Sri G M Chandrashekar, learned counsel for the respondent-BBMP and Sri Jayakumar S Patil, learned senior counsel appearing for the allottee/beneficiary.
11. Brief facts leading to the present writ petitions are as under and are not much in dispute.
12. The allottee/beneficiary, it appears, made a representation to the state government and it is submitted by Sri Jayakumar S Patil, learned senior counsel that simultaneously to the civic body also for allotment of the identified land bearing No 1/1-2, Thimmaiah Road, adjacent to KSFC Office, Bangalore, which measures in all 20000 sq feet and housed a community hall, though in a dilapidated state of condition, for the purpose of housing the office and press etc., of the Urdu daily The Siasat. The representation dated 20-7-2005 was addressed to the commissioner. BBMP, requesting allotment of an extent of 20000 sq feet vacant land at Thimmaiah road, Shivajinagar. A copy of representation is produced at Annexure-R3 (d) to the statement of objection filed by the allottee]. It appears, it had been followed up by another representation dated 2-8-2005, addressed to the then chief minister of the state, but the contents being same as in the representation/request given to BBMP.
13. The representation to the chief minister, it appears, elicited prompt response, as we find from the records produced by the state government and a copy of the endorsement is also placed before the court as Annexure-D in WP No 15525 of 2006, wherein the then chief minister Sri Dharm Singh had endorsed as ‘allot the land’ and this being followed up by the secretary to the chief minister putting up a note to the principal secretary to the government, department of urban development., apprising the request on behalf of the allottee/beneficiary and the endorsement of the chief minister on the same for suitable action at his end. It is therefore the concerned department had addressed the communication dated 27-9-2005 addressed to the commissioner, BBMP, enclosing the representation of the allottee/beneficiary, endorsement of the chief minister on the representation and the subsequent note from the office of the chief minister etc., to examine the request of the applicant in accordance with law and to submit a report to the government at the earliest etc.
14. It is as a sequel to these developments at the end of the state government, there was further follow up action in the form of a note being put up by the commissioner, BBMP as per his note dated 10-10-2005 [Annexure-E to WP No 15525 of 2006]. The note made specific reference to the request of the allottee/beneficiary made to the chief minister and the endorsement of the chief minister for allotment of land in favour of the allottee/beneficiary and also pointing out that in the subject land, there was an old and dilapidated corporation community hall, but because of its ruinous state of condition, it was not in use and further the note indicated that as per government order 2-6-2003, no property of a civic body can be transferred by private sale, but should only be by public auction and nevertheless the communication having originated from the sate government with the endorsement of the chief minister, the subject land should be allottee in favour of the allottee/beneficiary, it was opined that an extent of 10000 sq feet of land may be considered for allotment and also indicated the market rate of the land excluding the value of old community hall and therefore for necessary decision by the civic body after the note is processed by the two standing committees viz., standing committee for town planning and development and standing committee for taxation and finance etc.
15. This note was placed before the standing committee for town planning and development and elicited its approval on 21-10-2005 [Annexure-G to WP no 15525 of 2006]. The note reached the second standing committee and here also elicited its approval on 22-10-2005 [Annexure-H to WP No. 15525 of 2006]. With the recommendation for extending concession to the applicant on humanitarian ground i.e. the land in question may be sold in favour of the applicant at 50% of the market rate.
16. On such placing of the reports of the two standing committees, the matter was placed before the general body of BBMP and it was tabled by Sri B T Srinivasa Murthy, member, and seconded by another member Sri S Rajanna and the civic body resolved to approve the proposals as modified by the committees in terms of its resolution dated 26-10-2005 [Annexure-B to WP No 15525 of 2006]. It is thereafter the civic body forwarded this resolution to the state government but with a footnote of the commissioner pointing out that the allotment or sale in this manner will be contrary to the earlier government order of the year 2003 and also the concession at 50% of the market rate cannot be extended to the applicant, as the applicant did not figure within one of the special categories as had been indicated in the government guidelines of the year 2003, but was covered by category No. 4.
17. The communication from the civic body seeking for the approval of the state government and in this regard it is significant to notice the submission of Sri Jayakumar S Patil, learned senior counsel appearing for the allottee / beneficiary that the state government while granted sanction for the transfer as per its order dated 19-5-2006, the matter had elicited examination from the two aspects referred to in the footnote of the commissioner viz., requirement of public auction sale and extending of concession and therefore the matter was not only referred to the opinion of the law department but also of the finance department and after obtaining such opinions, the matter had also been placed before the cabinet for its approval and the approval of the cabinet was without concession of 50% of the market price, but the transfer of the land at market price, the impediment in the earlier guidelines as indicated in the government order of the year 2003 did not come in the way etc.
18. It is with all these developments, ultimately the matter came back to BBMP with the sanction of the state government for the transfer of an extent of 10000 sq feet of land for the market price with 20% premium on the market price, worked out to Rs. 1.68 crore.
19. It is at this stage BBMP had a second thought about its move for transfer of this land at market price, as it realized that the palike itself did require the subject land and also that it can be developed as an officer/commercial complex by private-public participation etc. But, as noticed earlier, the request of the BBMP to the government to review its order having not elicited any favourable response from the government, BBMP executed the sale deed as noticed above, and with such facts being not in dispute, the only examination in these writ petitions is as to whether a transaction of this nature in respect of a property in the ownership of a civic body, sustains on the touchstone of the relevant statutory provisions; mainly under Section 176 read with Section 174 of the Act and on the touchstone of Article 14 of the Constitution of India, as interpreted in several decisions of the High Courts and the Supreme Court.
20. Appearing on behalf of the petitioner in W.P.No. 15525/2006 Ms. Shalamala, the learned counsel has reiterated the ground as urged in the writ petition and has drawn our particular attention to the earlier government order of the year 2003 to submit that the property belonging to the BBMP could not have been sold or transferred otherwise than by a public auction sale.
21. Appearing on behalf of the writ petitioner in W.P.No. 7975/2008, Sri Vedachala, learned counsel has drawn our attention to the provisions of Section 174 of the Karnataka Municipal Corporation Act, 1976 (for short hereinafter referred to as the ‘the Act’) and has drawn our specific attention to the provisions of Section 176 of the Act relating to disposal of property and interest therein by the Corporation.
22. By pin-pointing to the provisions of Sub-Section (6) of Section 176 of the Act, it is submitted that so far as the immovable property is concerned, in terms of sub-clause (iii) Clause (b) of sub section (6) of Section 176 of the Act, immovable property of the Corporation cannot be disposed either by way of sale or by any other mode of transfer except with the previous sanction of the Government and submits that the exception while qualifies all three situations contemplated under sub clause (b) of sub section (6) of Section 176 of the Act submits that the role required to be played by the State government under this provision has a special significance that it has to act as a watch-dog to see the manner in which properties of the corporation are sold or transferred; that while the corporation itself is in the position of a trustee in respect of properties entrusted to it for being maintained has to be performed, the corporation is required to exercise the same kind of vigil and care in respect of other properties of the Corporation also; that it cannot be simply sold or parted with just because it can fetch a price or a market price and submits that the present developments leading to the execution of the sale deed by the Corporation is clearly in violation of their statutory provisions.
23. It is submitted that even the so called sanction of the Government is also vitiated for the same reason and has placed reliance on the following judgement in support of his submission, in the case of AGGARWAL and MODI ENTERPRISES (P) LTD. AND ANOTHER VERSUS NEW DELHI MUNICIPAL COUNCIL [2007) 8 SUPREME COURT CASES 75] to submit that the Corporation hold all its properties for the benefit of public at large and transferring such land, a valuable piece of land, at a nominal price or at a low value and at the behest of the Chief Minister is nothing short of abdicating its responsibility to act as a trustee of the property for the benefit of the community and the people of the city.
24. It is also submitted that the State Government which was required to act as guardian or watch-dog over the actions of the Corporation in the matter of transferring its immovable properties to private persons has virtually abdicated its role in ensuing the proceedings for the sale of the extent of 10,000 sq.ft of land belonging to the Corporation in terms of the endorsement made by the then Chief Minister of the State on a representation that had been given by the third respondent addressed to the Chief Minister, by directing allotment of land.
25. Reliance is also placed on the judgement of the Supreme Court in the case of HAJI T.M. HASSAM RAWTHER VERSUS KERALA FINANCIAL COPORATION reported in AIR 1988 SC 157 to submit that if State assets are to be disposed or transferred to private persons, the accepted and desirable procedure is by public action or by inviting open tenders and not by private sale that too without intimation to others who may be interested to buy the property and not by keeping others in the dark. Mr. Vedachala also submits that in so far as the value at which the property was sold in terms of the sale deed executed by the Joint Commissioner is concerned, it is far below the market price that it is not even half of the market price etc.
26. Mr. Vedachala seeks to draw support from the Single Bench decision of this Court dated 19.12.2006 rendered in W.P.NO. 18294/2006 in the matter between Sri. Alijan s/o Syed Fakruddin and the Commissioner, BMP and another. Drawing our attention to para 7 of the order Mr. Vedachala submits that even in a situation where a property is transferred with the previous sanction of the Government, it should necessarily be by way of public auction so as to fetch maximum price in respect of the public property, but also to accord opportunity to all knowing buyers to participate in public auction and take their chance. Submission is that property of State, in the instant case of the Corporation should not be sold or transferred by way of private negotiation etc.
27. Appearing on behalf of the second respondent-Bangalore Mahanagara Palike (for short hereinafter referred to as ‘the Palike’) submission of Sri.Muralidhar, learned counsel, with reference to the statement of objections filed on behalf of the Palike, is that the Palike has followed all the procedures to the hilt and fully in consonance with the requirement of Section 176 of the Act; that while it is true that the endorsement made on the representation of the third respondent, which has been addressed to the Chief Minister has been forwarded to the palike with an appending note of a personal secretary to the chief minister and while that is not in dispute, nevertheless all requirement in terms of provisions of Section 179 of the Act have been duly complied with particularly the matter having gone before the two standing committees, the palike passing an unanimous resolution approving the commissioners proposal which had elicited the approval of the committees and even thereafter the permission or sanction of the State Government having been sought for and the State Government, the fact, having sanctioned the transfer, but with certain conditions and those conditions having been adhered to the Palike, no illegality can be attributed to the transfer as the Palika had adhered to all safe-guard requirements for the propose of transferring a property of the Palika to a private person and therefore, no exception can be taken to the transaction. Mr Muralidhar has urged for dismissal of the writ petition as one not warranting interference in exercise of the writ jurisdiction.
28. Mr.Muralidhar has also submitted that though the Palike had second thought about transferring the subject land in favour of private person, after having realized its own needs and the possibilities of putting up an office-cum-commercial complex for its own use and though had requested the State Government to review the earlier transaction , the State Government, having opined that the Palike had not made out justifiable ground to review its decision and the Palike being left with no other choice, but having executed the sale deed in terms of the Government order, all aspects of the matter have been examined; that no effort had been spared by the Palike in not only adhering to the statutory provisions, but also in safeguarding the interest of the Palike, that the market rate or the guidelines rate having been ascertained at 1,400 sq feet and premium at 20% of the market rate also added and the property having been sold at such enhanced rate, it cannot be said that there is any loss to the public body and therefore, there is no need for interference in writ jurisdiction.
29. On behalf of the State government Mr. Vedamurthy, learned Government Pleader had defended the action of the State Government that the State Government has a role in the Municipal Corporation; that while it is true that the then chief minister has made an endorsement on the representation of the third respondent to allot land to the person representing, that was done only with the intention of encouraging an organization like a publication publishing vernacular news daily; that the State Government had, in fact, acted in favour of such deserving persons on earlier occasions also, that land had been allotted for the purpose of the English news daily-Hindu and Kannada news daily-Sanjeevani and here again as against the request for allotment of such 20,000 sq feet, it was restricted to 10,000 sq feet and while a guideline had been issued by the State Government in the matter of transfer of properties belonging to civic bodies, it cannot be said that the property transferred is in violation of the guidelines as the allotment cannot be characterized as a allotment in favour of a private individual, but an allotment in favour of a news daily and therefore, virtually one which can be covered in terms of category III (b) as the allotment is in favour of a trust etc. but the allotment being only at the market price and even an organization of the nature of a press can be fitted into either category 3 or 4 and therefore, the allotment cannot be characterized as purely in favour of a residuary category allotment other than 1,2,3 and 4 of the guidelines and therefore, not going into the procedure category cannot initiate the Government order or the transactions.
30. Sri. Vedamurthy has also submitted with reference to the records of the Government that, the subject sanction the State Government to the proposal of the Palike to transfer the land in favour of the third respondent had been placed before the cabinet and elicited the approval of the cabinet itself and therefore, assuming for argument sake that it is not fully in consonance with the guidelines indicated in the government order of the year 2003, that in no way detracts from the legality of the order as the Government order of the year 2003, cannot over-ride the present sanction of the government with the full approval of the cabinet and the government order dated 2-6-2003, cannot be put on a higher pedestal than present Government order. Therefore, Mr Veda Murthy submits that there is no scope for interference in the order of the government.
31. Mr. Jayakumar S. Patil, learned senior counsel appearing for respondent No. 3 – allottee/purchaser has very vehemently urged that there is neither any illegality nor irregularity in the matter of allotment or Government sanction and the execution of the sale deed; that just because the chief minister of the State had responded to a representation made to him in a positive manner and that too taking note of the good work that was being done by the third respondent-news publication concerned, if had directed allotment of land, it was a laudable thing can be found fault with; that it is not as though any charity was shown to the third respondent. The allotment was at market price with 20% premium; that, even as pointed out by the Government Pleader, counsel for the Palike, the Palike also having adhered to all requirement of law, no exception can be taken to the transaction for interference in exercise of the writ jurisdiction; that there is no need for finding fault with the orders of the Palike nor the State Government and therefore, submits that there is no need for interference; that the writ petition deserves to be dismissed.
32. It is also submitted that it was the policy of the State government itself to encourage news publications; that it was nothing new to the third respondent alone, nor any exception is made in the case of third respondent it had happened earlier in the case of The Indian Express and The Hindu News Dailies and as there was ambiguity as to who was the owner of the precise property wherein the dilapidated building of the community was located, third respondent has made representations both to the Palike and to the State Government. That, in fact, earlier representation had been given to the Palike in 2.7.2005 itself and the representation given to the Chief Minster was only on 2.8.2008 and if the Chief Minister had acted in such circumstance in making the endorsement and if the Palike has undergone all procedures, no exception can be taken and urges for dismissal of the petition and also submits that in W.P.No. 7975/08, it is only for any public cause, but more out of cheap publicity has presented the petition. No need to entertain such writ petitions and urged for dismissal of the petition.
33. Mr. Chandrashekar, learned counsel appearing in W.P.No. 15525/08 for the very Palike also supported and reiterated the submissions as made by Muralidhar, counsel for the Palike, and with reference to the statement already filed.
34. It is in the wake of such petition pleadings and the submissions made at the bar, we are required to examine this writ petition.
35. While it is true that this petition has been filed in public interest and should elicit more attention and it should be given more importance and should be examined with a little more depth and scrutiny etc., we would like to make it clear at this stage that, whether a writ petition should be treated as a public interest litigation or otherwise, the nature of examination by the Court in exercise of the jurisdiction of judicial review of administration again is the same and does not vary with an ordinary petition vis a vis the public interest litigation.
36. Insofar as the PIL writ petition is concerned, at the best the concept of regulations is regularized and the petition is entertained even at the instance of a person who is not himself perse affected by any administrative functions, but the parameters for examination of the action of the public bodies and the authorities and even the State Government remains the same.
37. Insofar as the writ jurisdiction is concerned, the examination is always about the actions of a public body, a statutory functionary or sometimes even a constitutional functionary only the touchstone of the statutory provision and the constitution. Right of the petitioner does not assume importance in such examination, but the question if such rights either statutory or constitutional rights of a petitioner before the Court is affect by any action or to be precise mal-action of a public authority that will be examined.
38. In the instant case, there is absolutely no dispute about the facts as we have noticed above. It is a fact that the third respondent has to its credit publication of a Urdu Daily by The Siaseth and may be of some circular also. It is also made clear that the State Government may have policy of encouraging bodies such as organizations bringing out publications of a nature of news daily news weekly etc. should disseminate news and information to the general public virtually educate the general public and therefore, may deserve encouragement in any manner as deemed fit by the State Government depending on its policies and programmes. These are also not examined in writ jurisdiction. The civil body like the BBMP may pass resolutions if it elicits all the support of the requisite number of member of the body and validity of such relations are not per se examined by the courts while exercising writ jurisdiction, follow-up execution action can always be examined on the touch stone of such governing statutory provisions.
39. In the instant case the proceedings leading to the execution of the sale deed by the Palike in respect of the property measuring `10,000 sq feet in favour of the third respondent as per its sale deed dated 22.2.2007 without any doubt originated with the representations made by the third respondent and more particularly, the endorsement made by then chief minister on the representation of the third respondent directing allotment of land as per Annexure-R2 to the statement of objections filed on behalf of the Palike. It is thereafter, the matter has moved from the State Government to the Palike as elicited, bestows response from the Palike as gone through the committees, the body of Palike and the subsequent sanction of the State government to the resolution of the civic body for transfer of subject land in favour of the third respondent. The statutory provision s regulating these entire transaction are of two types; one is Section 174 of the Act giving a hint or throwing light on the manner a civic body should safe-guard the properties of the civic body or properties entrusted to its care and supervision for the benefit of the citizens of the city.
40. The Civic body which is a public service organization providing civic facilities and amenities to the citizens of the city and in the process of maintaining its properties owned by it for the general public of all members of the city. The response is in the nature of the bias obligation though many a times a property may stand in the name of the civic body itself. The civic body always has responsibility to act in the larger interest of the community than confining to an individual interest of a particular person.
41. Insofar as the property belonging to the civic body is concerned, the scheme of the Act is that, while as the property can be transacted in terms of Section 176 of the Act, it has to observe certain safe guards etc.
42. The State Government while no doubt act as supervisory role and also can issue directions and guidelines to the civic bodies in terms of Chapter IX of the Act which denotes the powers of the State Government, such powers cannot be treated on par or same when the Chief Minister of the State passes or in the form of an endorsement a representation given by a person like the third respondent for allotment of land directing allotment.
43. While it is no doubt true that the Chief Minister, perhaps in respect of the properties of the State Government, himself may take decisions, but insofar as the properties of a civic body is concerned, a different procedure is contemplated under the Act and therefore the endorsement made by the then Chief Minister on the representation of the third respondent, in our considered opinion, cannot be supported by the kind of powers the State Government can exercise under Chapter IX Sections 94 to 102 of the Act.
44. In fact, the Government is given a type of supervisory or over-riding power and the power can be exercised to put the civic body on proper lines if it is found to going astray, but not to act as suo motu power exercised by the State Government.
45. But, insofar as the property of the civic body is concerned, it is fully regulated by Chapter XII of the Act and as already been noticed, Section 174, the more significant section is 176 regarding disposal of the property therein and insofar as the immovable property is concerned, there are certain limitations and transactions.
174. Corporation Property –
(1) All property of the nature herein specified, and not being specially reserved by Government, shall be vested in and belong to the Corporation and shall, together with all other property of whatsoever nature or kind not being specially reserved by Government, which may become vested in the corporation, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act, this is to say:-
i) All public parks, playgrounds and open spaces reserved for ventilation;
ii) All public lamps, lamp posts and apparatus connected therewith or appertaining thereto;
iii) All gates, markets, slaughterhouses, manure and refuse depots and public buildings of every description.
(2) The corporation may accept trusts relating exclusively to the furtherance of purposes to which the corporation funds may be applied.
176. Disposal of property and interest therein –
(1) Subject to the provisions of section 182, the Commissioner may dispose of by sale or exchange of any Corporation moveable property (xxxx) or grant for any term not exceeding (two years) a lease of any Corporation immovable property or a lease or concession of any right of fishing or grazing or of gathering and taking fruit and the like:
Provided that such lease or concession shall be subject to the condition that the grantee shall not erect any permanent structure on the demised premises:
Provided further that every such disposal, leasse of concession made or granted by the Commissioner shall be reported to the standing Committee within fifteen days.
(2) With the sanction of the stranding committee the Commissioner may dispose of the sale or exchange any Corporation movable property (XXXXX), or grant for any term not exceeding three years a lease of any Corporation immovable property or a lease or concession of any such right as aforesaid.
(3) With the sanction of the Corporation the Commissioner may lease, sell or otherwise dispose of any Corporation movable property.
(4) The sanction of the Standing Committee under sub-section (2) OR THAT OF THE Corporation under sub-section (3) may be given either generally or for any class of cases or specially for any particular case.
(5) The Commissioner may lend or let out on hire any Corporation moveable property on such conditions and for such periods as may be specified in the regulations.
(6) Notwithstanding anything contained in this Act:-
(a) No movable property exceeding such sum in value as may be prescribed shall be sold otherwise than by public auction;
b) i) No property whether moveable or immovable of whatever value shall be transferred free of cost or for an uplset price;
ii) No lease of any immovable, property exceeding five years shall be granted;
iii) No immovable property shall be disposed of by sale or by other transfer,
Except with the previous sanction of the Government.
46. We find in the present case, the initial endorsement made by the then Chief Minister of the State having an over bearing effect on all subsequent actions whether of he commissioner or of the standing committees or even of the body corporate, as a resolution is passed in the civic body more depending on political considerations having regard to the allegations of the members of the civic body to political ;parties and therefore, passing of a resolution in committees cannot be a criteria for transfer of immovable property belonging to the civic body. In fact, three situations which compels a previous sanction of the Government for the transfer of interest, limited or full, to three persons in respect of the properties of the civic bodies is in the nature of a safe-guard and a check imposed on the civic body and to be exercised by the State Government. The higher executive body in the state is not only to safe-guard the interest of the civic body while disposing of its property, but also to keep in mind the overall interest of the citizens of the State also as the civic body can confine its examination in the context of the interest of the citizens of the city, whereas, the State Government may have to examine from a larger perception.
47. Be that as it may, the role assigned to the State Government in terms of the exception to clauses (1), (2) and (3) of Sub-section (6) of section 176 is by way of a guardian to safe-guard the properties of the civic body. It is also to be noticed that this a statutory role to be performed by the State Government and it is not open to the State Government to exercise all its powers, some of which may be incorporated in Chapter IX of the Act. The role played by the State Government even as a statutory authority in terms of Chapter IX is totally different when it is playing a role u/s.176 of the Act. There is no other role for the State Government except to act in the interest of the civic body and also in the larger interest of the State itself while according sanction to a proposal originating from the civic body for transfer of interest, limited or fully in respect of the immovable properties owned by the civic body.
48. In the present examination we find that in the first instance the entire transaction is vitiated due to the fact of the proceedings having been initiated and influenced by the endorsement made by the then chief minister which virtually in the nature of a direction to the officials below whether of the State Government or of the BBMP to allot the land which order/endorsement has been scrupulously followed by the State government up to the communication addressed to the commissioner, copy of which is at page 29 of the original records addressed to the Commissioner, Bangalore Mahanagara Palike and therefore, has fully guided all subsequent developments which virtually has also defeated the job and purpose of having several standing committees and the civic body like the Palike passing the resolution independently on its own on the merits of the proposal moved by one member and seconded by another member, the matter gets further eroded because the State Government has virtually abdicated its role as envisaged in terms of sub-section (6) of section 176 which is one of acting to safeguard the interest of the Palike in the matter of transfer of immovable properties of the civic body.
49. We are of the clear opinion that the sanction or the previous sanction of the Govt. proceeding, the actual sale transaction by the Palike is vitiated for these two reasons. The initial action of the State govt. and the proposal originating from the end of the State govt. and later the state govt. virtually abdicating its assigned role in terms of Section 176 of the Act.
50. In the instant case, there are two types of statutory violations. In the first instance, the state government, which was required to act as a protector and guardian of the properties of civic bodies by exercising vigil and proper control over the proposed transfer of land by the civic body to others, has, on the other hand, abdicated its statutory role under Section 176 of the Act and has initiated a transfer proposal from its end. The second statutory violation is that BBMP, a civic body which has to take proper care, control and conserve its properties for the public good and for the benefit of the citizens, has, on the other hand, surrendered this responsibility to the dictates of the then chief minister and therefore has failed in its statutory duty under section 176 of the act.
51. In the result the sanction of the State government in terms of Annexure-A stands quashed by issue of a writ of certiorari and consequent actions also fall to ground. However, insofar as by way of declaration of cancellation of the sale deed is concerned, it is left to the discretion of the Palike, we direct the Palike to take up follow-up action by seeking suitable relief before the Civil court for cancellation of the sale deed as we do not propose to go into this aspect, but allow this petition purely on the ground of the violation of the provisions of section 176 of the Act.
52. Rule made absolute. All petitions are allowed. Annexure-A in W.P No. 15525/08 stands quashed.
53. We have been informed at the Bar that the subject land remains vacant as of now. In terms of the interim order passed by this Court as on 14.7.2008 in W.P. No 7975/08, we hereby direct the Mahanagara Palike to take possession of the land and to protect it for the benefit of the civic body and have it retained in the ownership of the civic body and for the benefit of the citizens at large. The Civic Body to take immediate follow-up action for seeking cancellation of the sale deed in the civil court and in accordance with law.
54. While we appreciate the public spirit with which some of the citizens have approached this Court for espousing a public cause, though we have found statutory violations, we leave the parties to bear their own costs.