Quashed

Vokkaligara Kshemabivruddi Sangha (R) v. Mysore Urban Development Authority

Karnataka HC13 Mar 2023WP/23678/2018

Case brief

AI extract

What is this about?

Petitioner challenged the allotment of a civic amenity site to a minority institution for educational purposes. The Court found the decision arbitrary as the authority failed to conduct a comparative evaluation of applicants as mandated by Rule 7 of the 1991 Rules and ignored mandatory area requirements for educational institutions under 2018 Amendment Rules.

What did the court decide?

The decision allotting the site was quashed. Respondent 1 directed to redo the comparative evaluation within 12 weeks.

Vokkaligara Kshemabivruddi Sangha (R) Vs Mysore Urban… — Land Acquisition | Karnataka HC (2023)

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1 - WP No. 23678 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.23678 OF 2018 (LB-RES)

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BETWEEN:

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VOKKALIGARA KSHEMABIVRUDDI SANGHA (R) NO. 5, GROUP 3, HIG-1, KHB COLONY, HOTTAGALLI, MYSORE 18, REP BY ITS SECRTARY

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…PETITIONER

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(BY SRI. R.S. RAVI SR. ADVOCATE FOR SRI. NARENDRA D V GOWDA., ADVOCATE)

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AND:

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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MYSORE URBAN DEVELOPMENT AUTHORITY JHANSI LAKSHMIBAI ROAD, MYSORE, REP BY ITS COMMISSIONER

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INFANT JESUS CATHOLIC CENTRE, HUNSUR ROAD, HINKAL, MYSORE, REP BY ITS DIRECTOR

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…RESPONDENTS (BY SRI. T P VIVEKANANDA., ADVOCATE FOR R1, SRI. G. KRISHNAMURTHY, SR. ADVOCATE FOR SRI. S. VIVEKANANDA, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO TO QUASH THE DECISION DATED 13.03.2018 PASSED BY THE COMMITTEE OF THE FIRST RESPONDENT IN SO FAR AS SITE VIDE SL.NO.31, NOTIFIED SL.NO.42, BEARING SURVEY NO.333, 336 AND 337, MEASURING

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1500 SQ.M AT BELAVADI, MYSURU, IN CONCERNED VIDE ANNEXURE-G AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the following reliefs:

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a. To quash the decision dated 13.03.2018 passed by the committee of the first respondent in so far as site vide Sl.No.31, Notified Sl.No.42, bearing Survey No.333, 336 and 337, measuring 1500 sq.m at Belavadi, Mysuru, in concerned vide Annexure-G

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b. To direct the first respondent to allot the site vide Sl.No.31, Notified Sl.No.42, bearing Survey No.333, 336 and 337, measuring 1500 sq.m at Belavadi, Mysuru, by considering the representation dated 14.02.2018, vide Annexure-B, in favour of the petitioner

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c. To grant such other relief/relief’s as this Hon’ble Court deem fit to grant in the facts and circumstances of the case.

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Respondent No.1-Mysore Urban Development Authority had invited applications from registered societies/bodies for disposal of civic amenities sites in various parts of Mysore city in accordance with the Karnataka Urban Development Authorities (Allotment of Civic Amenities Sites) Rules 1991. A public

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notification in daily newspaper has been published in this regard on 9.1.2018. There being several sites brought up for allotment, one of the sites in Sy. No.333, 336 and 337 measuring 1500 sq. mts at Belavadi.

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In the notification, it is stated that the said land could be allotted for the purpose of Samudaya Bhavan/Shaishaknika/Aroghya that is to say Community Hall/Education/Health Centre. The petitioner applied for the allotment of the aforesaid property for the purpose of Samudhaya Bhavan/Community hall. The respondent No.2 applied for the allotment of the said site for the purpose of Samudhaya Bhavan /Shaishaknika/Aroghya that is to say Community Hall/Education/Health Centre.

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Respondent No.1 after receiving various applications which had been submitted in regard to this particular property which numbered 15 allotted the said

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property to respondent No.2. It is aggrieved by the same petitioner is before this Court.

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Sri. R.S.Ravi., learned Senior counsel appearing for the petitioner would submit that:

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5.1. the allotment which has been made to respondent No.2 is contrary to the applicable law, inasmuch as the application was made for all three categories without indicating any particular category for which respondent No.2 wanted to use the property.

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5.2. An application for allotment of civic amenity

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sites on a lease basis ought to be specific in nature. The petitioner having submitted its application for Samudaya Bhavan and respondent No.2 having submitted for Samudaya Bhavan/Shaishaknika/Aroghya there are no comparative merit which has been taken into consideration by respondent No.1.

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5.3. The recommendation made by the subcommittee indicates that respondent No.2 has

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not even submitted its audited report and annual report for the purpose of such consideration. The application of respondent No.2 has been considered without any basis and allotment has been made for educational purposes even though the application has been made for Samudaya

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Bhavan/Shaishaknika/Aroghya.

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5.4. Thus, it is respondent No.1 who has decided the activities which has to be carried out by Respondent No.2 even though the application submitted it was for three different aspects. He submits that there being no comparative evaluation of the applications by the subcommittee, the decision of the sub-committee is required to be quashed, the petition be allowed and the civic amenities be allotted to the petitioner.

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Sri. G.Krishna Murthy., learned senior counsel appearing for respondent No.2 would submit that:

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6.1. the notification indicated the aforesaid three

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categories and as such the respondent has made his application for all three categories. The respondent No.2 is willing to set up any of the three, that is to say, if the land is allotted to the respondent No.2, the respondent No.2 is willing either to establish a Community Hall/Educational facility/Health Centre.

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6.2. respondent No.2 has the capability and ability as also competence to establish any of the three and that is the reason why an application has been made in all the three categories.

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6.3. respondent No.2 being a minority institution having earlier applied for and not obtaining lease of a civic amenity site and this being the 2^nd time that an application is made, respondent No.1 has considered the said application and allotted the civic amenity site to respondent No.2 and no fault could be found in regard thereto.

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6.4. He submits that the power of judicial review

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vested with this Court is also circumscribed in as much as in challenges of all administrative decision this Court ought not to exercise its powers under Article 226 of the Constitution of India but it is only when certain tests which have been laid down by the Hon’ble Apex Court are satisfied such judicial review could be exercised. In this regards he relies upon the decisions of Hon’ble Apex Court in;

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6.5. Municipal Council, Neemuch v. Mahadeo

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Real Estate and others¹ more particularly paras 2, 13, 14 and 16 which are reproduced hereunder for easy reference;

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2. The factual background, in brief, giving rise to the present appeals is as under. The appellant, which is a Municipal Council, duly constituted under the Madhya Pradesh Municipality Act, 1961 (hereinafter referred to as the “the said Act”) had invited tenders for allotment of land on lease, for a period of 30 years. The land was admeasuring

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1 2019 (10) SCC 738

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1,63,176 sq ft situated in Scheme No. 1-A (Commercial-cum-Residential Use), Neemuch. The notice inviting tenders (“NIT”, for short) was published in the daily newspapers viz. Nai Duniya, Dainik Bhaskar, Free Press and Dashpur Express. Respondent 1, which is a registered partnership firm along with other bidders had submitted the tender thereby giving an offer of Rs 5,81,00,106. It had also deposited the earnest money amounting to Rs 47,00,000. The bids of the participants were opened in presence of the representatives of all the bidders. The bid of Respondent 1 herein was found to be highest.

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13. In the present case, the learned Judges of the Division Bench have arrived at a finding that such a sanction was, in fact, granted. We will examine the correctness of the said finding of fact at a subsequent stage. However, before doing that, we propose to examine the scope of the powers of the High Court of judicial review of an administrative action. Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651] lays down the basic principles which still hold the field. Para 77 of the said judgment reads thus : (SCC pp. 677-78)

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“77. The duty of the court is to confine itself to the question of legality. Its concern should be:

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1. Whether a decision-making authority exceeded its powers?

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2. Committed an error of law,

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3. committed a breach of the rules of natural justice,

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4. reached a decision which no reasonable tribunal would have reached or,

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5. abused its powers.

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Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment 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:

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(i) Illegality : This means the decisionmaker must understand correctly the law that regulates his decision-making power and must give effect to it.

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(ii) Irrationality, namely, Wednesbury unreasonableness.

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(iii) Procedural impropriety.

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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. v. Secy. of State for Home Department, ex p Brind [R. v. Secy. of State for Home Department, ex p Brind, (1991) 1 AC 696 : (1991) 2 WLR 588 (HL)] , 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’.”

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14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion that the decision-maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decisionmaker is vitiated by irrationality and that too on the principle of “Wednesbury

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unreasonableness” or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision-making process. It is also equally well settled that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.

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16. It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law i.e. when the error is apparent on the face of the record and is self-evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice.

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6.6. Tata Cellular v. Union of India² more particularly para 81 which is reproduced

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hereunder for easy reference;

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81. Two other facets of irrationality may be mentioned.

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(1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the

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2 1994 (6) SC 651

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conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255] , the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion.

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(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down.

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6.7. W.B. Central School Service Commission v.

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Abdul Halim³ , more particularly paras 30 and

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31 which are reproduced hereunder for easy reference;

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30. In exercise of its power of judicial review, the Court is to see whether the decision

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3 AIR 2019 SC 4505

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impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137] . If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ court by issuance of writ of certiorari.

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31. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

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6.8. By relying upon the decision in Mahadeo Real

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Estate case (supra), he submits that this

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Court can only intercede when the decision impugned is vitiated, when there is apparent

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error of law i.e., when the error is apparent on

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the face of the record. The test is not as to what the Court would think of it, that is, even if the Court were to consider the reasons as unreasonable, the Court cannot substitute its wisdom for administrative action and decision but the decision can only be questioned, if it led to manifest injustice.

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6.9. By relying on the Tata Cellular case (supra),

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it is contended that it is only when the legality

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is questioned, then the Court could intercede, if not, it should not and the point that could be taken into consideration in this regard is while the decision-making authority exercised its power it committed - an error of law, breach of principles of natural justice. The decision which was arrived at could not have been so arrived

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at by any reasonable person, is an abuse of process of law, even if a decision is impartial as regards unequals, it could be challenged. He

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therefore submits that the test laid down by the

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Apex Court in Tata Cellular case has not been satisfied in the present case and this Court could exercise the power of judicial reviews.

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6.10.By relying on Abdul Halim case (supra) he

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submits that what this Court would essentially have to see is whether decision impugned is vitiated by apparent error of law that test can be ascertained on the face of the decision and not on the basis of reasons or arguments advanced thereon. If the error is required to be reasoned then it cannot be said to be an error apparent on the face of the decision. Thus there being a possibility of two decisions being taken and error being capable of determined only on the basis of reasons the sweep of Article 226 does not envisage the exercise of power of judicial review in such a situation. In the present case, there is nothing which is apparent on the face of record to indicate

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violation of the Karnataka Urban Development Authorities (Allotment of Civic Amenities Sites) Rules 1991, all the provisions and requirements having being followed, the application filed by respondent No.2 being as per the notification which have been issued, the authority having considered the same merely because this Court could come to another decision, this Court ought not to intercede in the matter.

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6.11.In so far the establishment of the Community Hall/Education institution/Health Centre respondent No.2 is willing to establish any of the three as per the permission which may be granted by the concerned authority and the respondent No.2 will act only to establish that particular civic amenity only if the permission is granted.

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Sri. T.P.Vivekanada., learned counsel for respondent No.1 would submit that:

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7.1. though the approval now has been granted for Educational purposes, subsequent thereto there is an amendment to the Karnataka Education Institutions (Classification, Regulation and Prescription of Circular, etc) in the year 2018 in terms thereof for an educational institutions imparting Pre-Primary to Higher Secondary Education or Primary to Higher Secondary or PrePrimary to Secondary Education in other areas is 4000 sq.mts., Primary and Secondary Educations for imparting Secondary and Higher Secondary Education, minimum of 3000 sq. mts. is required, for educational institution imparting only Primary Education or Secondary Education or Higher Secondary Education, minimum area of 2000 sq.mts. is required.

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7.2. Unfortunately, the same was not taken into account while approving the recommendation of the sub-committee and allotment of the civic amenity sites for educational purposes to

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respondent No.2 vide resolution dated

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13.03.2018. He submits that this was through inadvertence.

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7.3. Even as per the Development Control

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Regulation for the purpose of establishing any educational institution, the area would have to be as that prescribed by the competent authority. In this case, it would be in terms of the aforesaid Rules. Without compliance thereof, the allotment could not have been made for educational purposes.

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Heard Sri.R.S.Ravi, learned Senior Counsel for the petitioner, Sri.T.P.Vivekananda, learned counsel for respondent No.1 and Sri.G.Krishnamurthy, learned Senior counsel for respondent No.2 and perused papers.

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A civic amenity has been defined under Rule 2(b) of the aforesaid Rules, 1991 to mean a site earmarked

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for civic amenity in a layout formed by the authority or a site earmarked under civic amenity in a private layout approved by the authority and relinquished. A civic amenity is required to be formed in a particular layout of the area so as to provide certain amenity which is required for the residents of that area. It is

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but required that the concerned Planning Authority takes into consideration the requirement in that area, the availability of other amenities in that area and plan the allocation of civic amenity sites with different kinds of amenities so that all amenities are available to the citizens within a short distance.

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In the present case, when the notification was issued, it denoted this particular civic amenity site to be capable of being used for a community hall, educational institution or a health centre. Thus, it is open for any applicant to apply to any of the above categories. The petitioner applied for allotment of site for establishment of a community hall whereas respondent No.2 applied for all three categories viz.,

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Community Hall, Educational Institution and Health Centre. The offer which has been made by respondent No.2 is in consonance with Rule 3 of the Rules of 1991 inasmuch as the offer is made of a particular type of civic amenity in the locality by way of necessary publications.

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In terms of Rule 7 of Rules 1991, the Principles of Selection of Institutions for leasing out Civic Amenity site have been provided, which reads as under:

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“Principles of selection of Institutions for leasing out Civil Amenity Sites:- (1) The Authority shall consider the case of each institution on its merits and shall have special regard to the following principles in making the selection:-

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(a) The objectives and activities of the institution and public cause served by its since its establishment;

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(b) The financial position of the institution;

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(c) The present location of the institution;

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(d) The benefit likely to accrue to the general public of the locality by allotment of the civic amenity site;

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(e) The bona fide and genuineness of the institution as made out in the annual reports, audit reports etc.;

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(f) The need of the civic amenity site by the institution as made out in the annual reports, audit report etc.;

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2. for the purpose of sub-rule (1), the authority may constitute a separate committee to be called “Civic Amenity Site Allotment Committee” consisting of three Official members and three non-

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official members. The Chairman of the Authority shall be the chairman of the civic amenity site allotment Committee.

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3) subject to the approval of the authority, the decision of the Civic Amenity Site Allotment Committee shall be final.”

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Essentially what is required under Rule 7 of Rules 1991 is a comparative analysis to be made of each of the applicants so as to determine who is best suited to receive a lease of civil amenity site and for what purpose.

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In the present case, respondent No.2 as aforestated applied for Community Hall, Education Institution and Health Centre allegedly enclosing certain documents. Now what is required for the SubCommittee to do was to ascertain firstly with reference to all the applicants as to which applicant and which purpose was more required in that civic amenity.

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Merely because a person were to approach the Urban Development Authority stating that he/she is willing

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to establish any of the civic amenities cannot do away with the requirement of a comparative analysis of the applicants. It was but required for the authority to consider the comparative merit of both the parties or rather all the applicants in respect of each of the three categories and if it were to be considered with reference to the petitioner, the application of the respondent No.2 was to be considered as if it was for a Community Hall and not for an education or health centre, since respondent No.2 itself is not clear as to what it wants to establish in the said civic amenity.

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If comparative merit was in favour of respondent No.2 as regards the Community hall, the same could have been allotted to respondent No.2. It is exfacie clear that it was not open for respondent No.1 to have allotted a civic amenity site for the purpose of establishment of an educational institution without determining the comparative merit between respondents No.1 and 2. This Court is of the opinion

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that the same falls foul of the exemplary principles of arbitrariness as applied to both the cases in Tata

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Cellular and Mahadeo Real Estate inasmuch as if there is any manifest injustice which is caused to any of the parties, this Court would be bound to interfere in the matter to correct the injustice on account of

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such manifest arbitrariness which is occurred by an administration action.

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The requirement of Rule 7 of Rules 1991 not having been followed by the respondent No.1, as also respondent No.1 not having considered the applicability of the Karnataka Educational Institutions (Classification and Registration) Amendment Rules, 2018 which had by then come into force which has made it clear that no educational institution could have been established except for Pre-Primary within an area of less than 2000 sq.mtrs it was but required for the decision making authority to have referred to the same and has categorically classified that it has

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been provided for educational purposes of PrePrimary which is also not done.

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Thus, there is no application of mind by the SubCommittee in the matter resulting in a decision which has been taken allotting the land to respondent No.2 without complying with the Rules. As such, I am of the considered opinion that the decision taken on 13.03.2018 at Annexure-G would have to be quashed. As such, I pass the following:

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ORDER

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i. The decision dated 13.03.2018 passed by the Committee of the respondent No.1 insofar as Site Sl.No.31, notified Sl.No.42, bearing Sy.Nos.333, 336 and 337 measuring 1500 sq.m. at Belavadi, Mysuru at Annexure-G is hereby quashed.

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ii. The respondent No.1 is directed to re-do the exercise of comparative evaluation keeping in mind the above principles as also the

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