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Judgment
M. Ramakrishna, J.-In this appeal, the appellant being aggrieved by the order dated 9-3-19941 made by the learned single Judge in Writ Petition No.
Reported in 1994 (3) Kar. L.J. 134 Ed. 3755 of 1993, has sought to set it aside and to quash the resolution (Annexure-D), dated 31-12-1992 made by respondent 1, Corporation of the City of Bangalore, leasing the space in question in favour of respondent 2-Smt. S. Rajalatha for the grounds taken therein.
We have heard the learned counsel on both sides.
Sri T.R. Subbanna, learned senior counsel appearing for appellant, having taken us through the documentary evidence in the writ petition as well as this appeal, argued that a small piece of land measuring and abutting the compound wall of M/s. Amrut Distilleries on Rajaram Mohan Roy Road, Bangalore, having been leased in favour of respondent 2 for a period of three years, the pedestrians had to come on the road to pass through, if respondent 2 put up any construction on the leased property meant for footpath. The legal contention taken by Sri Subbanna is that earlier the request of respondent 2 for grant of lease of land the same land was rejected by the corporation itself mainly on the ground that there was nothing to show that the property belonged to it and that therefore it cannot review its own decision and grant lease in respect of the property not belonging to it.
Sri Subbanna submits that for the development of the City of Bangalore, and areas adjacent thereto, the authority called "Art Commission" headed by one Mr. M.A. Parthasarathy as its Chairman has been constituted under Section 51 of the Bangalore Development Authority Act, 1976 (''the Act'' for short) and concerning the leased area, he has drawn our attention to acopy of the letter dated 7-4-1994 (Annexure-G) written by the said Parthasarathy to Sri Shenoy, the then Commissioner of Bangalore City Corporation. It reads:
"Dear Shri Shenoy,
Sub: Objection to proposed grant of land adjacent to M/s. Amrut Distilleries Ltd., at Rajaram Mohan Roy Road, Bangalore.
Subsequent to letters received by Sri N. Lakshman Rau, Member of the Commission and myself in the above matter, Mr, Lakshman Rau proposed that we make a joint inspection of the premises where the grant of land adjacent to M/s. Amrut Distilleries Ltd., has been mentioned. Mr. Lakshman Rau recalled that as Administrator of the Bangalore City Corporation, he had been responsible for taking up widening of the road, smoothening the curve, and providing a good footpath, and had for that purpose negotiated acquisition of the land from Amrut Distilleries. He also recalled that the idea was to provide a good pedestrian pathway with some shade trees on them, so as to give this area an aesthetic character.
Against this background, our inspection resulted in our conviction that any proposal to put up a shop or other structure on the acquired area would be undesirable, and that on the other hand it would be desirable to have the place cleaned up and planted with trees all along the inner edge of the acquired area.
I thought I should bring this to your kind attention since this matter has been brought to the attention of both Mr. Lakshman Rau as well as the Bangalore Urban Art Commission."
On the basis of this letter, Sri Subbanna argued that it was not right on the part of the corporation to lease the property in favour of respondent 2 by which not only the beautification of the City is in jeopardise but it also created congestion causing problems to pedestrians to move about on the road safely.
Lastly drawing our attention to the order sheet maintained by the corporation in this case containing notes put up by the office and the orders made thereon by the authorities concerned, and filed along with the application under Order 6, Rule 17 read with Section 151, CPC, for permission to raise additional grounds of appeal as mentioned therein, Sri Subbanna submitted that the court should take into consideration the said notes and the orders made thereon before actually granting the property in favour of respondent 2. In other words, even though all earlier orders were against the granting of lease of the land in question in favour of respondent 2, the same committee subsequently passed the impugned resolution favouring lease to respondent 2. The same committee has no power of review suo motu of its earlier decision. Thus Sri Subbanna submitted that this was a fit case to allow the appeal, quash the said resolution and to set aside the order under appeal. Per contra, Sri Subramanyam, learned counsel for respondent 2, argued that the land leased in favour of respondent 2, would not come in the way of the pedestrians passing on the footpath, inasmuch as, in that particular place, the width of the footpath is 14'' and length towards northern side is 18''8", the total area of the land available in that place being 32''. He further submitted that the small piece of land was 10'' away from the edge of the footpath; therefore it would not affect pedestrians moving there. His further argument is that the corporation allotted earlier a piece of land similarly situated in favour of one Sri Narasappa and nobody raised his little finger against him much less the appellant challenged the said lease in favour of the said Narasappa. Therefore, he submitted that the court need not interfere with the order of the learned single Judge.
Sri Puttegowda, learned counsel appearing for the corporation, argued in support of the order appealed against.
The only question therefore that arises for our consideration is whether the lease made in favour of respondent 2 in respect of the land in question was justified.
Our answer is in the negative for the following reasons.
At the outset, the Art Commission, the authority charged with the duty of maintaining public utility, the urban user and the beauty of Bangalore City was against the grant of lease of the land in question in favour of respondent 2 as could be gathered from the letter, Annexure-G; therefore, it was not right on the part of the corporation to pass a resolution, ignoring the recommendation of the Commission to lease the land to respondent 2. Secondly, the area in question being called "footpath" adjoining the compound wall of M/s. Amrut Distilleries has been there as it is for the last about 50 years. On the opposite side of the road adjoining Kanteerava Stadium, a very small marginal land is left as footpath because the land is uneven. The Rajaram Mohan Roy Road in which lies the area in question leads to Richmond Circle newly constructed just opposite to the Woodlands Hotel. This circle was formed on the left side of the road running North-South on the eastern side of the stadium. There has been fourfold vehicular traffic resulting in the pedestrians finding it very difficult to pass through. It is for this reason wider footpath has been maintained. Thirdly, the width of the footpath running East-West is being tapered upto Pallavi talkies. That means the width of the footpath is not even. As stated in the letter Annexure-G, the then Administrator of the corporation had to request M/s. Amrut Distilleries to make available this part of the land to widen the footpath to maintain the public utility in particular for the use of pedestrians as footpath. Therefore, the court cannot say that there is no need for maintaining the width of the footpath in this area. Lastly, when the very Standing Committee having earlier rejected the request of respondent 2 for grant of lease of the said area, cannot now go behind its earlier decision and grant lease the same area in her favour. In other words, the committee cannot modify or amend or revoke its earlier resolution unless a motion is made by any member of the corporation to whom the resolution of the Standing Committee is made available within 15 days from the date of passing such a resolution. Therefore, suo motu power of review is not conferred on the committee concerned.
Section 2 of the Karnataka Municipal Corporations Act, 1976 defines what is meant by "Corporation". The ''Corporation'',, ''the Standing Committee'' and the ''Commissioner'' are the municipal authority of the corporation charged with carrying out the provisions of the said Act, as stated in Section 6 thereof.
Therefore, it is clear that the corporation was not justified in leasing the land in question, which was meant for public utility as footpath for pedestrians, in favour of respondent 2 for doing some petty business thereafter putting up construction thereon. Sri Subramanyam, learned counsel for respondent 2, is unable to persuade us to take a different view.
The Supreme Court considering the question of propriety of the B.D.A. converting the public park into a nursing home in the case of Bangalore Medical Trust v B.S. Muddappa and Others, AIR 1991 SC 1902, observed:
"Reservation of open spaces for parks and playgrounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effect of organisation."
The Supreme Court referred to the observations of United States of America''s Supreme Court in Samuel Berman v Andrew Parker, (1954)99 Law. Ed. 27, in paragraph 27 of the Judgment in Muddappa''s case, supra, as follows:
"xxx xxx xxx
.....The concept of the public welfare is broad and inclusive.....The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the congress and its authorised agencies have made determination that take into account a wide variety of values....."
The Supreme Court observed in paragraph 28 as follows:
"28. Any reasonable legislative attempt bearing a rational relationship to a permissible state objective in economic and social planning will be respected by the courts. A duly approved, scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid."
In view of the foregoing and looking to the several aspects which we have referred to in the preceding paragraphs, we are clearly of the view that the action taken by the Standing Committee of the corporation in granting lease of the land in question in favour of the 2nd respondent following the resolution dated 31-12-1993 impugned in the writ petition cannot be sustained. It is liable to be quashed. It is accordingly quashed.
Consequently, the order made by the learned single Judge in the writ petition cannot be sustained and the same is hereby set aside. The writ petition allowed. Before parting with this case, it is necessary to consider the last submission of Sri Subramanyam, learned counsel for respondent 2. He submitted that respondent 2 was an unemployed graduate belonging to the Scheduled Tribes and regard being had to the scheme "Rozgar Yojana" launched by the Government of Karnataka, she was leased the said land for a period of only three years so as to enable her to eke-out her livelihood by doing some petty business by putting up a small construction thereon and in the event of this Court quashing the resolution granting lease of the land in her favour, she would be put to irreparable loss and injury and that therefore with a view to obviate it, the corporation might be directed to grant lease of some other land to her. In the circumstances, we make it clear that in the event of respondent 2 filing an application for grant of some other land, we earnestly hope that the Commissioner of the corporation will consider her case sympathetically and pass appropriate orders in that behalf. conclusion which is altogether contrary to the conclusion one can arrive on the admitted materials. There is no question of forming a different view, but this is the only view that was possible to arrive at on the materials placed by the parties. As I said earlier, the trial court unequivocally reached a conclusion that the second respondent is instrumental in instituting proxy-litigations by various persons has virtually prejudiced the mind of the trial court to reach a conclusion adverse to the contention of the appellant. Therefore, looking from any angle the element of mala fide, bad faith, strategem are writ large on the very face of the materials made available by the parties and therefore, this case has to be viewed altogether in a different angle. Then only the proper justice can be rendered to the parties. If the removal of a Managing Director, pure and simple, will not entail the courts to extend its jurisdiction to the act committed by the Board of Directors as enjoined under the Articles of Association. Therefore, it is inevitable to hold that the order of the trial court is contrary to the materials and therefore, resulted in an adverse finding.
In the result, I pass the following:
ORDER (1) This appeal is partly allowed. The order, dated 1-2-1994 made on I.A. No. I in O.S. No. 87 of 1994 by the IX Additional City Civil Judge, Bangalore, is hereby set aside.
(2) The Resolution, dated 6-1-1994 passed by respondent Nos. 3, 4, 6, 7 and 9, as it relates to the removal of the second respondent and constitution of new management committee is stayed pending disposal of the suit.
(3) However, this order will not take away the right of the shareholders:
(a) to remove the Directors in a general meeting including the second respondent, if the same is convened by the company, or (b) the right of Board of Directors to remove the second respondent, only after filing up of two more Directors in view of two Directors are already elected and their participation is stayed by the High Court of Calcutta and after the Board of Directors assumed full strength of 12 Directors.
Immediately after pronouncement of the Judgment, the learned Advocate for respondents 1 and 3 brought to the notice of this Court an application, I.A. No. II, filed under Section 151 of the Code of Civil Procedure on 3-4-1994 filed on 4-4-1994. The knowledge of this application is brought to this Court for the first time. In this application, the prayer of the third respondent is that the second respondent shall be restrained from chairing the General Meeting or Extraordinary General Meeting of the Company M/s. ICDS Limited and grant such other and further reliefs as are just.
In view of the finding given in the Judgment and the reasons stated therein, this application cannot be considered at this stage. Therefore, the application I.A. No. II is dismissed.