W. Basha and Others vs Corporation of the City of Bangalore

All these writ petitions would stand disposed off by a common order which I shall presently make in these writ petitions treating them as being listed for final hearing although they are in the ''B'' group.

The petitioners herein are all aspirants to the newly built shops in the shopping complex at Quadrant Square in the City of Bangalore. It is common ground that the Corporation which is the lone respondent in these writ petitions invited application from those intending to seek occupancy of the shops subject to terms and conditions as enumerated in the public notice put out in the local newspapers. The notice in question is produced at Annexure-A in one of these writ petitions. Accordingly the petitioners applied for being granted the tenancy rights for some shops thereon. Each of them offered bids. Those bids came to be considered by the Taxation, Finance, Planning and Development Committee. That committee took a decision to allot the shops bearing Nos. in favour of the petitioners and this is an aspect on which there is no dispute at all.

It so happened before the petitioners could be placed in possession of the shops in terms of the resolution of the standing committee one Sri S.M. Patnaik, Secretary to Government Housing and Urban Development Department, wrote a D.O. letter No. HUD 200 MNY 91 to the then Commissioner of Corporation Sri Maheshan on the 7th June, 1991 to the following effect:

"Government have learnt that a number of shops which are vacant at present are being allotted throughout Bangalore City. Government desires that allotments should be deferred till the new standing committees come into office after the elections of the new Mayor. This direction of the Government should be strictly complied with."

On that letter the Commissioner has recorded a minute, which reads:

As a result of the aforesaid minute the resolution of the standing committee under which the petitioners were allotted the shops in question was consigned to cold-storage and remained unimplemented. The petitioners are now insisting on the implementation of the resolution of the standing committee referred to supra and produced at Annexure-C.

In answer to the claim the Commissioner who is on record and in this Court represented by counsel filed the statement of objections in which all that he has done is to plead his helplessness in the matter since he had been precluded from implementing the resolution of the standing committee at Annexure-C because of the D.O. letter of the Secretary to Government referred to above.

The question at once arises and that is the point raised for consideration herein, viz., whether the Commissioner of the Corporation who is the Chief Executive of the Corporation and who is committed to implement the decisions, resolutions and direction of the Corporation expressed from time to time by the resolutions of the various bodies in the Corporation, including the standing committees whose resolution is now the central point of this dispute, can he be prevented from doing or performing the duties that are statutorily enjoined on him by the Karnataka Municipal Corporations Act, 1976.

Mr. Raghavan, learned counsel for the petitioners, submits that the respondent-Commissioner should not have found himself fettered by the D.O. letter of the Housing Secretary since a mere expression of a desire or wish, may be even of the Government, communicated through its Secretary, could not possible stop the law from taking its course unless of course under that very law, an authority endowed with a higher or superior jurisdiction, the counsel says, could exercise such power if available to it under the law and thereby stop a surrogate authority from doing or performing his own duties under the state in accordance with law and as laid down by it. Counsel very pertinently points out such is not the position herein. Counsel draws my attention to sub-section (2) of Section 176 of the Karnataka Municipal Corporations Act, 1976 (''the Act'' for short). The said section reads:

"2. With the sanction of the standing committee the Commissioner may dispose of by sale or exchange any Corporation moveable property the value of which does not exceed five thousand rupees in each instance, 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."

The above provision makes it abundantly clear that the Commissioner is at liberty to grant the lease of any property belonging to the Corporation for a period not exceeding 3 years subject, however, with the permission of the standing committee. Herein he had the necessary permission of the standing committee communicated to him through Annexure-C which identified those who could be allotted shops in the newly built Quadrant square shopping complex. All that the Commissioner had to do was implement that direction, get into agreement with the allottees and deliver possession of the shops to them. In all probability that step would have been taken by the petitioner but for the intervention of the Secretary to Government who wrote the D.O. letters advising the Commissioner to go slow in the matter for reasons of course not clear from the contents of that letter.

But, then, could that letter have rendered the Commissioner so totally mute and dumb and prevented him from taking any action in pursuance of Annexure-C. Mr. Raghavan in this connection invited my attention to Section 72 of the Act under which probably the Commissioner could have taken power to stop the resolution of the standing committee from running its course. The said section reads:

"72. Obligation laid on remaining municipal authorities to carry out resolutions of the Corporation:

The committees constituted under this Act and the Commissioner shall be bound to give effect to every resolution of the Corporation unless such resolution is cancelled in whole or in part by the Government:

Provided that, if, in opinion of the Commissioner any resolution of the Corporation or a committee constituted under this Act contravenes any provision of this Act or any other law or of any rule, notification, regulation or bye-law made or issued under this Act or any other law, or of any order passed by the Government or is prejudicial to the interests of the Corporation he shall, within fifteen days of the passing of the resolution, refer the matter to the Government for orders and inform the Corporation or the committee, as the case may be, of the action taken by him at its next meeting and until the orders of the Government on such reference are received, the Commissioner shall not be bound to give effect to the resolution."

The proviso under Section 72 enjoins on the Commissioner the power to make a reference to the Government of any resolution with which he does not agree and thereupon till such time the Government makes up with its mind in regard to the same, the resolution of the standing committee referred to the Government for consideration would automatically stand stayed and no action would be necessary on such a resolution by the Commissioner. But herein the Commissioner has not taken power under the proviso to Section 72 to neutralize the resolution of the standing committee and Sri Mahesh, learned counsel appearing for the corporation, does not deny that the Commissioner never went anywhere near Section 72 at all but on the contrary thought that the dicta of the Secretary, HUDCO, was enough to stop the resolution from being implemented. Mr. Mahesh says that the Commissioner was also keen to implement the resolution but I am not quite sure of that. If he did want to implement the resolution he could have simply brushed aside this Government fiat in the form of the D.O. letter because it was not arriving him under any pre-imposed authority of law. He was not bound to take any serious notice of it but at any rate the only thing he could have done thereafter was to take power under Section 72 and stop the resolution of the standing committee if he ever intended that. That he did not do. When he did not do that he could not have allowed himself to be fettered by the innocuous letter referred to supra and that letter, for the reasons mentioned above, could not have stopped him from acting in pursuance of Annexure-C. Under these circumstances, it becomes clear that the Commissioner of the Corporation has failed to perform the duties statutorily enjoined on him by the Act when he was expected of him without let or hindrance and certainly without reference to the D.O. letter referred to supra.

For the reasons stated above, the writ petitions succeed and are allowed.

In each of these petitions, there shall be a direction to the Corporation to complete the formalities of the allotment of the shops to which the petitioners had applied and which shops had been allotted to them under Annexure-C, and to put them in possession thereof as soon as possible and certainly within four weeks from the date of receipt of this order.

Let a copy of this order be sent to the Commissioner for information and necessary action.

Writ Petition Nos. 16333/1991, 16338/1991, 16340/1991 and 16341/1991 shall be separated from the writ petitions disposed off by this order and posted for hearing along with the connected matters, if any, in the first week of December, 1991.