Kesarsingh Gangaramsingh Rajaput vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent and the learned Government Pleader.

The petitioner is said to be an Ex-Service man. Respondent No. 2 - The Commissioner, City Corporation, Belgaum, is said to have invited applications from the public for allotment of sites in a residential layout known as Malamaruti Extension, Belgaum. It transpires that the said respondent for one reason or the other was not able to allot the sites. Yet another notification was said to have been issued in the year 1988, inviting applications for allotment. It transpires that respondent No. 2 had reserved some sites for various categories of persons applying for such sites, one of them was the category of Ex-Serviceman and 9% of the sites according to the petitioner were reserved for this category. Pursuant to which, the petitioner is said to have applied and had remitted an amount of Rs. 3,000/- as an initial deposit. It is stated that the respondent No. 2, however, did not take any action on the application, though the petitioner had made several representations. Ultimately a resolution is said to have been passed at a meeting held by the respondents on 19.01.2005, vide Resolution No. 383. And a site measuring 30 x 40 feet was allotted in favour of the petitioner though he had applied for a site measuring 40 x 60 feet. After the allotment in favour of the petitioner, it is stated that the respondent did not execute a sale deed and put him in possession. Therefore, he had continued to make representations.

It is stated that respondent No. 1, acting on the basis of a Government order dated 02.06.2013, had proceeded to reject the permission granted to the respondent No. 2 to execute a sale deed in favour of the petitioner. It is the case of the petitioner that the sites were being allotted on the basis of the Bye laws framed by respondent No. 2, insofar as the allotment of sites were concerned and hence there was no need to seek any permission from respondent No. 1 to execute the sale deed after the allotment having been made. However, since the allotment was not taken forward insofar as the petitioner was concerned, he was constrained to approach this Court by way of writ petition in W.P. No. 7406/2008. The petitioner placed reliance on the order passed in earlier petitions in W.P. Nos. 24685-720/2002, whereby similarly placed allottees had approached this Court and had obtained directions to the respondent No. 2 to consider their case for execution of sale deeds. This Court, it transpires, had allowed those petitions by order dated 10.01.2003. Therefore, petitioner sought similar relief.

This Court by its order dated 10.01.2003 dismissed the petition on the ground that the request of the petitioner having been rejected on the basis of the Government order dated 02.06.2003 there was no scope for issuing any such directions. However, it transpires that the order had been passed without hearing the counsel for the petitioner, and therefore, the matter was moved before the Court and at that point of time, the matter stood transferred from the Principal Bench at Bangalore to this Bench at Dharwad and after such transfer, the counsel having entered appearance on 08.01.2013, his name was however not shown in the cause list, and therefore, none had appeared. The petitioner and his counsel are said to have taken further steps to have the matter listed before the Court to contend that he had not been heard when the petition was dismissed. Therefore, this Court by its further order dated 10.01.2013 had permitted the petitioner to make a further representation to respondent No. 2, insofar as the execution of the sale deed was concerned. Such a representation having been made on 01.03.2013, the respondent No. 2 has failed to consider the same, and therefore, the present petition.

The learned counsel for the petitioner would reiterate that the petitioner''s application having been considered and a resolution having been passed to allot a site in his favour measuring 30 x 40 feet though he had sought for a site measuring 40 x 60 feet, the stand of the respondent to the effect that no such allotment could be made as the Government has taken a decision that all allotments shall be by way of public auction and that there could be no independent consideration of individual applications, and therefore, there was no scope for any such allotment. This, it is contended is in the face of other similarly placed persons having approached this Court and having obtained the relief of sale deeds being executed pursuant to allotments made just as in the case of petitioner. Therefore, there is discrimination in the manner in which the petitioner is being treated and hence seeks that the petition be allowed.

The learned counsel appearing for the respondent No. 2 has filed statement of objections to the effect that though it is true that the petitioner had filed an application as early as in the year 1988 and even though it was true that sites were allotted to 363 applicants, the petitioner''s name did not figure in the allotment list or the final allotment list that was prepared as on 02.12.1997. That list not having been challenged by the petitioner, it was not open for the petitioner to contend that the respondents are estopped from resiling from the resolution. It is hence contended that it is not open to the petitioner to contend that he was one of the successful allottees. It is further stated that sale deeds have been executed in respect of those allottees whose names were found in the final list. Insofar as four of the applicants were concerned, namely, allottees, in respect of serial numbers 60, 163, 190 and 276 are concerned, the same was forwarded to the Government for sanction. These were the earlier writ petitioners. It is contended that the petitioner claiming that he is similarly placed as those of the other petitioners, who had approached this Court in the aforesaid writ petitions 24685-720/2012, is not tenable. Insofar as those applicants were concerned, their applications were forwarded to Government for sanction and the Government by communication dated 28.08.2007 had considered and directed respondent No. 2 to issue possession certificates to the allottees and to take further steps. It is pursuant to this that the respondent No. 2 had executed sale deeds and put the allottees in possession of the sites. However, insofar as the petitioner was concerned, the Government had expressly declined to issue any such sanction on the footing that it was a policy decision not to make allotments any more and it could only be by way of public auction and hence the question of making allotment in favour of the petitioner was not tenable. In that, the proposal made by the petitioner was forwarded to the Government for sanction by letter dated 28.11.2006. The State Government by a communication dated 28.08.2007 was pleased to reject the proposal in terms of notification issued on 02.06.2003, and therefore, the same was challenged by the petitioner in a writ petition and the writ petition in that regard was dismissed by this Court, which was however revived and with a direction to make a representation to the respondent. The respondent is helpless as it is bound by the direction issued by the State Government not to make any further allotments and hence the learned counsel for respondent No. 2 would submit that if the State Government were to direct the respondent to make any such allotment it would have no objection to make such an allotment and is therefore not in a position to make any commitment in this regard and would only seek that the petition be dismissed.

Notwithstanding, the stand now taken by respondent No. 2 and the State Government, that in view of policy decision it is no longer possible for any individual to make an application and seek allotment on whatever terms and that all allotments would be only by auction and would apply across the board to all persons and it may be a policy of the State Government not to make any such allotments any more that would not preclude the petitioner from asserting a claim to a site, which was indeed resolved to be allotted to him as per the resolution No. 383. Hence, the allotment, in his name not finding place in the final list, is for reasons best known to respondent No. 2. A lapse in that regard ought not to deprive the petitioner of his just due and hence there is no justification in the respondent citing a subsequent policy decision by the State Government not to make allotment to individual applicants. The petitioner is entitled to the allotment by virtue of the resolution having been passed in the year 2005.

The petitioner, who is before the Court has not produced any material as regards his war record and on a demand by this court to demonstrate that he had actually fought in several wars. He produced a string of medals, through his counsel, to demonstrate that he had participated in the 1962 war with China, the 1965 war with Pakistan, the 1971 war with Bangladesh and the 1960 war of Liberation of Goa, apart from other medals for long service, and he has also suffered injuries in those wars. Therefore, this Court takes judicial notice of the fact that the State Government is often and on granting free sites in cities such as Bangalore and other places to sportsmen, celebrities and other individuals, who may not have any need for any such site, whereas the denial now by respondent No. 2 -Corporation as well as the State Government to a soldier, who has risked his very life to fight four wars, not one, and when he is not even seeking a free site, but seeking an allotment against the sale price to be fixed by the Corporation, would be unfair and unjust. Therefore, having regard to the resolution, having been passed as early as in the year 2005 to allot him a site measuring 30x40 feet when he had applied for 40 x 60 feet site, it is wholly unfair and unjust to deny the same. Therefore, the respondent No. 2 as well as the State Government are directed to allot a site measuring 30 x 40 feet within a period of three months from the date of receipt of a copy of this order and execute a sale deed and put the petitioner in possession thereof in Malamaruthi Extension and if not in Malamaruthi Extension, any such other layout as may be available in such other similar housing colony.

Insofar as the claim of respondent No. 2 that unless there was a sanction by the State Government to make an allotment, it is seen that such an opinion is in the wake of the subsequent policy decision of the State Government not to make any such allotment. However, it is to be pointed out that insofar as the petitioner is concerned there was already a resolution passed by respondent No. 2, by which it is bound and if there was a lapse in the petitioner''s name not having found place in the final list that was prepared, and the contention that unless that list was challenged, the petitioner has no locus standi to question the non-allotment, is not tenable. The petitioner would fall back on the resolution, whereby the respondent No. 2 had already taken a decision to make an allotment, it is that promise, which is sought to be enforced and there is no injustice in the same being allotted for reasons stated above.