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Judgment
This writ appeal is filed by respondents 2 and 3 in the writ petition aggrieved by the order dated 11-8-1997 passed by the learned Single Judge in W.P. No. 28272 of 1995 in the case of A. Rajendra Naidu v Bangalore Development Authority, Bangalore allowing the writ petition. Along with the appeal LA. No. 2 was filed for condonation of delay of 120 days in filing the appeal. No objection is filed to the same by the contesting respondents. For the reasons stated in the I.A. delay is condoned.
The brief facts of the case are:
The first respondent claiming himself to be a businessman residing in Bangalore for the last 20 years registered himself for allotment of a site. He made an application on 28-10-1992 to the Chairman of the B.D.A. (II respondent) for allotment of a site. The Chairman allotted a site measuring 60 x 90 on 10-11-1992. The appellants on coming to know of the said allotment cancelled the same and informed the first respondent accordingly by endorsement dated 29th May, 1995. The first respondent challenged the endorsement in W.P. No. 28272 of 1995. The learned Single Judge allowed the writ petition and quashed the endorsement. Hence, the writ appeal by the appellants.
The allotment made was not in pursuance of any notification calling for allotment of sites, it has been allotted under Rule 5 which governs the allotment of stray sites. Under the revised guidelines issued by Government vide Circular No. HUD 616 MNX 89, dated 17th October, 1992 10%, of stray sites could be allotted to deserving persons at the discretion of the authority. The Government Circular to that effect, reads as under:
"Government of Karnataka (Housing and Urban Development Department)
No. HUD 616 MNX 89. Karnataka Government Secretariat, M.S. Building, Bangalore, dated 17th October. 1992. Circular
Sub: Revised Guidelines for the allotment of stray sites by the Bangalore Development Authority.
Ref: Circular No. HUD 616 MNX 89, dated 18-09-1999 and 23-9-1989.
In supersession of Circular No. HUD 616 MNX 86, dated 18-9-1989, the following revised guidelines for the disposal of stray sites are issued as provided under Rule 5 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984:
A.
Disposal by auction
40%
B.
Persons who have won special recognition in the field of Art. Science, Literature, Sports, Education, Medicine, Social Service and Public Administration at the State/National/International levels.
20%
C.
Senior officers of the Government of Karnataka/Government, of India in the rank/pay scale of a Secretary to the State Government/Government of India or above, Defence Service Officers of the rank of Deputy General or equivalent and above and others who have won gallantry awards, and Judges of the High Court/Supreme Court.
15%
D.
Government of Karnataka/Government of India Organisations/bodies of a non-commercial nature and registered CharitableAssociations/Societies/Trusts (with at least 5 years standing) for Civil Amenity purposes.
05%
E.
Freedom Fighters who are residents of Bangalore for a period of not less than 10 years.
05%
F.
Dependents of Karnataka Government Servants when the latter is killed during the performance of his duty.
05%
G.
Under the discretion of the Authority for deserving person.
10%
''Art'' in Category ''B'' includes Painting, Sculpture, Music, Dance, Drama, Films etc.
The allotment of stray sites under Category ''D'' for civic amenity purposes should be made on the basis of civil amenities actually required for a particular locality. In the case of allotment to private organisations allotment should be made only to organisations of at least 5 (five) years standing who have a good reputation".
As the first respondent does not fall under any other category contained in the said circular, it can be safely assumed that the allotment has been made from out of the 10% quota prescribed under Category ''G'' for allotment at the discretion of the Authority.
The questions that arise for our consideration are:
(i) Whether the Chairman of the Board has power to allot a stray site in his individual capacity?
(ii) Whether the Government has authority of law to cancel the allotment in favour of the first respondent?
Before we proceed to decide the questions, it is necessary to make certain prefatory observations regarding the powers and limitations of the Authority vis-a-vis Rule 5 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 (''the Rules'' for short) as also the power of the Government to cancel or to revise the order of allotment made by the Authority.
The circular provides for allotment of 10% of stray sites to deserving persons by the Authority. The discretion should be exercised by the Authority only in case of deserving persons. We will not go into the question whether the first respondent was a deserving person or not. It was submitted by the learned Counsel for tbe Authority that the allotment in favour of first respondent was made by the Chairman and not by the Authority. Since that was a statement made at the Bar by the learned Counsel for the Authority we should take it as a fact. Thus, on the very face of it, the allotment made by the Chairman cannot be sustained as it is violative of Rule 5 of the said Rules which makes it mandatory that such allotment should be made by the Authority and not by the Chairman. What is more, it was also submitted by the learned Counsel for the Authority that it was made in total disregard of the guidelines issued by the State Government.
Therefore, it is necessary to examine the relevant provisions of the Bangalore Development Authority Act. Section 3 deals with constitution and incorporation of the Authority. It reads:
"(3) The Authority shall consist of the following members, namely.-
(a) the Chairman;
(b) one person to be called the Finance Member possessing qualifications in accounts and audit;
(c) an engineer who shall be an officer of the Karnataka Engineering Service or an officer employed in any undertaking owned or controlled by the State Government not below the rank of Chief Engineer;
(d) a town planner who shall be a person with experience in town planning;
(e) a person with experience in architecture;
(f) the Commissioner, Corporation of the City of Bangalore, ex offlcio;
(ff) an officer of the Secretariat Department in charge of Urban Development; not below the rank of a Deputy Secretary to Government:
(g)-two persons who are members of the Karnataka State Legislature;
(gg) two persons of whom one shall be a woman and one shall be a person belonging to the Scheduled Castes or the Scheduled Tribes;
(h) four others of whom one shall represent the labour;
(i) a representative of the Bangalore Water Supply and Sewerage Board;
(j) a representative of the Karnataka Electricity Board;
(k) a representative of the Karnataka State Road Transport Corporation;
(1) two persons elected by the Councillors of the Bangalore City Corporation from among themselves in the prescribed manner;
(m) the Commissioner, ex officio:
Provided that during the period of supersession of the Corporation or where any Administrator has been appointed, two persons shall be nominated by the Administrator from among the officers of the Corporation;
(n) the Secretary of the Authority, who shall be an ex office member".
Thus, the ''Authority'' consists of several persons and not the Chairman alone.
The question that looms large now is what should happen to such allotment and whether the Government has the authority of law to cancel such an allotment. Government in a democratic set-up being an elected body is responsible for the governance of the State. In order to have effective governance, the State divests itself of some of its powers and bestows them on certain other bodies or Authorities so that the decentralisation of powers of governance would help in effective administration of the State and ensure quick redressal to the citizenry as it would be almost impossible for the Government to attend tp all the requirements of governance if it keeps to itself all the powers. In order to guide or to facilitate the bodies or Authorities to perform certain specified acts, the Legislature frames statutes and the instrumentalities of the State are bound by the provisions of statutes. Anything done in contravention of the said guidelines or provisions contained in those statutes would be illegal.
In the case on hand, the allotment is made by the Chairman and if we have to go by the submission of learned Counsel for the Authority it is done in his individual capacity and, therefore, in contravention of the Bangalore Development Authority (Allotment of Sites) Rules, 1984.
The moment an act is done by the Authority outside the scope of the Act, the Government could intervene and nullify the said act whether or not the statute provides for such a power. The moment an act is done outside the scope of the statute it goes without saying that the State, being the source irom where the statute derived its powers, would have every right to intervene and to set at naught the illegal act done by any of its instrumentalities. The various bodies and authorities are nothing but extended arms of the State. The allotment in the present case being outside the scope of the statute, the Government was entitled to cancel the same. The Court, for fear of being found fault with, cannot reduce itself to the position of a mute bystander wringing hands in a state of helplessness noticing a wrong being perpetuated. Courts should function as ''Courts of justice'' rather than as ''Courts of law'' Having said that we are conscious that every order passed by the Court should have a legal basis and no matter what the injustice is, Courts cannot pass order in a vacuum. In the case on hand it is not as if we are without the support of law. In The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, , the Apex Court held:
''Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts".
It is by now well-settled that the extraordinary jurisdiction of the Court can be invoked only in favour of a person who conies to Court with clean hands and whose legal right has been violated. Herein, the petitioner who has ''successfully managed'' to get an allotment order from the Chairman albeit it being in violation of all the guidelines and avowed object of the Act cannot be said to have approached the Court with clean hands. Nor can it be said that the allotment infused any legal right in the petitioner so that his grievance on the ground that a legal right has been violated could be remedied under Article 226 of the Constitution.
Therefore, in our view the Chairman of the B.D.A. has no power to allot a stray site in his individual capacity. Further, we also hold that in the facts and circumstances of the case, the Government has authority of law to cancel the allotment so made by the Chairman. In the view that we have taken, we have to hold that the order passed by the learned Single Judge is liable to be set aside.
In the result, for the reasons stated above, the writ appeal is allowed and the order of the learned Single Judge is set aside.