Karnataka High Court
Anthony Francis Fernandes vs The Commissioner on 31 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:12548
WP No. 108440 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 108440 OF 2016 (LB-RES)
BETWEEN:
1. ANTHONY FRANCIS FERNANDES,
AGE: 60 YEARS, OCC: BUSINESS,
R/O. R.C. NAGAR, BELAGAVI,
TAL/DIST: BELAGAVI-590001.
2. SMT. MERLYN W/O. ANTHONY,
AGE: 51 YEARS, OCC: HOUSE WIFE,
R/O. R.C. NAGAR, BELAGAVI,
TAL/DIST: BELAGAVI-590001.
...PETITIONERS
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)
AND:
1. THE COMMISSIONER,
CITY CORPORATION BELAGAVI,
RISALDAR GALLI, BELAGAVI.
GIRIJA A 2. SAHADEV L. HISHOBKAR,
BYAHATTI SINCE DECEASED BY HIS LR'S.
Location: HIGH
COURT OF
KARANTAKA
2(A) SMT. MANDAKINI SAHADEV HISHOBKAR,
DHARWAD
BENCH AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O. 2ND STAGE, R.C. NAGAR, BELAGAVI,
TAL: BELAGAVI.
2(B) SURESH SAHADEV HISHOBKAR,
AGE: 49 YEARS, OCC: BUSINESS,
R/O. 2ND STAGE, R.C. NAGAR, BELAGAVI,
TAL: BELAGAVI.
2(C) SUJATHA SAHADEV HISHOBKAR,
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. 2ND STAGE, R.C. NAGAR, BELAGAVI,
TAL: BELAGAVI.
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NC: 2024:KHC-D:12548
WP No. 108440 of 2016
2(D) AMITA YUVRAJ KADAM,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O. 2ND STAGE, R.C. NAGAR, BELAGAVI,
TAL: BELAGAVI.
2(E) AUDUMBAR SAHADEV HISHOBKAR,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O. 2ND STAGE, R.C. NAGAR, BELAGAVI,
TAL: BELAGAVI.
...RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADV. FOR R1;
SRI. SANGRAM S. KULKARNI, ADV. FOR R2(A-E))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI AND QUASH THE ORDER DATED 20/7/2016 PASSED IN
M.A.3/2015 ON THE FILE OF V ADDL. DISTRICT AND SESSION
JUDGE BELAGAVI VIDE ANNEXURE-P TO MEET THE ENDS OF
JUSTICE AND EQUITY; ISSUE WRIT OF CERTIORARI AND QUASH THE
ORDER DATED 3/6/1999 PASSED BY 1ST RESPONDENT/
CORPORATION IN CCB.PWD.UCSR.99.2000 VIDE ANNEXURE-D;
ISSUE WRIT OF MANDAMUS BY DIRECTING 1ST RESPONDENT TO
MEASURE THE PLOT NOS.890, 889 AND 891 AND TO TAKE
APPROPRIATE ACTION BY CONSIDERING THE REPRESENTATION
DATED 11/7/1997 VIDE ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the petitioner's counsel and counsel appearing for the respondents.
2. The present writ petition is filed praying this Court to issue writ of certiorari and quash the order dated -3- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 20.07.2016 passed in M.A.No.3/2015 on the file of V addl. District and Session Judge, Belagavi vide Annexure-P and also to issue writ of certiorari and quash the order dated .03.06.1999 passed by 1st respondent/Corporation in CCB.PWD.UCSR.99.2000 vide Annexure-D and also to issue writ of mandamus by directing 1st respondent to measure the Plot Nos.890, 889 and 891 and to take appropriate action by considering the representation dated 11.07.1997 vide Annexure-A and issue such other direction as this Court deems fit in the facts and circumstances of the case.
3. The factual matrix of the case of the petitioner before this Court that while seeking the relief that the respondent No.1 initiated for action for demolition of illegal construction and a show cause notice was issued to the petitioner on 21.05.1999 vide Annexure-B. The petitioner who has in fact constructed the building in accordance with plan, it was shocked after the receipt of provisional order. The petitioner gave detailed explanation vide -4- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 Annexure-C. In fact, it is the second respondent who has violated the building bylaws and has put up construction illegally by encroaching upon the petitioners' property. The respondent No.1 did not consider the explanation given by the petitioner as per Annexure-C but committed an error confirming the provisional order dated 03.06.1999 vide Annexure-D. It is also contended that immediately the petitioners filed the suit in O.S.No.704/1999 and the second respondent as counterblast, he also filed suit in O.S. No.826/1999. Both the suits were clubbed and both the suits were dismissed. An Appeal was also filed before the Appellate Court by the petitioners in R.A. No.82/2008 and the same was also dismissed. It is also the contention that when the petitioners have approached the Corporation and the Corporation has granted permission to construct the residential house in the ground floor vide Annexure-G dated 18.11.2005. The counsel also vehemently contended that when such permission was granted, the Corporation ought not to have pursued the matter and the respondent has not taken any decision -5- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 with regard to demolition of the building in view of the confirmation order. However, when they came to know about making a plan to demolish the petition premises, immediately approached this Court by filing Writ Petition W.P.Nos.107617-107618/2000. This Court disposed of the said writ petitions with liberty to file appeal. Accordingly, the petitioners filed appeal and there was a delay in filing the appeal and the delay has also been explained before the Trial Court and in spite of explaining the same, the same was dismissed. Hence the present writ petition is filed before this Court.
4. Petitioners' counsel would contend that when the confirmation order was issued, immediately the petitioners approached the Trial Court by filing a suit. The counsel also would vehemently contend that the respondent No.2 also filed a suit and both have agitated the matter before the Civil Court and both the suits were dismissed. Thereafter the petitioners approached this Court and this Court granted liberty. Hence, the Trial -6- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 Court ought to have taken note of the said fact into consideration when the liberty was given. The counsel would also contend that the Trial Court committed an error in passing such an order. He would also contend that the petitioners have given representation way back in the year 1997 and also offered explanation which is evident from Annexure-C and the same has also not been considered properly.
5. Per contra, learned counsel for respondent No.2 would contend that the Trial Court has given reasoning while rejecting the application in coming to the conclusion that the appeals have filed challenging the order passed by the respondent No.1 in the year 1999 but the petitioners have given reason that since they have filed suit and appeal, there is a delay in preferring the appeal and the same is not bonafide mistake. Even after the dismissal of the suit and appeal, they have not approached the authority. The Trial Court has also given reasoning in paragraph 10 while considering the order passed by this -7- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 Court in writ petition permitting the petitioners to avail statutory remedy and directed the Appellate Court to exclude the period commencing from 11.08.2014, the date on which the petitions were filed, till the date of filing of the appeal. When such being the case, the petitioners ought to have explain the delay in filing the same. The counsel brought to the notice of this Court that the Trial Court while dismissing the delay application held that due to bonafide mistake, appeal is not preferred and suit was filed. It is stated that they lost faith in Standing Committee which was under the control of political authority and the same cannot be accepted. It is observed that it is well settled principles of law that efficacious remedy is available, suit for injunction is not maintainable. The appeal lies before the Standing Committee against the order passed by the authorities under Section 321 of the Act. Except stating that on good faith suit was filed nothing has been explained. Whether the Standing Committee allows or rejects, the appeal should have been filed before it. The Trial Court comes to -8- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 the conclusion that appellants have filed the present appeal after 16 years from the date of passing the impugned order and no satisfactory reasons assigned and this speaking order cannot be interfered by this Court. Hence, prays this Court to reject the same.
6. Counsel appearing for respondent No.1 would contend that when the suit was filed before the Trial Court by the appellants for the relief of permanent injunction, questioning the order of confirmation of the provisional order passed by the respondent does not arise and hence, there is a clear delay in filing the appeal and Trial Court has not committed any error in dismissing the appeal. Hence, no grounds are made out to condone the delay.
7. Having heard the petitioners' counsel and counsel appearing for the respondents and considering the material on record, it is not in dispute that respondent No.1 has passed the confirmation order after issuance of provisional order. It is also not in dispute that when the suit was filed only relief is sought for permanent injunction -9- NC: 2024:KHC-D:12548 WP No. 108440 of 2016 and confirmation order passed by the respondent No.1 was not challenged before the Trial Court. No doubt, the respondent No.2 also filed a suit and the same also came to be dismissed. It is also important to note that when this Court has given liberty to approach the appropriate forum to file an appeal at Annexure-J vide order dated 05.01.2015 wherein this Court specifically observed in paragraph 2 that impugned order as at Annexure-D can be questioned under Section 444(a) of KMC Act by way of an appeal and the writ petitions were disposed of directing the petitioners to avail statutory remedy, which is alternative and also efficacious. When this Court made it clear in the writ petitions itself that an appeal provision is made under Section 444(a) of the KMC Act by way of appeal and even gone to the extent of directing the Appellate Court to exclude the period commencing from 11.08.2014, the date of which the said writ petitions were filed till the date of filing of the appeal, the petitioners have again approached this Court. In spite of the specific observation that an appeal lies under Section 444(a), the
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NC: 2024:KHC-D:12548 WP No. 108440 of 2016 records reveal that Miscellaneous Appeal is filed before the District Court along with I.A.No.1 is filed to condone the delay. When the appeal lies before the Standing Committee under Section 444(a) of the KMC Act and not before the District Court, once again approached the wrong forum. When the confirmation order was passed in the year 1999 itself, in spite of approaching the Appellate Authority invoking jurisdiction of Civil Court and also the Civil Court dismissed the suit and thereafter appeal also field and appeal also dismissed in the year 2011 itself. No appeal was filed before the Standing Committee instead, approached this Court in filing Writ Petition in 2014. So also even this Court has observed that appeal lies before the Standing Committee, once again approached the wrong forum. When such being the case, the Trial Court while rejecting the application, taken note of the provision under Section 444(a) of the KMC Act. Having taken note of all these aspect approaching the wrong forum from 1999 till this date, I no do not find any ground to condone the delay in filing the Miscellaneous Appeal before the District
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NC: 2024:KHC-D:12548 WP No. 108440 of 2016 Court and no explanation was given in filing the Miscellaneous Appeal after 16 years and also taken note of the fact that the appeal not lies before the District Court in stead of approaching the Standing Committee, once again approached this Court in writ petition. When this type of conduct is found, it is not a fit case to exercise the writ jurisdiction to quash the impugned order. Even if the impugned order is quashed, the appeal not lies before the District Court and no purpose would be served. Hence, no ground to interfere with the order.
8. In view of the discussions made above, I pass the following:
ORDER Writ Petition is dismissed.
Sd/-
(H.P.SANDESH) JUDGE NAA CT-MCK List No.: 1 Sl No.: 43