Karnataka High Court
Sri S K Ramachandra Gupta vs Deputy Commissioner on 5 September, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:32056
WP No. 23084 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 23084 OF 2021 (LB-RES)
BETWEEN:
SRI S. K. RAMACHANDRA GUPTA,
AGED 69 YEARS,
S/O LATE S. G. KRISHNAIAH SHETTY,
MAIN ROAD, SHIRA,
TUMKURU DISTRICT-572137.
...PETITIONER
(BY SRI. K. N. NITESH, ADVOCATE)
AND:
1. DEPUTY COMMISSIONER,
TUMAKURU DISTRICT,
TUMAKURU-572101.
2. MUNICIPAL COMMISSIONER,
Digitally signed CITY MUNICIPAL COUNCIL,
by SIRA,
NARAYANAPPA TUMAKURU DISTRICT-572137.
LAKSHMAMMA
Location: HIGH
COURT OF 3. M. MARIDAPPA,
KARNATAKA PRESIDENT OF BHAGAVAN SHREE SATHYA
SEVE SAMITHI, SIRA TOWN, SIRA TALUK,
TUMKURU DISTRICT-572137.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA FOR R1;
SRI S. RAJU, ADVOCATE FOR R2;
SRI BHARGAV G. ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 27.10.2021 PASSED BY THE R1 IN M.U.N(A) 17/2010-
2011 AT ANNEXURE-N ETC.,
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NC: 2023:KHC:32056
WP No. 23084 of 2021
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs;
i. Issue a writ of certiorari or any other appropriate writ, order or direction/setting aside the order dated 27.10.2021 passed by the 1st respondent in M.U.N.(A) 15/2007-2008 C/W MUN (A) 17/2010- 2011 at Annexure-N;
ii. Grant such other and further reliefs as this Honourable Court deems fit in the circumstances of the case and in the interest of equity and justice.
2. The petitioner is aggrieved by an order dated 27.10.2021, passed by respondent No.1-Deputy Commissioner under Section 306(1) of the Karnataka Municipalities Act 1964 suspending the order passed in favor of the petitioner and thereafter forwarding the same to the Government.
3. The contention of Sri.K.N.Nitesh., learned counsel for the petitioner is that the excise of powers by the Deputy Commissioner has been made on the basis of a complaint or a petition made by respondent No.3 as regards an order which had been passed in favor -3- NC: 2023:KHC:32056 WP No. 23084 of 2021 of the petitioner and virtually the Deputy Commissioner has excised appellate powers under Section 306, which is not permissible. He submits that once earlier when an order had been passed, the petitioner had approached this Court in WP No.19779 of 2018 and this Court wide order dated 24.9.2019 had remitted the matter to the Deputy Commissioner by quashing the earlier order and keeping open the aspect of maintainability. However, in the impugned order, the Deputy Commissioner has not made any observation or discussion as regards maintainability and has proceeded with the order as if on appeal. As such, he submits that the said order under Section 306 could not have been passed suffers from lack of jurisdiction is required to be quashed.
4. Learned counsel for respondent No.3, on the other hand would submit that the dispute between the parties have been going on for quite some time and respondent No.3 being a religious organization -4- NC: 2023:KHC:32056 WP No. 23084 of 2021 having large following, the Deputy commissioner was of the belief that there could be a law and order issue which could arise, if the order in favor of the petitioner were to continue and it is in that background that the Deputy Commissioner has excised his powers under sub-section 1 of Section
306.
5. Heard Sri.K.N.Nitesh., learned counsel appearing for the petitioner, Smt.B.P.Radha., learned AGA appearing for respondents No.1, Sri. S.Raju., learned counsel appearing for respondent No.2 and Sri.Bhargav.G., learned counsel appearing for respondent No.3. Perused papers.
6. The powers under Section 306 can only be excised by the Deputy Commissioner sou motto and not on the basis of any complaint, petition, appeal or representation made by any of the parties.
7. It is only if the Deputy Commissioner were to come to a conclusion that the order is unlawful or is causing or is likely to cause any injury or annoyance -5- NC: 2023:KHC:32056 WP No. 23084 of 2021 to the public or to lead to a breach of peace. He may, by order in writing under his signature, suspend the execution or prohibit the doing thereof.
8. In the present case, admittedly, the Deputy Commissioner has excised powers on a representation made by Respondent No.3 which could not be so excised by the Deputy Commissioner.
9. If at all respondent No.3 were aggrieved by the Order passed in favor of the petitioner, Respondent No.3 had enough and other alternate remedies which were available to respondent No.3 to resort to, instead of that, under Section 306 the Deputy Commissioner, without considering the limitation on his powers under Section 306 has excised powers and suspended the order as if on appeal which is completely impermissible.
10. The petitioner and Respondent No.3 are also litigating in a civil suit filed by the petitioner in OS No.120 of 2019 pending on the file of Senior Civil -6- NC: 2023:KHC:32056 WP No. 23084 of 2021 Judge & JMFC, Sira where the petitioner has sought for a declaration of title.
11. The issue in dispute between both the parties is as regard the existence of the property and such existence or otherwise of the property can only be determined in a suit which has already been filed and cannot be determined by revenue authorities including that by the Deputy Commissioner.
12. In that view of the matter, I pass the following;
ORDER
i. The writ petition is allowed.
ii. A certiorari is issued, the order dated
27.10.2021 passed by the respondent No.1 in M.U.N.(A) 15/2007-2008 C/W MUN (A) 17/2010-2011 at Annexure-N is hereby quashed.
iii. Liberty is reserved for Respondent No.3 to agitate its grievance before such revenue authorities as may be permissible which shall, -7- NC: 2023:KHC:32056 WP No. 23084 of 2021 however, be subject to the final result in the suit which is pending as aforesaid. iv. In view of disposal of the main matter, all pending IA's do not survive for consideration.
Sd/-
JUDGE SR List No.: 1 Sl No.: 26