Karnataka High Court
M Abdul Razak vs M Abdul Rasheed on 29 November, 2016
Author: Vineet Kothari
Bench: Vineet Kothari
1/5
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 29th day of November, 2016
Before
THE HON'BLE DR JUSTICE VINEET KOTHARI
Writ Petition No.4076/2012 (LB-RES)
Between
M. Abdul Razak
S/o late Abdul Haji M. Abdul
Aged about 55 years
R/at. Door No.9-19-692
J.M. Cross Road
Bhatkal Bazar, Mangalore
D.K. District.
... Petitioner
(By Mr. G. Ravishankar Shastry. Advocate)
And
1. M. Abdul Rasheed
S/o late Haji M. Abdul
Aged about 52 years
R/at. D.No.9-19-690
J.M. Cross Road
Bhatkal Bazar, Mangalore
D.K. District.
2. The Commissioner
Mangalore City Corporation
Lalbagh, Mangalore
D.K. District.
... Respondents
(By Mr. B.R. Prasanna, for
Mr. Ram Bhat, Advocate for R1
Mr. S. Vishwajith Shetty, Advocate for R2)
Date of Order 29-11-2016 W.P.No.4076/2012
M. Abdul Razak Vs. M. Abdul Rasheed and Anr.
2/5
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the order dated 14-10-2011
in Miscellaneous Appeal No.25/2007 passed by the Court of the
Principal District Judge, Dakshina Kannada, Mangalore, certified
copy of which is produced at Annexure-A, and consequently
Miscellaneous appeal No.25/2007 be dismissed by allowing this
petition.
This Writ Petition coming on for Preliminary Hearing in 'B'
group this day, the Court made the following:
ORDER
Mr. G. Ravishankar Shastry, Advocate for Petitioner. Mr. B.R. Prasanna, for Mr. Ram Bhat, Advocate for R-1;
Mr. S. Vishwajith Shetty, Advocate for R-2
1. This writ petition is filed against the remand order dated 14/10/2011 passed by the learned Principal District Judge, Dakshina Kannada, Mangalore in exercise of his appellate powers under Section 444 of the Karnataka Municipal Corporations Act, 1976, remanding the case back to the second respondent - Commissioner, Mangalore City Corporation. The relevant portion of the impugned order is quoted below for ready reference.
Date of Order 29-11-2016 W.P.No.4076/2012 M. Abdul Razak Vs. M. Abdul Rasheed and Anr. 3/5
" 24. The learned counsel for the appellant has produced the certified copies of the depositions of the appellant and the respondent No.1 in O.S.No.314/1999, the copy of the Partition Deed, copy of the photographs, additional order passed by the respondent No.2 etc. Further, the counsel for the appellant has also produced the Tax Bill dated 13/9/1978 etc. However, it is relevant to note that the scope of this appeal is quite limited to the extent that the legality or otherwise of the impugned order. Therefore, for the discussion above, it is clear that no opportunity of being heard to the appellant before passing the final order under Section 321(3) of the Act. In that event, it is clear that the matter will have to be remitted back to respondent No.2 for its fresh disposal in accordance with law. If the appellant and the respondent No.1 are having any disputes which is civil in nature with reference to the alleged easementary rights of light and air, they can agitate their grievance before the competent civil Court. The appellant is entitled to succeed in this appeal. In view of the same, I have no hesitation to answer this point in favour of the appellant. In the result, I pass the following Date of Order 29-11-2016 W.P.No.4076/2012 M. Abdul Razak Vs. M. Abdul Rasheed and Anr.4/5
ORDER The appeal is hereby allowed. No order as to costs.
The impugned order passed by the Respondent No.2 in E9/TP/1205/98-99 under Section 321(3) of Karnataka Municipal Corporation Act, 1976 is hereby set aside.
Consequently, the matter is remitted back to the Respondent No.2 to dispose of the same by giving opportunity of being heard to the appellant and as per the observations made in the body of the judgment."
2. Though this order was passed on 14/10/2011, by the learned Principal District Judge, Dakshina Kannada, Mangalore, and there was no stay by this Court of the proceedings before the Respondent No.2 - Commissioner, Mangalore City Corporation, but the matter does not seem to have been decided by him afresh upon such remand.
3. In the circumstances above, without interfering with the impugned remand order, the present writ petition is disposed of with a direction to the Respondent No.2 -
Date of Order 29-11-2016 W.P.No.4076/2012 M. Abdul Razak Vs. M. Abdul Rasheed and Anr. 5/5 Commissioner, Mangalore City Corporation to decide the lis between the parties after providing opportunity to them, within a period of two months from today.
The parties are directed to appear before the said Commissioner, Mangalore City Corporation, in the first instance, on 14-12-2016.
Sd/-
JUDGE BMV*