Karnataka High Court
Smt M Nagarathnamma vs The State Of Karnataka on 8 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.35483/2014(GM-SLUM)
BETWEEN:
SMT. M. NAGARATHNAMMA,
AGED ABOUT 60 YEARS,
W/O SRI K.HARI,
R/AT NO.130, 8TH MAIN ROAD,
6TH CROSS, MALLESWARAM,
BANGALORE - 560 003. ... PETITIONER
(BY SRI. C.M. NAGABUSHANA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
REPRESENTED BY ITS SECRETARY.
2. THE DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT,
K.G.ROAD, BANGALORE - 560 009.
3. KARNATAKA SLUM CLEARANCE BOARD,
BANGALORE, RASHILDAR STREET,
SHESHADRIPURAM,
BANGALORE - 560 020.
REPRESENTED BY ITS PRESIDENT.
4. B.S.MUNIYAPPA DEAD BY LRS
A) SHEKAR,
AGED ABOUT 50 YEARS,
2
B) JAGADISH
AGED ABOUT 46 YEARS,
C) SOMESH,
AGED ABOUT 37 YEARS,
4(A) TO (C) ARE SONS OF LATE
B.S. MUNIYAPPA, AND RESIDENTS
OF DODRAVANI NAGAR,
VIJINAPURA POST,
K.R.PURAM, BANGALORE - 560 049.
5. DR. B.R. AMBEDKAR WELFARE
ASSOCIATION, JYOTHIPURA,
BANGALORE - 560 016,
REPRESENTED BY ITS
PRESIDENT/SECRETARY. ... RESPONDENTS
(BY SRI. LAXMINARAYAN, AGA FOR R-1 & R-2
SRI. M.P. SRIKANTH FOR R-3
SRI. V. ANAND FOR R-5
V/O DTD. 04/09/2014, PETITION DISMISSED AGAINT
R-4 (A-C))
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PRLY.,
NOTIFICATION DT.28.11.1991. GAZETTED ON 16.1.1992 AT ANN-B &
FINAL DECLARATION DT.4.6.13 GAZETTE ON 18.7.2013 AT ANN-J
BOTH ISSUED BY THE R2 AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING - B
GROUP PHYSICAL HEARING / VIDEO CONFERENCING HEARING
(OPTIONAL), THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition petitioner has prayed for the following reliefs:
(i) Issue a Writ of Certiorari or any other suitable writ or order, quashing the Preliminary notification dated 28-11-1991, bearing No. KSACR.No.21/1991-92, 3 Gazetted on 16-01-1992, at Annexure -B and Final Declaration dated 04-06-2013, bearing No. KSACR.21/1991-92, gazette on 18-07-2013, at ANNEXURE-J both issued by the 2nd respondent.
(ii) Issue a writ of Certiorari or any other suitable writ or order, quashing the endorsement at Annexure-K together with the order annexed to endorsement, said to have been passed in case No. No.KSACR.No.21/1991-92, dated 01-08-
2012, by the then incumbent of the 2nd respondent.
(iii) Issue a Writ of Mandamus/any other suitable writ/direction to the 1st respondent to get an enquiry done against the persons responsible for the discrepancy that has occurred, by suitable Authority preferably Karnataka Lokayuktha or any other investigating Authority, as this Hon'ble Court deems fit in the facts and circumstance of the case.
(iv) Issue any other suitable order / direction as this Hon'ble Court deem fit in the facts and circumstance of the case in the interest of justice and equity.
2. Learned counsel for the petitioner submitted that written arguments submitted before the 2nd respondent has not been taken into consideration and 2nd respondent informed that entire case file is missing and the incumbent Deputy Commissioner ordered for tracing of the file and when original file being traced, Gazette Notification has been issued. No order 4 can be passed on the basis of the Xerox copy of the order. It was also contended that principles of natural justice has been violated in issuing the impugned orders whereby petitioner's right under Article 14 and 21 of the Constitution are violated. It was also pointed out that order dated 2.7.1996 of the 2nd respondent it is crystal clear that no final notification shall be issued till finality of disposal of suit or vacating permanent injunction orders issued by the Civil Court. Further, after noticing that petitioner has suppressed earlier writ petition No.6723/2012 disposed of on 10.07.2012 (Annexure-R1). Learned counsel for the petitioner intends to withdraw the present writ petition and seeking permission to file a fresh writ petition. It was also contended that there is no suppression of material information as contended by the learned counsel for the respondents. In this regard, he has cited the following decisions:
(i) S.J.S BUSINESS ENTERPRISES (P)
LTD. Vs STATE OF BIHAR AND
OTHERS Reported in (2004) 7 SCC
166 in the case of (para Nos.13 and
14).
5
(ii) ARUNIMA BARUAH VS UNION OF
INDIA AND OTHERS Reported in
(2007) 6 SCC 120 (para 22)
In view of these facts and circumstances, learned counsel for the petitioner submitted that he may be permitted to withdraw the present petition while giving opportunity to file a fresh writ petition
3. Per contra, learned counsel for the respondent submitted that the Deputy Commissioner's order in issuing final notification dated 02.07.1996 (Annexure-D) under Section 3(1)(a) of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 to the extent of 1 Acre, 36 guntas in Sy. No.83 of Jothipura as Slum Clearance area is subject to result of O.S. Nos.10397/1991 and 1785/1991.
4. It was further pointed out that petitioner had suppressed earlier Writ petition No.6723/2012 decided on 10.07.2012 (Annexure-R1). It was also pointed out that in para No.6 of the writ petition the petitioner stated that RFA No.282/2002 is pending on the file of this Court and writ petition was filed on 24.07.2014. On the other hand, as is evident from Annexure-R2, RFA No.284/2002 was dismissed for non 6 prosecution. In para No.6 of the writ petition, it is wrongly typed as RFA No 282/2002 instead of RFA No.284/2002. RFA No.284/2002 was dismissed on four occasions (Annexures - R2 to R6). Thus, petitioner has not approached this Court with clean hands. Consequently, petitioner has not made out a case so as to interfere with impugned orders. It was further contended that the cited decisions do not assist the petitioner in view of the factual aspects of the matter. In the present case suppressions of writ petition No.6723/2012 and dismissal of RFA No.284/2002 are evident that the petitioner with ulterior motive has not disclosed the aforesaid events in the present petition. It was also submitted that so far as challenge to preliminary notification, dated 28.11.1991 petition suffers from res judicata.
5. Heard the learned counsel for the parties.
6. Brief facts of the case are that preliminary notification was issued on 28.11.1991. The petitioners filed O.S. No.4450/1990-91 and it was disposed of on 20.11.2001 and O.S. No.10397/1991 disposed of on 31.10.1994. Both the suites were dismissed. In the meanwhile, Deputy Commissioner issued a final notification on 02.07.1996 with condition that the final notification shall be issued only after finalization of suits pending 7 before various civil courts for vacating the permanent injunction orders issued by the Civil Court in O.S. Nos.10397/1991 and 1758/1991. Thereafter, on 04.06.2013, final notification was issued after giving one more opportunity of hearing to the petitioner and it was notified in the gazette on 18.07.2013. The petitioner had questioned the preliminary notification dated 28.11.1991 (Annexure-B) to the writ petition in W.P. No.6723/2012 and it was decided against the petitioner on 10.07.2012 (AnnexureR1). Extract of the order reads as under:
" The petitioner claims to be the owner of Sy.No.83 measuring 2 acres 29 guntas situated at Vijinapura village, K.R.Puram Hobli, Bangalore South Taluk. It is her case that the land was a Thoti Inam land, which was granted to the petitioner's father in the year 1958.
2. Suffice it to note that a notification has been issued in the year 1991 by respondent No.1 stating that the entire area is a slum. It is not in dispute that the petitioner was before the Civil Court in O.S.No.4450/90-91 & O.S.No.10397/91 seeking various reliefs including declaration and injunction. The respondent No.1 was the defendant No.1 in the said suit and a specific contention was taken that a notification has been issued under Section 3 of the Slum Areas (Improvement and Clearance) Act, 1956. Notwithstanding having come to know of the same, the petitioner did not question the said notification at the earliest point of time. The present petition is filed questioning the said 8 notification. The petitioner is not entitled to any relief inasmuch as there is a considerable delay in questioning the notification inasmuch as 21 years lapsed. Having said so, I am of the view that the question of granting the relief does not arise. Petition stands rejected on the ground of latches. It is also to be noticed that what is settled in the year 1991 cannot be re-settled after 21 years. The petitioner can take protection in the decree passed by Civil Court.
Mr.K.Krishna, learned Additional
Government Advocate appearing for
respondent No.3 is permitted to file memo of appearance within four weeks."
7. The petitioner has not approached this Court with clean hands as she has suppressed challenge to preliminary notification dated 28.11.1991 gazetted on 16.01.1992 in W.P. No.6723/2012. Further, not apprised this Court in respect of dismissal of RFA No.284/2002 for non-prosecution which was disposed of on 12.3.2013 i.e. much prior to presentation of the present writ petition.
8. When these errors have been pointed out to the petitioner, during the course of the arguments, he submitted that he be permitted to withdraw the present petition in order to file fresh petition and the same is refused for the reasons that insofar as challenge to preliminary notification dated 28.11.1991 9 has attained finality as on 10.07.2012 in W.P. No.6723/2012. That apart, conduct of the petitioner in approaching this Court is not fair.
9. The aforesaid decisions do not assist the petitioner for the reasons that suppression of material informations in the present writ petition is that petitioner had suffered order in W.P. No.6723/2012 on 10.07.2012 insofar as challenge to Annexure-B preliminary notification dated 28.11.1991. The very preliminary notification challenged in the present writ petition amounts to res judicata. Writ petition is not maintainable in respect to same relief or in filing consecutive litigations as held by the Apex Court in the case of Shankar Co.Op. Housing Society Ltd., V. M. Prabhakar (2011) 5 SCC 607 and Beerbal Singh Vs. State of U.P. reported in AIR (2017) SC 2712 (Bar of res judicate applies) held that litigant must be fair in approaching this Court. In order to seek relief under the constitutional scheme.
10. Learned counsel for the respondent pointed out the conduct of the petitioner in respect of suppression of judicial pronouncement which is against him in W.P. No.6723/2012 and in not disclosing the dismissal of RFA No.284/2002 which is a 10 serious issue and the same cannot be condoned in permitting the petitioner to withdraw the present petition with a liberty to file a fresh petition. Even assuming such liberty is granted still res judicata principle would operate in respect of challenge to preliminary notification dated 28.11.2991 at Annexure-B. Petitioner is not entitled to seek permission to withdraw the present petition with a liberty to file fresh writ petition. Successive writ petitions are barred as held in the case of Shankar Co-Operative, Housing Society Ltd., Vs. M. Prabhakar reported in (2011) 5 SCC 607.
With regard to res judicata Apex Court held in the case of Malabar Hill Citizens Forum vs. The Commissioner Of Labour reported in 2017 AIR Bombay R 716. (para No.16) With regard to Maintainability of writ petition, equity, estopped, acquiseance & waiver, Apex Court has discussed in the case of D. Sarojakumari vs R. Helen Thilakom Reported in (2017) 9 SCC 478 (para Nos.4 to 12).
11. In W.P. No.6723/2012, this Court has elaborately considered the delay and latches on the part of the petitioner. For the reasons that preliminary notification dated 28.11.1991 11 gazetted on 16.01.1992, questioned in the year 2012. On the point of delay also Apex Court held under what circumstances writ petition could be entertained in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others reported in AIR 2016 SC 3006 at paragraph 20 has held as under:
"20. Having stated thus, it is useful to refer to a passage form City and Industrial Development Corporation V/s.Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168}, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-
"The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved;
(b) The petition reveals all material facts;
(c) The petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) Person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) Ex facie barred by any laws of limitation;
(f) Grant of relief is against public policy or barred by any valid law; and host of other factors.12
(g) Cost and such other relief deems fit to grant under the circumstances of the case, in the interest of justice and equity.
(underline supplied) Apex Court in the case of State of Gujarat vs Bhanji Gopal Kachhar reported, (2016) 12 SCC 645 in para - 6 held as under:
6. We do not understand as to how the industrial reference with regard to the entitlement of the respondent workman to reinstatement, etc. could have been made in the year 1995 in a situation where the respondent workman after dismissal from service in the year 1968 had superannuated from the service in the year 1992. While it is correct that the said facts were not pointed out before the Labour Court hearing the industrial reference, the same, which go to the root of the matter, were easily verifiable from the admitted facts of the case if an attempt was to be made.
In yet another Apex Court's decision, discussed Stale claim, delay & latches & limitation in the case of Union of India vs Chamana Rana reported in (2018) 5 SCC 798 para Nos.13 & 14 is reproduced hereunder:
13. The High Court erred in placing absolute reliance on Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 and Sukhdev [Sukhdev Singh v. Union of India, (2013) 9 SCC 566 without noticing the fact situation of the respondents.
In Union of India v. Bahadur Singh [Union of India v. Bahadur Singh, (2006) 1 SCC 368, it was observed:
"9. The courts should not place reliance on decisions without discussing as to how 13 the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. ..."
14. A subsequent pronouncement by this Court could not enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim. In State of Uttaranchal v. Shiv Charan Singh Bhandari [State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179 : (2013) 3 SCC (L&S) 32] , it was observed that: (SCC p. 186, para 29) "29. ... Not for nothing, has it been said that everything may stop but not the time, for all are in a way slaves of time.
There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time."
12. In view of these facts and circumstances, petitioner claim is stale claim. Consequently, petitioner has not made out a 14 case so as to grant relief as prayed in the present petition. Accordingly, writ petition stands dismissed.
Sd/-
JUDGE BS