Karnataka High Court
N Durganna S/O Late Sri Narayanappa vs The State Of Karnataka on 9 July, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC-D:9439
WP No. 102086 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.102086 OF 2024 (KLR-RES)
BETWEEN:
N. DURGANNA S/O LATE SRI NARAYANAPPA,
AGED ABOUT 57 YEARS,
R/AT: DOOR NO.112, WARD NO.9,
RUPANAGUDI ROAD,
BEHIND VARABASAPPA TEMPLE,
BALLARI-583101.
... PETITIONER
(BY SMT. V. VIDYA AND
SRI K. RAGHAVENDRA RAO, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
VIKAS SOUDHA,
BENGALURU-560001,
R/BY ITS PRINCIPAL SECRETARY.
Digitally
signed by
YASHAVANT
NARAYANKAR
Location:
2. THE ASSISTANT COMMISSIONER,
HIGH COURT
YASHAVANT OF
NARAYANKAR KARNATAKA
DHARWAD
BALLARI SUB-DIVISION,
BENCH
Date:
2024.07.15
BALLARI DISTRICT-583101.
14:41:37
+0530
3. THE TAHSILDAR,
BALLARI TALUK,
BALLARI DISTRICT-583101.
4. THE EXECUTING ENGINEER,
KARNATAKA URBAN WATER
SUPPLY AND DRAINAGE BOARD,
BALLARI-583104.
5. BALLARI MAHANAGARA PALIKE,
BALLARI-583104,
R/BY ITS COMMISSIONER.
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NC: 2024:KHC-D:9439
WP No. 102086 of 2024
5. NAGASHANKARA NAIDU V.
S/O PANDURANGA,
AGED ABOUT 34 YEARS,
R/AT: DOOR NO.208 C,
WARD NO.30, NEAR GOVERNMENT
SCHOOL, VINAYAKA NAGAR,
BALLARI-583275.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING THE IMPUGNED ORDER PASSED BY
RESPONDENT NO.2 IN CASE NO. KANDAYA/APPEAL/216/2022
DATED 03.01.2023 FOUND AT ANNEXURE-L, THE IMPUGNED
MUTATIONS IN M.R. T415 DATED 03.01.2023 FOUND AT
ANNEXURE-M, M.R. T416 DATED 03.01.2023 FOUND AT
ANNEXURE-N AND M.R. T420 DATED 03.01.2023 FOUND AT
ANNEXURE-P, ALLOW THIS WRIT PETITION WITH COSTS AND
GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEMS
FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Learned HCGP is directed to take notice for respondent Nos.1 to 4.
2. Heard the learned counsel Smt. V. Vidya, appearing for the petitioner and learned HCGP for the respondent Nos.1 to 4.
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NC: 2024:KHC-D:9439 WP No. 102086 of 2024
3. Notice to respondent Nos.5 and 6 is dispensed as this Court is not inclined to accept the petition and pass any adverse orders as against respondent Nos.5 and 6, as this court is also not inclined to accept the petition on the ground of maintainability for the reasons stated herein below.
4. The petitioner has filed this petition, questioning the orders passed by the respondent No.2- Assistant Commissioner vide Annexure-L. It is the case of the petitioner that, he belongs to the family of agriculturists, owning land bearing No.901/B, measuring 29 cents, Sy.No.902 measuring 39 cents and Sy.No.903 measuring 2 acres 66 cents, situate at Ballari village, Ballari taluk, Ballari district, which are ancestral properties of the petitioner.
5. According to the petitioner, his father Narayanappa died on 21.01.1976. The name of his father was reflected in the relevant columns of RTC of the land in question, from 1981-1982 to 2019-2020 to indicate the ownership and possession of late Narayanappa over the -4- NC: 2024:KHC-D:9439 WP No. 102086 of 2024 said lands. Mutation was also effected in the name of the petitioner and his sisters, in respect of the lands in question. Thereafter, from the family partition, the lands mentioned above fell to the share of the petitioner and the mutation entry was accordingly made in the name of the petitioner.
6. This being the state of affairs, one Nagashankara Naidu-respondent No.6 approached the respondent No.2 seeking deletion of the name of the petitioner from the revenue records and got entered the name of Ballari Municipal Corporation in the revenue records. Accepting the same, respondent No.2 registered the same under Section 136 (2) of the Karnataka Land Revenue Act, 1964 (for short, '1964 Act'). The petitioner had filed detailed objections despite which the same was not considered and the name of the Ballari Municipal Corporation in the revenue records and the mutation entries were also accordingly reflected and changed.
7. It is the vehement contention of the learned counsel for the petitioner that, the impugned order passed -5- NC: 2024:KHC-D:9439 WP No. 102086 of 2024 by the respondent No.2 is illegal without jurisdiction, the same is passed without application of mind in a mechanical manner, therefore, the order impugned is erroneous without jurisdiction and the same is liable to be quashed. It is also vehement contention of the learned counsel for the petitioner that, the respondent No.6 who approached the respondent No.2 does not have any locus standi to initiate any proceedings before the respondent No.2, the same having not been taken into consideration is an order without proper jurisdiction and a blatant error committed by the respondent No.2.
8. It is also contended by the learned counsel for the petitioner that the respondent No.2 has not applied his mind with regard to the facts and the legal aspect of the matter and has passed a mechanical order without taking into consideration all these relevant aspects and no proper reasons or findings are provided to arrive at a conclusion in the impugned order. She also further contends that, when a statutory authority like the respondent No.2 is vested with the powers, a duty is cast upon the said authority to -6- NC: 2024:KHC-D:9439 WP No. 102086 of 2024 consider these aspects and to pass a well reasoned order rather than a cryptic order.
9. Though the petitioner herein had taken several contentions, none of it has been considered and the impugned order is passed allowing the appeal filed by the respondent No.6. Hence, the petitioner is before this Court seeking to quash the said order.
10. Learned counsel for the petitioner relies upon a Judgment of the Hon'ble Apex Court in the case of Godrej Sara Lee Ltd., Vs. Excise and Taxation Officer-cum- Assessing Authority and others, reported in 2023 SCC Online SC 95, more specifically at paragraph No.4 which reads as under:
"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the High Courts holding writ petitions as "not maintainable"
merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint -7- NC: 2024:KHC-D:9439 WP No. 102086 of 2024 on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the High Courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition "not maintainable". In a long line of decisions, this court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of -8- NC: 2024:KHC-D:9439 WP No. 102086 of 2024 a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper."
11. Learned counsel draws a distinction between the maintainability of the writ petition and the entertaianability of the petition. As she contends that, despite the writ petition being maintainable may not be entertained by High Court for many reasons and the relief could be refused as stated by the Hon'ble Apex Court. Under the circumstances, she contends that, the present petition would be maintainable though this Court may not entertain it otherwise.
12. Per contra, learned HCGP representing the State vehemently contends that, primarily the writ petition is not maintainable for the reason that, there is an alternative efficacious remedy available to the petitioner to invoke the provisions of Section 136(3) of 1964 Act, on the orders passed by the respondent No.2 under Section 136(2) of 1964 Act. It is further contended by the learned HCGP that, the present case made out by the petitioner is on the ground of the respondent No.2 having entertained -9- NC: 2024:KHC-D:9439 WP No. 102086 of 2024 the appeal filed by respondent No.6, who does not have locus to file the appeal and who is nowhere concerned with the properties in question. But she contends that, in the impugned order passed by the respondent No.2, the same is adverted to by the respondent No.2 and order is passed by taking into consideration whether the respondent No.6 has locus or not and has decided the matter on the merits of the case. Therefore, she contends that, when there is an alternative efficacious remedy available in the law, the petitioner cannot approach this Court deviating the said procedure available in the statute by invoking the extraordinary writ jurisdiction under the Article 226 of the Constitution of India, merely by making an averment on the ground of jurisdiction and no locus to the respondent No.6 to file an appeal before the respondent No.2.
13. Therefore, learned HCGP contends that, primarily the petition will have to be dismissed since the petitioner is having an alternative efficacious remedy under law.
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14. I have heard the learned counsel for the petitioner and the learned HCGP for the State.
15. I have also perused the Judgment relied by the learned counsel for the petitioner in the case of Godrej Sara Lee Ltd. (supra). There is no dispute with regard to the discretionary jurisdiction vested with this Court under Article 226 of the Constitution of India, as it does not impose any restrain for the exercise of powers of writ jurisdiction. But the fact remains that, while exercising such discretionary powers under Article 226 of the Constitution of India, it is necessary for the writ Court to be very careful and circumspect in dealing with the matters as this Court will get flooded with the writ petitions where alternative efficacious remedy are available, if the same is exercised in every case on the ground of error or a mere statement of no jurisdiction or there being no locus to the party to approach the said authority. In the normal course, and it is a general rule that, the writ Courts would not entertain the petition in a routine manner, if there is alternate efficacious remedy available which has not been
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NC: 2024:KHC-D:9439 WP No. 102086 of 2024 exhausted, but however, it is also true that, an alternative efficacious remedy would not bar the writ Court to exercise its jurisdiction when there is no jurisdiction vested with the authority which passes the order. This Hon'ble Apex Court in several decisions in the cases of United Bank of India Vs. Satyawati Tondon and others, reported in (2010) 8 SCC 110, Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai, reported in (1998) 8 SCC 1, Raj Kumar Shivhari Vs. Assistant Director, Directorate of Enforcement and another, reported in (2010) 4 SCC 772 and the State of Maharastra Vs. Greatship (India) Ltd., reported in 2022 SCC Online SC 1262 has reiterated the law for entertaining a writ petition, where there is alternative efficacious remedy available, which is a creature of the statute.
16. Under the circumstances, in the present case, though the learned counsel has tried to make out that the impugned orders passed by the respondent No.2 is illegal without jurisdiction as respondent No.6 did not have any locus standi to initiate the proceeding before the
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NC: 2024:KHC-D:9439 WP No. 102086 of 2024 respondent No.2, the impugned order would not sustain in the eye of law and there is no bar for this Court to entertain the writ petition and the issue of maintainability would not arise.
17. The contention raised by the learned counsel for the petitioner cannot be accepted as I do not agree with her submissions and contentions. Though the law laid down by the Hon'ble Apex Court in Godrej Sara Lee Ltd. (supra) is accepted and it will have to be adhered to with all humility, but nevertheless, the same is not applicable to the present facts of case. If the petitioner wants to raise a ground of locus standi of respondent No.6 before the authority and the merits of the matter has not been considered, including her objection statement, the same will have to be adverted to by the petitioner before the remedy available in the statute provided under Section 136(3) of the 1964 Act, which is a revisional power vested with the Deputy Commissioner. Accordingly, I am not inclined to accept the vehement arguments put forth by the learned counsel for the petitioner. On the contrary, I
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NC: 2024:KHC-D:9439 WP No. 102086 of 2024 accept the submission of the learned HCGP with regard to the present petition being not maintainable in view of there being an alternative efficacious remedy available.
18. Under the circumstances, I pass the following:
ORDER The writ petition is dismissed as not maintainable.
Liberty is reserved to the petitioner to challenge the impugned order in the manner known to law.
Sd/-
JUDGE SVH CT:BCK LIST NO.: 1 SL NO.: 8