Karnataka High Court
Dr H Abdul Hamid vs Mrs Viquarunnissa @ Vicky on 17 January, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.26692 OF 2011 (LB-RES)
BETWEEN:
DR H ABDUL HAMID,
AGED ABOUT 56 YEARS,
S/O K ABDUL KAREEM,
DOOR NO.18,
2ND MAIN, SIDDIQUE NAGAR,
MYSORE - 570015. ...PETITIONER
(BY SRI KRISHNAMURTHY G.H, ADVOCATE)
AND:
1. MRS VIQUARUNNISSA @ VICKY
FIAZ MOHAMMED KHAN,
W/O FIAZ MOHAMMAD KHAN,
AGED ABOUT 61 YEARS,
R/AT DOOR NO.196, 1ST MAIN,
SUBHASH NAGAR,
MYSORE - 570007.
2. THE COMMISSIONER,
MYSORE URBAN DEVELOPMENT
AUTHORITY,
MYSORE - 570001. ...RESPONDENTS
(BY SRI P.N.MANMOHAN, ADVOCATE FOR R1,
SRI S.V.DESAI, ADVOCATE FOR R2 )
----
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE-P, THE ORDER/NOTICE DATED 02.07.2010 (SIGNED
2
ON 10.08.2010) PASSED BY RESPONDENT -2 PURSUANT TO THE
ORDER DATED 04.12.2009 IN W.P.NO.10007/2007.
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THROUGH VIDEO CONFERENCE, THE COURT MADE THE
FOLLOWING:
ORDER
The marginal land measuring 16ft x 100ft, situated in between site Nos.195 belonging to the petitioner and 196 belonging to the private respondent, was allotted in favour of the petitioner herein, against which, the private respondent filed a WP No.10007/2007. This Court by order dated 4.12.2009 allowed the writ petition quashing the resolution dated 17.5.2003 passed by the respondent-MUDA allotting the marginal land in favour of the petitioner. It was further held that the sale deed executed by the respondent-MUDA in pursuance of the resolution dated 17.5.2003 did not confer any title on the marginal land in favour of the petitioner. Being aggrieved, the petitioner filed WA No.2612/2010.
2. The Division Bench of this Court by order dated 10.2.2011 disposed of the appeal as having become infructuous stating that the order passed by the coordinate Bench of this Court has been implemented by the respondent-MUDA by 3 passing the impugned order. However, liberty was reserved with the petitioner herein to challenge the said order passed by the respondent-MUDA canceling the resolution passed in favour of the petitioner. In RP No.218/2011, the Division Bench of this Court disposed of the review petition keeping all the contentions open for consideration.
3. The petitioner in this writ petition has called in question the endorsement dated 21.6.2003 issued by respondent-MUDA canceling the allotment of marginal land made in favour of the petitioner.
4. Learned counsel for the petitioner would submit that the order passed by the coordinate Bench of this Court declaring that the petitioner has not derived any title in the marginal land under the registered sale deed is one without jurisdiction and nullity in the eye of law. In support, he has placed reliance on the following decisions of the Apex Court:
i) (1992) 4 SCC 61 - Mohan Pandey and another -vs- Usha Rani Rajgaria(Smt.) and others;
ii) 2002(5) Kar.LJ 55 - Veerabhadrappa and another -vs-
Jagadishgouda and others;
iii) SLP (C) Nos.30648-30651/2010 - Nirmal Jeet Singh Hoon -
vs- Irtiza Hussain & ors.
4
iv) Civil Appeal No.3568/2005 - Sarup Singh & Anr. -vs- Union of India & Anr.
v) Civil Appeal No.5059/2007 - Union of India & anr. -vs-
Association of Unified Telecom Service Providers of India & ors.
vi) Appeal (civil) No.5477/2004 (DD 16.9.2005) -
Devasahayam (D) by L.Rs. -vs- P Savithramma & ors.
vii) (2003) 6 SCC 230 - Dwarka Prasad Agarwal (D) by LRs. ad another -vs- B D Agarwal and others.
viii) AIR 1981 SC 960 - Ahmedabad Manufacturing and Calico Printing Co. Ltd. -vs- The Workmen and another.
ix) 1994(4) SCC 422 - Harkishan Lal -vs- State of J & K.
x) Civil Appeal No.4233/2018 - Canara Bank -vs- N G Subbaraya Setty & anr.
xi) Appeal (civil) No.5617/1999 - Balvant N Viswamitra and ors. -vs- Yadav SAdashiv Mule (D) on 13.8.2004.
xii) Civil Appeal No.11759/2018 - Roshina T -vs- Abdul Azeez K T & ors.
xiii) Synopsis dated 18.7.2011;
5. Learned counsel for the petitioner further submits that though the order passed by the coordinate Bench of this Court has been given effect, the appeal does not become infructuous and the Division Bench of this Court has rightly reserved liberty to the petitioner to urge the grounds. Hence, he submits that the impugned order passed by the respondent - 5 Authority without issuing notice to the petitioner is in violation of principles of natural justice. He further submits that though the allotment made in favour of the petitioner is set aside by the coordinate Bench of this Court to an extent of 8ft x 50ft, the respondent-MUDA has cancelled the resolution to the entire extent of marginal land allotted in favour of the petitioner. Hence, he submits that the impugned order requires to be set aside.
6. On the other hand, learned counsel appearing for the private respondent would submit that the order passed by the coordinate Bench of this Court in the writ petition has attained finality and as such, it is binding on the petitioner as well as the respondent-MUDA. Hence, he submits that the impugned order passed by the respondent-MUDA in pursuance to the order passed by this Court cannot be said to be illegal and arbitrary. He further submits that, even assuming that the order passed by the coordinate Bench of this Court is null and void and until and unless it is set aside, it cannot be held that the order passed by the coordinate Bench of this Court is one without jurisdiction. In support, he placed reliance on the following decisions: 6
i) (2005) 7 SCC 190 - Ishwar Dutt -vs- Land Acquisition Collector and anr;
ii) (2014) 11 SCC 744 -vs- Shiv Chander More and others -vs-
Lieutenant Governor and others;
iii) (2010) 5 SCC 213 - Bharat Sanchar Nigam Limited -vs-
Telephone Cables Limited;
iv) (2011) 3 SCC 363 - Krishnadevi Malchand Kamathia and ors. -vs- Bombay Environmental Action Group and ors;
v) (2003) 6 SCC 545 - Chandra Singh ad ors -vs- STate of Rajastan and anr.
vi) (1982) 2 SCC 463 - State of Maharashtra -vs- Ramdas Shrinivas Nayak and anr.
7. I have considered the submissions made by the learned counsel for the parties.
8. The points that arise for consideration in this writ petition are as follows;
i) Whether the order passed by the coordinate
Bench of this Court in WP No.10007/2007
(DD 4.12.2009) can be held to be one
without jurisdiction and as such does not attract the doctrine of res judicata?
ii) Whether the impugned order passed by the respondent-MUDA is sustainable in law having regard to the fact that no notice was issued to the petitioner before passing the impugned order?
7Re: Point No.1:
9. This Court exercising its extraordinary jurisdiction under Article 226 of Constitution of India can annul the sale deed if it is executed in violation of statutory rules. The Apex Court in the case of Shalini Shyam Shetty and anr. v Rajendra Shankar Patil reported in 2010(8) SCC 329 at paras 59-63 and 65 has held that extraordinary jurisdiction of High Court under Article 226 cannot be extended to dispute between private parties unless question of violation of some statutory duty by statutory authority is involved.
10. In the present case, the co-ordinate Bench in WP No.10007/2007 has held that the petitioner has not derived any right or title stating that the allotment of the entire marginal land is contrary to Board Resolution and the sale deed executed by the respondent-MUDA is in violation of Board resolution. Hence, the submission of the learned counsel for petitioner that the order passed by the co-ordinate Bench in WP No.10007/2007 could not have annulled the sale deed executed in favour of the petitioner in exercising the power under Article 226 of the 8 Constitution of India is not acceptable. In view of the ratio enunciated in Shalini's case (supra), the order passed by co- ordinate bench in WP No.10007/2007 is well within the jurisdiction.
11. The order passed by the coordinate Bench of this Court in WP No.10007/2007 was challenged in WA No.2612/2010 which came to be dismissed as having become infructuous since the order passed in WP No.10007/2007 was given effect to and in Rev.Petn NO.218/2011, the petitioner was reserved with liberty to challenge the order dated 2.7.2010 which is impugned herein and all the contentions were kept open. The order passed in WP No.10007/2007 having attained finality and liberty was reserved with the petitioner to challenge the impugned order herein, the petitioner cannot now contend that the order passed in WP No.10007/2007 is one without jurisdiction and the said challenge is hit by doctrine of resjudicata. Hence, point No.1 is answered against the petitioner.
Reg: Point No.2:
12. In pursuance of the order passed in WP No.10007/2007, the respondent no.2-MUDA passed the 9 impugned order cancelling the allotment of entire extent of marginal land allotted in favor of petitioner. However, this Court in WP No.10007/2007 had directed the respondent to consider the claim of the respondent No.1 to an extent of 8ft X 50ft in the marginal land on its western side and also the claim of petitioner to the remaining extent of the marginal land. However, the 2nd respondent passed the impugned order canceling the approval of grant to the entire extent of marginal land allotted to the petitioner herein in lieu of confining the cancellation to an extent of 8ft x 50ft of the marginal land on its western side and further confirming the allotment of the claim of the petitioner to the remaining extent of land.
13. Though the impugned order passed is one without issuing notice to the petitioner, the same does not cause any prejudice to the petitioner if the respondent No.2 is directed to allot the remaining extent of marginal land i.e. 8ft. x 50ft. in favor of the petitioner. To this extent, the impugned order requires to be modified.
Accordingly, I pass the following:
10
ORDER
i) Writ Petition is allowed in part;
ii) The impugned order dated 2.7.2010 passed by the 2nd respondent at Annexure-P is hereby quashed insofar as it relates to canceling the allotment of remaining extent of marginal land i.e. 8ft. x 50ft. and the cancellation of allotment of marginal land to an extent of 8ft. x 50ft. on the western side is confirmed.
Respondent No.2-MUDA is directed to allot the remaining extent of marginal land 8ftX50ft to the petitioner and consequently register the sale deed in favour of petitioner subject to the payment of sale consideration by the petitioner, if not already paid. The said exercise shall be concluded within a period of two months from the date of certified copy of this order.
Sd/-
JUDGE BKM