Karnataka High Court
D.H. Moidu vs The Commissioner on 23 August, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
1/10
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2017
BEFORE
THE HON'BLE DR JUSTICE VINEET KOTHARI
WRIT PETITION NOs.27021/2017 & 29984-989/2017 (LB-RES)
Between:
D.H. Moidu
Aged 40 years
S/o D.P. Hussainar Hajee
5th Block, Shantinagar, Virajpet Post and Taluk
Kodagu District-571218.
... Petitioner
(By Mr. Ravikumar M.C. Advocate)
And:
1. The Commissioner
The City Municipality Madikeri
Madikeri Town and Post
Madikeri Taluk, Kodagu District.
2. The Commissioner
The Urban Development Authority
Madikeri Town and Post
Madikeri Taluk, Kodagu District-571201.
3. The Executive Engineer
CHESCOM, Near KSRTC Depot
Madikeri, Kodagu District-571201.
... Respondents
(By Mr. N. Devhadass, Sr. Counsel for
Mrs. K.S. Anusuyadevi, Adv., for R1
Mr. R. Nagendra Naik, Adv., for R2;
Mr. Prabhath A.P. for
Mr. Harikrishna S. Holla, Adv., for R3)
Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017
D.H. Moidu Vs. The Commissioner & others
2/10
****
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ in the nature of
Certiorari or any other appropriate writ or order to quash the order
of cancellation of Building license dated 27/03/2017, vide:
No.MaNaSa/Ka.Vya/2016-17 issued by the 1st Respondent as per
Annexure-B & etc.
These writ petitions coming on for Orders, this day, the
Court made the following:
ORDER
Mr. Ravikumar M.C. Adv., for Petitioner Mr. N. Devhadass, Sr. Counsel for Mrs. K.S. Anusuyadevi, Adv., for R1 Mr. Prabhath A.P. for Mr. Harikrishna S. Holla, Adv., for R3 Mr. R. Nagendra Naik, Adv., for R2 Ms. B. Shubha, Commissioner, CMC, Madikeri Ms. Sowmya M.N. Commissioner, MUDA
1. The petitioner, D.H. Moidu, Son of D.P. Hussainar Hajee has filed this petition in this Court against the Respondents, (1) The Commissioner, City Municipality, Madikeri, (2) The Commissioner, Urban Development Authority and (3) The Executive Engineer, CHESCOM, Madikeri, with the following prayers:
Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 3/10 "a) Issue a writ in the nature of Certiorari or any other appropriate writ or order to quash the order of cancellation of building license dated 27/3/2017, vide: No.MaNaSa/Ka.Vya/2016-17 issued by the 1st Respondent as per Annexure-B.
b) A writ in the nature of mandamus or any other appropriate writ or order or direction, directing the Respondent to issue Form No.3 to the building of petitioners.
c) A writ in the nature of mandamus or any other appropriate writ or order or direction, directing the 3rd Respondent to give permanent electricity connection to the building of the petitioner.
d) Grant such other relief that this Hon'ble Court may deem fit in the facts and circumstances of the case including cost in the interest of justice and equity."
2. This Court while issuing notice to the Respondents had passed the following order on 09/08/2017:
Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 4/10 "1. Learned counsel for the petitioner submits that despite service of notice on the respondents - the Commissioner, City Municipality, Madikeri and the Commissioner, Urban Development Authority, Madikeri and the Executive Engineer, CHESCOM on 24.07.2017, but none of them has appeared before the Court even today nor objections have been filed.
2. Learned Government Advocate undertakes to inform the respondents to immediately make arrangements for appearance on their behalf and also file their statement of objections. If it is not done by next date, the Commissioner of City Municipality, Madikeri shall appear in this Court and deposit a sum of Rs.25,000/- from his personal resources in the Registry of this Court, for delay in responding to the summons of this Court.
Put up this matter on 23.08.2017."
3. Today, Ms. B. Shubha, Commissioner of City Municipal Council, Madikeri is present in the Court and Ms. Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 5/10 Sowmya M.N., Commissioner, MUDA, Madikeri is also present in the Court. They have filed their Affidavits and Statement of Objections before this Court.
4. The learned Senior Counsel for the Respondent No.1, Mr. N. Devhadass and learned counsel appearing for Respondent No.2, Mr. R. Nagendra Naik, before the Court have brought to the notice of the Court that the petitioner has concealed the material facts from this Court in the present petitions filed by him that the petitioner had already approached the Principal Civil Judge, Madikeri by way of O.S.No.37/2016 (D.H. Moidu Vs. The City Municipality, Madikeri and Urban Development Authority, Madikeri) for same or similar relief against these very Respondents, where the Temporary Injunction Application came to be rejected by the Trial Court on 17/06/2016, but the Suit is still pending. They have also pointed out before the Court that the petitioner has raised illegal construction of Multi Storied Building much in excess of the sanctioned plan and therefore action was being taken by the Respondents against the Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 6/10 petitioner against which the aforesaid Civil Suit was filed by the petitioner, but after his Temporary Injunction Application was rejected by the learned Trial Court, he has approached this Court by way of this petition which was filed before this Court on 22/06/2017, concealing this fact.
5. The learned counsel for the petitioner, Mr. Ravikumar M.C. has sought to explain this error by submitting that in one of the representation filed as an additional document in this Court on 20/07/2017, in the Representation filed on 30/06/2016 to the Commissioner of Madikeri Municipal Corporation, a passing reference has been made in the said Representation that "According to the Municipal Council on 18-03-2016, the Municipal Council has issued a Temporary Injunction from the Court on 21-03-2016, as indicated that the municipality will be cleared in three days if you do not clear the building. The Court has granted temporary injunction till 17th of June 2016"
6. With this submission in the said Representation, the learned counsel for the petitioner has sought to explain that Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 7/10 thus on the record of this Court, there is a mention in the Representation about some order passed in the Civil Suit filed by the petitioner.
7. However, the learned counsel for the petitioner could not point out any mention of the filing of the said Civil Suit by the petitioner in the matter, namely O.S.No.37/2016 in the Court of Principal Civil Judge, Madikeri in this Writ Petition itself and it is only for the first time that the Respondents' counsels upon the presence of these officials in the Court have brought this to the notice of this Court and a copy of order dated 17/06/2016 passed by Trial Court has been placed on the record now..
8. Obviously, the petitioner has approached this Court with unclean hands and has concealed the material facts from this Court and is, therefore, not entitled to any relief in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India. On the contrary, such negligent and non-chalant litigants deserve to be dealt with strongly by the iron hands of justice to avoid any possible misuse of this Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 8/10 equity and extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
9. It cannot be believed that the petitioner was not aware of this fact of filing of the Civil Suit and rejection of his Temporary Injunction Application by the Trial Court on 17/06/2016 when he filed these writ petitions in this Court on 22/06/2017 with his own sworn Affidavit. Not a whisper about the filing of the Suit and the rejection of Temporary Injunction of the Application by the Trial Court has been made in the present writ petitions.
10. It is all the more unfortunate that the learned counsel for the petitioner while arguing the case before this Court on 09/08/2017 did not bring this fact to the notice of this Court.
11. It was definitely the duty of the learned counsel appearing for the petitioner to take complete facts relating to the matter into account and not only disclose these facts in the petitions itself but to bring it to the notice of the Court specifically and positively. It is in the absence of this Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 9/10 disclosure made by the petitioner and the learned counsel before this Court that this Court passed the order on 09/08/2017 of the tenor in which it has been passed, as if the Respondents negligently have not responded to the summons of this Court and to secure their prompt response to the Court summons, even a direction was given to the Respondent official to deposit a sum of Rs.25,000/- from the personal resources with the Registry of this Court.
12. The facts now revealed before this Court turns these tables on to the petitioner himself. Actually it is the petitioner who has to bear the brunt and misled by the concealment of material facts by the petitioner and the learned counsel appearing for the petitioner, not only the Public Officers were directed by this Court to appear before this Court today leaving their Offices, where they could be expected to discharge their Public functions for public services but they were also asked to deposit the aforesaid sum from their personal resources, which of course upon Date of Order 23-08-2017 W.P.Nos.27021/2017 & 29984-989/2017 D.H. Moidu Vs. The Commissioner & others 10/10 their appearance today and the explanation given, has been waived by this Court.
13. The present petitions, therefore, deserve to be dismissed with costs and the same are accordingly dismissed with costs of Rs.50,000/- on the petitioner to be paid to both the Respondent officials who are present in the Court @ Rs.25,000/- to each, within a period of one week from today.
14. The Respondents will be now free to proceed against the petitioner's construction in accordance with law.
Sd/-
JUDGE BMV*