Karnataka High Court
Dr D Sanna Durgappa vs The State Of Karnataka on 5 July, 2019
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION No.17460/2018 (S-RES)
Between:
Dr. D. Sanna Durgappa
S/o Hanumanthappa. D,
Age 46 years,
No.09, Madhu Plaza,
Room No.12, Anshuman PG,
New BEL Road, Sanjayanagara, RMV II Stage,
Opp: RIMS College,
Bengaluru-560 094. ... Petitioner
(By Sri. D. Sanna Durgappa, Party-in-person)
And:
The State of Karnataka
By its Secretary,
Social Welfare Department,
M.S.Building,
Bengaluru-560 001. ...Respondent
(By Smt. M.S. Prathima, AGA)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to direct the respondent
to consider the case of the petitioner for a suitable post by
considering the representation dated 16.02.2017 vide
Annexure-G.
This Writ Petition coming on for Preliminary Hearing in
'B' Group, this day, the Court made the following:
2
ORDER
In the instant petition, petitioner has sought for the following reliefs:
"a) Issue a writ in the nature of
mandamus directing the respondent to
consider the case of the petitioner for a suitable post by considering the representation dated 16.02.2017 produced at Annexure-G.
b) Issue such other writ order or direction, as this Hon'ble Court deems fit and proper in the fact and circumstances of the case by allowing this writ petition in the interest of justice".
2. Grievance of the petitioner is that his services has been removed by the Indian Institute of Science, Bangalore, on certain allegation relating to sexual harassment. Such removal from service was the subject matter of W.P.No.19594/2015, which was decided on 06.04.2016 to the extent that the Institution agreed to 3 modify the order of removal from service while accepting resignation of the petitioner w.e.f. 28.04.2015.
3. In this backgroud, petitioner has sought for writ of mandamus to the State Government to consider his name for employment in terms of Section 15A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) (Amendment) Act, 2015 (for short ' the Act').
4. Section 15A of the said Act reads as under:-
"15A. Rights of victims and witnesses.- (1) It shall be the duty and responsibility of the State to make arrangments for the protection of victims, their dependants, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence".
5. Perusal of Section 15A of the Act, petitioner has not made out any right to consider his name for employment. No right is created to the petitioner. In the absence of any statutory right, petitioner is not entitled 4 for writ of mandamus under Article 226 of the Constitution of India, in terms of Supreme Court decisions in Mani Subrat Jain Etc vs State Of Haryana and Others reported in 1977 AIR 276 (para-
9) and Kolkata Metropolitan Development Authority vs. Pradip Kumar Ghosh reported in (2018) 13 SCC 623 (paras - 18 to 26).
6. Para-9 of the Mani Subrat Jain Etc vs State of Haryana and Others, reads as under:-
" 9. The High Court rightly dismsised the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something".5
7. Paragraphs 18 to 26 of Kolkata Metropolitan Development Authority vs. Pradip Kumar Ghosh, reads as under:-
"18. In regard to efficacy of order dated 10-9-1993, the respondents have relied upon the power to issue mandamus and the effect thereof. A reference has been made to the decisions in CAG v. K.S. Jagannathan and Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani. In CAG the Court observed :
(SCC pp. 692-93, para 20) "20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on relevant considerations or by ignoring the relevant 6 considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
19. In Andi Mukta Sadguru it was held : (SCC p. 700, para 20) "20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for 7 the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words " any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."
20. There is no dispute with the proposition laid down in CAG and Andi Mukta Sadguru that mandamus can be issued for doing 8 the positive act or a legal duty cast upon an authority.
21. In Mansukhlal Vithaldas Chauhan v. State of Gujarat it has been observed that mandamus is a discretionary under Article 226 of the Constitution to compel for a public duty which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. "Shall" and "must" sometimes be interpreted as "may". This Court has observed: (SCC pp. 632-33 & 634, paras 22, 23 and 29) "22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have sometimes, been interpreted as "may". But this is not conclusive as "shall"
and "must" have, sometimes, been
9
interpreted as "may". What is
determinative of the nature of duty,
whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right".
23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court exercise its own discretion.
29. It may be pointed out that this principle was also applied by Professor Wade to quasi-judicial bodies and their decisions. Relying upon the decision in R. v. Justices of London - Professor Wade laid down the principle that where a public authority was given power to determine a matter, mandamus would not lie to compel it to reach some particular decision."
(emphasis in original)
22. The High Court directed interim payment to be made in accordance with law laid 10 by it in which it held A.P. Act 3 of 1971 to be invalid. However on appeal, in State of A.P. Vs. Rajah of Venkatagiri this Court upheld the constitutionality of the said act and further held that interim payments could be made only from the date of determination by the Director under Section 39(1). Though the mandamus that was issued by the High Court relying upon Venkatagiri case attained finality, for its enforcement, another writ petition was filed. The Supreme Court laid down in Director of Settlements v. M.R. Apparao that no further mandamus could have been issued for release of payment in implementation of its earlier order. Once the decision on which it was based, that is, Venkatagiri case stood wiped off thus the mandamus became unenforceable. The Court further held that if the law which was declared invalid by the High Court is held constitutionally valid, effective and binding by the Supreme Court, then the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The mandamus would not survive in favour of those parties against whom appeals were not filed. This Court examined the question whether while 11 issuing a mandamus, the earlier judgment notwithstanding having been held to be rendered ineffective, can still be held to be operative. This Court in Director of settlements v. M.R. Apparao observed (SCC p. 658, para 16) "16.... In other words, the judgment of the Andhra Pradesh High Court in Venkatagiri case holding the amendment Act to be constitutionally invalid, on being reversed by the Supreme Court on a conclusion that the said amendment is constitutionally valid, the said dictum would be valid throughout the country for all persons, including the respondents, even though the judgment in their favour had not been assailed. It would in fact lead to an anomalous situation, if in the case of the respondents, the earlier conclusion that the amendment Act is constitutionally invalid is allowed to operate notwithstanding the reversal of that conclusion in Venkatagiri case and only in Venkatagiri case or where the parties have never approached the Court to hold that the same is constitutionally valid. This being the position, notwithstanding 12 the enunciation of the principle of res judicata and it applicability to the litigation between the parties at different stages, it is difficult for us to sustain the argument of Mr. Rao that an indefeasible right has accrued to the respondents on the basis of the judgment in their favour which had not been challenged and that right could be enforced by issuance of a fresh mandamus. On the other hand, to have uniformity of the law and to have universal application of law laid down by this Court in Venkatagiri case it would be reasonable to hold that the so-called direction in favour of the respondents became futile inasmuch as the direction was on the basis that the Amendment Act is constitutionally invalid, the moment the Supreme Court holds that Act to be constitutionally valid. We are, therefore, of the considered opinion that no indefeasible right on the respondents could be said to have accrued on account of the earlier judgment in their favour notwithstanding the reversal of the judgment of the High Court in Venkatagiri case."
1323. This Court has laid down that the High Court erred in issuing mandamus in respect of a right which ceased to exist and was not available on the date on which mandamus has been issued afresh. In our opinion to enforce an order it should be effective on date mandamus in sought to be enforced. It can be interdicted by another order or by statutory intervention.
24. In LAO v. Nirodhi Prakash Gangoli the premises in question had been requisitioned under the provisions of the West Bengal Requisition and Control (Temporary Provision) Act, 1947 for accommodating students of Calcutta National Medical College, Calcutta. The premises were subsequently sought to be acquired by issuing notification under Sections 4 and 6 of the Land Acquisition Act in 1982 and 1989 respectively. The High Court quashed the notifications. The premises stood derequisitioned in 1993. A fresh notification was issued under Sections 4(1) and 17(4) of the Act in November 1994. Entire notification was questioned by filing a writ petition. In the said case the Division Bench had issued a direction to had over physical possession on 25-8-1994. This Court held that merely because possession had not been 14 delivered pursuant to the direction of derequisition the acquisition would not become mala fide. In case there existed need for acquisition it has to be judged independently. This Court has laid down: (SCC pp. 166-167, paras 6 & 7)).
"6. It is indeed difficult for us to uphold the conclusion of the Division Bench that acquisition is mala fide on the mere fact that physical possession had not been delivered pursuant to the earlier directions of learned Single Judge of the Calcutta High Court dated 25-8-1994. When the Court is called upon to examine the question as to whether the acquisition is mala fide or not, what is necessary to be inquired into and found out is, whether the purpose for which the acquisition is going to be made, is a real purpose or a camouflage. By no stretch of imagination, exercise of power for acquisition can be held to be mala fide, so long as the purpose of acquisition continues and as has already been stated, there existed emergency to acquire the premises in question. The premises which were under occupation of the students of National Medical College, 15 Calcutta, were obviously badly needed for the College and the appropriate authority having failed in their attempt earliertwice, the orders having been quashed by the High Court, had taken the third attempt of issuing notification under Sections 4(1) and 17(4) of the Act, such acquisition cannot be held to be mala fide and, therefore, the conclusion of the Division Bench in the impugned judgment that the acquisition is mala fide, must be set aside and we accordingly set aside the same.
7. The argument advanced on behalf of the respondents is that as the premises in question continued to be under possession of Calcutta Medical College, invocation of special powers under Section 17 was vitiated and a valuable right of the landowners to file objections under Section 5-A could not have been taken away. According t the counsel for the respondents, Section 5-A could not have been taken away. According to the counsel for the respondent, Section 5-A of the Ac, merely gives an opportunity to the landowner to object to the acquisition within 30 days from the date of publication of the 16 Notification under Section 4, the power under Section 17 dispensing with inquiry under possession o the land, but where possession is with the acquiring authority, there cannot exist any urgency, and, therefore the exercise of that power is patently erroneous. In support of this contention, reliance was placed on the decision of this Court in Balwant Narayan Bhagade v. M.D. Bhagwat. We are unable to accept this contention since the same proceeds on a basic misconception about the possession of the premises. The premises in question had been requisitioned under the provisions of the Requisition Act and stood released from requisition by operation of Section 10-B of the said Act, since 1993. Even though the premises stood occupied by the students of the medical college, but such occupation was neither as owner nor was lawful in the eye of the law. To effectuate lawful possession and the purpose being undoubtedly a public purpose, the State Government had been attempting ever since December 1982 and each of its attempts had failed on account of the 17 Court's intervention. It is in this context, the legality of exercise of power under Section 17 of the Notification dated 29-11- 1994 is required to be adjudicated upon. In our considered opinion, having regard to the facts and circumstances narrated above, the exercise of power under Section 17 by the State Government, cannot be held to be illegal or mala fide and consequently, the impugned judgment of the Division Bench of the Calcutta High Court and hold that the acquisition is question is not vitiated on any ground. The acquisition proceeding, therefore, is held to be in accordance with law. The appeal is allowed. There will be no order as to costs."
25. It was also submitted on behalf of the respondents that the acquisition proceedings contrary to the court's order were a nullity. In substance, the submission is that once the derequisition has been ordered to be made in a specified time, having failed to do so, continuance of requisition was unlawful. Thus the acquisition of such property could not have been made in view of the principles laid down by this Court in 18 Ravi S. Naik v. Union of India and Manohar Lal v. Ugrasen. The relevant portion of Ravi S. Naik is extracted hereunder: (SCC pp. 661-62, para 40) "40. We will first examine whether Bandekar and Chopdekar could be excluded from the group on the basis of order dated 13.12.1990, holding that they stood disqualified as members of the Goa Legislative Assembly. The said two members had filed Writ Petition No.321 of 1990 in the Bombay High Court wherein they challenged the validity of the said order of disqualification and by order dated 14-12-1990, passed in the said writ petition the High Court had stayed the operation of the said order of disqualification dated 13-12-1990, passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated 13-12-1990 was that with effect from 14-12-1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly under order dated 13-12-1990, was not operative members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay 19 order passed by the High Court on 14-12- 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the validity of the order dated 13-12-1990, passed by the Speaker it, obviously, had to come after the order of disqualification was issued by the Speaker. The other reasons given by the Speaker was that Parliament had held that the Speaker's order cannot be a subject- matter of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. Questions involving the interpretation of the provisions contained in the Tenth Schedule to the Constitution. On the date of the passing of the stay order dated 14.12.1990, the said questions were pending consideration before this Court. In the absence of an authoritative pronouncement by this Court, the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject- matter of court in nature, is binding till it is set aside by a competent court and it 20 cannot be ignored on the ground that the court which passed the order had no jurisdiction to pass the same. Moreover, the stay order was passed by the High Court which is a superior Court of Record and 'in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction."
26. This Court has observed that interim order is also binding till it is set aside. In Manohar Lal this Court observed: (SCC p. 568, paras 24-29) "24. In Mulraj v. Murti Raghunathji Maharaj this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.
25. In Surjit Singh v. Harbans Singh this Court while dealing with the similar issue held as under: (SCC p. 52, para 4) 21 '4. ...In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.'
26. In All Bengal Excise Licensees' Assn. v. Raghabendra Singh this Court held as under: (SCC p.387, para 28) '28. ... a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. ...the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good.'
27. In DDA v. Skipper Construction Co.(P) Ltd. this Court after making reference to many of the earlier judgments held: (SCC p. 636 para 18) '18. ... "... on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
2228. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund this Court while dealing with the similar issues held that even a court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of coming to the conclusion that a breach of an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated.
29. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the Court is of no consequence as it remains a nullity."
8. In view of the principle laid down in the aforesaid decisions, petitioner has not made out any ground to entertain petition.
9. Accordingly, writ petition stands dismissed.
Sd/-
JUDGE Srl.