The State Of Karnataka vs Akhila Bharata Kshatriya ...
2022 Latest Caselaw 8524 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JUNE, 2022

                     PRESENT

 THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                       AND

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

         REVIEW PETITION NO. 402/2021
                      IN
         WRIT PETITION NO.49960/2017

BETWEEN:

THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, BENGALURU 560001

                                      ...PETITIONER

(BY SRI.PRABHULING.K.NAVADGI, ADVOCATE GENERAL
A/W SRI.VIJAYAKUMAR.A.PATIL, AGA)

AND:

1. AKHILA BHARATA KSHATRIYA MAHASABHA(R)
NO 3350, K R ROAD
NEAR LG SERVICE CENTRE
BSK II STAGE, BENGALURU 560070
BY ITS PRESIDENT
SRI SRIDHAR RAJ URS

2. KARNATAKA RAJYA ARASU SANGHA (R)
ARASU SANGHA (R)
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NO 265, LAKSHMI NIVAS
8TH MAIN ROAD, 1ST STAGE
BCC LAYOUT, BENGALURU 560040
BY ITS SECRETASRY
SRI NANDEESH G URS

3. MYSURU MAHANAGARA PALIKE
MYSURU
BY ITS COMMISSIONER

4. JSS MAHAVIDYAPEETHA
J S S CIRCLE
MYSURU 570004
REP BY ITS SECRETARY

5. SRI SHIVARATRI RAJENDRA
SEVA TRUST
REP BY ITS SECRETARY
MEGHANA, TN PURA ROAD
NANDANAHALLI VILLAGE
KASABA HOBLI, MYSURU 570028

6. PROF P V NANJARAJA URS
RETIRED PROFESSOR
UNIVERSITY OF MYSURU
NO 16, 19TH BLOCK
SBM COLONY, SRIRAMAPURA
2ND PHASE, MYSURU 570023

                                    ...RESPONDENTS

(BY SRI.MAHESHA P, ADVOCATE FOR R1;
R2 SERVED & UNREPRESENTED;
SRI.MOHAN BHAT, ADVOCATE FOR R3;
SRI.BASAVARAJ PATIL, ADVOCATE FOR R4 & R5;
SRI.N.P.AMRUTHESH, ADVOCATE FOR R6)

    THIS PETITION IS FILED UNDER ORDER XLVII RULE
1 AND 2 READ WITH SECTION 114 OF THE CPC, 1908,
                              3


PRAYING TO A). REVIEW/MODIFY THE ORDER DATED:
07.09.2021 PASSED BY HON'BLE COURT IN WRIT
PETITION NO.49960/2017 (ANNEXURE-A) BY PERMITTING
THE STATE GOVERNMENT TO REFER THE MATTER
RELATING TO THE INSTALLATION OF THE STATUE TO THE
COMMITTEE CONSTITUTED BY THE STATE GOVERNMENT
VIDE CIRCULAR DATED: 23.12.2019 FOR APPROPRIATE
DECISION AND PERMIT THE STATE GOVERNMENT TO
TAKE DECISION THEREAFTER, IN THE INTEREST OF
JUSTICE AND EQUITY AND B). GRANT SUCH OTHER
RELIEF OR RELIEFS AS THIS HON'BLE COURT DEEMS FIT
TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
SACHIN    SHANKAR     MAGADUM     J., MADE    THE
FOLLOWING:

                         ORDER

The captioned review petition is filed by the

State seeking review of the order dated 7.9.2021

passed by this Court in W.P.No.49960/2017.

2. The learned Advocate General reiterating

the grounds urged in the review petition would submit

that the order under review suffers from error

apparent on the face of the records. He would point

out that this Court has proceeded on an assumption

that the proposed installation of statue is an

unauthorised construction and it is in this background,

this Court was of the view that the State Government

cannot grant any permission for construction of any

structure in public roads, pavements, sideways and

other public utility places. He would further contend

that pursuant to the directions of the Hon'ble Apex

Court issued on 18.01.2013 in SLP.No.8519/2006, the

State Government has issued a Circular on

23.12.2019 for removal of unauthorised constructions.

The State has constituted a District Level Committees

to review the position and obtain the factual matrix at

the ground level in every district.

3. It is in this background, the learned

Advocate General would try to impress upon us and

persuade this Court to review the order under

challenge only to the extent of issuing a direction to

the State Government or to the Committee

constituted by the State Government. He would point

out that the District Committee comprising of

competent authorities are better placed to ascertain

the factual matrix in the light of the directions issued

by the Apex Court. He would further contend that the

controversy as to whether Gun House Circle is on the

road or whether the said Circle and platform of the

said circle is in existence much prior to the directions

issued by the Apex Court is a disputed question of fact

and it can be ascertained only by way of a spot

inspection. The District Committee is constituted to

assess and examine as to whether the proposed

installation of statue would affect the movement of

the vehicles as observed by the Apex Court. He would

conclude his arguments by contending that the State

Government, to honour the service rendered by His

Holiness Dr. Shri Shivarathri Rajendra Mahaswamy,

who has contributed immensely to the culture, religion

and health service to the citizens of the entire Mysuru

region and surrounding districts, has proposed to

accord permission to install the statue at Gun House

Circle which would in no way affect the movement of

traffic.

4. The counsel appearing for respondent No.3

arguing in the same vein would also contend that the

matter needs to be referred to the District Committee

since the State and Local Authorities have taken a

specific stand that the Gun House Circle is in existence

much prior to the directions issued by the Apex Court

and the Circle has also platform in the center and all

these disputed question of facts have to be

ascertained by the District Level Committee and

therefore, he would support the grounds urged by the

review petitioner in this petition.

5. Per contra, the counsel appearing for the

contesting respondents 1 and 2 would however

support the reasons assigned by this Court and would

contend that the order under challenge does not suffer

from any illegality and the grounds urged in the

review petition does not satisfy the ingredients of

Order XLVII of CPC indicating any error apparent on

face of the record. In the alternate, he would contend

that in the event, this Court comes to the conclusion

that the matter needs to be referred to the District

Committee, then the contesting respondents 1 and 2

have to be heard in the matter.

6. Heard the learned Advocate General,

counsel for respondents 1 and 2 and counsel for

respondent No.3.

7. The writ petition came to be filed in the

nature of public interest litigation. The petitioners in

the writ petition questioned the Government Order

dated 3.3.2017 not on the ground that it violates the

Supreme Court directions issued to the concerned

Deputy Commissioner to deal with unauthorised

constructions, but on the ground that the installation

of bust of the seer at the entrance of Mysuru would

not serve any useful purpose. On the contrary, the

petitioners in the writ petition claimed that as a tribute

to the last prince of Yadu Dynasty of Mysuru, it would

be better to install the bust of Shri Srikantadatta

Narasimharaja Wodeyar. Therefore, what emerges

from the records is that the petitioners have filed the

writ petition under the garb of public interest

litigation. Though, the petitioners in the writ petition

have contended that the bust of Shivarathri Rajendra

Mahaswamy, cannot be installed in a public place and

the Mysuru Mahanagara Palika is not authorised to

install any bust in any public place, in the alternate,

have sought to install the bust of Srikantadatta

Narasimharaja Wodeyar.

8. Be that as it may, as pointed out by the

learned Advocate General, the Government has

constituted a District Level Committee to review the

disputed public places. The question as to whether

the existing Gun House Circle is on the road or

whether the said Circle and platform attached to it

pre- existed the orders of the Apex Court needs to be

examined by the District Level Committee. The

question as to whether the proposed installation of

bust of Shri Shivarathri Rajendra Mahaswamy. is

permissible and further it leads to encroachment of

public place has to be reviewed by the District Level

Committee. It is in this background, we are inclined

to interfere with the order under challenge. If the

Government has already constituted a District Level

Committee we would deem it fit to leave to the

concerned Competent Authorities to take appropriate

measures and find out whether the proposed

installation of bust is permissible in terms of the

directions of the Apex Court. The learned Advocate

General has tried to impress upon the Court that the

installation of the bust is not on the unauthorised

public place which violates the directions of the Apex

Court.

9. In order to ensure strict compliance of the

directions issued by the Apex Court, the District Level

Committee shall look into the proposal and ensure

that the directions issued by the Apex Court are not

violated. While examining the claim of the State

Government in regard to installation of bust of Shri

Shivarathri Rajendra Mahaswamy, the Committee

shall afford reasonable opportunity to respondents 1

and 2. It is open for respondents 1 and 2 to place all

relevant materials in support of their contention.

For the foregoing reasons, we pass the following

ORDER

The review petition is allowed. The District Level

Committee shall examine the proposal of the State

Government to install the bust of Shri Shivarathri

Rajendra Mahaswamy at Gun House Circle. The

District Level Committee shall strictly adhere to the

directions issued by the Apex Court in

SLP.No.8519/2006 and take appropriate measures

strictly in terms of the directions issued by the Apex

Court in the judgment cited supra.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

*alb/-