Smt Rasika H Rai vs The State Of Karnataka
2022 Latest Caselaw 8768 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF JUNE 2022

                      PRESENT

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

                           AND

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI


     WRIT APPEAL NO.411 OF 2022 (KLR-RES)

BETWEEN:

1 . SMT. RASIKA H RAI
    AGED 70 YEARS
    W/O A HARSHA V RAI

2 . SMT RAMYA H SHETTY
    AGED 42 YEARS
    D/O A HARSHA V RAI

3 . SRI A PARIKSHIT
    AGED 36 YEARS
    S/O A HARSHA V RAI.

4 . SRI A SANTHOSH V RAI
    AGED 72 YEARS
    S/O LATE B L N RAI

  ALL ARE RESIDING AT
  MANGALADEVI ROAD
  MANGALURU-575 001.
                                     ...APPELLANTS

(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)
                          -2-




AND:

1.     THE STATE OF KARNATAKA
       REP. BY ITS SECRETARY,
       DEPARTMENT OF REVENUE,
       M S BUILDING
       BENGALURU-560001

2.     THE ASSISTANT COMMISSIONER
       MANGALURU SUB DIVISION
       2ND FLOOR, MINI VIDHANA SOUDHA BUILDING,
       MANGALORE-575001

3.     THE TAHSILDAR
       MANGALURU TALUK
       MINI VIDHANA SOUDHA BUILDING
       MANGALURU-575001

4.     THE ASSISTANT COMMISSIONER
       HINDU RELIGIOUS AND CHARITABLE ENDOWMENT
       DEPARTMENT
       MINI VIDHANA SOUDHA BUILDING
       MANGALURU-575001

5.   MAHATHOBHARA SHRI MANGALADEVI TEMPLE
     BOLAR MANGALURU-575001
     REP. BY ITS MANAGING TRUSTEE
                                    .....RESPONDENTS
(BY SRI. H.R. SHOWRI, AGA FOR R-1 TO 4
    SRI. K.N. PHANINDRA, SR. ADVOCATE FOR
    SMT. VAISHALI HEGDE, ADVOCATE FOR R-5)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 20.04.2022 PASSED BY
THE LEARNED SINGLE JUDGE IN WP No-18372/2021
CONSEQUENTLY QUASH THE ORDER DATED 22.07.2021
PASSED    BY   THE    2ND   RESPONDENT/ASSISTANT
COMMISSIONER MANGALURU IN PROCEEDINGS No.A.Dis
LND PDR 257/2021/E-143542 (ANNEXURE-A).
                                 -3-



     THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., DELIVERED
THE FOLLOWING:

                          JUDGMENT

This is an intra court appeal filed challenging

the order dated 20.4.2022 passed in

W.P.No.18372/2021.

2. Brief facts leading rise to the filing of this

appeal are as under :

The appellant has filed the writ petition seeking

for a writ of certiorari to quash the order dated

22.7.2021 passed by respondent No.2-Assistant

Commissioner vide Annexure-A to the writ petition.

2.1. It is contended that because of the

impugned order in the writ petition, access to the

appellant's property is curtailed and easementary

right of the appellants is violated. Hence, filed a writ

petition.

2.2. The writ court after hearing the parties

passed the order holding that the impugned order

enclosed to the writ petition shall be subject to

easementary right of the appellants, if any, over the

property and reserved liberty to the appellants to

establish their right before the Civil Court. Hence, the

appellants aggrieved by the same, have filed this writ

appeal.

3. Learned counsel for the appellants submits

that the appellants have filed an application for

amendment of the writ petition before the writ court.

The writ court without passing any order on the

application has proceeded to pass the impugned

order. He submits that the writ appeal may be

disposed of reserving liberty to the appellants to

challenge the order passed by respondent No.1 dated

2.1.2021 as per Annexure-K enclosed to the writ

petition before the appropriate forum.

4. Learned Senior Counsel Sri K N Phanindra,

appearing for respondent No.5 submits that the

appellants have already filed a suit in

O.S.No.356/2022, which is pending for consideration.

He submits that the right of the appellants over the

property shall be subject to the outcome of the

aforesaid suit. Hence, prays to dispose of the writ

appeal.

5. Heard and perused the records and

considered the submissions of the learned counsel for

the parties.

6. The writ court considering the pendency of

the suit in O.S.No.356/2022 filed by the appellants

has recorded a finding that whether easementary

right of the appellants is effected by the act of the

Government or not is in dispute and the writ court

cannot examine the same. Admittedly, the appellants

have filed a suit in O.S.No.356/2022. The appellants

have to establish their right in the said suit. The writ

court has rightly observed that the proper forum for

the appellants to establish their right is before the

jurisdictional Civil Court.

6.1. The appellants have filed the application for

amendment of the writ petition. The writ court

without passing any order on the said application has

proceeded to pass the impugned order. However, the

finding recorded by the writ court is legal and we do

not find any infirmity in the impugned order.

7. Accordingly, we proceed to pass the following

order :

ORDER

The writ appeal is dismissed; However, liberty is

reserved to the appellants to challenge the order

passed by respondent No.1 dated 2.1.2021 vide

Annexure-K, enclosed to the writ petition, if so

advised.

All the contentions of the parties are kept open.

In view of the dismissal of appeal, pending

applications do not survive for consideration and are

accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

rs