Karnataka High Court
Sri Dr Mallikarjuna Kundgol vs The State Of Karnataka on 23 May, 2022
Bench: Krishna S Dixit, P.Krishna Bhat
-1-
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF MAY, 2022
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
WRIT APPEAL NO. 100292 OF 2021 (GM-RES)
C/W
WRIT APPEAL NO. 100293 OF 2021 (GM-RES)
WA NO. 100292/2021
BETWEEN:
SRI. DR YASIN KHAN
S/O. AHAMED KHAN PATHAN,
AGED ABOUT 45 YEARS, JANATHA CLINIC, RESIDING
AT NO.4 BHUSAPPA CHOWK, RAVANAKPUR ONI,
BEHIND MASJID, HOYSALAPURA ROAD,
DHARWAD-580001
...APPELLANT
(BY SRI. PRAKASHA M, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY, HEALTH
DEPARTMENT, VIKASA SOUDHA,
BENGALURU- 560 001.
JAGADISH
TR
Digitally signed by
JAGADISH T R
Date: 2022.05.26
11:12:15 +0530
-2-
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
2. THE DEPUTY COMMISSIONER
AND CHAIRMAN OF REGISTRATION COMMITTEE, FOR
K.P.M.E. DHARWAD - DISTRICT DHARWAD-580001.
3. THE COMMISSIONER
COMMISSIONERATE HEALTH AND FAMILY WELFARE
SERVICES, 5TH FLOOR, AROGYA SOUDHA, 1ST
CROSS, MAGADI ROAD, BENGALURU- 560023
4. THE DISTRICT HEALTH AND FAMILY WELFARE
OFFICER
AND MEMBER SECRETARY OF REGISTRATION
COMMITTEE OF K.P.M.E. DHARWAD- DISTRICT
DHARWAD - 580001.
5. THE DISTRICT AYUSH OFFICE AND MEMBER
SECRETARY, K.P.M.E. COMMITTEE, DHARWAD -
DISTRICT DHARWAD-580001.
6. THE INDIAN MEDICAL ASSOCIATION SECRETARY
AND MEMBER,K.P.M.E. COMMITTEE DHARWAD
DISTRICT, DHARWAD-580001.
...RESPONDENTS
(BY SRI.G.K. HIREGOUDAR, GOVT. ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO SET
ASIDE THE ORDER DATED 25.10.2021 PASSED BY THE
LEARNED SINGLE JUDGE IN WP.NO.104000/2021 C/W. WP
NO.103240/2021 (GM-RES) AND ALLOW THIS APPEAL, IN THE
INTEREST OF JUSTICE.
IN WA NO. 100293/2021
BETWEEN:
SRI. DR. MALLIKARJUNA KUNDGOL
S/O. SRI. FAKKIRAPPA KUNDGOL,
-3-
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
AGED ABOUT 52 YEARS,
DHARWAD-580001
...APPELLANT
(BY SRI. PRAKASHA M, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY, HEALTH
DEPARTMENT, VIKASA SOUDHA,
BENGALURU- 560 001.
2. THE COMMISSIONER
COMMISSIONERATE HEALTH AND FAMILY WELFARE
SERVICES, 5TH FLOOR, AROGYA SOUDHA,
1ST CROSS, MAGADI ROAD, BENGALURU-560023.
3. THE DEPUTY COMMISSIONER
AND CHAIRMAN OF REGISTRATION COMMITTEE FOR
KPME, DHARWAD DISTRICT-580001.
4. THE DISTRICT HEALTH AND FAMILY WELFARE
OFFICER
AND MEMBER SECRETARY OF REGISTRATION
COMMITTEE OF K.P.M.E. DHARWAD- DISTRICT
DHARWAD - 580001.
5. THE DISTRICT AYUSH OFFICE AND MEMBER
SECRETARY, K.P.M.E. COMMITTEE, DHARWAD -
DISTRICT DHARWAD-580001.
6. THE INDIAN MEDICAL ASSOCIATION SECRETARY
AND MEMBER,K.P.M.E. COMMITTEE DHARWAD
DISTRICT, DHARWAD-580001.
...RESPONDENTS
(BY SRI.G.K. HIREGOUDAR, GOVT. ADVOCATE)
-4-
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO SET
ASIDE THE ORDER DATED 25.10.2021 PASSED BY THE
LEARNED SINGLE JUDGE IN WP.NO.104003/2021 C/W. WP
NO.103678/2021 (GM-RES) AND ALLOW THIS APPEAL, IN THE
INTEREST OF JUSTICE.
THESE APPEALS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, KRISHNA S DIXIT J., DELIVERED THE
FOLLOWING:
JUDGMENT
Both these appeals arise from the orders of the
learned Single Judge, whereby substantive relief was
denied to the appellants on the sole ground of suppressi
veri, in limine. In fact, the impugned orders do not reflect
that there was any consideration of the contentions of the
writ petitioners on merits.
2. After service of notice, learned Government
Advocate appearing for the respondents, vehemently
opposes appeals making submission in justification of the
impugned orders. He contends that writ jurisdiction is
more equitable in nature, and therefore, persons knocking
at the doors of the writ Court have to come with "clean
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
hands, clean heads and clean hearts." Thus, having not
happened, indulgence of the appellate Court is not
warranted, contends the counsel placing reliance on the
decision of the Apex Court in Udayami Rvam Khadi
Gramodyog Welfare Samsthe Vs. State of Uttar
Pradesh, 2008 (1) SCC 560 wherein paragraph-16 has
been profitably reproduced below:
"a writ remedy is an equitable one. A person
approaching a superior court must come with a
pair of clean hands. It not only should not
suppress any material fact, but also should not
take recourse to legal proceedings over and
over again which amounts to abuse of process
of law."
3. Having heard the learned counsel for the parties
and having perused the appeal papers, we are inclined to
limit the indulgence in the matter, as under and for the
following reasons:
a) Relief that was sought for in the said writ
petitions, was on the basis of Section 5 of the
Karnataka Private Medical Establishment Act,
2007 (hereinafter, 'Act'); ordinarily, requests
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
for consideration of the claim under this
provision are favourably considered by the writ
Court since prayer is for "an order to pass
orders" on the subject applications and nothing
more than that.
b) Learned Single Judge at para-6 of the
impugned orders has observed, as under:-
"In W.P.No.103240/2021, an emergent
notice had been issued by the aforesaid
order dated 7.9.2021. It is suppressing the
said petition as also the emergent notice
that W.P.No.10400/2021 has been filed.
This is a sharp practice resorted to by the
petitioner by suppressing the earlier
petition and the orders passed therein,
more so, when one of the orders under
challenge in W.P.No.103240/2021 is also
under challenge in W.P.No.10400/2021."
The above observations are arguably may be true.
However, they cannot constitute a sufficient ground for
denying the innocuous relief sought for in the petitions.
c) It has been settled position of law that 'Doctrine
of proportionality' now is a part of our legal
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
system vide Coimbatore District Central Co-
operative Bank Vs. Comibatore District
Central Co-operative Bank Employees
Association & Another, (2007) 4 SCC 669;
Constitutional Courts cannot be harsh
disproportionately to the arguable guilt of the
litigants, thus, there is an error apparent on the
face of the record warranting indulgence of the
appellate Court for setting the injustice at
naught.
In the above circumstances, these appeals succeed in
part; the impugned orders of the learned Single Judge are
set at naught; both the writ petitions are remanded for
consideration afresh on merits, all contentions having been
kept open.
However, the levy of costs by the learned Single
Judge being justified and the said costs having already
been remitted, no interference in that regard is called for;
WA No. 100292 of 2021
C/W WA No. 100293 of 2021
however, that shall not reflect on the merits of matter in
remand.
All pending applications pale into insignificance in
view of disposal of the main matter itself.
Costs made easy.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
