Karnataka High Court
Smt Kausalya vs The Secretary on 20 September, 2023
Bench: Chief Justice, Krishna S Dixit
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WA No. 670 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 670 OF 2023 (LB-BMP)
BETWEEN:
SMT. KAUSALYA,
AGED ABOUT 25 YEARS,
W/O SRI G RAJA,
NO.24, 2ND CROSS, JANATHA COLONY,
HALEGUDDADAHALLI,
BENGALURU-560 025.
...APPELLANT
(BY SRI. SAMAKSH SOOD.,ADVOCATE)
AND:
Digitally signed 1. THE SECRETARY
by SHARADA JANAKALYAN FOUNDATION,
VANI B
JANAKALYANA FOUNDATION SOCIAL
Location: HIGH
COURT OF SERVICE ORGANIZATION,
KARNATAKA REGISTERED UNDER THE SOCIETIES
REGISTRATION ACT, 1960,
HAVING IRS OFFICE AT.
NO.1, 1ST FLOOR, 1ST MAIN ROAD,
HEBBAL-BINNY MILL ROAD,
GANGANAGAR EXTENSION,
R T NAGAR POST,
BENGALURU-560 032,
REP BY ITS SECRETARY,
MINTU DUBEY,
AGED ABOUT 46 YEARS.
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WA No. 670 of 2023
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
HUDSON CIRCLE,
BENGALURU-560 002.
3. BRUHAT BENGALURU MAHANAGARA PALIKE
REP BY JOINT COMMISSIONER(WEST),
BASHYAM CIRCLE PARK,
SOUTH CENTRAL STREET,
SHESHADRIPURAM,
BENGALURU-560 003.
4. THE ASSISTANT EXECUTIVE ENGINEER(SWM)
BRUHAT BENGALURU MAHANAGARA PALIKE,
CHAMRAJPET DIVISION,
BENGALURU-560 018.
...RESPONDENTS
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO A)SET ASIDE THE
ORDER DATED 27/03/2023 PASSED BY THE LEARNED SINGLE
JUDGE IN WP NO.5620/2023 AND B)PASS ANY OTHER RELIEFS
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court Appeal seeks to lay a challenge to
the order dated 27.03.2023 whereby a learned Single
Judge of this Court having favoured W.P.No.5620/2023
filed by the 1st Respondent herein has quashed the Work
Order dated 13.02.2023 granted in favour of the Appellant
herein. He has permitted the Writ Petitioner to continue
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"the operation of the pay for use toilet without
interference from respondents..."
2. Learned counsel appearing for the Appellant
seeks to falter the impugned order on the grounds that:
there was an arbitration clause in the arrangement and
therefore, Writ Petition could not have been entertained;
the Respondent - BBMP had entered into the MOU with the
Appellant after discontinuing the Writ Petitioner on fault
ground; lastly, the action that was impugned in the Writ
Petition was taken after issuing notice to the Writ
Petitioner and therefore, there was no violation of
principles of natural justice.
3. Having heard the learned counsel for the
Appellant and having perused the Appeal papers, we
decline indulgence in the matter for the following reasons:
a) Firstly, punitive action against the First
Respondent - Society could not have been taken without
giving a reasonable opportunity of participation in the
proceedings that resulted into the subject MOU and
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issuance of Work Order. Therefore, learned Single Judge
is justified in faltering the said action on the ground of
violation of principles of natural justice which are
sacrosanct in any civilized jurisdiction. The contention
that the Writ Petitioner was issued with a notice may be
true. However, learned Single Judge after examining the
original file that was called for, has entered a finding as to
lack of opportunity and we see no reason to dislodge the
same. After all, whether one single notice in the fact
matrix of the case was sufficient, has been duly examined
in the Writ Petition and the said finding has been recorded.
b) The second contention that the Writ Petitioner
had an alternate & equally efficacious remedy of invoking
the arbitration clause and therefore, the learned Single
Judge ought not to have interfered in the Petition, does
not much impress us. The Apex Court in GODREJ SARA
LEE LTD., vs EXCISE AND TAXATION OFFICER 2023
OnLine SC 95 has observed that the availability of
alternative remedy does not operate as an absolute bar to
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WA No. 670 of 2023
the 'maintainability' of a writ petition and that the rule,
which requires a party to pursue such remedy provided by
a statute, is a rule of policy, convenience and discretion
evolved by the judiciary rather than a rule of law.
Therefore, in all cases one cannot press into service the
doctrine of alternate remedy as the China Wall against the
invocation of writ jurisdiction.
c) The learned Single Judge in the operative
portion of the order has observed as under:
"...
(iii) Liberty is however reserved to the
respondent No.1 to 3 to initiate such proceedings
as may be advised by invoking arbitration clause
under the agreement between the parties."
Therefore, it is not that the order of the learned Single
Judge has closed all windows. It is open to the Appellant
to make an appropriate representation to the BBMP
seeking invocation of the arbitration clause in the fitness of
things. If such a representation is made, the same shall
be considered within a reasonable time, hardly needs to be
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stated. In that connection, all contentions are also kept
open.
In the above circumstances and with the above
observations, this Writ Appeal is disposed off.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Snb/
