Karnataka High Court
Naveen S/O Shrikant Chitragar vs The Hubli-Dharwad on 30 May, 2024
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RSA No. 100256 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100256 OF 2016 (DEC/INJ-)
BETWEEN:
NAVEEN S/O SHRIKANT CHITRAGAR,
AGE: 72 YEARS, OCC: BUSINESS,
RESIDENT OF H.NO.162/M,
VIDYARANYA HIGH SCHOOL ROAD,
HEBBALLI AGASI, DHARWAD.-580004.
...APPELLANT
(BY SRI A.P.MURARI, ADVOCATE)
AND:
1. THE HUBLI-DHARWAD
MUNICIPAL CORPORATION,
REPRESENTED BY ITS
COMMISSIONER, HDMC OFFICE,
DHARWAD.-580008.
2. SRI A.K.IJANTKAR,
Digitally signed AGE: ABOUT 60 YEARS, OCC: BUSINESS,
by SAROJA R/O: KOPPADKERI, DHARWAD-580008.
HANGARAKI
Location: HIGH 3. SRI A.D.IJANTKAR,
COURT OF AGE: ABOUT 55 YEARS, OCC: BUSINESS,
KARNATAKA
DHARWAD R/O: KOPPADKERI,
BENCH DHARWAD-580008.
DHARWAD ...RESPONDENTS
(BY SRI G.I.GACHCHINMATH, ADVOCATE FOR R1,
SRI H.R.BENTUR, ADVOCTE FOR R2 AND R3)
THIS RSA FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 16.02.2016 PASSED IN
R.A.NO.124/2013 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
DHARWAD, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE IN O.S.NO.774/2010 DATED 08.08.2013
PASSED BY THE III ADDITIONAL CIVIL JUDGE (JR.DN.) DHARWAD,
DISMISSING THE SUIT AND TO DECREE THE SAID SUIT.
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RSA No. 100256 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by the plaintiff
under Section 100 of the Code of Civil Procedure, 19081
challenging the judgment and decree dated 16.02.2016
passed in R.A.No.124/2013 by the Court of Principal
Senior Civil Judge and CJM, Dharwad2 and the judgment
and decree dated 08.08.2013 passed in O.S.No.774/2010
by the III Additional Civil Judge (Junior Division) and
JMFC, Dharwad,3 whereunder, the suit for declaration and
injunction filed by the plaintiff has been dismissed by the
Trial Court and the dismissal has been affirmed by the
First Appellate Court.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of
convenience.
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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3. The relevant facts necessary for consideration
of the present appeal are that, the plaintiff made an
application to defendant No.1 for allotment of the suit
property i.e., portion of CTS No.67/MN (earlier CTS
No.66/MN) measuring 1800 sq. ft. The defendant No.1
by resolution bearing No.614 dated 07.07.2010 has
proposed to the Government to allot the land to
defendant Nos.2 and 3. Being aggrieved, the plaintiff
filed a suit for declaration to declare that, the said
resolution bearing No.614 dated 07.07.2010 is illegal and
not binding on the plaintiff and for permanent injunction
to restrain the defendant No.1-Corporation from allotting
the land to the defendant Nos.2 and 3.
4. The defendants entered appearance in the said
suit and contested the same. The trial Court after
recording the evidence by its judgment and decree dated
08.08.2013 dismissed the suit filed by the plaintiff,
holding inter alia that, the plaintiff has failed to prove the
averments made in the plaint regarding the merger of
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CTS No.66/MN with 67/MN. Further it is held that, the
defendant No.1/Corporation has no authority to sell the
Corporation property without prior permission of the
Government and in the present case, the
recommendation was made to the Government to grant
the open space in CTS No.67 to defendant Nos.2 and 3
and there is no material on record to show that, the
Government has granted permission. Hence, the Trial
Court recorded a finding that, the suit is not maintainable
and dismissed the suit.
5. Being aggrieved, the plaintiff preferred RA
No.124/2013 before the First Appellate Court. The
defendants entered appearance in the said appeal and
contested the same.
6. The First Appellate Court upon a re-appreciation
of oral and documentary evidence on record, framed four
points for consideration. While answering the said points,
the First Appellate Court has affirmed the finding of the
Trial Court and further held that, there is no document
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produced by the plaintiff to show that, CTS No.66 is
merged with CTS No.67. It has been further held that, the
defendant No.1-Corporation has no authority to sell the
Corporation property and that only a recommendation
made to the Government to grant the open space to
defendant Nos.2 and 3 and there is no material placed
before the Court to demonstrate that, the Government
has granted permission. Being aggrieved by the dismissal
of the appeal the present second appeal is filed by the
plaintiff.
7. Learned counsel for the appellants submit that,
the property in question in respect of which, the suit filed
is admittedly public property and the defendant No.1-
Corporation is required to auction the land and follow the
procedure in accordance with law in terms of Section 126
of the Karnataka Municipal Corporation Act4. Hence, he
seeks for allowing the appeal and granting of the relief as
sought for.
Hereinafter referred to as the 'Act'
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8. Per Contra, learned counsel for the defendant
No.1-Corporation submits that, the appellant/ plaintiff has
no locus-standi to file the suit and the defendant No.1 is
merely a recommending authority. He further submits
that, the trial Court has rightly appreciated the factual
matrix of the matter and dismissed the suit of the
plaintiff, which dismissal has been rightly affirmed by the
First Appellate Court. Hence, he seeks for dismissal of the
appeal.
9. The submissions made by both the learned
counsel have been considered and the materials available
on record have been perused.
10. It is clear from the above mentioned fact
situation that, the appellant/plaintiff had made an
application for allotment of a site from the defendant
No.1-Corporation. The defendant Nos.2 and 3 were also
applicants for the said site. The defendant No.1 by its
resolution bearing Nos.614 dated 07.07.2010 has
recommended the Government to allot the same to
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defendant Nos.2 and 3. As is forthcoming from the
material on record, the said recommendation has not yet
been acted upon by the State Government and no orders
has been passed with regard to the same. In any event
merely because, the appellant/ plaintiff made an
application for grant of the site, the same will not
tantamount to a vested right to entitle the plaintiff to file
a suit seeking for the relief of declaration. The trial Court
has rightly appreciated the oral and documentary
evidence on record and dismissed the suit of the plaintiff.
The first appellate Court has adequately re-appreciated
the entire aspect of the matter and rightly upheld the
judgment and decree passed by the trial Court. The
appellant/ plaintiff has failed in demonstrating that the
concurrent findings recorded have been recorded without
considering any specific material available on record and
is in any manner erroneous.
11. The respondent No.1 being a public authority is
required to conduct its activities in accordance with law
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including with regard to the allotment of property.
Further, as rightly noticed by the Trial Court and First
Appellate Court, the defendant No.1 does not have any
power to allot property and is merely a recommending
authority and the power of allotting the property is vested
with the State Government.
12. In view of the aforementioned, no interference
is warranted in the present second appeal. It is open to
the appellant/plaintiff to call in question any action done
by the State Government-defendant No.1-Corporation, if
the same is found to be in violation of any established
procedure which is required to be followed in allotment of
the sites.
With these observations, the above appeal is
disposed of.
Sd/-
JUDGE
PJ
CT:GSM
