Yaseen Abbas Shaheb Mamdapur vs Jt. Director of Town Planning, Dharwad Division and Others

D.V. Shylendra Kumar, J.—Writ jurisdiction is not akin to appellate jurisdiction. More so a further appeal u/s 4 of the Karnataka High Court Act, 1961, providing for an appeal against the decision of a single bench, which is rendered in the exercise of original jurisdiction of the High Court. The present appeal is by the petitioner in W.P. No. 25180 of 2002, who, it appears, had proposed a plan to the town planning authority, Dharwad division to develop an extent of 5 acres 12 guntas of land within the municipal limits of Talikote town to be used for residential purpose and for formation of house sites. It is the case of the petitioner-appellant that the planning authority approved the plan, but during the implementation the third respondent-municipal council is not prepared to give effect to this plan to its entirety and it is not permitting the appellant to utilize an extent of 12 guntas of land from out of this land for the purpose of carving out residential sites. It appears, on the other hand, the municipal council has passed a resolution dated 29-8-2000 not to permit such user by the appellant and it is in this background the appellant had approached this Court seeking for issue of a writ in the nature of mandamus or writ in the nature of certiorari, as the case may be, in the following terms:

a) A writ in the nature of mandamus directing the third respondent municipality, Talikote to permit the petitioner to utilize the entire 5 acres 12 guntas of land for the formation of house sites as per the plan approved by the 1st and 2nd respondents vide Annexure-F;

b) A writ in the nature of certiorari to quash the resolution dated 29-8-2000 passed by the third respondent municipality vide Annexure-H as it was passed without authority of law;

c) Such other writ or orders or direction as this Hon''ble Court deems fit under the facts and circumstances of the case.

The learned single Judge, who examined this matter after issue of notice to the respondents, disposed of the writ petition at the preliminary hearing stage and after noticing the objection on behalf of learned counsel for the municipal administration that even the identity of 12 guntas of land is not possible, in view of the full development etc., that it is open to the writ petitioner to pursue the matter before the third respondent-municipality and after going through the process of proper surveying and even thereafter if the outcome of all that exercise is not to the advantage or liking of the writ petitioner, it is open to the writ petitioner to take the matter before civil Court in a properly instituted suit etc.

It is this order of the learned single Judge which is questioned in this appeal.

Appearing on behalf of the appellant, submission of Sri Srinivas, learned counsel, is that the learned Single Judge has not assigned any reasons, much less proper reasons, for denying relief to the writ petitioner as sought for in the writ petition; that when the municipal administration itself had approved the plan on being satisfied that it is in conformity with the development plan for developing any area within the planning zone, the municipal body should not have acted at variance or at cross-purpose of such decision with the planning body; that its refusal to approve the proposal of the appellant to form residential sites in the 12 guntas of land amounts to disobedience or disregard of the order passed by the planning authority; that the matter warrants interference in this appeal.

For a good measure, learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and Brothers, and has drawn our specific attention to paras-9, 12, 20 etc. Submission based on this judgment is that every order should be a reasoned order and the order passed by the learned Single Judge suffers from this malady.

We would not like to either examine or comment upon the order passed by the learned Single Judge, as in our considered opinion, the order cannot be taken to be an order adverse to the interest of the petitioner-appellant, but more in favour of the petitioner-appellant.

Be that as it may, on an independent examination of the relief sought for, we find neither a writ of mandamus can be issued, as this Court will not exercise its writ jurisdiction to compel one public authority to act as per the order passed by another public authority or any independent authority and a writ of certiorari also cannot be granted, as a resolution passed by a municipal council, which is comprising of elected representatives, cannot be made subject-matter for issue of a writ of certiorari.

Even otherwise, we find there is no occasion for this Court to issue a writ of mandamus, as what the planning authority done was only approval of the plan in general and if there is further requirement of the details of the plan and in its implementation, it is to be scrutinized by the municipal body and its approval also to be elicited, it is an independent aspect and it cannot be said that the disinclination on the part of the municipal body amounts to disregard of the order passed by the planning authority.

Sri Manavendra Reddy, learned Government advocate, who appears for the first respondent, also points out that there are many disputed aspects and in fact it is precisely for this reason, a mandamus cannot be issued.

In the instant case, we do not find any right in favour of the appellant. Secondly, there are several disputed aspects and even otherwise, we do not find any illegality on the part of any authority warranting issue of a writ of certiorari. In any view of the matter, we find no occasion either to interfere in appellate jurisdiction u/s 4 of the Act. Even if the writ petition is examined independently, it is one which deserves to be dismissed, it matters little as to for what reason the learned Single Judge declined to grant relief. We do not find applicability of the judgment of the Supreme Court relied upon by the learned counsel for the appellant to a situation of this nature, as the said decision was rendered in a statutory revision petition arising out of a special enactment. Writ appeal dismissed.