Dismissed

Mohammed Zaheer S/O Abdulla Sab Jalegar v. the Deputy Commissioner

Karnataka HC9 Sept 2024WP/147679/2020

Case brief

AI extract

What is this about?

Petitioner challenged notices to hand over a Government Urdu school to the Municipality. Court found the petition non-bona fide as it sought to revive an earlier dismissed plea, noting the school had shifted to new land. Petition dismissed with a cost penalty.

What did the court decide?

Writ petition dismissed; petitioner saddled with cost of Rs. 1,00,000/- payable to Chief Minister's Relief Fund.

Mohammed Zaheer S/O Abdulla Sab Jalegar Vs the… — Education and Admissions | Karnataka HC (2024)

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NC: 2024:KHC-D:12849 WP No. 147679 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

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WRIT PETITION NO.147679 OF 2020 (EDN-RES)

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BETWEEN:

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MOHAMMED ZAHEER S/O. ABDULLA SAB JALEGAR, AGE: 52 YEARS, OCC: CARPENTER/AGRICULTURE, R/O: KOTEGERI ONI, HANGAL- 581 104, DIST: HAVERI.

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…PETITIONER

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(BY SRI D. L. LADKHAN, ADVOCATE)

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AND:

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THE DEPUTY COMMISSIONER, HAVERI DISTRICT, HAVERI.

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THE DEPUTY DIRECTOR, OF PUBLIC INSTRUCTIONS, HAVERI, DIST: HAVERI.

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THE BLOCK EDUCATION OFFICER, HANGAL, DIST: HAVERI.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka

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THE TOWN MUNICIPAL COUNCIL, HANGAL, REPRESENTED BY ITS CHIEF OFFICER, HANAGAL, DIST: HAVERI.

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…RESPONDENTS

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(BY SRI P.N.HATTI, HCGP FOR R1 TO R3; SRI SANTOSH B. MANE, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE ANY APPROPRIATE WRIT OR ANY APPROPRIATE ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI QUASHING THE NOTICE BEARING NO. E-5 Sa.Hi.Pra.U.Sha-NO.1/Ba.Ro.Ha/Ny/Pra.Ku/2020-21 DATED 31.08.2020 ISSUED BY RESPONDENT NO.3 VIDE ANNEXURE J. TO ISSUE ANY APPROPRIATE WRIT OR ANY APPROPRIATE ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI QUASHING THE NOTICE BEARING NO.E-5 Sa.Hi.Pra.U.Sha-NO.1/Ba.Ro.Ha/Ny/ Pra.Ku/2020 21 DATED 31.08.2020 ISSUED BY RESPONDENT NO.3

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VIDE ANNEXURE-K.3. TO ISSUE ANY APPROPRIATE WRIT OR ANY APPROPRIATE ORDER OR DIRECTION IN THE NATURE OF WRIT OF MANDAMUS DIRECTING RESPONDENT NO.3 TO CONSIDER THE REPRESENTATION OF PETITIONER DATED 31.08.2020 IN ACCORDANCE WITH LAW AND ETC.,

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THIS WRIT PETITION IS COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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Challenging memorandum dated 31.08.2020 at

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Annexures-J and K issued by respondent no.3 and seeking for writ of mandamus directing respondent no.3 to consider petitioner’s representation dated 31.08.2020 at Annexure-L, this writ petition is filed.

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Sri D.L.Ladkhan, learned counsel for petitioner submitted that respondent no.4 had passed resolution no.199 on subject no.4 dated 13.12.1998 on application dated 29.10.1998 filed by Principal Government Urdu Higher Primary Boys School. As per resolution, grant of alternative land belonging to Municipality and sufficient for construction of 10 rooms’ school was approved. It was submitted, respondent no.3 intending to close down Urdu Government School at Ranichannemma road to utilize said property for construction of commercial complex had passed resolution without any letter or request by such school. It was submitted, as local populace

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consisted of 50% Urdu speaking persons, there was need for Urdu school at Hangal. Therefore, a Urdu school was established and running in said place. In an appeal against resolution before Deputy Commissioner, Deputy Commissioner set-aside resolution, after a memo was filed on behalf of municipality that place where Government Urdu School was being run did not belong to them and there was no proposal for construction at that place.

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In view of order, respondent no.4 passed resolution dropping proposal to construct a commercial complex. It was submitted, against proposal for vacation of school, this petitioner along with others had filed W.P.no.60018/2010 challenging endorsement dated 09.12.2009 passed by respondent no.3. It was submitted, said writ petition was dismissed on account of absence of counsel for petitioner, by hearing counsel for respondent no.4 only. It was submitted, on 31.08.2020, Cluster Resource Person was deputed to handover school to Municipality as per notice at Annexure-J. Even Local Education Coordinator was also directed to handover possession of school building to Municipality. Contending that very purpose for shifting i.e. construction of commercial

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NC: 2024:KHC-D:12849 WP No. 147679 of 2020

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complex in land having been later dropped and fact that land on which Government Urdu School was being run, did not belong to respondent no.4/Municipality, present writ petition was filed assailing notices at Annexures-J and K.

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In statement of objections filed, respondent had stated that petitioner constructed new school building at place allotted by respondent no.4/TMC and which was running there and building constructed in property bearing nos.3196 and 3197 were already demolished and possession taken. They had further asserted that property bearing no.3198 belonged to PWD which was being used by said Department. Therefore, writ petition was filed by misrepresenting that structure on which school building was existing belonged to TMC and steps for illegal dispossession of school were being taken.

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In response, petitioner has filed affidavit on 24.07.2024 refuting assertions of respondent no.4 and to establish that Government Urdu School was being run at very place where it was being run earlier, GPS tagged photographs were produced along certificate issued by Head Master of School showing admission and attendance particulars of school.

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It was further submitted, as per Annexure-N2, respondent no.3 had directed Chief Officer, TMC, to verify whether property bearing nos.3196, 3197, 3199 and 3200 belonged to Government Higher Primary Urdu Boys School no.1 at Bajaar road. But later directed respondent no.4 to verify property on which school building was constructed.

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It was submitted, in meanwhile Government had come up with a policy for ensuring land on which schools were being run belonged to school or Education Department. In pursuance of same, information was furnished indicating that land on which Government Higher Primary Urdu School at Masanakatti was being run belonged to Education Department. It was therefore submitted, since dismissal of earlier writ petition was due to fact that counsel for petitioner had not appeared and respondent no.4 had not explained above circumstances before Court, decision rendered in W.P.no.60018/2010 did not bar petitioner from seeking relief in present writ petition.

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It was further submitted, respondent no.4 had passed resolution on subject no.10 stating that in case where

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NC: 2024:KHC-D:12849 WP No. 147679 of 2020

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Government/Semi Government schools were being run on property belonging to Municipality, steps ought to be taken for handing over of such properties to Education Department for purpose of school. It was submitted, said resolution also reinforced relief sought in present writ petition.

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On other hand, Sri P.N.Hatti, learned HCGP for respondent nos.1 to 3 sought to oppose writ petition. He submitted that petitioner was not a member of school and therefore, lacked locus-standi to approach this Court.

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Sri Santosh Mane, learned counsel for respondent no.4 also opposed writ petition. It was submitted, petitioner

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had earlier filed W.P.No.60018/2010 in which relief sought was for quashing of endorsement dated 09.12.2009 passed by respondent no.3, whereunder respondents had sought to vacate school as it was being run in dilapidated building. Taking note of fact that school was being run in a building which was in dilapidated condition, TMC had granted alternative land with permission to put up construction of new school building. This Court had refused to exercise jurisdiction and dismissed writ petition. In view of above, present writ petition challenging

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notices at Annexures-J and K, wherein, steps for taking over possession of land belonging to TMC were being questioned. It was submitted, subject matter of earlier writ petition would bar present writ petition on grounds of principles of res-judicata and constructive res-judicata. It was further submitted, order for taking over possession of school building was already given effect to as School building constructed on land belonging to TMC was demolished and possession was taken. Therefore, there was nothing survived for consideration in writ petition.

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Heard learned counsel and perused writ petition

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records.

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It is seen that, in this writ petition, petitioner is challenging Memorandum at Annexures-J and K issued by respondent no.3 directing Cluster Resource Person and Education Coordinator to take possession and handover possession of school building to Municipality. In this writ petition, petitioner has disclosed awareness about dismissal of earlier writ petition questioning order of shifting. Dismissal of same would constructively bar petitioner from questioning order for taking over possession and handing over of same to

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Municipality. Though, a dispute is sought to be espoused on ground that statement of respondent no.4 that school building was demolished and school was constructed in another place was not correct by relying on GPS tagged photographs and affidavit, it is seen from perusal of writ petition records that Government Urdu Higher Primary Boys School appears to have been earlier established and running on property no.3196, 3197, 3199 and 3200. In pursuance of resolution for shifting of said school, new land appears to have been allotted to school. As per Annexurs-R4 and R5/photographs, school appears to have been constructed and running at alternative place.

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A careful perusal of photographs appended to affidavit filed by Chief Officer, TMC dated 31.07.2024, would indicate that portion of school building constructed in property belonging to TMC, has been demolished. However, portion of school building constructed on land belonging to PWD continues to exist. Affidavit filed by petitioner along with GPS photographs to substantiate that school was still in existence appears to be area belonging to PWD. If said land was not belonging to TMC, TMC would have no grievance against petitioner and nor petitioner against TMC.

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In case, petitioner is aggrieved by order for shifting and vacation of school from land at Bajar road, same is not properly pleaded nor espoused in this writ petition. It is also to be noted several disputed questions of fact are sought to be mixed up with intention to suppress material facts and suggest falsehood. Resolution of TMC insofar as taking over of land on which school was being run belonging to TMC having already being given effect to, is sought to be revived after Education Department had taken a policy decision for securing unto school/Department, lands on which Government or semi Government schools were being established and run. Therefore same is apparently an afterthought.

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At this stage, it would be relevant to spell on petitioner’s locus-standi. Though, petitioner claims to be aggrieved by memorandum at Annexures-J and K, there is no clear assertion substantiating same. Therefore, it would have been appropriate to dismiss writ petition on said ground itself. But, fact that petitioner had earlier filed writ petition and same was dismissed on merits, prompted me to decide matter on merits of claim also. For aforesaid reasons, as present writ petition does not appear to be bona-fide, I deem it proper to

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NC: 2024:KHC-D:12849 WP No. 147679 of 2020

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saddle petitioner with cost. My conclusion about writ petition being not bona-fide, stands fortified by fact that petitioner’s earlier writ petition was dismissed and sore explanation that petitioner’s counsel was not present, would not be justifiable, even either in law or on fact.

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For aforesaid reasons, writ petition is dismissed by imposing cost of Rs.1,00,000/- payable by petitioner to Chief Minister’s Relief Fund within a period of six weeks.

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In case amount is not shown to be paid, a certificate shall be issued for recovery of same as arrears of land revenue from petitioner.

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Sd/(RAVI V.HOSMANI) JUDGE

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List No.: 1 Sl No.: 2

Mohammed Zaheer S/O Abdulla Sab Jalegar v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Mohammed Zaheer S/O Abdulla Sab Jalegar v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

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