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1990 DIGILAW 9 (KAR)

A. KRISHNA RAO v. ASST. COMMISSIONER, D. K. MANGALORE

1990-01-05

M.P.CHANDRAKANTARAJ

body1990
CHANDRAKANTHARAJ, J. ( 1 ) PETITIONER's grievance in the Writ petition is imaginary. He is a purcha ser of certain immovable property situated on site No. 64 in what is des cribed as Katipalla Rehabilitation centre Lay-out. According to the sale deed, which is produced at Annexure 'b', the property is bounded on the south and west by public roads, on the north by site Nos. 61 and 62 and on the east by Site No. 41. Boundaries described clearly show the identity of the property though it is described as property standing on site No. 63. It is his case that his predecessor-in-title was allotted vacant site in Site No. 63 in the afore-mentioned lay-out and he built a house on the property measuring 121 cents in extent. But, one Narayana p'jjary third respondent herein raised objection, in that he had been allotted site No. 64 in the said lay-out and the original allottee of the property of the petitioner had wrongly constructed his house on site No. 64. In that circumstance, as enquiry was held by the assistant Commissioner on an application made by third respondent-Narayana pujary and found that Ijjappa Beary had constructed the house on site No. 64 of which he was not the aliottee and having regard to the fact that a building had already been constructed thereon, he recommended to the Deputy commissioner that the original allot ment may be interchanged between narayana Poojary and Ijjappa Beary by allotting site No. 63 to Narayana poojary and site No. 64 to Ijjappa Beary. As a result of the same, an order dated 13 8-1985 was passed by the Deputy commissioner which is impugned in this petition by the petitioner inter alia on the ground that he had not been heard and there is no such site as site no. 64 which could be allotted. It is convenient to deal with the second of the contentions in the light of the objections filed by the contesting respondents 3 and 4 as well as the records produced by the learned government pleader. This Court is left in no doubt the existence of site No. 64. The learned Government pleader has not only produced the Register of Sites in respect of Katipalla Rehabilitation centre Lay-out but also the layout plan. This Court is left in no doubt the existence of site No. 64. The learned Government pleader has not only produced the Register of Sites in respect of Katipalla Rehabilitation centre Lay-out but also the layout plan. It does contain site No. 64 as a corner site bounded on the south by public road as well as on the west by another public road. That clearly establishes that site No. 64 is a corner-site. In the register of Sites Allotment, which has been perused by the Court, clearly demonstrates that site No. 63 was allotted to Ijjappa Beary and Site No. 64 was allotted to Narayana Poojary. Undoubtedly, certain documents produced by the petitioner indicate that tax has been received by the concerned municipal authorities from the petitioner for property standing on site No. 63. Similarly while borrowing some financial assistance for construction of the house, property has been described as site No. 63. Those facts do not really alter the factual geographical existence of site No. 64. If the sale deed answers to the description of site No. 64 found in the sale deed in favour of the petitioner, then he cannot make a grievance that he is entitled to more than 12 cents conveyed to him by that deed. For understanding the bounaary description in the sale deed with reference to other records viz,, lay-out map as well as the register of Allotment of Sites, produced by the learned Government Pleader must be considered together. There is no doubt that site No. 64 is in exis tence in the lay-out and that was what was conveyed to the petitioner by the sale deed as at Annexure 'b', if the impugned order does no more than bring about an equitable arrangement so that the mistake committed by the predecessor-in-titie of the petitioner is rectified without loss to the petitioner, he cannot be said to be aggrieved. If site No. 64 has to be resumed on the ground that his vendor had occupied the wrong site, then the petitioner would have been in greatsr geopardy of losing life house he had purchased and ho would have been driven out because Site No 63 which, in the Register of Allotment of Sites, stands in favour of his predecessor-in- title. Therefore, Annexure 'f' by itself does not cause any grievance to the petitioner, but does correct a wrong that had been done to Narayana poojary, who had accepted the vacant site bearing No. 63 in lieu of site No. 64. When that is the position, it cannot be said that the petitioner was entitled to a hearing before at Annexure 'f' was passed. The opportunity for hearing was not possible for the apparent reason that the Assistant Commissioner and the Deputy Commissioner could not be presumed to have been aware of sale deed and they have gone apparent tly by the Register of Allotment of! sites and the other records available: to them. Therefore, question of issuing notice to the petitioner would not have factually arisen. It was however next contended by the learned Counsel Sri Holla for the petitioner that Annexure 'h' filedalong with his objections to I A. S, clearly indicated that Annexure 'f' stood superseded by Annexure 'h'. If that is so, no writ against non-existent document can be entertained and on this ground also, petition will have to be rejected. In the light of the facts already stated, petitioner is entitled to ignore annexure 'h , the authencity of which is questioned both by respondent-4 as well as the learned Government Pleader, if something beneficial has been done to the advantage of the petitioner, he need not have been heard despite reliance placed by the learned Counsel on the decision of the Supreme Court in the case of S. L. Kapovr v Jagmohan (AIR 1381 SC 136), which related to the need for hearing when a Municipal committee was superseded The ob servations relied upon appears in para 34 and is as follows :"the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not pre judiced. "from. the above, it is sought to be made out that whether a prejudice is caused or not the right to be heard, is implicit in all matters. It will comes from a person who has denied justice that the person who has been denied justice is not pre judiced. "from. the above, it is sought to be made out that whether a prejudice is caused or not the right to be heard, is implicit in all matters. That would be reading only first part of it, but with reference to rest of the observation which is extracted, it is only where justice has been denied, the fact of prejudice would enure to the benefit of the petitioner. When neither prejudice nor injustice is caused to the petitioner, he cannot derive support from the ruling of the Supreme Court. For the above reasons, it is not possible to give relief to the petitioner as prayed for. However, this Court may clarify that notwithstanding the confusion that has crept in by Annexure 'f', all records will stand suitably amended by the concerned authorities in accordance with that order. This Petition is disposed of when the matter came up for further orders by consent of Counsel for the parties and after hearing them. It is useful to point out before parting with this case that Article 226 can only be pressed into service to meet ends of justice and not to defeat the same. Petition is dismissed subject to the observations. Petition dismissed. --- *** --- .