M/S SANGAM SERVICE STATION v. SMT. H C LOKESHWARI., ADVOCATES)

Judgment

1. DIVISIONAL RAILWAY MANAGER, SOUTH WESTERN RAILWAYS, BANGALORE DIVISION, BANGALORE 560 009.

2. THE ESTATE OFFICER, SOUTH WESTERN RAILWAYS, BANGALORE DIVISION, BANGALORE 560 009. …PETITIONER …RESPONDENTS

(BY SRI. ARAVIND KAMATH., ASG A/W SRI. KUMAR M N.,C.G.S.P.C. ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT RECORDS. QUASH THE ORDER DTD. NIL PASSED IN CASE NO. B/W/274/2010 BY THE R-2 PRODUCED AT ANNX-A. THIS WRIT PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: LEELAVATHI S R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:31476 WP No. 5793 of 2022 CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition seeks quashing of the impugned order at Annexure-A passed by the 2nd respondent and for other reliefs.

2. Heard learned counsel for the petitioner and learned ASG for the respondents and perused the material on record.

3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that pursuant to the order at Annexure-N dated 26.02.2019 passed by this Court in W.P.No.51870/2016 filed by the petitioner against the respondents herein arising out of the instant proceedings, though neither the petitioner nor the 1st respondent filed any application nor made any request to the 2nd respondent, the 2nd respondent has proceeded to suo-moto pass the impugned order, which was neither warranted nor necessitated in the facts and circumstances of the case. It is therefore submitted that the impugned order at Annexure-A deserves to be set aside.

4. Learned ASG for the respondents would support the impugned order and submits that the same was passed pursuant - 3 - NC: 2024:KHC:31476 WP No. 5793 of 2022 to a memo dated 03.12.2019 along with documents filed by the respondent No.2 and as such, there is no merit in the petition and that the same is liable to be dismissed. It is also submitted that the aforesaid order passed by this Court in W.P.No.51870/2016 has been challenged by the 1st respondent in W.A.No.550/2024 which is pending adjudication before the Hon’ble Division Bench.

5. A perusal of the material on record will indicate that during the pendency of the instant proceedings before the 2nd respondent, the petitioner who is contesting the proceedings, filed an application under Order 11 Rule 14 CPC for a direction to the 1st respondent to produce certain documents. The said application having been opposed by the 1st respondent was dismissed by the 2nd respondent vide order dated 10.08.2016 which was assailed by the petitioner herein in W.P.No.51870/2016 which was allowed by holding as under:- “ Sri. A. Ravishankar, learned counsel for the petitioner. Sri. Vishnu Hegde, learned counsel for the respondent Nos. 1 and 2.

2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.

3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the - 4 - NC: 2024:KHC:31476 WP No. 5793 of 2022 validity of the order dated 10.08.2016 passed by the Estate Officer under the provisions of Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (hereinafter referred to as ‘the Act’ for short).

4. Learned counsel for the petitioner submitted that the husband of the petitioner had purchased the property in question some time in the year 1963-64. It is also submitted that earlier also, the proceedings for eviction against the husband of the petitioner were initiated by the respondents. However, by an order dated 03.01.2013, the aforesaid proceedings were terminated in favour of the husband of the petitioner as he was the owner of the premises in question. Since the petitioner, who is a widow, is not in possession of the aforesaid documents, therefore, she filed an application seeking a direction to the respondents to produce the record of the proceedings initiated against the husband of the petitioner under the provisions of the Act in No.3/73. The respondents filed a reply. The Estate Officer, however, vide impugned order inter alia held that the petitioner has failed to prove the necessity as well as relevancy of the said documents. It is submitted that the impugned order is erroneous and suffers from the vice of non-application of mind. The learned counsel respondents submitted that the respondents are not in possession of the documents in question. In any case, if the petitioner is aggrieved by the order passed by respondents under the Right to Information Act, 2002, the petitioner ought to have filed an appeal.

5. I have considered the submissions made by both the sides and have perused the record. From perusal of the - 5 - NC: 2024:KHC:31476 WP No. 5793 of 2022 communication dated 14.07.2016 issued by the respondents under the Right to Information Act, it is evident that the application submitted by the petitioner has been rejected on the ground that since the documents are more than 20 years, therefore, the respondents are exempted supplying the same under Section 8(3) of the Right to Information Act. The application filed by the petitioner under the said Act to obtain the aforesaid documents has not been rejected on the ground that the aforesaid documents are not available with the respondents. Even otherwise, the Estate Officer has not rejected the application preferred by the petitioner for production of documents on the ground that the same is not available with the respondents. The finding recorded by the Estate Officer that the documents have no bearing on the controversy involved in the proceeding is perverse and suffers from the vice of non-application of mind. The impugned order is therefore quashed and set aside and the application filed by the petitioner for production of aforesaid documents is allowed. Accordingly, the petition is disposed of.”

6. In pursuance of the said order, the 1st respondent filed a memo along with certain documents and the same were placed on record by the 2nd respondent, before whom the proceedings were pending adjudication. In this context, it is relevant to state that all rival contentions between the parties including the contention regarding drawing / non-drawing of inference / adverse inference against the 1st respondent in relation to production / non-production - 6 - NC: 2024:KHC:31476 WP No. 5793 of 2022 of the documents pursuant to this Court’s order in the aforesaid writ petition would necessarily lie in the realm of appreciation of evidence at the time of final disposal of the proceedings and not by way of yet another / one more interlocutory order, which was neither warranted nor necessitated in the facts of the instant case especially when neither party requested or called upon the 2nd respondent to pass any further order / directions pursuant to the order of this Court in the aforesaid writ petition. Under these circumstances, I am of the view that the 2nd respondent clearly misdirected himself and fell in error in passing a further / fresh impugned interlocutory order, which is impermissible in law warranting interference by this Court in the present petition.

7. Insofar as the contention urged by the respondents that the aforesaid order dated 26.02.2019 has been challenged in W.A.No.550/2024 is concerned, it is needless to state that even if the said appeal is allowed and the order dated 26.02.2019 is set aside by the Hon’ble Division Bench, the very basis / foundation for passing the impugned order would not survive any longer and viewed from this angle also, the impugned order deserves to the set aside. - 7 - NC: 2024:KHC:31476 WP No. 5793 of 2022

8. In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned order at Annexure-A passed by the 2nd respondent is hereby set aside. (iii) All rival contentions between the parties regarding drawing / non-drawing of inference / adverse inference against the 1st respondent are left / kept open to be decided at the time of final disposal of the proceedings and no opinion is expressed on the same. Srl. Sd/- (S.R.KRISHNA KUMAR) JUDGE