IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.41854 OF 2011 (GM RES) BETWEEN:
1. Sri.Ishwarappa Naik, S/o T.P.thammanna Naik, Aged: 63 years, Advocate, Joseph Nagara, Sagara, Shimoga Dist.-577 401.
2. Devaraj.H.V., S/o Veerabhadrappa Gowda, Age: 39 years, R/o.Heggattu Village, Anandapuram Hobli, Sagara Taluk.
(By Sri.Mahesh R Uppin, Advocate) AND:
State of Karnataka, By its Secretary, Vidhana Soudha, Bangalore-577 001.
(By Sri.D.R.Anandeeswar, HCGP) ... Petitioners … Respondent This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the respondent to receive the statutory notice dated 15.10.2011 marked as Annexure-A and acknowledge the same.
This Petition coming on for Preliminary hearing ‘B’ group this day, the Court made the following:
ORDER The present writ petition is filed for writ of mandamus directing the respondent to receive the statutory notice dated 15.10.2011 marked as Annexure-A and acknowledge the same.
2. It is the case of the petitioners that the first petitioner is an advocate practicing at Sagara Town. The second petitioner was holding sand mining lease in respect of the land measuring 6 acres situated on the banks of the river Sharavathi at Gijaga Village, Anandapur Hobli, Sagara Taluk. The said mining lease was cancelled before the expiry of its term illegally. The second petitioner challenged the said illegal termination of lease by filing W.P.No.12679/2011. This Court by the order dated 31.03.2011 had disposed of the writ petition by holding that the petitioner can seek damages by filing a petition against the State of Government and its department for the illegal premature termination of the lease.
3. It is further case of the petitioners that the second petitioner pursuant to the above order passed by this Court, has taken steps to file a civil suit for the recovery of the damages suffered by him because of illegal termination of the sand mining lease by the respondent. The second petitioner through his advocate i.e. first petitioner, got issued a notice under Section 80 of CPC to the respondent and another authority which is one of the statutory requirement for filing the civil suit.
4. It is further case of the petitioner that the first petitioner sent a copy of the said notice to the respondent by registered post with acknowledgment due twice. The said notice was properly addressed to the respondent but the respondent refused to receive the same by saying that the address mentioned therein is insufficient. Postal acknowledgment produced at Annexure-B. The action of the respondent in refusing to receive the said notice on the ground that address mentioned therein is insufficient is illegal. Being aggrieved by the same, petitioners have filed the present writ petition the relief sought for.
5. I have heard the learned counsel appearing for the parties to the lis.
6. Sri.Mahesh.R.Uppin, learned counsel appearing for petitioners reiterating the grounds urged in the writ petition, contends that as per Sub Section 1(C) of Section 80 CPC, the notice has to be issued on a Secretary to the Government, accordingly the petitioners have sent the notice on the respondent with the proper address but respondent has deliberately refused to receive the said notice by saying that the address mentioned therein is insufficient. The said action of the respondent is illegal. He further contended that the action of the respondent in not receiving the notice in question is arbitrary and is in violation of Section 80(1)(c) of CPC. Therefore, he prays for allowing the writ petition.
7. Per Contra, Sri.Anandeeswar, learned HCGP submits that the very writ petition filed by the petitioners for writ of mandamus directing the respondent to receive the statutory notice dated 15.10.2011 is not maintainable and liable to be rejected. He would further contend that the petitioner has not made out any legal enforceable protected right to issue writ of mandamus as prayed for. Therefore, he sought to dismiss the writ petition.
8. Having heard the learned counsel appearing for parties, it is clear that first petitioner is practicing advocate at Sagara Town. Second petitioner who applied for mining lease came to be terminated by the concerned authority. He filed writ petition in WP.No.12679/2011 and Division Bench of this Court had disposed of the writ petition on 31.03.2011 and has observed as under;
“ We leave it open to the petitioner to move an appropriate representation, depicting the loss suffered by the petitioner, so as to enable him to seek compensation (apart from the refund of the proportionate amount of the lease amount) from the concerned Senior Geologist (Mines). In case, such representation is made by the petitioner within one month from today, along with a certified copy of this order, the Senior Geologist (Mines), shall take a decision thereon, by passing a well-reasoned speaking order, within a period of two months from the date of receipt of the said representation, along with a certified copy of this order.”
It is also observed that if petitioner is dissatisfied with the compensation determined by respondent No.3, it shall be open to the petitioner to seek his remedy in accordance with law.
9. The cause title of the W.P.No.12679/2011 clearly shows first respondent as “State of Karnataka, represented by its Secretary (Mines and Geology), Department of Industries and Commerce, Vidhana Soudha, Bangalore-560 001.”
Unfortunately, while issuing notice under Section 80 of CPC, the second petitioner through first petitioner only addressed as “Secretary, State of Karnataka, Vidhana Soudha, Bangalore-1”. Hence, the postal acknowledgment returned as insufficient address.
10. The first petitioner being an advocate, aged about 63 years seems to be a Senior Advocate and he know how to address the respondent while issuing the notice when the very second petitioner was a party whose mining lease was terminated by the Geology department in WP.No.12679/2011 clearly depicts the address of the respondents. But while issuing the notice, he has not addressed the Secretary properly. It is very strange that if notice issued by second petitioner through first petitioner returned with an endorsement that insufficient address, they should have taken appropriate steps and issue fresh notice to the correct address. Instead of taking proper measure, first petitioner has not shown his institutional responsibility interest in discharging his duties towards second petitioner and tried to misinterpret Section 80(1)(C) of CPC. If the petitioners are aggrieved by any of the department, it is duty of the petitioners to correctly mention the concerned Secretary, that the second petitioner was aware that concerned Secretary is State of Karnataka, Represented by its Secretary, (Mines and Geology), Department of Industries and Commerce, Vidhana Soudha, Bangalore-560 001.” It is also duty of the first petitioner to discharge his professional duty to second petitioner and same has not been done in the present writ petition. The petitioners have not made out any statutory legal protected right to issue writ of mandamus directing the respondent without giving proper address. Hence this writ petition is not maintainable.
Accordingly, writ petition is dismissed.
Sd/- JUDGE SB