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    W.P.14051 Of 1999

    Decided On, 31 May 1999

    At, High Court of Karnataka


    For the Appearing Parties: Ashok Haranahafli, D.O.Kotresh, Advocates.

Judgment Text


( 1 ) THE limited controversy in these petitions is whether the writ petition was admitted and pending before this court in terms of Section 95 of the kar vivad samadhan scheme, 1998 so as to entitle the petitioner to file the declaration and claim the benefit under the said scheme. The scheme came into force on 1-9-1998 and was in force till 31-12-1998 and thereafter extended by another one month. The petitioner filed the writ petition in this court on 16-12-1998. On 31-12-1998, Rule was issued in view of the urgency of the matter. The last date under kar vivad samadhan scheme was at that time 31-12-1998. It was specifically mentioned in the order that the Rule is issued to facilitate the petitioner to file the declaration under the karvivad samadhan scheme, 1998. Maintainability of the said writ petitions were kept open. A clarification was issued by the central government in exercise of the power under Section 96 of the scheme that proof of admittance, or where in any court there is no such procedure of admittance, the proof of issue of a notice to the respondent in a writ, special leave petition or a civil appeal by the competent court is to be insisted in cases where such petitions etc. , are claimed as admitted and pending in a court at the time of making a declaration under the scheme. Learned counsel for the petitioner submits that there is no procedure for admitting the writ petition in this court and only the Rule nisi is issued on the preliminary hearing and thereafter only the writ petition is to be decided on merit. For admission under the high court rules, there is no such procedure. Attention is drawn to the Provisions of Section l (p) of the High Court of Karnataka rules, 1959, in chapter ii where the following definition is given; " (p) "to admit a case" means to decide to issue notice to respondent or direct issue of notice to respondent after preliminary perusal of papers or preliminary hearing under the Provisions of order 41, Rule 11 of the Code of Civil Procedure or Section 421 of the Code of Criminal Procedure or any other like provision of any other law for the time being in force. The words "admission", "for admission" or similar expressions shall be construed accordingly. Where upon such preliminary perusal or hearing the court decides not to issue notice, the case is said to be dismissed summarily;" Rule 12 of the Karnataka high court writ proceedings, 1977 provides that every writ petition after it has been admitted to register shall be posted before the appropriate bench for preliminary hearing.

( 2 ) LEARNED standing counsel for the department has pointed out that the Rule is to be issued only when the court is satisfied that a prima facie case has been made out. If it finds that the petitioner prima facie does not raise any triable issue, it has to be dismissed in limine as has been held in the case of Union of India and another v S. P. Anand and others.

( 3 ) I have considered over the matter. Normally, Rule nisi is issued by the court when a prima facie case is made out for granting relief in the petition. The respondents are called upon to show cause as to why such relief should not be granted. At that stage there must be an application of mind though ex parte after perusal of the various documents and the Provisions of law by which the judge of the court is satisfied to issue the Rule nis. Petition may be dismissed on the ground of alternative remedy or may be decided on merits or some other orders be passed. But what is contemplated by Rule nisi is that there should be application of mind. The interim order dated 31-12-1998, specifically shows that the learned judge has not applied his mind. It may be that the writ petition could have been entertained or decided on merit and in that case, the declaration filed could have been considered. In this case, ultimately, the writ petitions were dismissed as not maintainable. It was the application of mind at that stage. The order dated 31-12-1998 clearly shows that the question of maintainability of the writ petition was left open. In these circumstances, it could not be said that there was applicability of mind even at preliminary hearing of the matter in respect of the maintainability of the writ petition. Though in the first line of the order it is mentioned that the parties were h

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eard, but that appears to be only for the purpose of enabling the petitioner to file the declaration and about the maintainability of the writ petition. In these circumstances, assuming that this court has no practice of admitting the writ petition as stated by the learned counsel for the petitioner, it cannot be said that the issue of notice in accordance with the clarification would entitle the petitioner for the benefit of Rule nis. Petition having no force is accordingly dismissed.