Judgment:
Shivaraj Patil, Actg. C.J.
1. Heard the learned counsel for the parties.
2. At the outset, the learned counsel for the parties submitted that on the previous occasion, this Court directed the writ petition to be posted with an understanding that the writ petition itself will be heard on merits, as the writ appeal was directed against the order passed by the learned single Judge dismissing the writ petition in the absence of the learned counsel for the writ petitioners and refusing to restore the writ petition. The learned counsel submitted that this writ petition may be heard on merits.
3. Having regard to the submissions of the learned counsel for the parties, the writ appeal is allowed and the order of the learned single Judge under appeal is set aside and we took the writ petition for consideration of merits, as requested by the learned counsel for the parties.
4. In the writ petition, the petitioners have questioned the validity and correctness of the notice in Na. Ka. No. 573/C/91 dated 10-9-1991issued by the 1st respondent. In the said notice, the petitioners were informed that they had made an encroachment and the same should be removed within 15 days and in default, appropriate proceedings would be initiated for removal of the encroachment.
5. The learned counsel for the writ petitioners contended that the 1st respondent/Board, after making allotment of the site, had no jurisdiction to issue the impugned notice asking the petitioners to remove the encroachment; after the allotment was made, if the parties had any grievance, it was open to them to approach the Civil Court; since the notice issued by the Board itself was one without jurisdiction, they filed the writ petition for the relief.
6. The learned counsel for the contesting 3rd respondent submitted that the husband of the 1 st writ petitioner bad filed the suit O.S. 10398 of 1987 for permanent injunction and that suit was dismissed and the judgment and decree passed by the trial Court were then confirmed by the First Appellate Court. The matter was taken to this Court in second appeal against the order and the cross-objections were also filed. They were also dismissed. In the result, the dismissal of the suit made by the trial Court against the writ petitioners was confirmed. Under the circumstances, the 1st respondent-Board was justified in issuing the impugned notice.
7. We have considered the submissions made by the learned counsel for the parties. We find that the writ petitioners, instead of giving explanation to the impugned notice and urging all the contentions that are available to them, have rushed to this Court by filing the writ petition. It was open to the writ petitioners even to raise the question of jurisdiction of the Board in issuing the impugned notice. The learned counsel for the 3rd respondent submitted that the petitioners, having lost in all the forums, have filed this writ petition. As to the question whether the Board could consider even the representation or reply of, if any, given by the petitioners, he said that it is open to the Board to consider the same. Under those circumstances, we do not think it necessary to state on the merits of the contentions raised by the learned counsel or the contesting parties one way or the other. It is enough if we direct the writ petitioners to approach the Board by filing reply to the impugned notice within two weeks from today raising all the available contentions. It is equally available to the contesting 3rd respondent to resist such reply that may be filed by the petitioners on all the grounds available to him. In case the petitioners file a reply or representation to the notice issued by the 1st respondent-Board within two weeks from today, the Board shall consider such representation on merits and in accordance with law dealing with all the contentions that may be raised, but after giving opportunity of hearing to the petitioners as well as the contesting 3rd respondent. The writ petition is disposed of accordingly. No costs. Consequently, C.M.P. No. 12407 of 1998 is dismissed.