Karnataka High Court
Sri S N Simha vs The Commissioner on 16 April, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2018
BEFORE:
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION Nos.19183 - 19185/2015 (LB - BMP)
BETWEEN:
1. SRI S.N.SIMHA
S/O LATE G.R.SWAMY,
AGED ABOUT 81 YEARS,
R/O NO.16, 1ST CROSS,
KICCAIAH LANE,
COTTONPET MAIN ROAD,
BANGALORE-560053
2. SRI P.SHANKARAPPA
S/O PALLAPPA,
AGED ABOUT 79 YEARS,
R/O NO.15, 1ST CROSS,
KICCAIAH LANE,
COTTONPET MAIN ROAD,
BANGALORE-560053
3. SMT.K.RAJALAKSHMI
W/O SRI K.VENKATESHWARA
RAO CHOWDARY
AGED ABOUT 55 YEARS,
R/O NO.15, 1ST CROSS,
KICCAIAH LANE,
COTTONPET MAIN ROAD,
BANGALORE-560053 ... PETITIONERS
[BY SRI R.SUBRAMANYA, ADV. FOR SRI SANDEEP S. PATIL,
ADV.]
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AND:
1. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE, BANGALORE-560002
2. THE ASSISTANT EXECUTIVE ENGINEER
CHIKPET SUB DIVISION,
BRUHAT BANGALORE MAHANAGARA PALIKE,
BANGALORE-560023
3. Mr. NISSAR AHMED
S/O LATE MOHAMMAD FAKRUDDIN,
AGED ABOUT 50 YEARS,
R/O NO.1/1, 3RD CROSS,
PSK LANE, COTTON PET,
BANGALORE-560053 ...RESPONDENTS
[BY SRI V.SREENIDHI, ADV. FOR R-1 & R-2;
SRI G.JANARDHANA, ADV. FOR R-3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT THE R-1 & 2 TO CONSIDER AND TAKE IMMEDIATE
ACTION ON THE REPRESENTATIONS OF THE PETITIONERS
DATED 17.03.2015, 17.03.2015, 18.03.2015, 18.03.2015,
20.03.2015, 20.03.2015, 11.04.2015, 11.04.2015, 13.04.2015
PRODUCED HEREWITH VIDE ANNEXURE-C TO C8
RESPECTIVELY.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
Petitioners have sought for a direction to respondents No.1 and 2 to consider and take immediate action on the representation of the petitioners at Annexures-C to C8 to the writ petition and a direction to the respondents No. 1 and 2 to remove/demolish the unauthorized and illegal construction put up by respondent No.3 on the conservancy lane inter alia seeking to restrain the 3rd respondent from encroaching/or putting up construction on the conservancy lane in future.
2. Learned counsel for the petitioners has filed a memo seeking withdrawal of the writ petition in view of the subsequent developments viz., removal of the unauthorized construction put up by 3rd respondent in the conservancy lane, by respondents No. 1 and 2- BBMP. However, learned counsel for the 3rd respondent submitting his arguments on IA-1/2018 -4- filed by respondent No.3 seeking directions to respondents No.1 and 2 not to demolish the building in question as well as IA-2/2018 for permission to put up construction of premises No.3/1, PSK Lane, III cross, Cottonpet, Bengaluru pending disposal of the writ petition had objected for the withdrawal of the writ petition by the petitioners and sought for an order against the petitioners and respondents No.1 and 2 for committing abuse of process of law.
3. Learned counsel for the 3rd respondent vehemently argued that the petitioners and respondent Nos.1 and 2 suppressing the material facts, behind the back of this respondent obtained an order in W.P.No.53507/2013 on 28.11.2013 whereby this court recording the submissions made on behalf of respondents No.1 and 2 that the illegal constructions made on the property in question would be removed by 29.11.2013, disposed of the writ petition. Thus, it is -5- submitted that the 3rd respondent was oblivious of this proceeding before this court. It is the contention of 3rd respondent that his father had preferred O.S.No.127/1985 against 1st respondent seeking for a decree of permanent injunction against Corporation restraining it from interfering with plaintiffs' peaceful possession and enjoyment of the suit property (property in question). The said suit has been decreed and has reached finality, further confirmed by the letter of 2nd respondent addressed to the Circle Inspector of Police, Cottonpet on 22.11.2013 inasmuch as the property in question belonging to 3rd respondent. An application was filed before this court (IA-1/2018) on 2.4.2018 to direct respondents No.1 and 2 not to demolish the construction (structure) put up by 3rd respondent. In view of the demolition of the same by respondent No.2, highhandedly, seeks permission to put up residential building thereon, until the disposal of the writ petitions on merits. Thus, the arguments are two-fold. Firstly, -6- writ petitions are not maintainable as interse civil dispute between the petitioners and 3rd respondent relating to the property in question cannot be resolved in the writ jurisdiction. Secondly, respondents No.1 and 2 acted highhandedly sans any order of this court to demolish the property in question which tantamounts to abuse of process of court calling for serious action against respondents No.1 and 2. Hence, the rights of the 3rd respondent who is enjoying the property in question as an absolute owner cannot be disturbed at the instance of the petitioners. It is submitted that no notice was issued before demolishing the structure in the property in question and despite resistance, the structures have been demolished affecting the valuable rights of the 3rd respondent. Accordingly seeks for permission to put up construction of a residential building in the property in question i.e. Site No. No.3/1, PSK Lane, III cross, Cottonpet, Bengaluru. In support of his arguments learned counsel for 3rd respondent -7- placed reliance on the judgment passed in Pasupuleti Venkateswarlu -v- The Motor and General Traders reported in AIR 1975 SC 1409 and M/s Ram Chand and Sons Sugar Mills Private Ltd., Barabanki (U.P) - v- Kanhayalal Bhargava and others reported in AIR 1966 SC 1899.
4. Learned counsel appearing for respondents No.1 and 2 stoutly objecting to the arguments of the learned counsel for the 3rd respondent submitted that the said respondents have acted in compliance with the order of this court in W.P.No.53057/2013 dated 28.11.2013. Several notices were issued to respondent No.3 but the same having not been accepted, it was affixed on the property in question and thereafter the unauthorized and illegal construction put up by 3rd respondent in the conservancy lane has been removed. Reliance has been placed on Section 288-D(a) of the Karnataka Municipal Corporations Act, 1976 ['Act' for -8- short] in support of his contention that no notice is required for removal/demolition of unauthorised illegal structure made in the public place.
5. Learned counsel appearing for the petitioners would submit that the purpose of filing these writ petitions having been achieved by removal/demolition of the illegal structure, writ petitions do not survive for consideration. It is submitted that the order dated 28.11.2013 passed in W.P. No.53057/2013 was very well within the knowledge of 3rd respondent, however, the same not being challenged, has reached finality. If so, 3rd respondent cannot raise a grouse against the petitioners and the respondents No.1 and 2 alleging abuse of process of court in suppressing the material facts. Reliance is placed on the Judgment of this court in K.Vasudeva and others -v- The Corporation of City of Bangalore and others reported in ILR 2001 -9- Karnataka 4973, confirmed by the Division Bench by order dated 13.9.2001.
6. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and perused the material on record.
7. Petitioners are the master of their case. It is not a public interest litigation to object for the withdrawal of the writ petitions. The order of this court dated 28.11.2013, where 3rd respondent was a party to the proceedings has reached finality. The present petition was filed on 29.4.2015 and statement of objection has been filed by 3rd respondent on 15.6.2016. Even after filing the statement of objections, no challenge is made by 3rd respondent to the order of this court dated 28.11.2013 if, aggrieved by the said order. As argued by the learned counsel for the 3rd respondent, complex nature of factual dispute cannot be resorted to, exercising the writ jurisdiction. It is the
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contention of respondent No.3 that by virtue of the injunction order granted by the trial court in O.S.No. 1247/1985 no interference can be made by respondents No.1 and 2 with the peaceful possession and enjoyment of the property in question. It is apt to refer to the schedule of the said O.S.No.1247/1985. The schedule of the property shown in the plaint is as under:
SCHEDULE The property bearing No.3(1) P.K.Lane, Cottonpet, Bangalore - 560 053.
8. Suit is decreed against 1st respondent in respect of the said schedule property. No boundaries are depicted in the plaint schedule. Unless the boundaries are shown to the schedule property, it is difficult to identify the property. Such being the position, no credential value could be given to the order of injunction in operation relating to the suit schedule property. The arguments advanced on this point cannot be countenanced.
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9. As regards the allegation of abuse of process of law by respondents No.1 and 2 as well as the petitioners, it is wholly misconceived. If there was any denial of natural justice in the order dated 28.11.2013 of this court, appropriate steps would have been initiated for modification of the order or for issue of notice before removing/demolishing the structure in the property in question. It is the contention of the petitioners that respondent No.3 had illegally and unauthorisedly constructed the structures in conservancy lane. Section 2(31) of the Act defines public street which unequivocally includes passage or conservancy. Passage is a public street. Respondents No.1 and 2 are empowered to take suitable action for encroaching upon the public street in terms of Section 288-D(a) of the Act. Such illegal or unauthorized construction may be removed by the respondent - Authorities without even issuing notice. Documents are placed on record by respondents No.1 and 2 to establish
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that indeed notices were issued but on denial of acceptance, the same was affixed on the structure. It is not in dispute that respondent No.2 has demolished the structure in the property in question on 3.4.2018. In such circumstances, the relief claimed in the writ petition having been achieved nothing survives for consideration. The 3rd respondent is at liberty to seek redressal of his grievance by the action of 2nd respondent, if any, in resorting to appropriate proceedings in accordance with law. However, the same cannot be examined notwithstanding the scope of the writ petition filed by the petitioners claiming certain reliefs. Even considering the arguments of the learned counsel for 3rd respondent, these writ petitions are liable to be dismissed.
10. It is significant to note that the prayer of the 3rd respondent in IA-2/2018 is specific, to direct respondents No.1 and 2 to permit the petitioners to put
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up construction in the property in question during the pendency of the writ petitions and the relief claimed indicates, it is during the pendency of the writ petitions. The petitioners not being interested to prosecute further, the relief claimed in the application by 3rd respondent cannot be considered, albeit writ petitions are liable to be dismissed.
11. In the case of M/s Ram Chand and Sons Sugar Mills Private Ltd.'s case (supra) the Hon'ble Apex Court while considering the scope of the inherent power of the court under Section 151 of the Code held that whatever limitations are imposed by construction on the provisions of s.151 of the Code, they' do not control the undoubted power of the court conferred under s. 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. It is not in dispute inasmuch as the scope and power of the court under Section 151 of the Code, respondent No.3
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referred to this Judgment to invite the attention of the court to exercise the power under Section 151 of the Code to prevent the alleged abuse of process of the court by respondent Nos.1 and 2 as well as the petitioner. As discussed in the preceding paragraphs this court is not convinced by the contention of the 3rd respondent regarding the alleged abuse of process of court by respondent Nos.1 and 2 and the petitioner. In these circumstances, the said Judgment would not render any assistance to respondent No.3.
12. In the case of Pasupuleti Venkateswarlu's case (supra) the Hon'ble Apex Court has held that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact
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on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. This Judgment was rendered in the context of a landlord losing a marathon forensic battle, as a result of the subsequent development of the landlord coming into possession of the proceedings of the other shops, the High court dismissed not only the Civil Revision Petition but also of the eviction petition. This Judgment would not be taken in support to consider the subsequent developments of removing/demolishing the unauthorized structure by the respondent No.3.
13. In the case of K.Vasudeva and others' case (supra) this court has held that conservancy lane is a public street in terms of Section 2(31) of the Act. Therefore, the legislation have conferred power upon the Corporation under the provisions of Section 288(D) of
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the Act to remove encroachment of the public street by any person without issuance of notice, conferment of this power upon the Corporation is in the public interest. This Judgment has been confirmed by the Division Bench of this court which is squarely applicable to the facts of the present case wherein the structures erected in the conservancy has been removed by the respondent Nos.1 and 2. Section 244-D is applicable and the action of the respondent Nos.1 and 2 is in the public interest and cannot be held to be unjustifiable.
14. In the circumstances, the judgment referred to by the learned counsel for the petitioners would be applicable whereby it is held that no notice for removal of illegal/unauthorized structure in the conservancy lane-public street is necessary in view of Section 288- D(a) of the Act. Indisputably the alleged illegal structures in the property in question being already
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removed, again permitting the petitioners to construct the residential building in the disputed property would not be appreciable, such relief is wholly misconceived. In view of the demolition of the illegal structure, IA- 1/2018 does not survive for consideration. Similarly IA- 2/2018 deserves to be dismissed for the reasons aforesaid. Hence, the following:
ORDER
1. Writ petitions stand dismissed as withdrawn in terms of the memo filed by the petitioners;
2. Applications IA-1/2018 and 2/2018 filed by respondent No.3 stand dismissed with liberty to the 3rd respondent to resort to appropriate proceedings in accordance with law for the redressal of the grievance, if any, if so advised.
Sd/-
JUDGE ln.