Karnataka High Court
Smt. Sharadamma (Deceased) By L.Rs. vs Bangalore Development Authority And ... on 22 October, 1997
Equivalent citations: AIR1998KANT265, ILR1997KAR3175, 1998(1)KARLJ345, AIR 1998 KARNATAKA 265, (1997) ILR (KANT) 3175 (1998) 1 KANT LJ 345, (1998) 1 KANT LJ 345
ORDER
1. The property in question is a site bearing No. 3 situated in Gokul I Stage, I Phase, Yeshwanthpur, Bangalore measuring East to West 60' and North to South 40'. This site was allotted to one Muniyappa, husband of Sharadamma, the mother of the petitioners herein on 29-3-1971 by the then City Improvement Trust Board (hereinafter referred to as the 'Board'). The allottee Muniyappa requested the Board to transfer the site in question in the name of his wife Sharadamma and accordingly the site was transferred in the name of Sharadamma and possession certificate was also issued on 20th May, 1971 as per Annexure-A. Some persons tried to illegally build sheds and interfere with her possession of the site in question and therefore Sharadamma filed O.S. No. 1121 of 1971 in the Court of the Munsiff, Bangalore against L. Rama Reddy, Anjanappa, Subadra Bai, City Improvement Trust Board, Appaswamy, Y. Krishonoji Rao, Shivaji and Tukaram for permanent injunction and for mandatory injunction for demolition of the sheds unauthorisedly constructed on the site. The said suit was decreed on 18-1-1977 as per Annexure-B.
2. In the meanwhile, Subadra Bai who was defendant 3 in the said suit had sold this site to H.B. Nagesh Rao-respondent 2 herein on 24-2-1972. The possession certificate was also issued in his name by the Board on 20-8-1975. Respondent 2-H.B. Nagesha Rao filed O.S. No. 5446 of 1980 on the file of the learned XIV Additional City Civil Judge, Bangalore against Sharadamma, Muniyappa, Subadra Bai and Bangalore Development Authority for declaration and permanent injunction. That was filed on 7-9-1978. The said suit was decreed by the Civil Court on 13-9-1988 as per Annexure-E, Sharadamma, the mother of the petitioners herein and her husband Muniyappa filed R.F.A. No. 109 of 1989 before this Court against the said decree and the petitioners herein were brought on record as the L.Rs. of Sharadamma and Muniyappa in the said appeal.
3. The prayer of the petitioners in this petition are as follows:
(i) issue a writ, order or direction in the nature of certiorarl, or any other appropriate writ or order or direction, quashing the allotment dated 20-8-1975, in Annexure-C and the resolution dated 2-3-1973, Annexure-D cancelling the said site as illegal, ultra vires, unconstitutional, void and as offending the rules of natural justice;
(ii) consequently, to declare that the decree obtained in O.S. No. 5446 of 1980 (Annexure-E) by the second respondent as unconstitutional.
4. The only two contentions urged on behalf of the petitioners by the learned Counsel for the petitioners are that before cancellation of the site allotted in favour of Muniyappa, he ought to have been heard by the Bangalore Development Authority. The site in question was allotted to respondent 2 herein without hearing the earlier allottee viz., Muniyappa or his wife Sbaradanima. Hence, the Memo Annexure-C and the extract of the proceedings of the meeting of the Board dated 2nd May, 1973-Annexure-D are liable to be quashed. He has relied upon the judgment of the Supreme Court in Swadeshi Cotton Mills v Union of India .
5. The Memo Annexure-C produced in this petition was marked in the O.S. No. 5446 of 1980 as Ex. P-4 and Annexure-D was marked as Ex. P-35.
6. This Court has recorded a finding in Regular First Appeal No. 109 of 1989 as follows:
'Having sought for an alternative site and an alternative site was reconveyed and allotted in his favour in exchange for the suit site on his own application made to the CITB as per Ex.P-32, the appellants now cannot contend that the cancellation of the earlier allotment was done without the knowledge of late second respondent. When the second defendant himself voluntarily surrendered the earlier allotment and filed an authority and sought for alternative allotment, now it is too late for the appellants to question the cancellation and allotment made in favour of the plaintiff'.
The second defendant in the said suit was Muniyappa. Thus, it is clear that on the civil side a finding is recorded holding that Muniyappa, the allottee of the site in question voluntarily surrendered the site in question and filed an affidavit before the authority viz., B.D.A. and sought for alternative allotment. When he voluntarily surrendered the site, the question of hearing him by the authority before cancelling the allotment of the site made in his favour did not arise.
7. The other contention of the Counsel for the petitioners is that the site in question was given to respondent 2 herein without hearing Muniyappa the original allottee or Sharadamma, his wife. When Muniyappa had voluntarily surrendered the site in question and thereafter if it is allotted in favour of respondent 2 herein by the Bangalore Development Authority, the question of hearing the earlier allottee does not arise. In the circumstances, it is difficult to accept the contention of the learned Counsel for the petitioners and it cannot be accepted at all.
8. The other prayer in this petition is to declare that the decree obtained in O.S. No. 5446 of 1980 (Annexure-E) by the second respondent as unconstitutional. The decree in the said suit was passed on 13-9-1988, by the 14th Additional City Civil Judge, Bangalore. Against the said decree R.F.A. No. 109 of 1989 was filed by Sharadamma and Muniyappa represented by their L.Rs. and this Court has dismissed the said appeal on 1st August, 1997 and confirmed the decree passed by the learned 14th Additional City Civil Judge in the said suit. Thus, the decree passed by the 14th Additional City Civil Judge, Bangalore has merged in the decree passed by this Court in R.F.A. No. 109 of 1989 and the said decree does not survive for declaring it as unconstitutional.
9. Moreover, under Article 226 of the Constitution of India, this Court cannot nullify the decrees passed by the Civil Courts of competent jurisdiction. The power under Article 226 of the Constitution of India cannot be exercised by the High Court to nullify the decrees passed by the Civil Courts of competent jurisdiction and this power is not meant for declaring the decrees passed by the Civil Courts of competent jurisdiction as unconstitutional. If the High Court exercises the power under Article 226 of the Constitution of India and nullify the decrees passed by the Civil Courts of competent jurisdiction, it amounts to usurping the powers of the Appellate Court to which the appeal lies against the said decree. When the Civil Court of competent jurisdiction passes a decree in a suit, it cannot be said that the same is unconstitutional.
10. Hence, the prayer of the petitioners, in this petition, to declare the decree obtained in O.S. No. 5446 of 1980 (Annexure-E) by the second respondent as unconstitutional cannot be granted and the petition filed by the petitioners is, therefore, liable to be dismissed and accordingly, it is dismissed.