Karnataka High Court
Mohammed Rafiq S/O Mehaboobsab Talawai vs The Commissioner on 28 November, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1 WA No.100071/2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
WRIT APPEAL No.100071 OF 2018 (LB-RES)
BETWEEN:
MOHAMMED RAFIQ
S/O MEHABOOBSAB TALAWAI
AGE: ABOUT 45 YEARS,
OCC: BUSINESS,
R/O: HORAKERI ONI,
DALIMBER PET,
OLD HUBBALLI, HUBBALLI,
TQ: HUBBALLI,
DIST: DHARWAD.
... APPELLANT
(By Sri. P.H.GOTKHINDI AND SRI.A A PATHAN ADVS.)
AND:
1. THE COMMISSIONER
THE HUBLI DHARWAD MUNCIPAL CORPORATION,
HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD.
2. THE DEPUTY DIRECTOR
TOWN PLANNING, HDMC,
HUBBALLI, TQ: HUBBALLI,
2 WA No.100071/2018
DIST: DHARWAD.
3. THE ASSISTANT COMMISSIONER
ZONE 10 HDMC, HUBBALLI,
TQ: HUBBALLI,
DIST: DHARWAD.
4. SHRI.SHARANABASAYYASWAMY
S/O CHANDRASHEKHARAYYA SWAMY,
HIREMATH,
AGE: 48 YEARS,
OCC: PRIVATE SERVICE,
R/O: UMASHAKER NAGAR,
1ST MAIN, "A" CROSS,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI,
NOW R/AT: HUBBALLI,
TQ: HUBBALLI,
DIST: DHARWAD.
... RESPONDENTS
(By Sri. SANTOSH.B.RAWOOT ADV. FOR C/R4;
SRI.G.I.GACHCHINAMATH ADV. FOR R1 TO R3)
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO CALL
FOR THE RECORDS AND SET ASIDE THE IMPUGNED
ORDER DATED 28.02.2018 DISMISSING THE WRIT
PETITION No.108382/2017 [LB-RES] AND FURTHER BE
PLEASED TO QUASH THE IMPUGNED ORDER PASSED BY
THE LEARNED V ADDL. DISTRICT AND SESSIONS JUDGE,
DHARWAD, SITTING AT HUBBALLI IN MISC. APPEAL
No.12/2017 DATED 31.07.2017, ALLOWING RESPONDENT
NO.4 TO COME ON RECORD IN THE SAID APPEAL
PENDING BEFORE HIM IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
3 WA No.100071/2018
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The legality and correctness of order dated 28.02.2018 passed in Writ Petition No.108382/2017 [LB-RES] is called in question in this appeal.
3. We have heard the learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
4. Briefly stated the facts are that respondent No.4 had complained against the appellant herein in respect of construction being put up by the appellant. On the basis of the said complaint, respondent-Municipal Corporation initiated action under Section 321 of the Karnataka Municipal Corporations Act, 1976 4 WA No.100071/2018 (hereinafter referred to as 'the Act' for the sake of brevity). A provisional order was made which was followed by a confirmatory order. Being aggrieved by the order passed under Section 321(3) of the Act, the appellant filed an appeal under Section 443-A of the Act before the appellate authority, being the District Court, in Miscellaneous Appeal No.12 of 2017. In the said proceeding, respondent No.4 herein filed an application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short) seeking impleadment. By order dated 31.07.2017, learned District Judge permitted impleadment in the said proceedings. Being aggrieved by that order, the appellant filed writ petition assailing the same. Learned Single Judge has dismissed the writ petition by holding that there was no merit in it by affirming the order passed by the learned District 5 WA No.100071/2018 judge in the aforesaid Misc.Appeal. It is against the said order, this appeal has been filed.
5. Learned counsel for the appellant contended that although respondent No.4 may be a complainant, he is neither a necessary nor a proper party in the appellate proceedings in Misc. Appeal before the District Court. That on the complaint made by the 4th respondent, respondent-Corporation initiated action under Section 321 of the Act. That is a matter between the Corporation and the appellant herein, so as to ascertain as to whether there is any violation of the building bye-laws or any other infraction committed by the appellant in the construction activity carried out by him. In the instant case, the Corporation passed the provisional order under Section 321(2) of the Act and thereafter, passed the order under Section 321(3) of the Act which is the confirmatory order. Being aggrieved by the 6 WA No.100071/2018 confirmatory order, the appellant filed Misc. Appeal before the appellate authority, which is the District Court, under Section 443-A of the Act. In that proceeding, respondent No.4 sought to implead himself which was impermissible but nevertheless was permitted to be impleaded.
6. In support of his contentions, learned counsel for the appellant placed reliance on three orders of this Court in the case of (i) K.A.MATHEW Vs. S.RAMESH AND OTHERS, KCCR 2016 (2) 1076; (ii) CHANDRAPPA Vs. GARUDACHALA ASSOCIATES PRIVATE LIMITED AND OTHERS, KCCR 2015 (4) 3932; (iii) SHRINIVAS KONGOVI Vs. SMT.VIJAYA KUMARI SHANMUGAM AND OTHERS, 2017 KLJ (5) 101. Learned counsel contended that having regard to the ratio in the aforesaid orders, the learned District judge ought to have dismissed the application for impleadment and therefore, the 7 WA No.100071/2018 said order as well as the order of the learned Single Judge may be set aside.
7. Per contra, learned counsel for respondent No.4 contended that in N.ANANTHA REDDY Vs. ANSHU KATHURIA, reported in (2013) 15 SCC 534, impleadment has been permitted. Though, the same is in a suit for declaration and perpetual injunction, nevertheless, the ratio of the said judgment is squarely applicable in the present case. He further relied upon (i) UDIT NARAIN SINGH MALPAHARIA Vs. ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR AND ANOTHER, AIR 1963 SC 786; (ii) RAMESH HIRACHAND KUNDANMAL Vs. MUNICIPAL CORPORATION OF GREATER BOMBAY AND OTHERS, 1992 (2) SCC 524, which have been referred to in the orders relied upon by the learned counsel for the appellant. Further, reliance is placed on another decision of 8 WA No.100071/2018 the Hon'ble Supreme Court in the case of SANJAY VERMA Vs. MANIK ROY, reported in AIR 2007 SC 1332 to contend that in the aforesaid judgments of the Hon'ble Supreme Court, permission was granted for impleadment and therefore, the said judgments may be relied upon, in order to confirm the order passed by the learned Single Judge as well as by the learned District Judge.
8. Learned counsel for the respondent Corporation also submits that the complainant or the informant to the Corporation is not a necessary party to a proceeding assailing the order passed under Section 321(3) of the Act.
9. The detailed narration of facts and contentions need not be reiterated except highlighting the fact that the appellant herein being aggrieved by the order passed under Section 321(3) of the Act has preferred an appeal under 9 WA No.100071/2018 Section 443-A of the Act before the District Court. The said Misc. Appeal arises in respect of the proceeding initiated under Section 321 of the Act. Section 321 of the Act reads as under:
" 321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.- (1) If the Commissioner is satisfied,-
(i) that the construction or re-
construction of any building or hut or well,-
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the Standing Committee, in contravention of any order passed by the Standing Committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based;
or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully 10 WA No.100071/2018 given or made under this Act or such rules or bye-laws; or
(ii) that any alteration required by any notice issued under section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
11 WA No.100071/2018(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner. (4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut 12 WA No.100071/2018 accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein."
10. The Corporation would have to determine as to whether there is any construction or reconstruction put up by a person which is not in accordance with the building bye-laws or other mandatory requirements under the Act as stated under Section 321 of the Act. The said proceedings could be initiated suo motu by the Commissioner of the Corporation or on a complaint or information received from any person, as in the instant case, wherein respondent No.4 is the complainant or informant. If any order is passed under Section 321 of the Act, that is an order against the person who has been remiss in the construction or reconstruction of any building. The lis is essentially between the said two parties. If such a person is aggrieved by an order under 13 WA No.100071/2018 Section 321(3) of the Act, the appellate remedy is provided under Section 443-A of the Act. If action is initiated by the Bruhat Bengaluru Mahanagara Palike (Bengaluru City Corporation), appeal would lie before the Karnataka Appellate Tribunal. In respect of other Corporations to which the Act applies, the appeal lies to the District Court having jurisdiction. The decision of the Karnataka Appellate Tribunal or, as the case may be, the District Court shall be final. Therefore, the question is whether a person who has filed a complaint or who has given information about any violation of the building bye-laws or other mandatory requirements under the Act or the rules made thereunder could implead himself in an appeal filed by the aggrieved party under Section 443-A of the Act. In the instant case, the application has been filed under Order I Rule 10 of CPC.
14 WA No.100071/2018
11. In the case of K.A. MATHEW, one of us (Nagarathna J.) sitting single had dismissed the writ petition which had assailed an order declining impleadment by the Karnataka Appellate Tribunal. Similarly, in CHANDRAPPA's case, a similar application for impleadment was dismissed by the said Tribunal and the writ petition was also dismissed. Similarly, in the case of SHRINIVAS, another learned Single Judge of this Court, by a detailed order, on considering the orders of this Court as well as the judgments of the Hon'ble Supreme Court, on summarizing the principles enunciated by the Hon'ble Supreme Court on impleadment of a party, has dismissed the writ petition. In that case also, the Karnataka Appellate Tribunal had dismissed the application seeking impleadment and the said order has been confirmed by this Court.
15 WA No.100071/2018
12. In CHANDRAPPA's case, at paragraph No.4, this Court has observed as under:
"4. Essentially, the lis is between the first and second respondents. The appeal filed by the first respondent herein, is with regard to the order passed by the second respondent and its officers. In that view of the matter, the Tribunal was right in not permitting the petitioner to implead himself as party in the appellate proceedings. It may be that the orders assailed before the Tribunal were passed by the second respondent and its officers at the instance of the petitioner, but that would not give a right to the petitioner to participate in the appellate proceedings pending before the Tribunal. Therefore, the impugned order would not call for any interference."
13. In the aforesaid orders, reference has been made to the case of RAMESH HIRACHAND KUNDANMAL, which has been relied upon by the learned counsel for respondent No.4 herein, wherein after discussing the judicial discretion 16 WA No.100071/2018 vested in the Court regarding addition of necessary parties and discussing the position of law therein, has observed that a clear distinction has been drawn between suits relating to property and those in which the subject matter of litigation is a declaration as regards the status or legal character.
14. Therefore, the Hon'ble Supreme Court itself has said that if the object of a party is only to prosecute his own case in a lis between the two other parties, his impleadment is wholly unnecessary. Even though the party seeking impleadment may be the one who had given raise to a lis between the two other parties, as in the instant case, between the appellant and the respondent Corporation.
15. Further, the judgments relied upon by the learned counsel for respondent No.4 in the case of UDIT NARAIN as well as SANJAY 17 WA No.100071/2018 VERMA are all judgments arising in a suit filed by the respective parties either seeking for the relief of declaration and permanent injunction or bare injunction.
16. In view of the fact that in the instant case, the appellate proceeding pending in the Misc. Appeal before the District Court, is one arising from exercise of power and jurisdiction under Section 321 of the Act, as extracted above, the lis is between the appellant herein and respondent Corporation. Respondent No.4 though may be an informant or complainant giving rise to exercise of power under Section 321 of the Act by the respondent Corporation cannot seek impleadment in the appellate proceeding. He cannot agitate any cause that he may have vis-à- vis the appellant with regard to his property in the appellate proceeding arising out of Section 321 of the Act. The said appellate proceeding arises out 18 WA No.100071/2018 of exercise of statutory powers by the respondent Corporation against the appellant herein and it cannot be converted into a civil dispute between respondent No.4 and the appellant herein.
17. It has to be borne in mind that in an appeal under Section 321 of the Act, the right, title and interest of respondent No.4 vis-à-vis his property would not be considered. The correctness of the statutory power exercised by the respondent Corporation and in order to ascertain as to whether there is any infraction of the said Section by the appellant herein or the person who is putting up the construction or reconstruction is the subject matter of the appeal. The grievance that respondent No.4 may have against the appellant herein vis-à-vis his property rights is not the subject of the appeal before the District Court. Therefore, the impleadment of respondent No.4 in the appeal is unwarranted. 19 WA No.100071/2018
18. In the circumstances, the learned District Judge as well as the learned Single Judge were not right in permitting impleadment of respondent No.4 in the Misc. Appeal. We say so by following the aforesaid orders. In the circumstances, the order of the learned Single Judge as well as the order of the learned District Court are set aside. The appeal is allowed in the aforesaid terms.
In view of the disposal of the appeal, IA No.3 of 2018 stands disposed.
Sd/-
JUDGE Sd/-
JUDGE RK/-