Karnataka High Court
Sri Mohan Raj S vs The Secretary on 7 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.3344/2017 (GM-CPC)
BETWEEN:
SRI MOHAN RAJ. S.,
S/O SEETHARAMA R. S.,
AGED ABOUT 50 YEARS,
PROPRIETOR SRI RAMA COMMERCIALS
OIL MILL, CHALLAKERE ROAD,
CHITRADURGA 577502.
R/O NO.19/1, 1ST MAIN ROAD,
SARSWATHIPURAM,
CHITRADURGA 577501. ... PETITIONER
(BY SRI RAMESH KUMAR R. V., ADVOCATE FOR
SRI LAW MEN'S COMPANY, ADVOCATE)
AND:
THE SECRETARY,
VEERASHAIVYA SAMAJA (REGD),
SREE NEELAKHANTESHWARASWAMY TEMPLE,
HOLALKERE ROAD,
CHITRADURGA 577502. ... RESPONDENT
...
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED COMMON DATED 27.10.2016 AT ANNEXURE-H
PASSED ON IA NO.3/2016 IN OS NO.25/2016 BY THE HON'BLE
1ST ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA, AND
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner, who is the plaintiff before the trial Court, has filed the present writ petition against the impugned order dated 27.10.2016 passed on I.A.3/2016 in O.S.No.25/2016 filed under Order 1 Rule 10(2) r/w Section 151 of the Code of Civil Procedure, 1908 and I.A. 5 filed under Section 80(2) of the Code of Civil Procedure rejecting the said applications.
2. The petitioner-plaintiff filed a suit for declaration against the defendant that he is not entitled to convert the suit schedule property as Rudra Bhoomi (Burial Ground) against his sale deed dated 13.6.2011 and order dated 11.10.2010 passed by the Deputy Commissioner and consequential relief of permanent injunction restraining the defendants from putting up any structures in the suit schedule property etc., from making interim arrangements, attempts, developments or putting constructions or structures in the suit 3 property to convert the suit schedule property as 'Rudrabhumi' i.e., burial ground contending that the land bearing Sy.No.62/1 of Madakaripura, Chitradurga Kasaba Taluk measuring 4 acres originally belongs to one M.A. Venkataswamy which is the ancestral joint family property.
3. The suit schedule property has been transferred by some of the legal heirs of M.A. Venkataswamy to one Taranatha for the definite purpose of 'Rudra Bhoomi' on 4.8.1999; that the khata was mutated in his name, but it was never been used as 'Rudra Bhoomi' till today. The said Taranatha s/o late Gangappa in turn said to have executed a registered sale deed dated 13.6.2011 in favour of the defendant- respondent. The defendant-respondent being an institution sought permission from the Deputy Commissioner under Section 109(1)A of the Karnataka Land Reforms Act, 1961 for educational purpose and 4 the Deputy Commissioner granted permission to the defendant on 11.10.2010 to purchase the same for the said purpose.
4. Some of the legal heirs of original owner - M.A. Venkataswamy filed O.S.No. 430/2011 against the defendant-respondent and his vendor for declaration that the sale deeds are void and are not binding for partition and the said suit is pending before the III Additional Civil Judge (Jr. Dn.), Chitradurga. It is the further contention of the plaintiff-petitioner that though the defendant never intended to convert the suit land in 'Rudra Bhoomi' as he had already got 'Rudra Bhoomi' at two to three places at Chitradurga, viewed from any angle, the suit land was not at all an appropriate and suitable place. It was also contended that the plaintiff's oil mill is situated adjacently towards the West of the suit land and the plaintiff has formed well developed layout in 8 acres 35 guntas adjacent towards the North 5 of the suit schedule land. Nearly 158 sites are there in the said layout. Out of the sites formed, some of them are already sold to public and some of them are yet to be sold for which the plaintiff-petitioner has spent huge amount with great risk by raising hand loans. It is also further contended that there are many other layouts formed and the public have purchased the sites. As such, the public who have purchased sites from the plaintiff-petitioner and from other owners of the layouts have started to construct residential houses and some of them are about to construct the residential houses. As such, the plaintiff-petitioner, other layout owners, public and villagers are very much afraid of the illegal, unlawful, developments initiated by the defendant- respondent to convert the suit land for 'burial ground i.e., 'Rudra Bhoomi' by putting barbed fencing structure and making all illegal attempts to use the same for burial ground, etc. Therefore, he filed the suit for the relief sought for.
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5. The defendant-respondent filed his written statement and contended that the very suit filed by the plaintiff-petitioner is not maintainable and he is not entitled for the relief sought for. It was further contended by the defendant-respondent that the plaintiff-petitioner is not at all concerned with the suit property or the defendant-respondent/samaja in any manner and he does not belong to Veerashyva Community at all and not the member of the defendant/Samaja; that the plaintiff is not entitled to seek negative relief as against the absolute rights with possession of the defendant as he is the owner of the same and he is not entitled to restrict him from using and enjoying the suit property in the interest of his community people, as it lies as per law. It is further contended that the suit land has been purchased by one Taranatha for the defendant/Samaja only, who was the then Secretary of the defendant/Samaja, for sole 7 purpose of using Rudra Bhoomi with clear recitals in the registered sale deed dated 4.8.1999 much earlier to purchase of the land by the plaintiff and others by the side of the suit property in the year 2007. The registration of the said sale deed on 4.8.1999 itself is a 'Public Notice' under law. Since then, the defendant has put a public board in the suit land in its name as 'Rudra Bhoomi' and if with all knowledge of the same, if the plaintiff has purchased any land adjacent to the suit property, it is at his risk and the defendant is in no way concerned to any subsequent consequences, if any. He has further contended that the largest area of the lands bearing Sy.Nos.21/1-9, 62, 63/8-9, etc., including the plaintiff's land and surrounding lands of Madakaripura village were notified as 'industrial area', reserved for industrial purpose as Master Plan-1 in the year 1999 and under the revised plan also, under the Government Notification dated 19.6.2000, the plaintiff-petitioner has purchased the land in the said area as cultivable land 8 and got converted for non agricultural purpose from Chitradurga Urban Development Authority, Chitradurga vide its Resolution dated 13.3.2013 and recently formed sites. He further contended that the plaintiff-petitioner is utter stranger to him and to the suit schedule property and he is not claiming any right in the suit schedule property and therefore, the relief sought by the plaintiff-petitioner in the present form of the suit is not maintainable and prayed for dismissal of the suit.
6. After framing of issues, when the matter was posted for hearing on I.A. at that stage, plaintiff filed an application under Order I Rule 10(2) r/w Section 151 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as 'CPC) to permit him to implead the Deputy Commissioner; Assistant Commissioner; Tahsildar; Commissioner of City Municipality, Chitradurga; Commissioner, Chitradurga Urban Development Authority, Chitradurga; and Panchyat Development 9 Officer, Madakaripura Grama Panchayath, Madkaripura, Chitradurga Kasaba Taluk contending that the proposed impleading applicants also colluded with the defendant-respondent and the Deputy Commissioner, in passing the illegal order dated 6.4.2016. Hence, the impleading applicants are necessary parties to the suit.
7. The said application was resisted by the defendant and the proposed impleading applicant Nos. 1, 2, 4, 5 and 6 by filing objections. While reiterating the averments made in the written statement, defendant No.4 contended that the very suit filed by the plaintiff- petitioner is not maintainable and proposed applicants are not necessary and proper parties to the suit for effective and complete adjudication of the case considering the suit relief. They are in no way connected to the rights relating to the suit property as no relief is sought and no relief can also be sought in 10 due course. Therefore, sought for dismissal of the application.
8. After hearing both the parties, by the impugned order, the trial Court rejected I.A.III filed under Order 1 Rule 10(2) r/w Section 151 of the CPC and also I.A.V filed under Section 80(2) of the CPC. Hence the present writ petition is filed.
9. I have heard the learned Counsel for the petitioner.
10. Sri Ramesh Kumar. R.V., learned Counsel for the petitioner-plaintiff contended that the impugned order passed by the trial Court rejecting the application for impleading the proposed applicants is erroneous and contrary to the material on record. He further contended that when the Deputy Commissioner has passed an illegal order in favour of the plaintiff- 11 petitioner, who is necessary and proper party to the proceedings, the trial Court was not justified in rejecting the application. So also the proposed defendants, who have colluded with the respondent-defendant are also necessary and proper parties to the proceedings. He further contended that when the land was purchased for educational purpose, now the defendant cannot convert the said land into 'Rudra Bhoomi' which is impermissible. Therefore, the proposed applicants are proper and necessary parties to the suit and hence, he sought to set aside the impugned order passed by the trial Court.
11. In support of his contentions, learned Counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court in the case of Mumbai International Airport Private Limited -vs- Regency Convention Centre and Hotels Private Limited and Others [(2010)7 SCC 417].
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12. In view of the aforesaid contentions urged by the learned Counsel for the petitioner, the only point that arises for consideration is:
Whether the trial Court was justified in passing the impugned order on I.A.3 under Order 1 Rule 10(2) of the CPC and consequential order on I.A.5 filed under Section 80(2) of the CPC in the facts and circumstances of the present case?
13. The present petitioner, who is plaintiff before the trial Court filed O.S.No.25/2016 for a declaration that the defendant is not entitled to convert the suit schedule property as 'Rudra Bhoomi' as per the sale deed dated 13.6.2011 and in terms of the order dated 11.10.2010 passed by the Deputy Commissioner. It is further contended that he is the owner of the property which was purchased only for educational institution and therefore, it cannot be converted into 'Rudra Bhoomi/burial ground'. It is also contended that the 13 defendant got permission from the Deputy Commissioner to use the said land for educational purposes and now violating the order passed by the Deputy Commissioner, he is converting the land into 'Rudra Bhoomi' and therefore, sought for a declaration and injunction.
14. It is an undisputed fact that the plaintiff is not claiming any right in respect of the suit schedule property. He has admitted that defendant is the owner of the suit schedule property, who purchased the same under a registered sale deed from the previous vendor on 11.10.2010. His only grievance before this Court is that he obtained permission from the Deputy Commissioner for educational purposes but now violating the order passed by the Deputy Commissioner, he is converting the same into 'Rudra Bhoomi' .
15. If that is so, it is for the Deputy Commissioner to take action against the defendant-respondent for 14 violating the orders, if any, when he has not claimed any right, title or interest in the suit schedule property. His grievance is that the defendant cannot go beyond the permission granted by the Deputy Commissioner and it is for the statutory authority to take action. Admittedly the order passed by the Deputy Commissioner is in violation of the provisions of the K.L.R. Act and the same is not challenged by the plaintiff-petitioner before the appropriate authority concerned. Now by way of application for impleading, he wants to implead those Officers, Deputy Commissioner; Assistant Commissioner; Tahsildar; Commissioner, City Municipality, Chitradurga; Commissioner, Chitradurga Urban Development Authority, Chitradurga; Panchayath Development Officer, Madakaripura Grama Panchayath, Chitradurga Kasaba Taluk mainly on the ground that the said proposed defendants colluded with the defendant and Deputy Commissioner in passing the illegal order dated 15 6.4.2016. If that is so, it is open for the aggrieved party to challenge the order passed by the Deputy Commissioner.
16. Admittedly, in the present case, no relief is sought against the proposed defendants and it is not the case of the plaintiff-petitioner that in the absence of proposed defendants, the effective decree could not have been passed. The plaintiff has not made out any good ground to interfere with the impugned order passed by the trial Court rejecting the application for impleading. When in fact the plaintiff has no right or interest in the suit schedule property and when he has filed a suit for declaration, he has to establish the same independently after adjudication of trial between the parties. The relief sought in the main suit is only against the defendant- respondent and no relief is sought against the proposed defendants. Therefore, the proposed defendants are not 16 necessary parties for passing an effective decree in the suit filed by the plaintiff-petitioner for declaration.
17. The Hon'ble Supreme Court in the case of Mumbai International Airport (P) Ltd. -vs- Regency Convention Centre & Hotels (P) Ltd. reported in (2010) 7 SCC 417 relied upon by the learned Counsel for the petitioner at paragraphs 25 and 27 has held as under:
"25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.
27. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor 17 the lessee of the suit property and has no right, title or interest therein. The first respondent - plaintiff in the suit has not sought any relief against the appellant.
The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute."
18. Considering the entire material on record, the trial Court has recorded a finding that the suit filed for declaration against the defendant that he is not entitled to convert the suit property as 'Rudra Bhoomi' (burial 18 ground) against his sale deed dated 13.6.2011 and orders dated 11.10.2010 passed by the Deputy Commissioner and consequential relief of permanent injunction against the defendant, his men, agents, servants, supporters and office bearers from putting up constructions of structures in the suit property to convert it as 'Rudra Bhoomi' and so the relief would clearly show that he has filed the suit against the defendant only. It has also observed that from the body of the plaint, it is also clear that nothing in general is pleaded to conduct the case in representative capacity. So also as the relief are sought only against the present defendant. The proposed defendants are not necessary for the adjudication of the matter in dispute because in their absence the case can be proceeded to reach finality. It has also held that as there is no common interest in respect of suit subject matter, question of conducting the case in representative capacity will not arise. The proposed defendant Nos. 2 to 7 are not 19 necessary parties and issue of the said notice will not arise for consideration. In view of the same, the trial Court is justified in dismissing the application -I.A.3 and consequential I.As.4 and 5 which is in consonance with the provisions of Order 1 Rule 10(2) r/w Section 151 of CPC. The plaintiff-petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of writ jurisdiction under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/-
Judge Nsu/-