Karnataka High Court
Syed Arifulla Habib vs The Commissioner Bruhat Bangalore on 14 August, 2009
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
2 SCHEDULED PROPERTY; AND ETC. THIS PETITION, COMING ON F OR PRELIMINARY HEARING IN 'B' GROUP, "FHES DAY THE COURT MADE THE FOLLOVVING : ORDER
The petitioner, having purchased tire V immoveable property from his.-vei'1dQr N Geetha, who, on securing a sanction of and licence to erect a residential building"enefierthelessl; ' constructed a buiidingtVAs'fo1*Vfcommercia;1~"i,1se. has presented this petition."fo1j:Oa;" \?,.7'1:[.'OOitfl{)f':_II1aI1daI'I111S. to restrain --l3angalo'1*e' "Mahanagara Palike, for short:VV'I3I3MP, the said property. _ _ 2. The of the commercial building on at-rxesiderxtlal plO't***0f land Without change of land use, "frc_)%11 to commercial, under The Karnataka anejtcibuntry Planning Act, 1981, for short KTCP Act, '' contrary to sanction of building plan and 'licence exfacie, was illegal. let alone the use of the said building for commercial activity. The complaint of the petitioner's neighbour over the illegalities, when not responded, led to filing W.P.19029--30/01, a learned Single Judge of this court by _ 19.6.01, Annexure 8, disposed recording the submission of the :_-Le.arned~i.Cou'rijse1"=for the 53* respondent--vendo:-*dV_intitle'ofxthe pveltitioner; that the petition is renderped'-..:_infructuouns vvfisince a confirmation ordervunder'--..,»of Sec.321 of Karnataka Mu1'iieipa1" Ccrpoiiati.o'n..§ $976, for short the unauthorised structure, was S€I'V€d~.Ofl. the and, the submission of the _ Executijrei .Engineer[E1ec.) Addl. South Division '~ ., as thevligihllrespondent in the said writ petition, that" plan was initiated to demolish the plan; a unauthoriized structure erected contrary to the building
3. The petitioner therein aggrieved by the__order preferred WA 4321~22/01 whence the Division"--,:B«ene'h by order dated 13*}? September, 2001 recorded the submission of the "l'ea.rned oou11sel..i',. for ' the Corporation as well as thelliiiithi'-respondent View of the confirmation 'order underpsnb;se'C;['3] of' Sec.32l of the Act the BB£v'I'P*..hae}""a_ duty""to"Vdemo1ish the offensive portion of the 'directed thus:
"In said no further order.--need5lf}d_j_e'_ 'pa}3.sed_ e:s:cept to the extent that the V-Corr1r.g31ssior1er"vsh.ou'ld ensure the carrying :outlo'f ordjer ' aecord ariee with law."
4." petitioner's Vendor in title undaunted it the orders, supra, instituted along with an application under Order 2 CPC for an order of temporary injunctionvrestraining the Corporation from interfering with the plaint schedule property, none other than the 'sehedule immovable property, whence the civil court T order dated 19.4.02 Annexure 1) temporarily restrained the BBMP from demolishing the buiiciing in question. pending disposal of the suit. In addi"tio'nj"'the petitioner's vendor in title, preferred an the order of confirmation under'*sub,see.[3} of the Act, before the StancilingenCoznrsAittee«. BBMP and obtained an Vorder} oft' demolition. which was...thereafter*u}ords dissolved by the State Government in V exercise _of- ,jui*isdiction under Sec.98 of the ,A;V§;1;;t 5: :'_::r:v:1Vei,<.:_§hbo1,zr by name M. Narayi;-gtna, -- _:ti1ep_etitioners in W.P. 19029-30/2001 and appeliant in »m.ie4321-22/2001, having filed an appiictation to Limpleaded as a proper and necessary 01, on its rejection by the trial court, utflleel.'C§P~j:..1\;'o';i§321/2003. This court by order dt. g 22..i.Q4V,aviihiIe rejecting the petition observed that the order of injunction would not come in the way of ' demolition of the structure.
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6. The vendor in title, allegedly, having put to use the building for commercial activity, M.Narayana, filed W.P.318/06, arraigning as Respondent No.6, whence, avlearned '_d;udge it i this court by order dated thus:
"4. Be that as zitxrnay,l'theliact"remains'that this court has observed in. .th.e petition that if the order of_denaoliti_Qr1_ is 'iegal lini,gVp'i1rsuance of the orde1jpa._ssed writ petition as 'order of injunction shall btheiirayi giving effect to its own to 'thisvfact, I am of the View to be issued to the Corpbratiovnlto llinipiernent the order passed by this potty: inxthe 'reirisien petition. l " '~ f5,._v "Consequently, the writ petition is aflowed in I to 4 are directed to take steps A inipgieinent the order passed by this court in CRP 33éi;_,/G3. disposed of on 22.1.2004."
it . Sri L Govindaraj, learned counsel for the __p_»etitioner submits that the petitioner, a n0n~resident 1/*4 Indian and a gullible customer, having purchased the schedule immoveable property on some assurance of a certain agent at Bangalore, has not put to said immoveable property for commercial _ nuisance to his neighbour. According"
counsel, the petitioner's application ..ifor,regularisation of the unauthorized construction'~..u1;de1*'V:'P;k;#arna Sakrama Scheme as well as 'application change of land use and are pending.
Lastly, it is gcontended"'tliatzjiheilpetititoner would be advisedwtoll the_"""oifensive portion of the building,' if gran'te_d._:'i2l"weeks time. __8. Fer _ learned counsel for BBMP that t'he""only impediment in the execution of order under sub.sec.(3) of Sec.32}. of Act,'_il;,is the interim order dated 21.2.2009. Accoi':l_ing to the learned counsel, in the admitted facts building constructed illegally, being contrary to M sanction of plan and licence more so in the admitted absence of an order for change of land residential to commercial, in a residential zone, under Sec. 14A~of.the the petitioner on his own pulls dovvji of the building, the Corp'oratioi1.__ woVuld':~--,vV'have not grievance.
9. Having for the parties, admitted factual matri§:_,__it: of the process of the court: atvlianipering due course of judicial process administration of justice, boifldering crirninal contempt. The petitioner »A .,iVl1Ais»v'en_dor in title having suffered an order H 'lieforey ijivision Bench of this court directing the respondent BBM}? to give effect to its order under it i:su'b,sec.[3) of Sec.321 of the Act, on 13"' September, AVj2Ot)1, and the subsequent orders in CRP 3321/03 and M WP 818/ 06 Annexure I-I, despite passage of eight long years, are not complied with, due to the of process of court, by the petitioner's vendorfin' _ instituting the suit, obtaining an orde1*"»off_T:einporary'= . injunction and an appeal to the Stanélin'g._1C.ornrni:ttee:;of BBMP, thwarting the attempt of the effect to its order. 'i'he suibje_ct.__1natter_:of the earlier writ petitions and '4'arje.:'g'suiostantial1y the very same subjecttinatiterl' present writ petition. 5l:_e1fi"orts__p_ to execution of the confirrnatienivf,ord5efr' ori,the preiriise that a subsequent legislat-ioln. entities._'l'thpejpetitioner to the benefit of reguiarization iof una"uthorized construction, cannot cosine :_to the Vofthe petitioner, since admittedly that Istayed by a Division Bench of this court in an application to modify the buiiding plan at ~Int:erest Litigation.
zlff. The contention that the petitioner has l0 earlier sanctioned, deserves to be rejected at the threshold. Neither the Act nor building bye laws invests a right in the petitioner to seek modificationof a building plan duly sanctioned so as building which is illegal, moreover the ., for residential buildings and buildings are not commonfip A l l l l V
11. The further l_ learned counsel that the is not put to commercial use and :has.frot"occasion'ed 'nuisance to his neighbour to file this petition for the relief in nature cflllinjunction. In my opinion, the atternpt on of the petitioner to stall lawful » proceedi.ngs"~-cannot but be termed as abuse of process of law.' ' "
In almost similar, though not identical 3 ciircumstarices, the Supreme Court in Udyami Evam Gramodyog Welfare Sanstha and another vs. M 11 State of Uttar Pradesh & others reported in (2008) 1 SCC 560 heid thus:
"I6. A writ remedy is an equitab1ef'one..:Tziiiii' person approaching a superior come with a pair of clean hands, should not suppress anyixrnaterial also should not take__"recourse: to proceedings over and oyer iiagaiiinf vvhich amounts to abuseof the' processpof lair}; In Advocate Generai;d'_t'Sta_teV::v Bihar V. MP. Khair Indz_1stries,ve--t--h;is'wcoui'i_ opinion that sucigé; repeated petitions V General, State of Bihar's case reported SCC 311, having regard to the , fact application over application was filed . e.,.¢.,13eVi'ore ..As'a1neV""SHingIe Judge, only to circumvent or effect of the orders of the }Division Bench of that,___co:,itt; it was held that every application was a daring--'raid' on the court and each was an abuse of process of the court, calculated to obstruct the
-~--due course of a judicial proceeding and the it :2 administration of justice which amounted to criminal contempt of court.
14. The principles of law, noticed are applicable on all their fours to the circumstances of this case.
15. The petitioner a purchased the schedule property his ' suffered orders of this court_i:Vto:_i1np1err1entV._ order of demolition of the illelgsjp.5trucytnre,V;"however, keeping in 'learned counsel for the petitio'1--1er;. would be met by taking a lenient vie'W.n_:VwitI1o'Ltt initiating any further proceedings the petitioner, while quantifying cost of Thepctition is without merit and is accordingly rejected} Cost of Rs.20,000/-~ to be made over to the account of the 1st respondent -- BBMP. The respondent in ad BBMP is directed to take action to pull down the offensive portion of the buiiding if not forth'fi't§if;~:.done by the petitioner, and submit an action the Registrar (General) of this»--oou_<1"t, months from the date of receiptidiof o1;ci'e.'1A'.-" . J, V' csg