Karnataka High Court
Apparao Sugur vs V.S.Jalde & Anr on 19 September, 2018
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION NO.202952/2018 (GM-CPC)
Between:
Apparao Sugur
S/o Sanganbasappa Sugur
Age: 62 years, Occ: Legal Practitioner
R/o Plot No.19, Sy. No.4 of Daddapur
Sharan Nagar, Kalaburagi
... Petitioner
(By Sri Sachin M. Mahajan Advocate)
And:
1. V.S. Jalde S/o Sharanappa
Age: 68 years, Occ: Legal Practitioner
R/o Venkatesh Nagar
Kalaburagi - 585 103
2. The Commissioner
City Corporation of Kalaburagi
Jagat Circle, Kalaburagi - 585 101
... Respondents
(Sri Shivakumar R. Tengli, Advocate for R1;
Sri Veeranagouda Malipatil, Advocate for
Sri P.S. Malipatil, Advocate for R2)
This writ petition is filed under Article 227 of the
Constitution of India, praying to issue a writ of certiorari and
quash the order dated 31.08.2018 passed by the learned
2
V-Addl. Civil Judge, Kalaburagi in E.P.No.61/2009, which is
produced as Annexure-G.
This petition coming on for preliminary hearing this
day, the Court made the following:-
ORDER
This writ petition is filed by the petitioner/JDR No.1 challenging the order of the V-Additional Civil Judge, Kalaburagi dated 31.08.2018 in E.P. No.61/2009, whereby the application filed by the petitioner under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure has been rejected with costs of Rs.1,000/-.
2. Respondent No.1 herein had filed O.S. No.531/1998 for the relief of declaration, mandatory injunction etc. The suit of the respondent No.1 was decreed on 30.11.2006. It was the contention of the respondent No.1 that the petitioner has constructed the house on plot No.19 carved out in Sy. No.4 of Daddapur, Gulbarga encroaching upon the public road situated between plot Nos.4 and 19 and in deviation of 3 the plan sanctioned by the respondent No.2- Corporation. The Trial Court held that the petitioner has constructed his building deviating from the sanction plan encroaching upon the public road. However, the Trial Court held that the Municipal Corporation could sort out the issue while issuing the completion certificate. The said decree of the Trial Court was challenged by the petitioner before the Civil Judge, Senior Division, Gulbarga in Regular Appeal No.18/2007, which came to be dismissed on 23.04.2015 on merits. Against which, RSA No.200154/2018 has been filed before this Court and the same is pending consideration. However, there is no interim order of stay passed in the said appeal.
3. Respondent No.1 has filed Execution Petition No.61/2009 to execute the decree in O.S. No.531/1998. Pursuant to which, the respondent No.2, invoking Sections 321 and 323 of the Karnataka Municipal 4 Corporation Act, 1961 has issued the notice identifying the area encroached by the petitioner and calling upon him to demolish the encroached area. The said notice was challenged by the petitioner in Writ Petition No.201580/2018 before this Court, which came to be dismissed and thereafter Writ Appeal No.200501/2018 was filed and the same came to be dismissed on 12.06.2018.
4. However, in the pending execution proceedings, the petitioner filed an application under Order XXVI Rule 9 read with Section 151 of CPC to appoint the City Surveyor, Kalaburagi as Court Commissioner to make the local inspection and submit his report in respect of suit property and removal of encroachment there from, which came to be rejected. Hence, this writ petition.
5. In the writ petition proceedings, learned counsel for the petitioner made a fervent plea that the 5 encroachment made by the petitioner has been removed prior to filing of the application before the Executing Court for the appointment of the Court Commissioner; the Executing Court sans considering the same, rejected the application and accordingly requested this Court to appoint the City Surveyor, City Survey Office, Kalaburagi as Court Commissioner to discern the truth. Considering the same, this Court, by order dated 06.09.2018, appointed the City Surveyor, City Survey Office, Kalaburagi as Court Commissioner to measure the width of the existing road between plot Nos.4 and 19 situated in Sy.No.4 of Daddapur, requesting the City Surveyor to submit the report to the Court, by issuing emergent notice to respondent No.1 and directing learned counsel Sri P.S.Malipatil to accept notice on behalf of respondent No.2.
6. On the application (IA.1/2018) filed by respondent No.1 to recall the order dated 06.09.2018, 6 the same was considered. After hearing the learned counsel appearing for the parties, this Court observed that, the truth can be ascertained only after appointing the Court Commissioner, since it is the case of the petitioner that before filing of the I.A. in question before the Trial Court, the encroached portion has been demolished. Hence, this Court found it appropriate to appoint the Court Commissioner - City Surveyor to discern the actual factual position whether the existing road between plot Nos.4 and 19 situated in Sy.No.4 of Daddapur, Gulbarga is measuring 30 feet or not. IA.1/2018 came to be disposed of with the aforesaid observations, appointing the Court Commissioner. Pursuant to which, Court Commissioner has submitted a report along with the sketch. The report furnished by the Court Commissioner discloses that the existing road between plot No.4 and plot No.19 of Daddapur is 21 feet in northern portion and 19 feet in the southern portion. It is thus clear that, existing road in between two plot 7 Nos.4 and 19 of Daddapur village, Gulbarga is not 30 feet even after removing the encroachment as contended by the petitioner.
7. Learned counsel for the petitioner has filed objections to the Commissioner's report contending that the Corporation Commissioner had stated in the earlier status report filed before the Executing Court in EP No.61/2009 that there is confusion regarding alignment and proper co-ordinates in the lay out which can be clarified only by the Kalaburagi Urban Development Authority (KUDA) which is not a party to the proceedings. Due to the callous attitude and shoddy preparation and maintenance of the records by the concerned authorities, the petitioner has been made to part his own building standing well within the limits of his own plot and is made to lose 200 sq. feet of his plot without any default on his part. To cover-up their lapses and sweep their glaring mistakes under the 8 carpet, the authorities have made the petitioner a scapegoat. The Court Commissioner has failed to take into consideration the portion of the demolition made by the petitioner. The measurement made by the Court Commissioner without taking into consideration the demolished compound wall, staircase and also portion of the building is not correct and as such the report submitted by the Commissioner has to be rejected and it is further prayed to appoint a fresh Court Commissioner to visit the spot and measure the distance between the standing structure on plot No.19 to plot No.4.
8. Learned counsel Sri Shivakumar R. Tengli appearing for respondent No.1 strongly objecting to the arguments advanced by the learned counsel for the petitioner would submit that the petitioner by violating the order of temporary injunction granted by the Trial Court at the first instance, has constructed the 9 structure, deviating the sanction plan. Having suffered the decree, confirmed by the Appellate Court is fighting the litigation in the execution proceedings by filing multiple applications repeatedly to protract the matter. There being no interim order of stay granted by this Court in the pending RSA proceedings, respondent No.2 has proceeded to execute the decree passed by the Trial Court. It is at the instance of the learned counsel for the petitioner, City Surveyor, City Survey Department, Kalaburagi was appointed as the Court Commissioner, despite the report already submitted earlier by the City Surveyor. The objections now raised by the petitioner are not worthy of acceptance and the same requires to be rejected.
9. Learned counsel Sri Biradar Veeranagouda appearing on behalf of learned counsel Sri P.S. Malipatil appearing for respondent No.2 supports the arguments 10 canvassed by the learned counsel appearing for respondent No.1.
10. Having heard the rival submissions of the learned counsel appearing for the parties and perusing the report of the Court Commissioner dated 17.09.2018, I am of the considered opinion that the writ petition deserves to be dismissed for the reason that the Court Commissioner was appointed mainly at the instance of the petitioner to measure the width of the existing road subsequent to the alleged demolition of the encroached road. Though there was strong objection raised by the respondent No.1 by filing the application to recall the order of appointing the Court Commissioner, this Court proceeded to direct the Court Commissioner appointed on 06.09.2018 to carry on with the commission work and to report the same to this Court only with a view to discern the truth. The Court Commissioner's report clearly establishes that the existing road between plot 11 No.4 and plot No.19 of Daddapur is 21 feet to the northern side and 19 feet to the southern side. The petitioner has suffered the decree to remove the encroachment portion on the road of 30 feet between plot Nos.4 and 19. Having failed in the regular appeal, no further proceedings can be initiated in the execution petition to reopen the issues already settled on some new grounds. In order to meet the ends of justice, an opportunity was provided to the petitioner to establish the demolition of the encroachment made. But, the petitioner has failed to do so, albeit a Court Commissioner of his choice being appointed at his request. Moreover, there is no interim order of stay in the pending RSA proceedings.
11. It is well settled principle that the powers of the Execution Court is limited. The Execution Court is empowered only to execute the decree passed by the Courts. Under the execution proceedings, the scope of 12 the proceedings cannot be enlarged by filing the applications by the petitioner repeatedly to avoid/protract the execution of the decree. In the background of the Commissioner's report now made available before the Court, there is no other option but to reject the writ petition. Hence, the following:
ORDER Writ petition is dismissed with cost of Rs.25,000/- payable to the Karnataka State Legal Services Authority, within a period of four weeks from the date of receipt of a certified copy of this order.
Petitioner shall deposit the Court Commissioner's fees fixed at Rs.5,000/- with the Registry forthwith and the same shall be transmitted to the Survey Department, Kalaburagi, towards the Court Commissioner's fees.
Sd/-
JUDGE LG