Karnataka High Court
Malleshwaram Residents Welfare ... vs Smt Kamlamma on 3 April, 2017
Equivalent citations: 2017 (3) AKR 39
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION NO.8563 OF 2017 (LB-BMP)
BETWEEN:
Malleshwaram Residents Welfare
Association (R)
#22/2, "Chavadi", 10th Cross,
West Park Road,
Malleshwaram,
Bengaluru - 560003
Represented by its President
Mr. B.R. Gopal Rao
...Petitioner
(By Sri. Tejas S.R., Advocate)
AND:
1. Smt. Kamlamma
W/o Late N. Appanna
Aged about 86 years
No.33, 15th Cross
Margosa Road
Malleshwaram
Bengaluru - 560003
2. The Commissioner
Bruhat Bengaluru
Mahanagara Palike
2
Hudson Circle
Bengaluru - 560002
3. The Assistant Executive Engineer
Malleshwaram Sub-Division
Opposite Mantri Square, BBMP
Bengaluru - 560003
... Respondents
(By Dr. R. Ramachandran, Advocate for R-2 and R-3)
...
This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
impugned order dated 09.12.2016 on I.A. No.4 in appeal
No.405/2016 passed by the learned Karnataka
Appellate Tribunal vide Annexure - A and etc.
This writ petition coming on for preliminary
hearing this day, the court made the following:
ORDER
The petitioner has challenged the legality of the order, dated 09.12.2016, passed by the Karnataka Appellate Tribunal, whereby learned Tribunal has rejected the application filed by the petitioner for impleadment in an appeal filed by the respondent No.1 before the learned Tribunal.
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2. Briefly the facts of the case are that the petitioner happens to be a registered Society, Malleshwaram Residents Welfare Association, which is registered under the Karnataka Societies Registration Act, 1961. The petitioner claims that the Society is concerned with the various issues plaguing the residents of one of the oldest neighbourhoods of Bengaluru. The society is also engaged in activities to improve the quality of life of the residents of neighbourhood.
3. According to the petitioner, since Malleshwaram happens to be one of the oldest residential neighbourhood of the city, it has also witnessed rampant commercialization of the neighbourhood in the recent past.
4. According to the petitioner, respondent No.1, Smt. Kamlamma has constructed a multistoried building on the property bearing No.33, 15th Cross, 4 Malleshwaram. The said building consists of ground floor and three upper floors. According to the petitioner, the construction is completely in violation of the applicable rules and regulations. Since the petitioner was aggrieved by the illegal construction being raised by the respondent No.1, it had submitted certain representation before the Commissioner, Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) and the Assistant Executive Engineer, Malleshwaram Sub Division, respondents No.2 and 3 respectively. Considering their representation, the respondent No.3 issued a provisional notice to the respondent No.1 under Section 321(1) of the Karnataka Municipal Corporations Act, 1976 ('the Act' in short). Subsequently, respondent No.3 has also issued a confirmation notice under Section 321(3) of the Act.
5. Since the respondent No.1 was aggrieved by the two notices issued by respondent No.3, she filed an 5 appeal before the learned Tribunal. By order dated 06.05.2016, the learned Tribunal has stayed the operation of the two notices, and has issued notice to the BBMP.
6. During the pendency of the appeal before the learned Tribunal, the petitioner filed an application for impleadment. However, by order dated 09.12.2016, the learned Tribunal has rejected the said application. Hence this petition before this Court.
7. Sri. S.R. Tejas, the learned counsel for the petitioner, has raised the following contentions before the Court:-
Firstly, relying on the case of Sri. Jayesh Chakravarthy v. the Commissioner, BBMP and others (in W.P.No.29422/2012, decided by this Court on 23.08.2012) and on the case of Ms. Satya Achayya v. Mr. M.A. Mohammed Amanullah and others (in W.P. No.37915/2014, decided by this Court on 6 09.09.2014), the learned counsel has pleaded that the petitioner is a proper party to the dispute pending before the learned Tribunal. Therefore, the learned Tribunal is unjustified in rejecting the application for impleadment.
Secondly, since, the residents of Malleshwaram area are inconvenienced by the running of the commercial complex by the respondent No.1, their legal rights are adversely affected. Hence, the petitioner- Society should have been impleaded as party respondent.
8. Heard the learned counsel for the petitioner and perused the impugned order. The issue before this Court is whether the petitioner is a necessary or proper party in the lis which exists singularly and completely between the respondent No.1, on the one hand, and the respondents No.2 and 3, on the other hand. 7
9. In the case of Ramesh Hirechand Kundanmal v. Municipal Corporation of Greater Bombay and others [(1992) 2 SCC 524], the Hon'ble Supreme Court has elaborately dealt with the impleadment of necessary and proper party under Order 1, Rule 10 of CPC. The Hon'ble Supreme Court has opined that "the question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added.... A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case."
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10. The Apex Court has also observed that "The object of Rule 10(2) of Order 1 is not to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective.... What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party." (Emphasis added).
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11. The Apex Court has also gone on defining the term "legal interest". According to the Apex Court, "the person is said to have a legal interest in the sense that the order, if any, either in favour of appellant or against the appellant would be binding on the party".
12. Therefore, while considering the present impugned order, the principles as stated by the Apex Court in the aforementioned case necessarily have to be kept in mind.
13. Admittedly, the respondent No.1 is aggrieved by the provisional and confirmation notices passed by the respondents No.2 and 3 under the Act. Admittedly, the respondents No.2 and 3 have issued the notices interalia on the ground that the respondent No.1 has deviated from sanction plan. Therefore, the construction raised by her is a illegal one. Thus, obviously the dispute is strictly between respondent No.1 on the one hand, and respondents No.2 and 3 on the other hand. 10
14. It is certainly the duty of respondents No.2 and 3 to establish the fact that the deviation from the sanction plan has been committed by respondent No.1, and the said deviation cannot be permitted under law. Thus, the construction raised by the respondent No.1 is contrary to the law. Hence illegal.
15. Considering the issues which are pending before the learned Tribunal, it is difficult to hold that the issues cannot be decided until and unless the petitioner is impleaded as a party. The said issues can certainly be decided even if the petitioner is not impleaded as the party-respondent. Thus, obviously, the petitioner is not a necessary party.
16. Moreover, even for the complete and final decision of the issues, the petitioner is not required to be present. As it is for the respondents No.2 and 3 to submit the sanctioned plan, as approved by them; to 11 submit the evidence to show that there has been a deviation by the respondent No.1 as alleged by them; to submit the evidence with regard to the extent of deviation. And finally, to justify the notice under Section 321(1) and 321(3) of the Act. Thus, the question in lis can be decided, and can be completely settled, even in the absence of the petitioner. Therefore, the petitioner is not even a proper party to be impleaded as a party- respondent.
17. Although, the petitioner claims that they are inconvenienced by the alleged illegal construction raised by the respondent No.1, but not an iota of evidence is produced to show the extent of inconvenience caused to the petitioner. Even if there is inconvenience caused, the petitioner is free to pursue the legal remedies in order to get rid of the inconvenience being caused to it. But, to permit the petitioner to be impleaded as a party- respondent in a dispute, which is strictly between the 12 respondent No.1 and respondents No.2 and 3, is to go beyond the scope of Order 1 Rule 10 of CPC.
18. The learned counsel for the petitioner has relied on the case of Sri. Jayesh Chakravarthy (supra) wherein this Court has referred to the case of Ramesh Hirechand Kundanmal (supra) decided by the Apex Court. Although it is true that this Court has noticed Ramesh Hirechand Kundanmal (supra), but without giving any reason as to how the case applies to the facts of the particular case of Sri Jayesh Chakravarthy (supra), the learned judge has made a fleeting statement that "the opinion of the Apex Court in Ramesh Hirechand Kundanmal vs. Municipal Corporation of Greater Bombay, equally applies to the case of the applicants to be impleaded as proper and necessary parties to the proceeding in the Appeal before the K.A.T." Thus, the case of Sri Jayesh Chakravarthy (supra) is not binding on this Court.
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19. In the case of Ms. Satya Achayya (supra), this Court has not noticed the judgment pronounced by the Apex Court in the case of Ramesh Hirechand Kundanmal (supra). Therefore, the order passed in Ms. Satya Achayya (supra) is not binding on this Court.
20. In the case of Chandrappa vs. Garudachala Associates Private Limited, (2015) 2 Kant LJ 483, this Court was seized with the identical issue which has been raised in the present Writ Petition, namely whether or not a third party has a right to be impleaded as a party-respondent in an appeal filed by a person who is aggrieved by notices issued under Section 321 (1) and Section 321(3) of the Act and who has filed an appeal before the learned Tribunal? This Court has relied on the case of Ramesh Hirechand Kundanmal (supra) and has answered the issue in the 14 negative. This Court is in agreement with the opinion expressed in the case of Chandrappa (supra).
21. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order, dated 09.12.2016. This petition is devoid of any merit. It is hereby, dismissed.
22. Dr. R. Ramachandran, learned counsel is directed to submit the Vakalath on behalf of BBMP.
Sd/-
JUDGE Mds/Ag