Karnataka High Court
Siddalingayya S/O Mrutunjaya Hiremath vs The State Of Karnataka on 19 January, 2018
Bench: S.Sujatha, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT APPEAL NO.100662/2017 (GM-RES)
BETWEEN:
1. SIDDALINGAYYA S/O MRUTUNJAYA HIREMATH
AGE: 38 YEARS,
OCC: PONTIFF OF MATH AND AGRICULTURE,
R/O: PURUTAGERI, TAL: KUSHTAGI,
DIST: KOPPAL-574121
...APPELLANT
(BY SRI. S B HEBBALLI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY SECRETARY,
KANNADA, CULTURE AND
BROADCASTING DEPARTMENT,
M.S. BUILDING,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
KOPPAL, DIST: KOPPAL-583231.
3. THE TAHSILDAR
KUSHTAGI, DIST: KOPPAL-574121.
4. THE DEPUTY DIRECTOR
ARCHAEOLOGICAL AND
HERITAGE DEPARTMENT,
KAMALAPUR, DIST: BALLARI-583221.
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5. KALAKAPPA MALLESHAPPA SHETTAR
AGE: 61 YEARS, OCC: ADVOCATE,
R/O: HOUSE NO.35,
15TH CROSS, VIDYAGIRI,
BAGALKOTE,
DIST: BAGALKOTE-587101.
6. BASANAGOUDA NINGANAGOUDA NADAGOUIDAR
AGE: 44 YEARS, OCC: ADVOCATE,
R/O: HOUSE NO.226, WARD NO.IIM,
NEAR GAYATRI SCHOOL, KILLA,
BAGALKOTE,
TAL/DIST: BAGALKOTE-587101.
7. PRAMOD VIJAY SHIVANAGOUDAR
AGE: 37 YEARS, OCC: ADVOCAOTE,
R/O: WARD NO.II,
NEAR BALAJI TEMPLE,
OPPOSITE OPPATTESHWAR MATH,
R/O: GULEDGUDD, TAL: BADAMI,
DIST: BAGALKOTE-587203.
... RESPONDENTS
(BY SRI. S D BABALADI, ADV. FOR R5-7)
(SRI. M. KUMAR, AGA FOR R1 TO R4)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA
HIGH COURT ACT, 1961, PRAYING THIS HON'BLE COURT
TO, ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED
ORDER DATED:21.09.2017 PASSED BY THE LEARNED
SINGLE JUDGE IN W.P.NO.106011/2016 ON I.A.NO.3/2016
AND REJECT THE APPLICATION, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, JOHN MICHAEL CUNHA J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
This is an intra-court appeal challenging the interim order passed by the learned Single Judge on IA No.3/2016 dated 21.09.2017 in WP No.106011/2016.
2. By the said order, proposed respondent Nos.5 to 7 are permitted to come on record as respondent Nos.5 to 7 in WP No.106011/2016.
3. Sri. S.B. Hebballi, learned counsel appearing for the appellant contends that the applicants did not disclose any legal right to come on record; they are neither necessary nor proper parties for adjudication of the dispute pending before the learned Single Judge. The applicants are not concerned with the orders which were impugned in the writ petition. Under the said circumstance, the order passed by the learned single judge is wholly illegal and contrary to the principles of Order 1 Rule 10(2) of CPC as well as the settled principles of law. Further, he contends that even though large number of authorities were cited before the :4: learned single Judge, same were not considered. Hence, he seeks for setting-aside the impugned order.
4. Sri.S.D. Babaladi, learned counsel appearing for the applicants/respondent Nos.5 to 7 contends that the applicants are interested in protecting the monument in respect of which the Deputy Commissioner has passed an order to remove the illegal construction. Their presence is necessary for fair adjudication of the writ petition. Moreover, the learned single judge having found that the applicants are necessary for adjudication of the dispute, there is no reason to interfere with the said order. Hence, he seeks for dismissal of the appeal.
5. In support of his arguments, the learned counsel has placed reliance on the decision of this Court in the case of Sri. Shantesh Gureddi and Another Vs. The Commissioner, Bruhat Bangalore Mahanagar Palike, Bangalore and others, reported in 2017(2) KCCR 1425(DB).
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6. We have considered the submissions of the learned counsel appearing for the respective parties and have perused the material on record.
7. The writ petition is filed seeking to quash the order dated 03.06.2016 passed by respondent No.1, vide Annexure-E, whereunder demolition of illegal constructions erected in the precincts of Sri. Someshwara Temple has been ordered. The petitioner had also sought to quash the impugned order dated 11.07.2016 passed by respondent No.2, vide Annexure- F.
8. A perusal of the application made by the applicants/respondent Nos.5 to 7 in IA No.3/2017 indicates that the applicants sought to come on record on the plea that the writ petition has been filed suppressing the true facts and to make unjust enrichment. In the said application, the applicants have narrated in detail the status of Sri. Someshwara :6: Temple and have asserted that the writ petitioner has suppressed true facts and suggested falsehood and therefore, they are required to assist the Court in bringing out the true facts.
9. The learned single judge has observed in the impugned order that the presence of the proposed respondent Nos.5 to 7 namely, the applicants, is necessary to help the Court to know the true facts in respect of Sri. Someshwara Temple. Further, the learned single judge has observed that Sri. Someshwara Temple is historical monument declared by the State and therefore, everybody is interested in maintaining and protecting the monument. Hence, the presence of respondent Nos.5 to 7 is necessary for adjudication of the dispute.
10. Undeniably, writ petition is filed challenging the demolition order passed by respondent Nos.2 and 3, in respect of the structures with which the writ petitioner is interested. The impleaded applicants do :7: not intend to join lis with the petitioner nor are they interested in stalling the demolition. None of the applicants claim any independent right or interest, either in the structures which are ordered to be demolished or in the affairs of Sri. Someshwara Temple. No such averments are found in the application. Therefore, having regard to the grounds urged in the application, the only question that was required to be considered by the learned single judge is, whether the applicants are necessary or proper parties to the writ petition pending before the Court?
11. The general rule in regard to impleadment of the parties is succinctly elucidated by 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, wherein it is held as under:
13. The general rule in regard to impleadment of the parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he :8: wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.
Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties."
12. Further, in Ranjan Kumar etc. Vs. State of Bihar and Ors. reported in (2014) 16 SCC 187, following the decision in AIR 1963 SC 786, the Hon'ble Supreme Court has held as under:
....in Udit Narain Singh Malpaharia v. Board of Revenue MANU/SC/0045/1962 : AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'Code of Civil Procedure') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 Code of Civil Procedure but :9: the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat9, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot10 and Sarguja Transport Service v. STAT11.)"
13. In the light of the above decisions and having regard to the averments made in the application, we are of the view that the applicants namely respondent Nos.5 to 7 are neither necessary parties nor proper parties, who could be impleaded as co-respondents. The applicants are not concerned with the orders which are impugned in the writ petition. They cannot provide any information to the Court either with regard to the affairs of the temple or with regard to the orders passed by respondent Nos.2 and 3 for demolition of the illegal structures erected around the monument. Their presence will be more a hindrance to the disposal of the writ petition than of any assistance to the Court. The issues raised by the applicants are beyond the scope of the writ petition. Therefore, we are of clear opinion that the applicants are not entitled to intervene in the writ petition pending before the learned : 10 : Single Judge. For any reason, the applicants feel that they are duty bound to protect the monument, proper remedy is available to the applicants either to seek independent relief or to take recourse to Public Interest Litigation.
14. The decision cited by the learned counsel for the applicants, in our view, does not aid them to advance their contentions. In the said case, order of status-quo was passed in the pending writ petition. As the impleading parties therein were affected by the said order of status-quo, they were permitted to come on record. In that context, it was observed in para-19 and 20 of the said order that when the applicants were under the apprehension that the matter may not be pursued properly before the Tribunal, the Court found it appropriate to permit the applicants therein to come on record.
15. In the instant case, on overall consideration of the facts and circumstances of the case, we are of the : 11 : view that the applicants are not at all concerned with the relief claimed in the writ petition nor are they affected by the order impugned in the writ petition. The interest of the temple and the monument is ably protected and safeguarded by the competent officer of the Authority, who are diligently pursuing the matter. There are no allegations of any incompetency or inaction against respondent Nos.1 to 3 in protecting and preserving the monument. Therefore, the assistance of respondent Nos.5 to 7 is not at all necessary. Hence, we are of the view that the impugned order cannot be sustained and the same is liable to be set-aside.
16. For the above reasons, writ appeal is allowed. The order passed by the learned single judge on IA No.3/2016 dated 21.09.2017 in WP No.106011/2016 is set-aside. IA No.3/2016 filed by the applicants/respondent Nos.5 to 7 stands rejected. : 12 :
In view of disposal of the main appeal, all the pending IAs are consigned to file Sd/-
JUDGE Sd/-
JUDGE JTR