Karnataka High Court
Sri G Murali Raju vs The Commissioner on 16 November, 2016
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER 2016
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION Nos.52466-467/2016 (LB-BMP)
BETWEEN:
1. SRI. G. MURALI RAJU
S/O SRI. GANESH RAJU
AGED ABOUT 43 YEARS
OCCUPATION: PRIVATE EMPLOYEE
2. SMT. NAGARATHNA
W/O G. MURALI RAJU
AGED ABOUT 40 YEARS
OCCUPATION: HOUSE WIFE.
BOTH ARE R/AT DOOR NO.1401/57
2ND CROSS, ASHOKNAGAR
BENGALURU - 560 050.
...PETITIONERS
(BY SRI. ARUN K.S. ADV.)
AND:
1. THE COMMISSIONER
B.B.M.P. HEAD OFFICE
CORPORATION CIRCLE
HUDSON CIRCLE, N.R.SQUARE
BENGALURU - 560 002.
2. THE JOINT COMMISSIONER
BENGALURU SOUTH, B.B.M.P
COMMERCIAL COMPLEX, 2ND BLOCK
9TH CROSS, JAYANAGAR
BENGALURU - 560 011.
Date of Order 16.11.2016 W.P.Nos.52466-467/2016
Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors.
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3. THE ASSISTANT EXECUTIVE ENGINEER
WARD No.164, VIDYAPEETA WARD
B.B.M.P. BENGALURU.
4. THE DEPUTY HEALTH OFFICER
BASAVANA GUDI ZONE, B.B.M.P.
BENGALURU - 560 028.
...RESPONDENTS
THESE W.Ps. ARE FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT ORDER
OR DIRECTION IN THE NATURE OF MANDAMUS TO THE R-1 TO
4 TO CONSIDER THE LEGAL NOTICE DTD.18.4.2016 GOT
ISSUED BY THE PETITIONERS AND THE REPRESENTATION/
LETTER DTD.25.4.2012 SUBMITTED BY THE PETITIONERS AND
ON 21.5.2012, 7.5.2012 SUBMITTED BY THE RESIDENTS OF
2ND CROSS, ASHOKA NAGAR, BENGALURU PERTAINING TO
THE ILLEGAL ESTABLISHMENT OF COMMERCIAL SHOP IN THE
RESIDENTIAL IMMOVABLE PROPERTY BEARING NO.DOOR
NO.1401, 2ND CROSS, ASHOK NAGAR, BENGALURU-560 050,
ADJACENT TO THE PETITIONER'S PROPERTY BELONG TO ONE
SRI.BASAVARAJ VIDE ANNEX-A,B, D, E, Q, R & S.
THESE W.Ps. COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr.Arun K.S. Adv. for Petitioners
1. The petitioners have filed these writ petitions before this Court with the following prayers:-
"(i) Issue Writ, order or direction in the nature of Mandamus to the Respondent No.1 to 4 to consider the Legal Notice dated 18.04.2016 got issued by the petitioners and the Representation/Letter dated 25.04.2012 submitted by the petitioners and on Date of Order 16.11.2016 W.P.Nos.52466-467/2016 Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors.3/8
21.05.2012 and 07.05.2012 submitted by the residents of 2nd cross, Ashoka Nagar, Bengaluru, pertaining to the illegal establishment of commercial shop in the residential immovable property bearing No.Door No.1401, 2nd cross, Ashok Nagar, Bengaluru-560 050, adjacent to the petitioner's property belonging to one Sri.Basavaraj vide Annexures-A, B, D, E, Q, R and S.
(ii) Issue a Writ, order or direction in the nature of Mandamus directing the Respondents to make arrangements for the closure of the said illegal commercial establishment.
(iii) Pass such other order/orders as this Hon'ble Court deems fit, in the facts & circumstances of the case, including an order as to costs, in the interest of justice".
2. The grievance raised by the petitioners is that one Mr.Basava Raju who is not even arrayed as respondent in the present writ petition is having a Godown at the address No.1401/57, 2nd cross, Ashoknagar, Bangalore-50, in which he stores plastic materials and despite the complaints and representations filed by the petitioners and other residents before the concerned Authority of the BBMP, Date of Order 16.11.2016 W.P.Nos.52466-467/2016 Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors. 4/8 no action has been taken against the said person and hence, these writ petitions seeking a mandamus direction to the respondent authorities of BBMP to initiate action against the said person have been filed.
3. After hearing the learned counsel for the petitioner briefly, this Court is satisfied that it is not a fit case for invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India and writ petitions deserve to be dismissed for the following reasons:-
(i) That the person likely to be affected by any such consideration of the representation and complaint by the respondent-BBMP authorities is not even arrayed as respondent in the present writ petitions and thus keeping him in dark, the petitioners want to seek certain reliefs which are bound to affect him in exercise of writ jurisdiction by this Court. The writ petition is Date of Order 16.11.2016 W.P.Nos.52466-467/2016 Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors.5/8
therefore liable to be dismissed for want of necessary and proper parties before the Court.
(ii) The mandamus writ jurisdiction under Articles 226/227 of the Constitution of India cannot be and should not be invoked lightly in such cases, where the public authorities or public bodies like BBMP, BDA who are expected in law to discharge their duties even otherwise, therefore, the Court's jurisdiction need not be invoked for directing them to do what they are otherwise also expected to do in law.
(iii) This Court cannot issue such mandamus directions which it cannot effectively ensure its implementation throughout. Such directions ex-facie though may appear appears to be innocuous, but are bound to unduly interfere with the discretion of the respondent authorities in dealing with the issues raised before them in appropriate manner.
Date of Order 16.11.2016 W.P.Nos.52466-467/2016 Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors. 6/8
(iv) Where the question of facts are involved to be determined, the civil suit is the appropriate remedy in such cases and writ jurisdiction cannot be invoked.
4. This Court in the case of Sri.Praveen Kumar vs. Mangalore City Corporation & MUDA decided recently in W.P.No.51117/2016 on 24.10.2016, has already laid down as under:-
"6. Even otherwise, this Court is of the opinion that the mandamus jurisdiction of this Court under Article 226 of the Constitution of India cannot be allowed to be used by the litigant in such a hot haste and casual manner. Once, the petitioner or the litigant has approached the any Government authority by way of representation in the recent past, the litigant should pursue the concerned authority to its logical end.
7. Unless the Court finds an absolute reticence or consistent omission on the part of the public authority in not exercising the jurisdiction vested in him and not passing suitable orders on such representations made Date of Order 16.11.2016 W.P.Nos.52466-467/2016 Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors.7/8
by the concerned litigant, the Court cannot and should not invoke its extraordinary jurisdiction directing the public authority to do what he is otherwise also expected in law to do. Such frequent use of this jurisdiction may result in demeaning the very purpose for which this jurisdiction is vested in the Court in exercising extraordinary powers vested under Article 226 of the Constitution of India & it will be counter productive. The wider the powers, the greater is the circumspection, with which the Court should exercise such jurisdiction. Issuance of mandamus directions just for askance in these type of cases without allowing even the breathing time to public authorities to do the needful on their own part may result in serious prejudice to the process which the public authority is expected & deserves to be allowed to undertake such cases.
8. This Court finds a flood of such writ petitions filed for such apparently innocuous mandamus directions to the public authorities majorly Date of Order 16.11.2016 W.P.Nos.52466-467/2016 Sri. G. Murali Raju & Anr. Vs. The Commissioner & Ors.8/8
for the municipal councils and Corporations and Development Authorities like BDA, BBMP and Municipal Corporation and Councils throughout the State, which not only burdens this Court with a flood of such writ petitions of this nature but does not allow the public authorities to function in the smooth manner for considering the representations to be made by such litigants in appropriate manner. Such a practice defeats the very purpose for which such authorities exist and therefore, the Court cannot be overzealous to invoke its jurisdiction of this nature in such case and on the other hand, it should be slow in doing the same.
5. In view of the aforesaid, this Court is not inclined to invoke writ jurisdiction in the present case. The present writ petitions are liable to be dismissed and are dismissed accordingly. No costs.
Sd/-
JUDGE Srl.