Karnataka High Court
N Sreedhara Rao vs Deputy Commissioner on 1 February, 2013
Author: A.S.Bopanna
Bench: A.S. Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO.11171/2007 (LB-RES)
BETWEEN:
N. SREEDHARA RAO,
AGED ABOUT 51 YEARS,
NO.82, SREE SHANTHI NIKETANA,
IUDP LAYOUT,
CHITRADURGA-577 501.
... PETITIONER
(BY SRI.N. SREEDHARA RAO, [PARTY-IN-PERSON])
AND:
1. DEPUTY COMMISSIONER,
CHAIRMAN CITY IMPRUVEMENT
TRUST BOARD,
CHAIRMAN CHITRADURGA URBAN
DEVELOPMENT PROGRAM,
CHAIRMAN,
INTEGRAL URBAN DEVELOPMENT
AUTHORITY,
CHITRADURGA - 577501.
2. COMMISSIONER,
CHITRADURGA MUNICIPAL COUNCIL
AND SECRETARY, INTEGRAL URBAN
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DEVELOPMET PROGRAM,
CHITRADURGA 577501.
... RESPONDENTS
(BY SRI. VIJAYAKUMAR. A. PATIL, HCGP FOR R1
SRI. S.MAHESH, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
ISSUE WRIT FOR FORMATION OF 2ND MAIN ROAD IN
QUESTION WITH 15 METER WIDTH, PER NORMS/
BYE-LAWS OF TOWN PLANNING AUTHORITY.
THIS WRIT PETITION COMING ON FOR HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court seeking for a direction to the respondents to form the 2nd Main Road in question with 15 Mtrs. width as per the norms and Bye Laws of Town Planning Authority. The petitioner has also stated that the respondents should be directed by suitable orders on considering the misrepresentations and fraudulent statements. In addition, the petitioner has also sought for suitable compensation for the mental agony caused to the petitioner due to fraudulent misrepresentation.
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2. Heard the petitioner-in-person, learned Government advocate for the 1st respondent and Sri. Mahesh, learned counsel for the 2nd respondent.
3. The case of the petitioner is that the petitioner was allotted site No. 82, 2nd Main road existing between IUDP Layout, Chitradurga and 3rd Phase of KHB Colony, Chitradurga. The petitioner contends that the site was stated to be a corner site and therefore the petitioner based on such representation had opted for the same. According to the petitioner, beside the site allotted to the petitioner on its western site, a road was indicated in the schedule to the sale deed. Since, it was indicated as a road, the same was to be of 15 Mtrs. width and in any event, the site of the petitioner in that context should have been considered as a corner site, since the southern boundary is also indicated as another road. In that regard, the petitioner is aggrieved that ultimately since the 2nd respondent formed one more site to the western 4 side of the site No. 82 allotted to the petitioner and designated the same as site No. 82A it has affected the right of the petitioner to enjoy the property. Hence, it is contended that the respondents were not justified in their action.
4. At an earlier instance, the petitioner had filed a suit claiming certain reliefs in the same nature as has been sought in the instant writ petition, the suit no doubt was initially dismissed. However in a Regular Appeal filed by the petitioner, the suit has been partially decreed and compensation has been ordered to be paid. The said compensation has already been paid by the 2nd respondent. Notwithstanding the same, the petitioner is before this Court making out a grievance that in any event though a road exists beyond site No. 82A, the width of the road is only 6 Ft. and therefore the road requires to be widened.
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5. In that view, the respondents have filed their objection statement disputing the claim putforth by the petitioner. Insofar as the formation of site No. 82A adjacent to site No.82 allotted to the petitioner, the same is not disputed. However, it is contended that at an earlier instance, when the petitioner was before this Court in W.P. No. 13032/1999, this Court while disposing of the same on 01.12.1999 had taken note of the revision of the layout plan which had been earlier prepared by the 2nd respondent for formation for the said site No. 82A, in view of the availability of the land. Hence, it is contended that insofar as the formation of the site, the same has attained finality before this Court. The respondents have also referred to the proceedings wherein, the petitioner had instituted a suit and ultimately in view of the decree passed in the Regular Appeal, the petitioner has been compensated. Hence, it is contended that both the reliefs prayed in the instant writ petition having already been concluded by the earlier 6 proceedings cannot be considered by this Court in the instant writ petition.
6. One another aspect which has also been brought to light and which is not seriously in dispute is that site No. 82A in fact is at the periphery of the layout formed by the 2nd respondent. Thereafter, the layout formed by the Karnataka Housing Board commences and the road in question regarding which the petitioner is making out a grievance is the road which has been formed by the Karnataka Housing Board and therefore, it is the case of the respondent that the 2nd respondent in any event cannot be directed with regard to the road which has been formed by a different Authority.
7. In the light of what has been contended by the parties, the fact that initially the site was allotted as a corner site having No.82 to the petitioner is not in dispute. The further fact that to the western side of the site, it was indicated as road is also not in dispute. Even 7 in that situation, the question as to whether the 2nd respondent could have formed a site as No. 82A next to No.82 cannot be considered once over again in the instant petition inasmuch as a perusal of the order dated 01.12.1999 passed in W.P. No. 13032/1999 would disclose that this Court has accepted that position and the manner in which the 2nd respondent has formed site No. 82A. It is not in dispute that the said order has attained finality. If that be the position, insofar as the formation of site, the petitioner cannot make out any grievance at this juncture.
8. Furthermore, what is necessary to be noticed is that the petitioner had instituted a suit in O.S. No. 280/2001. The issues which arose for consideration in the said suit would indicate that the Court was concerned as to whether the petitioner had paid a higher amount than what it was required to be paid by considering the said site No. 82 as a corner site. 8 The issue relating to the manner of disposal of site No. 82A was also considered. Further, in that context, the fact as to whether petitioner is to be compensated for the act of the 2nd respondent was an issue for consideration. The suit no doubt was dismissed by the judgment and decree dated 30.06.2004. As against the same, an appeal was filed to the Lower Appellate Court which has been decreed granting the compensation of Rs.35,000/- with interest which had already been paid by the 2nd respondent to the petitioner. In such event, insofar as that aspect of the matter, the issue would not arise for consideration relating to the right of the petitioner being affected in view of the formation of site No. 82A adjacent to the site No. 82.
9. The petitioner-party-in-person would however contend that though at this juncture, the grievance of the petitioner is not only with regard to the formation of site No. 82A, since he has accepted the compensation under 9 a circumstance where he had not forcing and in such circumstance, it is contended that the issue relates to the width of the road next to site No. 82A. The question that arises for consideration is whether in the instant petition such right could be determined, if the petitioner raises on piecemeal basis since he was required to raise all contentions at that stage. Even that be so, the fact that there exists a road beyond site No. 82A is not in dispute. The fact that the site No. 82A is also at the periphery of the layout formed by the 2nd respondent is the accepted position. In that view, the question is as to whether in the instant petition whether a direction could be issued to the 2nd respondent to provide 15 Mtrs. wide road as sought for by the petitioner.
10. To substantiate the case putforth by the petitioner, he would refer to the written statement filed by the 2nd respondent who was the defendant in O.S. No. 280/2001. The 2nd respondent is stated to have 10 putforth certain contention in the said written statement, where they have admitted with regard to there being a wider road next to site No. 82. In that context, it is contended that the 2nd respondent is taking contrary stand in the present objection statement and therefore action should be initiated against them. Firstly, in that regard a perusal of the written statement would indicate that the 2nd respondent had clearly putforth the contention that initially the area beyond site No. 82 was shown as a road on the presumption that there would be a wider road available. It is in that circumstance, though they have stated that subsequently site No. 82A has been formed in that area, since the same was to be formed as a site in view of the revised plan, with regard to the formation of the site as already noticed, the same has concluded in W.P. No. 13032/1999 and this Court cannot re-appreciate that aspect of the matter. In that light, if the contention putforth in the written statement is noticed, the same would only be in a position of 11 explaining the circumstance under which the wider road at the instance of the 2nd respondent is not possible and when this Court cannot upset the order passed in earlier proceedings, certainly it cannot be accepted that it is a contrary statement which has been made.
11. Furthermore, when the position is clear that the road beyond site No. 82A is not a portion of the property, where the 2nd respondent has formed the layout and even to the knowledge of the petitioner, the road lies in the layout formed by the Karnataka Housing Board and if any relief with regard to the same is claimed, it cannot be accepted in the absence of the necessary parties i.e., the Karnataka Housing Board. Even though this aspect of the matter has been repeatedly brought to the notice of the petitioner at the time of hearing, the petitioner is unable to appreciate the same but continues to harp on the same issue.
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12. The petitioner-party-in-person is particular that his contention that the 2nd respondent has cheated the petitioner requires to be addressed by this Court. The very reasoning indicated in the above order to come to a conclusion that the petitioner is not entitled to any relief in this petition would disclose that the act of the respondents has already been endorsed by this Court in an earlier proceedings relating to the formation of site and thereafter with regard to the allegation of the petitioner that he has been mislead, the suit has already been decreed in the appeal and compensation has been granted and paid to the petitioner. Therefore the said contention also cannot be accepted in the instant writ petition. Therefore, in the nature of the circumstances, the relief prayed in the petition cannot be granted in the petition. Accordingly, the petition being devoid of merit is dismissed.
Sd/-
JUDGE ST*