IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 30th day of August, 2017 PRESENT:
THE HON’BLE MR SUBHRO KAMAL MUKHERJEE, CHIEF JUSTICE AND THE HON’BLE MR JUSTICE P S DINESH KUMAR WRIT APPEAL No.2219 OF 2017 (LB-BMP) BETWEEN:
C.AHMED PASHA S/O LATE C MOHAMMED ESHAQ AGED ABOUT 69 YEARS R/AT No. 9, KOTCHAR PALYA ‘C’ STREET, BROADWAY ROAD BANGALORE-560 051 REPRESENTED BY GPA HOLDER Mr.A ASHRAF ALLI AGED ABOUT 46 YEARS S/O LATE V R ABDULLAH R/AT No. 2, MLA LAYOUT DHARMSINGH HOUSE R.T.NAGAR POST BENGALURU-560 032 ... APPELLANT (BY SHRI.JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR SHRI.TRIVIKRAM, ADVOCATE) AND:
1. COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE OPP. TO LIC BUILDING NEAR TOWN HALL, HUDSON CIRCLE NR ROAD, BANGALORE-560 002 2. ASSISTANT EXECUTIVE ENGINEER BRUHAT BANGALORE MAHANAGARA PALIKE HOMBEGOWDA NAGAR WARD SUB-DIVISION, BBMP BANGALORE-560 001 3. ASSISTANT ENGINEER BRUHAT BANGALORE MAHANAGARA PALIKE HOMBEGOWDA NAGAR WARD SUB DIVISION, BBMP BANGALORE-560 001 4. M/s.PRESTIGE ESTATES PROJECTS PVT. LTD., FALCON HOUSE, No. 1 MAIN GUARD CROSS ROAD BENGALURU-560 001 REPRESENTED BY IT’S MANAGING DIRECTOR ...RESPONDENTS (BY SHRI.UDAYA HOLLA, SENIOR ADVOCATE FOR SHRI.M.R.RAJENDRA, ADVOCATE FOR RESPONDENT No.4; SHRI.KEMPANNA, ADVOCATE FOR RESPONDENT Nos. 1 TO 3) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.7535/17 DATED 6/3/17.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE CHIEF JUSTICE DELIVERED THE FOLLOWING:-
J U D G M E N T This is an appeal against the judgment and order dated March 6, 2017, passed by the Hon’ble Single Judge, in Writ Petition No.7535 of 2017.
2. This litigation has a chequered history.
3. The writ petitioner filed Original Suit No.5688 of 2009 in the City Civil Court, Bengaluru, inter alia, seeking for a declaration of ownership and perpetual injunction restraining the defendant from putting up construction over the suit property and for a mandatory injunction directing the defendant to demolish the structure.
4. Mr.Jayakumar S.Patil, learned senior advocate appearing for the appellant, in his usual fairness, submits that in the trial Court, the appellant failed to obtain an order of injunction and Miscellaneous First Appeal No.2069 of 2016 filed against the said order was, also, disposed of with an observation that the construction made would be subject to the result of the suit.
5. The writ petition was filed thereafter on the allegation that the construction is made unauthorisedly and in violation of sanctioned building plan.
6. In our view, the Hon’ble Single Judge, rightly, dismissed the writ petition as the writ petitioner, having failed to obtain an order of injunction before the competent Civil Court, is not entitled to maintain a writ petition to stall the construction. We find no error in the order impugned requiring interference.
7. Therefore, the appeal is dismissed.
8. However, we record the submission of Mr.Uday Holla, learned senior advocate appearing for the respondent No.4, that the respondent No.4 shall not make any construction in deviation of the sanctioned building plan.
9. We, also, record the submission of Mr.Kempanna, learned advocate appearing for the Bruhat Bengaluru Mahanagara Palike, that the construction is according to the sanctioned building plan.
10. In view of the dismissal of the appeal, the pending interlocutory applications do not survive for consideration and are, also, dismissed.
11. We make no order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE Yn.