IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION NO.58960 OF 2015 (GM-CPC) BETWEEN G.Sripathi Rao, Aged 39 years, S/o Late G.Keshava Rao, Residing at 2-1-89, Gundibail, Kunjibettu Post, Udupi-576 102.
(By Sri A.Keshava Bhat, Advocate) AND 1. B.Girish Aithal, Aged 39 years, S/o Late Krishnamurthy Aithal, Residing at Church Road, 76 Badagubettu Village, Udupi-576 101.
2. Udupi Town Municipality Udupi-576 101, Represented by its Commissioner.
... Petitioner …Respondents (By Sri Hareesh Bhandary, Advocate for R1; Sri.T.I.Abdulla, Advocate for R2).
This writ petition is filed under Article 227 of the Constitution of India praying to set aside the impugned order dated 01.12.2015 passed on I.A.No.IV in O.S.No.478/2012 on the file of the II Additional Civil Judge and JMFC, Udupi vide Annexure-A.
This Writ petition coming on for Orders , this day, the Court made the following:
ORDER Petitioner has invoked the writ jurisdiction of this Court for assailing the order dated 01.12.2015 whereby, his application in I.A.No.4 under Order I Rule 3 and Rule 10(2) of CPC for his impleadment as the 2nd defendant to the suit in O.S.No.278/2012 has been rejected.
2. After service of notice, the respondents have entered appearance through their counsel. The respondent/plaintiff opposes the Writ Petition, whereas the respondent/defendant-Udupi Town Municipality supports it.
3. Learned counsel for the petitioner vehemently contends that the steps taken by the respondent-Municipality against the petitioner for alleged illegal construction/violation of building bye- laws is on the complaint filed by the petitioner and therefore, is a most proper party if not the necessary party for the complete adjudication of the 1st respondent’s suit in O.S.No.478/2012 wherein, the 2nd respondent-Municipality happens to be the sole defendant.
4. The learned counsel for the petitioner further submits that the plaintiff and the officials of the defendant-Municipality appear to be hand-in-glow with each other and therefore, there may not be a proper contest to the suit proceedings and consequently, the arraignment of the petitioner as a defendant to the said suit is essential to prevent polluting of the judicial process. He adds that the respondent-plaintiff is not justified in not making the petitioner one of the defendants and that the present stand of the plaintiff to oppose impleadment of the petitioner, is unconscionable and therefore, should not be entertained.
5. Learned counsel for the 1st respondent- plaintiff per contra submits that it is ordinarily the plaintiff as the dominant litis choses as to who should be his opponent in the proceedings, of course, subject to all just exceptions and that the case of the petitioner does not fall in any of the exceptions to the same; the lis in the suit can be adjudicated duly without the inclusion of the petitioner herein; merely because he has complained to the municipal body against the alleged violation of the building bye-laws, he does not become a necessary or proper party either.
6. I have heard the learned counsel for the petitioner and the learned counsel for the respondents; I have perused the Writ Petition Papers and the decisions cited at the Bar. This Writ Petition needs to be allowed for the following reasons:
(a) The 2nd respondent-Municipality admittedly has initiated some process for the removal of unauthorized construction of the structure by the 1st respondent-plaintiff at the instance of the petitioner herein. There have been other rounds of litigations between the parties before this court, copies of the judgments whereof are part of the record. Therefore, fairness required that the petitioner was also impleaded as a defendant to the suit in question; that having not being done, the same fairness required that the respondent-plaintiff should not have opposed petitioner’s impleadment, since he is a proper party if not a necessary party.
(b) The Apex Court in the celebrated case of K.Ramdas Shenoy Vs. The Chief Officer, Town Municipal Council, Udupi, AIR 1974 SC 2177 at paragraphs 28 & 29 has observed as under and these observations support the case of the petitioner herein:
“An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.
The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.”
7. Similarly, a this Court in the case of Shantha Vs. Commissioner of Corporation of City of Bangalore, ILR 1987 KAR 1570 at 1597 observed as under and these observations also support the case of the petitioner that he has a vital interest as a tax payer in the removal of unlawful construction of structures:
“It must be emphasized that the Development Plan prepared under the planning Act, 1961 would be for the benefit of the public. The Corporation authorities who are the trustees of the public interest must strictly observe the norms and conditions of the Development Plan. The authorities owe a duty to Rate Payers to protect the interest of the public, while administering the Planning law. They cannot afford to ignore the social responsibilities underlining the Planning law. They shall never issue licence to construct building contrary to the Zoning Regulations. If they give licence to construct a building contrary to the permitted land use or contrary to the prevailing zoning regulations, they should be held responsible for their lapses. Indeed, they are accountable to the public when they act against the interest of the public. In such cases, when the Rate Payers approaches the Court complaining about the misuse or abuse of powers, by public authorities, the court cannot drive them away on technical grounds. It would be the duty of the courts to enforce the rule of law, enacted for the benefit of the public. It would be the duty of the courts to protect the rate payers’ interest preserved under the Planning law.”
8. The reliance of the respondent-plaintiff on the decision in M. Narayana and Another Vs. Smt. Ramakka and others, ILR 2016 KAR 2979 to the effect that it is only the plaintiff as the dominant litis who should be allowed to decide as to who should be his opponent and that he cannot be compelled to sue a person against whom he does not seek any relief, is misplaced since those observations are made in totally different context. In fact, paras 11 & 12 of the said decision to some extent support the case of the petitioner as well.
9. In the above circumstances, this writ petition succeeds; a Writ of Certiorari, quashing the impugned order; the petitioner’s application in I.A.No.IV in 1st respondent’s O.S.No.478/2012 pending on the file of learned II Additional Civil Judge and JMFC, Udupi is favoured and the petitioner herein is permitted to be impleaded as a defendant No.2 to the said suit; 1st respondent shall amend the cause title of the suit proceedings in the Court below. The petitioner is permitted to file his Written Statement or any applications as may be required for due adjudication of the suit, within a period of four weeks.
10. Since the suit is of the year 2012, the learned trial judge is requested to dispose off the same expeditiously, in accordance with law.
Costs made easy.
Sd/- JUDGE AG