1/7 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE Dr. JUSTICE VINEET KOTHARI WRIT PETITION No.23063/2017 (LB-BMP) Between:
M. Narayana Swamy, Son of late G. Muniyappa, Aged 66 years, Residing at Mahadeva Kodigehalli, Jala Hobli, Bengaluru North Dsitrict. …Petitioner (By:Mr.S.Shaker Shetty, Advocate) And:
1. The Commissioner, Bruhat Bengaluru Mahanagara Palike, N.R.Square, Bengaluru – 560 002.
2. N.Muniraju, S/o. Late Narayanappa, Aged about 57 years.
3. N.Venkataswamy, S/o. late Narayanappa, Aged about 55 years.
4. N. Ramesh, S/o. late Narayanappa, Aged about 55 years.
R2 to R4 are residing at Kaikondrahalli, Varthur Hobli, Bengaluru East Taluk, Bengaluru – 560 076. …Respondents (By:Mr.Jagadeeshwara N.R., Advocate for R1) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the respondent - 1 to demolish the unauthorized construction put up on 13 guntas of ‘B’ Kharab Land in Sy.No.2 of Kaikondrahalli Village, Varthur Hobli, Bengaluru East Taluk etc.
This Writ Petition coming on for preliminary hearing this day, the court made the following:-
ORDER Mr.S.Shaker Shetty, Adv. for Petitioner Mr.Jagadeeshwara N.R, Adv. for Respondent No.1 The petition has been filed by the petitioner M.Narayanaswamy with the following prayers:
I. A writ of mandamus or any other like writ thereby direct the respondent No.1 to demolish the unauthorized construction put up on 13 guntas of ‘B’ kharab land in Sy. No.2 of Kaikondrahalli Village, Varthur Hobli, Bangalore East Taluk.
INTERIM PRAYER II. This Hon’ble Court may be pleased to pass interim order directing the respondents 2 to 4 not to put up any further construction in 13 guntas of ‘B’ kharab land in Sy. No.2 of Kaikondrahalli Village, Varthur Hobli, Bangalore East Taluk, pending disposal of the above writ petition.
III. This Hon’ble Court may be pleased to pass an order as to costs of the Writ petition with such other relief or reliefs as this Hon’ble Court deems fit in the circumstances of the case.”
2. In this nature of the cases, the considered view of the Court is that the remedy to be availed by the petitioner / complainant is the remedy by way of civil suit and not writ petition under Article 226 of the Constitution of India.
3. This view was taken by this Court, which has been consistently followed later on by this Court was expressed in the case of Sri. V. Dhamodaran & others Vs.Bruhat Bangalore Mahanagara Palike and others in W.P.No.3381-883/2014 decided on 28.11.2016. The relevant portion of the judgment is quoted below for ready reference:
“10. It is unfortunate that the writ jurisdiction is treated as panacea for all alleged ills and with the kind of blanket and bald averments and objections and lot of bulky documents which are put forth on the dockets of this Court in these type of cases are called upon to be examined by writ Court, whereas such issues and matters ought to have been raised at the lower Forums viz., Departmental authorities and Tribunals constituted under these laws, who are expected to give finding of facts based on relevant evidence and this is indeed a sorry state of affairs.
11. The insistence of the learned counsel for the petitioners that this Court should not dismiss these writ petitions at this stage in view of the aforesaid interim order passed by the co-ordinate bench is misconceived, to say the least.
12. With all due respects to the learned counsel for the Petitioners in the said interim order passed by the co-ordinate bench of this Court, the self-same order itself notices that “large number of issues have been raised by the petitioners and the issue regarding maintainability of the writ petitions still needs to be debated”. Therefore at that stage, even if the writ petitions were not dismissed and this debate was kept open, the petitioners cannot insist upon this Court to continue these writ petitions and dilate upon the details on merits.
13. This Court is of the clear opinion that merits or otherwise of the present case deserves to be decided by the lower forums or the authorities of the public bodies like BBMP and BDA itself or the Town Planning Authority concerned and if they have so decided or so decide in future and the petitioners feel aggrieved of their decisions, then the relevant Statutes have already provided for appellate mechanism and forums for redressal of their grievances before them and finally before the Tribunal.
14. The petitioners, therefore, would be well advised to approach the said Tribunal itself and seek their impleadment in aforesaid pending appeal. If the learned Tribunal is satisfied about their bona fide and the locus standi that they need to be heard in the matter, the Tribunal is at liberty to implead them as party in the said appeals and as complainants, the present petitioners can lead their evidence and grievance before the said Tribunal.
15. In the alternative, they can also be directed by the Tribunal to approach the concerned public authorities like BBMP & BDA or Town Planning Authority itself first.
16. In case such an exercise is undertaken by the fact finding body like the Departmental authorities or the Tribunal and the petitioners are not satisfied with their decisions, they can still file Civil Suits separately against each of the private Respondents - Builders separately and impleading even the public authorities like BBMP & BDA etc., as defendants.
17. However, in view of the aforesaid, this Court is not inclined to proceed further with this case and cases of this nature and holds that these type of writ petitions are not maintainable. The writ petitions, therefore, deserve to be dismissed and are accordingly dismissed. No costs.”
In view of this, the present petition is dismissed with liberty to the petitioner to approach the Civil Court by way of civil suit.
Sd/- JUDGE RS/* Ct:VBS (Sl.No.27 of List-I)