IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.31228/2016 (GM-CPC) Between:
M/s. Mangala Nursing Home, A registered Partnership Firm, Kadri Hills, Kadri Road, Mangalore-575003.
Represented by its Managing Parner, Dr. Ganapathi P. ...Petitioner (By Sri. P.N.Manmohan., Advcoate) And:
1. The Corporation of City of Mangalore, Lalbhag, Mangalore-575003, Represented by its Commissioner.
2. M/s. M.M.M.Enterprise, A private Trust Formed under the Indian Trusts Act., 1882. Having its address at Kadri, Mangalore-575003, Dakshina Kannada, Represented by its Trustee, Mrs. Loretta R.V.Rebello.
3. Dr.F.P.S.Rebello, S/o Joseph M.J.Rebello, Aged about 62 years, R/a. Tall Tress, Behind Mangala Nursing Home, Kadri, Mangalore-575003.
4. Smt. Loretta Rebello, W/o. Dr.F.P.S.Rebello, Aged about 60 years, R/a. Tall Trees, Behind Mangala Nursing Home, Kadri, Mangalore-575003. … Respondents (By Sri. Vishwajith Shetty, Advocate for respondent No.1; Sri L Govindraj for respondent Nos.2 to 4) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 16.03.2016 passed on I.A.No.III passed in M.A.No.20/2014 passed by the Court of the II Additional District and Sessions Judge, D.K. Mangaluru vide Annexure-L and consequential reject I.A.No.III.
This Writ Petition coming on for Orders, this day, the Court made the following:-
ORDER The petitioner being the appellant in his M.A.No.20/2014 is invoking the writ jurisdiction of this Court for assailing the order dated 16.03.2016 made by the learned II Addl. District Judge, D.K.Mangalore at Annexure-L, whereby respondent’s application in I.A.No.3 seeking his impleadment has been favoured. After service of notice, the respondents having entered appearance through their counsel, oppose the writ petition.
2. Learned counsel for the petitioner vehemently contends that there has been a long line of rulings by the Apex Court and by this Court wherein it has been conclusively held that the owner of the neighbouring property is neither necessary nor a proper party to the proceedings initiated by the Corporation/Local Body for violation of bye-
laws or approved plans by the persons constructing the buildings.
3. The learned counsel for the contesting respondents per contra contends that it is they on whose complaint the proceedings u/s.321 of the Karnataka Municipal Corporations, Act, 1976 for violation of building bye-laws have been initiated; the Court below having considered all aspects of the matter, has allowed their impleadment; there are rulings of Apex Court and of this Court which assign the locus to the complainants and even to the tax-payers in the matter of building bye-laws violation.
4. It is curious that both the learned counsel have cited the following decisions in support of their rival propositions as to the neighbouring owner being a necessary party or not to the proceedings instituted by the local body for violation of building bye-laws:
(i) Chandrappa Vs. Garudachala Associates Pvt. Ltd., (2015) 2 KLJ 483.
(ii) Malleshwaram Residents Welfare Association (R) Vs. Smt. Kamlamma and others (W.P. No. 8563/2017 disposed off on 03.04.2017).
(iii) Sri. N M Subanna Vs. The Commissioner and others (W.P. No.26761/2012 disposed off on 06.02.2014).
(iv) Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation and others. (AIR 2013 SC 927).
(v) Ullathi Ammanavara Daivasthana and others Vs.
Sri. A.C. Kurian and others (W.A No.6743/2017 disposed off on 14.02.2018).
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers. I have adverted to the decisions cited at the Bar.
6. It is not in dispute that it is these contesting respondents who being the neighbouring owners of the property have complained to the Local Body which has initiated legal action for violation of building bye-laws. Therefore they should have some say in the matter.
7. It is true that the decisions cited at the Bar lie on both the sides of the spectrum; one set of decisions holds that the neighbouring owners who happen to be the complainants are either necessary nor proper parties; other set of decisions voice a contra view; a careful perusal of these decisions proves that they are more fact specific than law laying. Be that as it may, justice would be met to both the sides if contesting respondents are permitted to participate in the appeal proceedings as interveners than as parties thereto.
In the above circumstances, this writ petition succeeds in part; the impugned order is modified to the effect that the contesting respondents being the complainants shall address arguments in the pending appeal both on law and on facts but with no liberty to file any pleadings or the like nor any evidence from their side.
Sd/- JUDGE DS/Snb