IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.12310 OF 2018(LB-BMP) BETWEEN:
Prof.M.S.Nagaraja, Son of M.M.Shivappa, Aged about 75 years, Residing at No.22, ‘Ibhavaktha’, 4th Main, Vidhyagiri Layout, Nagarabhavi 1st Stage, Bengaluru – 560 072. … Petitioner (By Sri Gangadhar, Advocate) AND:
1. The Commissioner, Bruhat Bangalore Mahanagara Palike, Hudson Circle, Bangalore – 560 001.
2. The Executive Engineer, Bruhat Bangalore Manahagara Palike, Chandra Layout Sub-Division, Ward No.128, 4th Main Road, M.C.Layout, Vijayanagara, Bangalore – 560 040.
3. The Assistant Executive Engineer, Bruhat Bangalore Mahanagara Palike, Chandra Layout Sub-Division, Ward No.128, 4th Main Road, M.C.Layout, Vijayanagara, Bangalore – 560 040.
4. M.Mothilal K.Patel, S/o.K.S.Patel, Aged about 43 years, R/at No.21, Bangalore City Employees House Building Co-operative Societies Layout, (HBCS), 3rd Cross, 4th Main, Ward No.128 Bangalore – 560 040.
5. M.Hiralal Patel, S/o.N.H.patel, Aged about 45 years, R/at No.21/1, Bangalore City Employees House Building, Co-operative Societies Layout (HBCS), 4th Main, Ward No.128 Bangalore – 560 040. ... Respondents (By Sri Amit Deshpande, Advocate for R1 to R3: Sri K.S.Ganesha, Advocate for R4 and R5) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to direct the respondents to consider the representation dated 16.10.2017 produced at Annexure-A, A1 and B dated 8.11.2017 and to take further action in accordance with law against the property owners bearing No.PID No.39-192/21 and PID No.39-192-21/1 as per the confirmation orders dated 04.01.2016 receptively produced at Annexures G1 and H1 and etc.
This writ petition, coming on for preliminary hearing ‘B’ Group, this day, the Court, made the following:
ORDER This writ petition is filed seeking a mandamus directing the respondents to consider the representations dated 16.10.2017 and 08.11.2017 produced at Annexures-A, A1 and B and to take further action in accordance with law against the property owners as per the confirmation order dated 04.01.2016 produced at Annexures G1 and H1.
2. The brief facts of the case are that on 14.05.2014, the petitioner has given a representation to the Corporation bringing it to the notice of the authorities that respondent Nos. 4 and 5 are constructing the building in violation of the provisions of the law. Pursuant to that, the authorities have initiated proceedings under Section 308 of the Municipal Corporations Act, 1976 (for short, ‘the said Act’). Subsequently, they have passed an order under Section 321 (3) of the said Act on 31.07.2014. Being aggrieved by the same, respondent Nos. 4 and 5 have filed appeals before the Karnataka Appellate Tribunal (for short, ‘the KAT’). The KAT, by order dated 17.07.2015 has allowed the appeals and remanded the matter back to the Corporation for fresh consideration in accordance with law. Subsequently no action has been taken.
3. On 11.11.2015, the petitioner has given one more representation to the authorities seeking for implementation of the order passed by the KAT on 17.07.2015. Since no action has been taken, he filed a writ petition before this Court in W.P.No.2143/2016. After service of notice, the counsel appearing for the Corporation has intimated the Court that pursuant to the order passed by the KAT dated 17.07.2015, the respondent has already passed an order under Section 321 (3) of the said Act on 04.01.2016. In view of the above, this Court, by order dated 11.10.2017 has disposed of W.P.No.2143/2016 by observing that if the petitioner is still aggrieved in the matter, the remedy open and available to the petitioner in such case would be to file Civil Suit in the matter, as the question of facts for establishing the deviations of the alleged construction, is required to be established with the help of relevant evidence in a civil Court and the extraordinary jurisdiction under Article 226 of the Constitution of India cannot be invoked in such cases.
4. Even though the orders under Section 321 (3) of the said Act have been passed on 04.01.2016, the same has not been executed. Therefore, the petitioner has given representations as per Annexures A, A1 and B dated 16.10.2017 and 08.11.2017. As the representations submitted by the petitioner have not been considered, he has approached this Court by filing this writ petition.
5. Sri Gangadhar, learned counsel appearing for the petitioner submits that even though the confirmation orders under Section 321 (3) of the said Act have been passed on 04.01.2016, as on today, the Corporation has not executed the same and they have not considered the representations produced as Annexures A, A1 and B. Hence, he sought for allowing the writ petition.
6. Per contra, Sri Amit Deshpande, learned counsel appearing for the Corporation submits that pursuant to the orders passed by the KAT on 17.07.2015, the authority has passed orders under Section 321 (3) of the said Act on 04.01.2016. If reasonable time is granted, the Corporation will consider the representations of the petitioner for implementing the order dated 04.01.2016.
7. Sri K.S.Ganesha, the learned counsel appearing for respondent Nos. 4 and 5 submits that earlier the very same petitioner has filed a writ petition before this Court seeking implementation of the order dated 17.07.2015 passed by the KAT. This Court disposed of the said writ petition on the ground that the Corporation has already passed a final order under Section 321 (3) of the said Act. Still, if the petitioner has any grievance regarding any deviation, he can file a civil suit. Hence, this writ petition is not maintainable on the ground of resjudicata. In this connection, he relied upon two judgments in the case of SHIV CHANDER MORE AND OTHERS vs. LIEUTENANT GOVERNOR AND OTHERS reported in (2014) 11 SCC 744 and M.NAGABHUSHANA vs. STATE OF KARNATAKA AND OTHERS reported in (2011) 3 SCC 408.
Hence, he submits that the writ petition is not maintainable and sought for dismissal of the writ petition.
8. Heard learned counsel for the parties and perused the writ papers.
9. It is not in dispute that earlier the Corporation has passed orders under of Section 321 (3) of the said Act on 31.07.2014. The same has been challenged by respondent Nos.
4 and 5 before the KAT. The KAT, by order dated 17.07.2015 remanded the matter to the Corporation for fresh consideration. Since the Corporation has not proceeded any further pursuant to the order of the KAT, the petitioner has filed representations before the Corporation seeking for implementation of the order dated 17.07.2015. Since no action has been taken, he approached this Court. In the earlier writ petition, during the pendency of the proceedings, the learned counsel for the Corporation has submitted that pursuant to the order of the KAT dated 17.07.2015 the authorities have passed orders under Section 321 (3) of the said Act on 04.01.2016. In view of that, this Court disposed of the matter with the observation that if the petitioner has any grievance regarding the deviation, he can approach the civil Court. Since the orders passed by the authority on 04.01.2016 under Section 321 (3) of the Act is not executed. Hence, the petitioner has given representations as per Annexures A, A1 and B to the Corporation for executing the order at Annexure G. The counsel for the Corporation has not disputed the orders passed by the authority under Section 321 (3) as per Annexures G1 and H1 and he submits that if reasonable time is granted, the Corporation will consider the representation of the petitioner for implementation of the orders dated 04.01.2016.
10. In the earlier writ petition in W.P.No.2143/2016, what is sought by the petitioner is for consideration of the representation dated 11.11.2015 in respect of not complying with the order of KAT dated 17.07.2015. Since the order has been complied by passing the final orders under Section 321 (1), (2) (3) of the said Act, this Court has disposed of the case reserving liberty to the petitioner that if the petitioner has still any grievance regarding the deviation he can file a civil suit. Since the respondent Corporation has not implemented the order dated 04.01.2016, the petitioner has given a representation for implementation of the order dated 04.01.2016 passed under Section 321(3) of the said Act. Even after a lapse of two years they have not executed the order dated 04.11.2016. When it is the statutory duty cast on the authority to execute the order passed under Section 321 (3) of the said Act as per Section 462 of the said Act, the petitioner has a right to seek for implementation of the same.
11. Therefore in the present writ petition relief sought by the petitioner is on a different cause of action. Hence, the writ petition is not barred by res-judicata. Therefore, the judgments relied upon by the learned counsel for respondent Nos. 4 and 5 is not applicable to the facts of the present case.
12. In view of the above, this writ petition is disposed of with a direction to the respondent Nos. 1 to 3 to consider the representations of the petitioner as per Annexures A, A1 and B for executing the orders at Annexures G1 and H1, within a reasonable time, not later than six months from the date of receipt of the certified copy of this order.
Sd/- JUDGE Cm/-