1/10 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 06th DAY OF DECEMBER 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.45779/2017 (LB-BMP) BETWEEN:
SRI. C. M. PRAKASH S/O. C. M. MUNISWAMAIAH SETTY AGED ABOUT 58 YEARS RESIDING AT: SRI. GANESHA PROVISION STORES No.10, 94/3, KATHRIGUPPE BSK, 3RD STAGE, BENGALURU-560 085, OCCUPATIN: BUSINESS.
... PETITIONER (BY Mr. V.B. SHIVA KUMAR, ADV.,) AND:
1. BRUHAT BENGALURU MAHANAGARA PALIKE CORPORATION OFFICES N.R. SQUARE, J.C. ROAD BENGALURU-560 002 REP. BY ITS COMMISSIONER.
2. THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE CORPORATION OFFICES N.R. SQUARE, J.C. ROAD BENGALURU-560 002.
... RESPONDENTS (BY Mr. SHIVANANDA METI, ADV., FOR C/R1 & 2) THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, DIRECT THE R-2 TO IMMEDIATELY ISSUE ROAD CUTTING PERMISSION AND TO PROVIDE BASIC AMENITIES OF WATER SUPPLY AND SEWERAGE DISCHARGE. GRANT AN INTERIM ORDER TO DIRECT THE R-2 TO ISSUE ROAD CUTTING PERMSISION TO THE RESIDENTIAL PREMISES DESCRIBED IN THE SCHEDULE FOR WATER SUPPLY AND SEWERAGE DISCHARGE.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. V.B. Shiva Kumar, Adv. for Petitioner Mr. Shivananda Meti, Adv. for C/R1 & 2 1. Mr.C.M.Prakash s/o C.M.Muniswamaih Setty has filed this writ petition in this Court on 06.10.2017 with the following prayers:-
“(a) Issue a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction, directing the 2nd Respondent to immediately issue road cutting permission and to provide basic amenities of water supply and sewerage discharge in the interest of justice and equity.
(b) Cost of the Petition.
INTERIM PRAYER Pending consideration and disposal of the above Petition, the Petitioner in the above case respectfully pray for a direction directing the 2nd Respondent to issue road cutting permission to the residential premises described in the schedule for water supply and sewerage discharge in the interest of justice and equity.
SCHEDULE All that piece and parcel of Site No.10 Old No.316/94/3, measuring 45 x (31+11)/2 feet, Kathriguppe Village, Uttarahalli Hobli, Bengaluru South Taluk, bounded on East by : C.A. Muniswamaiah Setty’s Property West by : Road North by : Road South by : Road”
2. Though, prima-facie, the matter pertains to the jurisdiction of the civil Court or to be considered by the authorities of the concerned of the BBMP, a notice was issued to the Respondents-BBMP in the matter and on 11.10.2017, the learned counsel for the petitioner Mr.V.B.Shivakumar was also directed to produce the relevant Statute, under which road cutting permission was sought by the petitioner to take the water connection and connect the sewerage line of the building in question to the main line provided and constructed by the State Government. On 08.11.2017, this Court directed the learned counsel for the petitioner to produce the site photographs in question, which the learned counsel for the petitioner has produced today before the Court. The Respondents-BBMP was also called upon to file its Statement of Objections before this Court.
3. The learned counsel for the Respondents-BBMP Mr.Shivananda Meti has however brought to the notice of the Court today that the issue regarding the validity and legality of the construction raised by the petitioner itself is pending before the Karnataka Appellate Tribunal (‘KAT’ for short) in Appeal No.686/2017 filed by the same petitioner Mr.C.M.Prakash s/o C.M.Muniswamaiah Setty, in which, the learned Member of the KAT, Bengaluru, has passed an interim order on 10.08.2017, a copy of which is placed on record and by which order, the learned KAT has directed that till 23.08.2017, the Respondents-BBMP shall not demolish the construction of the petitioner and the petitioner-appellant also shall not put up any further construction on the said building and the case was fixed on 23.08.2017.
4. The learned counsel for the Respondents-BBMP has submitted before the Court that the facts relating to the pendency of the said Appeal before the KAT have not been disclosed in the present writ petition.
5. To this submission and a preliminary objections raised by the learned counsel for the Respondents- BBMP, the learned counsel for the petitioner initially submitted that these facts are not stated in the writ petition. However, the learned counsel for the petitioner submitted that the petitioner has approached this Court for the limited relief sought in the present writ petition about the connectivity of water and sewerage lines and for the road cutting permission for connecting the water and sewerage connection to the main lines.
6. Having considered the submissions made at the bar, this Court is of the opinion that the litigation of this nature, first of all cannot be entertained in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. These are all questions of facts which deserve to be determined in the first instance by the authorities concerned in the public bodies and if the petitioners or the parties have any grievance against such orders, the appropriate remedy to be availed by them is the Civil Suit in Civil Court, where on the basis of the clear and categorical averments with all relevant facts and evidence, the questions of facts can be determined by the learned trial Court.
7. The present case however presents a different picture of abuse of process of law by the petitioner, in as much as, when the issue relating to the legality of the construction itself, against which, the Respondents-BBMP intended to proceed under Section 321 of the KMC Act, 1976, the petitioners has already filed an appeal before the KAT and there was no occasion for the petitioner to file the present writ petition.
8. During the course of the dictation of this order, however the learned counsel for the petitioner however brought to the notice of the Court that in para-11 of the writ petition, the petitioner has stated that the Appeal No.686/2017 is pending before the KAT and the Tribunal has granted an interim order as aforesaid.
9. Though the said fact as stated in para-11 apparently has not been brought to the notice of the Court while arguing this writ petition initially earlier also and today as well, however be that as it may, even though technically it may not amount to concealment of facts, nonetheless, there is no justification for the petitioner to scatter the litigation and avail multiple remedies in different courts or forums.
10. This apparently allows the parties to obtain different orders which may be conflicting in nature from different forums and this is precisely an abuse of process of law which deserves to be strongly put down and avoided.
11. A citizen or a person aggrieved by any action of any public authority or State can, at one point of time should be allowed to avail only one legal remedy and to avoid an abuse of process of law, such forums can be either the Trial Courts or the Authorities created under the relevant Statute. The Trial Courts also should not deal with such matters the moment it is brought to the notice of the concerned Court or Tribunal or public authorities that one forum is already seized of the case of such party or person and it is always advisedly to relegate the parties to one forum and where the evidence can be weighed and looked into properly.
12. In the present case, when the proposed action against the construction itself is being questioned by the Respondents-BBMP and the KAT being the highest body under the KMC Act, 1976, is seized of the matter, this Court finds no justification for the petitioner to approach this Court by way of present writ petition. If the petitioner wanted any kind of intervention of any Court or Tribunal, he was at liberty to file such application before the KAT itself, but for the reasons best known to the petitioner, the petitioner has chosen to file such writ petition in this Court.
13. The writ petition in these circumstances, is found to be devoid of merit and it is not maintainable and in the opinion of this Court, it amounts an abuse of process of law and therefore, the writ petition deserve to be dismissed with costs which are quantified at Rs.25,000/- to be paid by the petitioner to the Respondents-BBMP.
14. Accordingly, the writ petition is dismissed with costs.
Srl.
Sd/- JUDGE