IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S.CHAUHAN WRIT PETITION NO.373/2017 (LB-BMP) BETWEEN:
SRI M V SIRUR, S/O V R SIRUR, AGED ABOUT 72 YEARS, RESIDING AT NO.10, 1ST FLOOR, 2ND CROSS OF 9TH CROSS (GUNDAPPA GOWDA ROAD) EGIPURA MAIN ROAD, VIVEKNAGAR, BENGALURU 560047, (THE PETITIONER HAS NOT CLAIMED BENEFITS OF SENIOR CITIZEN) ... PETITIONER (BY SRI : ANANDEESWARA D R, ADVOCATE) AND 1. SMT NAJMUNNISA BEGAUM, W/O LATE KAMAR MOHAMMED, AGED ABOUT 61 YEARS, 2. SRI MUNAWAR MOHAMMED , S/O LATE KAMAR MOHAMMED, AGED ABOUT 41 YEARS, 3. SMT MALIN BEEBY D/O LATE KAMAR MOHAMMED AGED ABOUT 38 YEARS, 4. SRI ANWAR MOHAMMED S/O LATE KAMAR MOHAMMED AGED ABOUT 36 YEARS, RESPONDENT NOS.1 TO 4 ARE RESIDING AT NO.308, (NEW NO.9),2ND CROSS, 9TH CROO, EJIPURA MAIN ROAD, VIVEKNAGAR , BENGALURU 560047.
5. THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE , HUDSON CIRCLE, NEAR TOWN HALL, BENGLAURU 560009.
6. THE ASSISTANT EXECUTIVE ENGINEER, BRUHAT BANGALORE MAHANAGARA PALIKE, KORAMANGALA SUB DIVISION, 2ND CROSS, 17TH A MAIN ROAD, 5TH BLOCK, KORMANGALA, BENGALURU 560095.
7. THE REGISTRAR, KARNATAKA APPELLATE TRIBUANL, M S BUILDING, DR B R AMBEDKAR VEEDHI, BENGALURU 560001.
... RESPONDENTS (BY SRI : A.K.VASANTH, AGA FOR R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD.16.12.2016, PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.815/2015 ON I.A.NO.IV AT ANNEX-A AND ALLOW THE SAID APPLICATION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has challenged the legality of the order, dated 16.12.2016, passed by the Karnataka Appellate Tribunal, whereby the learned Tribunal has dismissed the application filed by the petitioner, under Order I Rule 10(2) read with Section 151 of CPC, for being impleaded as party respondent in the appeal filed by respondent No.1.
2. Briefly the facts of the case are that the petitioner claims to be the absolute owner, and in possession of a property, located in Sy.No.57/1, of Ejipura village. Having purchased the said property from one Smt.Yellamma on 19.7.1980 the petitioner had constructed a residential house. According to the petitioner, towards the south side of the property, there was a road for flowing of drain water. However, respondent Nos.1 to 4 claimed that they had purchased the corporation road. Since the petitioner was aggrieved by the alleged purchase, and by the transfer of katha made in favour of the father of respondent Nos.2 to 4, he filed an appeal before the Additional Commissioner, BBMP. By order dated 6.12.2012, the Additional Commissioner had set aside the katha, and remanded the case for fresh orders.
3. However, despite the fact that the case was remanded back, in spite of the fact that the petitioner made several representations to respondent Nos.5 and 6 against the illegal construction being raised by respondent Nos.1 to 4, the BBMP did not take any action against respondent Nos.1 to 4. Therefore, the petitioner was constrained to file a civil suit for permanent injunction against respondent Nos.1 to 4. By judgment and decree dated 1.8.2012, although the civil suit was dismissed, but a clear direction was issued to the BBMP, to clear the illegal construction being raised by respondent Nos.1 to 4.
4. Consequently, respondent Nos.5 and 6 issued a preliminary notice and confirmation order against respondent Nos.1 to 4. Since respondent Nos.1 to 4 were aggrieved by the said confirmation order, they filed an appeal before the learned Tribunal. During the course of proceedings, the petitioners filed an application under Order 1 Rule 10(2) read with Section 151 of CPC for impleading himself as respondent No.3 in the said proceedings. Respondent Nos.1 to 4 objected to the impleadment application. By order dated 16.12.2016, the learned Tribunal has rejected the impleadment application filed by the petitioner. Hence, the present petition before this Court.
5. Mr.Anandeeshwara D.R, the learned counsel for the petitioner, has vehemently contended that the petitioner had filed a civil suit where a categorical finding was given by the learned civil Court, and a categorical direction was issued to the BBMP to get rid of the illegal construction raised by respondent Nos.1 to 4. Despite the fact that BBMP is a party respondent before the learned Tribunal, the said fact has not been brought to the notice of the learned Tribunal by the BBMP. Therefore, BBMP is failing in discharging its duty. Thus it is imperative that the petitioner be permitted to be impleaded as party respondent, so that he can bring the true facts of the case to the notice of the learned Tribunal. Hence, the petitioner is a necessary party to the lis. Thus, the impugned order is illegal and unsustainable.
6. Heard the learned counsel for the petitioner and perused the impugned order.
7. Admittedly, respondent Nos.1 to 4 have challenged the confirmation order passed by the BBMP. Therefore, the dispute is between respondent Nos.1 to 4, on the one side, and the BBMP on the other side. Since the notice was issued by the BBMP, it is for the BBMP to defend its action. Moreover, since the BBMP was directed by the learned civil Court to remove the illegal construction, it is precisely for this reason that the BBMP had issued the confirmation order under Section 321 of the Karnataka Municipal Corporation Act, 1976. Therefore, it is for the BBMP to defend its action, and to justify the confirmation order. Hence, the petitioner is neither a necessary, nor a proper party to the lis.
8. For the reasons stated above, this Court finds no illegality or perversity in the impugned order. Thus, this petition, being devoid of any merit, is dismissed.
Sd/- JUDGE nd/-