IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.30799 OF 2018 (LB-BMP-PIL) BETWEEN:
1. SRI PRASAD K.A.
S/O.LATE K.S.ANANTHARAJU URS AGED ABOUT 60 YEARS NO.137, SELLER, RAJEE ASHRAYA 1ST CROSS, CENTRAL EXCISE LAYOUT VIJAYANAGAR BENGALURU-560 040 2. SRI YOGEESH KUMAR B.N. S/O.LATE NAGARAJ AGED ABOUT 47 YEARS NO.10, 1ST CROSS 20TH MAIN, MARANAHALLI VIJAYANAGAR BENGALURU-560 040 3. SRI HARSHA S. S/O.SWAMY AGED ABOUT 23 YEARS NO.1561, 6TH CROSS ROAD KHB COLONY, GOVINDARAJNAGAR BENGALURU-560 079 4. SRI ANAND S/O.VENKATAPPA AGED ABOUT 23 YEARS NO.137, 1ST FLOOR RAJEE ASHRAYA, 1ST CROSS CENTRAL EXCISE LAYOUT VIJAYANAGAR BENGALURU-560 040 ... PETITIONERS (BY SHRI GANAPATHI S.SHASTRY, ADVOCATE) AND:
1. COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE BENGALURU-560 002 2. DEPUTY FOREST CONSERVATOR BRUHAT BANGALORE MAHANAGARA PALIKE BENGALURU-560 002 3. ASSISTANT EXECUTIVE ENGINEER BRUHAT BANGALORE MAHANAGARA PALIKE GOVINDARAJNAGAR SUB DIVISION 4TH MAIN ROAD, M.C.LAYOUT VIJAYANAGAR BENGALURU-560 040 ... RESPONDENTS (BY SHRI V.SREENIDHI, ADVOCATE) ---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO DEMOLISH THE BUILDING CONSTRUCTED IN PORTION OF PARK NO.3 SITUATED NEXT TO NACHIKETHANA SCHOOL, 23RD CROSS ROAD, CENTRAL EXCISE LAYOUT, MARENAHALLI, VIJAYANAGAR, BENGALURU AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
2. Prayer clause (i) of this writ petition filed in the nature of a public interest litigation reads thus:
“(i) Issue a writ of mandamus or any other writ or direction to the respondents to demolish the building constructed in portion of park No.3, situated next to Nachikethana School, 23rd Cross Road, Central Excise Layout, Marenahalli, Vijayanagar, Bengaluru”
3. Prayer clause (ii) is a consequential prayer for restoration of the site after removal of the building.
4. The petitioners are relying upon the letter dated 15th May 2007 addressed by the second respondent-the Deputy Conservator of Forest to the Deputy Registrar in the office of the Karnataka Lokayukta. It is stated that the site is a CA site. It is pointed out that the building which is referred in prayer clause (i) occupies an area to the extent of 113.182 Sq.mtrs. It is a building of an Institution which is running a school for mentally disabled children.
5. The learned counsel appearing for the respondents states that the site is a CA site in which such construction is permissible.
6. After having heard the learned counsel appearing for the petitioners, we find that the objection of the petitioners is to the building which is housing a school for mentally disabled children for the last about 20 years.
7. Apart from the facts, there is a contention raised by the learned counsel for the respondents that on CA site, such a construction is permissible, the remedy under Article 226 of the Constitution of India is a discretionary and equitable. It is not necessary for the Court to interfere with every illegal action. Considering the fact that the building is used for a period of about 20 years for running a school for mentally disabled children, we are the view that this is not a fit case where the petitioner should be allowed to invoke extraordinary jurisdiction under Article 226 of the Constitution of India.
Therefore, without going into the question of legality of the said building, we decline to entertain this petition and the same is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE LB