IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.3182 OF 2016(LB-RES) BETWEEN:
Sri.Shivamadhu, Aged about 61 years, S/o Late. Chikkanna, R/at No.41, 1st Main Road, Kumbarkoppal Village, Devaraja Mohalla, Mysore-570 016. … Petitioner (By Sri. B.S.Nagaraj, Advocate) AND:
1. The State of Karnataka, Represented by its Principal Secretary, Department of Urban Development, M.S.Building, Dr.B.R.Ambedkar Veedi, Bangalore-560 001.
2. The Mysore Urban Development Authority, Represented by its Commissioner, Mysore City-570 001.
3. The Urban Planning Member, MUDA Office, JLB Road, Mysore City-570 001.
4. The Southern Railway Employees Co-Operative House Building Society, Rep. By its President.
5. The Southern Railway Employees, Co-Operative House Building Society, Rep. By its President.
R4 & R5, having its Administrative Office, At Divisional Railway Manager, Office Building, Seshadri Iyers Road, Mysore-570 021. ... Respondents (By Sri.Anandeeshwara,HCGP for R1: Sri. T.P.Vivekananda, Advocate for R2 & R3: Sri.N.Ramachandra, Advocate for R4 & R5) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to direct R-2 & R3 the Commissioner MUDA and Planning Member to issue modified plan by considering the application dated: 03.03.2014 at Annexure-D in the light of the Judgment & Decree dated: 04.10.2010 passed by this Hon’ble Court in R.F.A.783/2005 at Annexure-B and etc.
This writ petition, coming on for Preliminary hearing in ‘B’ Group, this day, the Court, made the following:
ORDER In this writ petition the petitioner has sought the following reliefs:
“i) Issue a writ in the nature of Mandamus or direction or any other appropriate writ or order directing the Respondent No.2 & 3- The Commissioner MUDA and Planning Member to issue modified plan by considering the application dated: 03.03.2014 at Annexure-D in the light of the judgment and Decree dated:04.10.2010 passed by this Hon’ble Court in R.F.A.No.783/2005 at Annexure-B.
ii) Pass such other order as this Hon’ble Court deems fit under the circumstances of the case and, iii) Allow this writ petition with cost in the interest of justice and equity.”
2. The case of the petitioner is that the petitioner is the owner of the land bearing Sy.No.227 measuring 2 acres 6 guntas situated in Hebbal Village, Mysore Taluk. The further case of the petitioner is that the adjacent to the above land bearing Sy.No.227, the respondent Nos. 4 and 5 have formed a layout called railway layout. While forming the layout the respondent Nos. 4 and 5 have encroached a portion of the property of 5 guntas of land belonging to the petitioner. Hence, the petitioner has filed a suit in O.S.No.110/1996 before the II Addl. Civil Judge and CJM, Mysore for mandatory injunction. The respondent Nos. 4 and 5 herein have also filed a suit in O.S.No.44/1993 for bare injunction. The II Additional Civil Judge has clubbed both the suits and passed a decree on 11.03.2005. The suit filed by respondent Nos. 4 and 5 in O.S.No.44/1993 is dismissed and the suit filed by the petitioner in O.S.No.110/1996 is decreed holding that plaintiff is entitled for compensation instead of mandatory injunction. Being aggrieved by the same, the petitioner has filed regular first appeal before this Court in RFA No.783/2005. This Court, by judgment and decree dated 04.10.2010 has allowed the appeal filed by the petitioner and passed the following judgment and decree:
“i) that the appellants/plaintiffs are entitled for decree for possession by directing the defendants 1 and 2 to hand over the possession of the encroached area of 5 guntas as determined by the Court Commissioner excluding the site of the respondent No.3/defendant No.3 and directing the respondents/defendants not to interfere with the appellants/plaintiffs peaceful possession over the same.
ii) That the plaintiffs/appellants have right to use the common road measuring 37’x256’ and, iii) That the respondent No.3/defendant No.3 is directed to pay a sum of Rs.18,000/-(Rupees Eighteen thousand only) with interest at the rate of 18% p.a. from the date of Exp.6 to the plaintiffs/appellants for the site owned by him within a period of four weeks from the date of receipt of a copy of this order.”
3. Being aggrieved by the order passed in RFA No.783/2005, respondent Nos. 4 and 5 have filed SLP before the Hon’ble Apex Court in SLP (Civil) No.35999/2010. The same has been dismissed by order dated 07.01.2011. The judgment and decree passed by this Court in RFA No.783/2005 has been confirmed. On the basis of the judgment and decree passed by this Court, the petitioner has approached the second respondent vide Annexure-D for modification of the plan. Subsequent to that, the second respondent has issued a show-cause notice to respondent No.4 - Society requesting them to submit a modified plan as per the decree passed by this Court. Pursuant to that vide Annexure-F dated 28.10.2013 the Secretary of the Railway Employees Housing Society has submitted a reply stating that as per the Court order they will submit a modified plan. Since, they have not submitted the plan, on 06.05.2014 the respondent No.3 has issued a one more notice requesting respondent No.4 Society to produce the modified plan by deleting 5 guntas. Inspite of the notice issued by the third respondent, the fourth respondent has not submitted the modified plan. Hence, the petitioner has approached this Court.
4. Sri B.S.Nagaraj, the learned counsel appearing for the petitioner submitted that this Court in RFA No.783/2005 has allowed the appeal filed by the petitioner and passed the judgment and decree dated 04.10.2010 and that has been confirmed by the Hon’ble Apex Court by dismissing the SLP filed by the fourth respondent herein. Pursuant to that, the petitioner has given a representation to second respondent for modification of the plan. Pursuant to the request of the petitioner the third respondent has issued a notice to the fourth respondent for submitting the modified plan in terms of the judgment and decree passed by this Court. Inspite of that, the fourth respondent has not submitted any modified plan. Hence, he sought for allowing the writ petition.
5. Sri T.P.Vivekanada, the learned counsel appearing for the respondent Nos. 2 and 3 submitted that pursuant to the representation submitted by the petitioner the authority has issued a notice to the fourth respondent vide Annexures E and G. Inspite of that they have not submitted a modified plan.
6. Heard the learned counsel for the parties and perused the writ papers.
7. Detailed narration of facts would not call for reiteration.
It is not in dispute that in RFA No.783/2005 this Court has passed the judgment and decree which is extracted herein above.
8. Being aggrieved by the same the respondent No.4 herein has filed SLP before the Apex Court in SLP (Civil) No.35999/2010. The same has been dismissed by order dated 07.01.2011. The judgment passed by this Court in RFA No.783/2005 has been confirmed. Pursuant to that, the petitioner has given a representation vide Annexure-D for modification of the plan issued in favour of respondent No.4. Pursuant to the request made by the petitioner the respondent Nos. 2 and 3 have issued show cause notice requesting the fourth respondent to submit a modified plan in terms of the decree passed by this Court. Inspite of the notice issued by the third respondent vide Annexures E and G the fourth respondent has not submitted the application for modification. Under these circumstances, it is suffice for this Court to direct the respondent Nos. 2 and 3 to consider the petitioner’s application vide Annexure-D for modification of plan in terms of the judgment and decree assed by this Court in RFA No.783/2005 within three months from the date of receipt of a copy of this order.
9. With the above observations, the writ petition stands disposed of.
Cm/-
Sd/- JUDGE