IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.7086 OF 2017 (LB-RES) BETWEEN:
SRI. T. L. KRISHNAPPA SON OF LATE T. G. LINGAPPA AGED ABOUT 63 YEARS RESIDING AT "NRUSIMHA" 4TH CROSS, M. G. ROAD TUMAKURU - 572 101.
... APPELLANT (BY SRI. V B SIDDARAMAIAH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF URBAN DEVELOPMENT M. S. BUILDING DR. B.R. AMBEDKAR VEEDHI, BENGALURU - 560 001.
2. THE TUMAKURU MAHANAGARA PALIKE TUMAKURU - 572 101 REPRESENTED BY ITS COMMISSIONER 3. SRI. JAYANTI LAL J SON OF G. JAWEERCHAND AGED ABOUT 53 YEARS RESIDING AT 2ND CROSS K. R. EXTENSION TUMAKURU - 572 101 PRESENTLY RESIDING AT OPPOSITE ANKUR SCHOOL S.S.PURAM, TUMKUR-572 102.
... RESPONDENTS (BY SRI.S.S. MAHENDRA, AGA FOR RESPONDENT No.1) THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 07/12/2017 PASSED IN THE WRIT PETITION No.53305/2017.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 07.12.2017 passed by the learned Single Judge in Writ Petition No.53305 of 2017, by which the petition was disposed off with liberty to approach the Court in the pending writ petition or in the original suit, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Article 226 of the Constitution of India seeking for a mandamus to consider representation of the petitioner dated 4.11.2017; a direction to take steps to prevent the construction of the building by the 3rd respondent in terms notice dated 17.10.2017 vide Annexure-N and for a direction to remove the illegal construction already made by respondent No.3. The petitioner claims that he and his wife Smt. C. Annapoorna are the owners in possession of the property bearing Old katha No.1628, present katha No.1929/951, situated at 4th Cross, M.G.Road, Tumkur. It is stated that they purchased the property under sale deed dated 05.05.2003. It is stated that the petitioner and his wife on obtaining building license have constructed residential building. The 3rd respondent is the adjacent land owner situated towards the eastern side. The 2nd respondent – the Tumakuru Mahanagara Palike (for short ‘the TMP’) issued building license to the 3rd respondent. It is alleged that the 2nd respondent - TMP approved the plan for construction of commercial building even though the 3rd respondent had not shown any set back. When the petitioner objected for construction of commercial building by the 3rd respondent, the 3rd respondent filed O.S.No.548 of 2012 and the petitioner also filed O.S.No.1052 of 2012. Both the suits are for relief of permanent injunction and both the suits are pending consideration. The petitioner had submitted representation dated 29.06.2012 to the 2nd respondent – TMP and as the 2nd respondent failed to take any action on the representation, the petitioner had approached this Court in W.P.No.40808 of 2012, this Court by order dated 10.10.2014 directed the 2nd respondent to consider the representation. The 2nd respondent directed the 3rd respondent to obtain fresh license. In the meanwhile, the 3rd respondent filed I.A.No.1 seeking injunction in the pending suit, which was dismissed by order dated 31.10.2012 against which, the respondent had filed M.A.No.76 of 2012, which was allowed by order dated 22.3.2016. Thereafter the respondent again started construction without leaving set back towards the petitioner’s property. The petitioner again made representation to the 2nd respondent on 10.10.2017 and 12.10.2017. Thereafter, the petitioner gave one more representation on 04.11.2017, as the 3rd respondent continued the construction work. Since the 2nd respondent failed to take action, the petitioner has filed the instant writ petition.
3. Heard the learned counsel for the appellant and the learned Additional Government Advocate for the 1st respondent. Perused the appeal papers.
4. Learned counsel for the appellant submits that the learned Single Judge committed an error in dismissing the writ petition without considering the material on record. That the non-consideration of the representation by the 2nd respondent - TMP, when the 3rd respondent is constructing commercial building in violation of the sanctioned plan, would amount to failure of duty on the part of the 2nd respondent - TMP. The plan sanction/license issued is contrary to building bye-laws, no set back has been left by the 3rd respondent. Hence, prays for a direction to the 2nd respondent – TMP, to consider the representations made by the petitioner.
5. The order of the learned Single Judge is neither perverse nor erroneous. The learned Single Judge has rightly disposed off the writ petition with liberty to the petitioner to approach the Court in the pending writ petition or in the pending civil suits between the parties. The petitioner and 3rd respondent are adjacent land owners. The petitioner has already built a residential house in present katha No.1929/951, whereas the 3rd respondent who is the owner of katha No.1926/948 is constructing commercial building on obtaining approved building plan. It is the case of the petitioner that the 3rd respondent has not left any set back and started constructing the building adjoining the wall of the petitioner’s building. It is an admitted fact that both the petitioner as well as the 3rd respondent have filed suits against each other in O.S.No.548 of 2012 and O.S.No.1052 of 2012, which are pending consideration. It is also an admitted fact that the 3rd respondent had filed interim application for temporary injunction under Order 39 Rules 1 and 2 of CPC in the pending suit, which came to be allowed by the Appellate Court in M.A.No.76 of 2012. Against the said order passed by the Appellate Court, the petitioner has filed writ petition in the year 2017, the same is pending consideration before this Court. The dispute between the petitioner and the 3rd respondent is purely a civil dispute with regard to construction. When the suits are pending and also when the writ petition arising out of the interim order passed in the suit is pending before this Court, the learned Single Judge has rightly dismissed the writ petition with liberty to approach the Court in pending proceedings. It is not open for the petitioner to institute proceedings one after the other on the same cause of action. Hence, we find no error or omission in the order of the learned Single Judge. No ground is made out to interfere with the impugned order dated 07.12.2017 passed by the learned Single Judge in Writ Petition No.53305 of 2017. Accordingly, the writ petition is dismissed as devoid of merit.
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JUDGE JUDGE NG* CT:bms