1/6 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30th DAY OF AUGUST 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION Nos.36347-36348/2017 (LB-BMP) Between:
1. Sri. Vinod Singh S/o Late T. Govind Singh Aged about 64 years Residing at No.442, 8th Cross 5th Main, HIG Colony, RMV II Stage Bengaluru-560 094.
2. Sri. V. Ramachandran S/o Late Sri. S. Venkatraman Aged about 69 years Residing at No.446, 8th Cross 5th Main, HIG Colony, RMV II Stage Bengaluru-560 094.
(By Mr. T.V. Vijaya Raghavan, Advocate) And:
…Petitioners 1. The Commissioner Bruhat Bengaluru Mahanagara Palike Hudson Circle, Bengaluru-560002.
2. The Assistant Director Town Planning (East) Bruhat Bengaluru Mahanagara Palike Queens Road, Bengaluru-560052.
3. Sri. Shabbir N. Adenwala Fathers name not known to petitioner Major, Residing at No.15/2, HKK Lane S.P. Road Cross, S.P. Road Near to Calcutta Tube shop Bengaluru-560002.
4. Sri. Masood Ahmed Khan Fathers name not known to petitioner Major, Residing at No.21 Alexander Street, Richmond Town Bengaluru-560025.
…Respondents *** These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India praying for a Writ of Mandamus directing the Respondents 1 & 2 to take further action to demolish the unauthorized construction in the schedule property bearing Site No.443, BBMP PID No.018-W0081-1, 8th Cross, 5th Main, HIG Colony, RMV II Stage, in Corporation Ward No.18, Bengaluru-560 094 belonging to the 3rd Respondent as contemplated u/s 462 of Karnataka Municipal Corporation Act & etc.
These Writ Petitions coming on for Preliminary Hearing this day, the court made the following:-
ORDER Mr. T.V. Vijaya Raghavan, Adv. for Petitioners 1. The petitioners, Mr. Vinod Singh and Mr.V. Ramachandran have filed the present petitions seeking enforcement of the orders passed by the Respondent BBMP Authorities under Section 321 (1) and subsequently under Section 321(3) of the Karnataka Municipal Corporations Act, 1976.
2. The same petitioners have already filed a Civil Suit namely O.S.No.2993/2016 in the Court of City Civil and Sessions Judge, Bangalore which is pending and in which a Temporary Injunction order came to be passed by the learned Trial Court on 28/04/2017 directing the parties to maintain status-quo regarding topography and existing structure of the suit Schedule Property.
3. In the said Suit, the learned counsel for the petitioners submitted that even the Respondent is a party defendant.
4. Having heard the learned counsel for the petitioners, this Court is at a loss to understand what impelled and made the present petitioners to resort even to the proceedings under Section 321 of the Act against Respondent No.3 (Mr.Shabbir N. Adenwala) and Respondent No.4 (Mr.Masood Ahmed Khan) in the present petitions who are also defendants in the aforesaid Civil Suit.
5. Once the plaintiffs petitioners had approached the Civil Court and the said Civil Suit was pending, it was absolutely misconceived for the plaintiffs petitioners to invoke any other parallel proceedings even before the BBMP Authorities which would nullify the sanctity of the proceedings before the Trial Court. This clearly amounts to abuse of the process of law and demeans the sanctity of the proceedings pending before the Trial Court which was probably the only proper remedy for the plaintiffs petitioners to undertake in these circumstances.
6. The very fact that the Respondent BBMP Authorities who are also already defendants in the same Suit chose to pass such orders under Section 321 of the Act in total disregard of the pendency of the Civil Suit before the learned Trial Court, shocks the conscience of the Court. Such proceedings ought to have been rejected at the threshold or at least deferred till the disposal of the Civil Suit by the learned Trial Court.
7. The present writ petitions filed by the petitioners go beyond the reasonable limits when they pray herein that the Respondent BBMP should be asked to demolish the said property in pursuance of the impugned orders passed under Section 321 (3) of the Act by resort to Section 462 of the Act which mandates such implementation. If any such Writ was to be issued as prayed for that would not only fly in the face of the status-quo order passed by the learned Trial Court but would also be absolutely un-called for and unjustified in the facts and circumstances of the case. Both the orders passed under Section 321 of the Act are therefore quashed and set aside.
8. The effort of the plaintiffs petitioners to over reach the judicial process in this manner by independently approaching the BBMP Authorities under Section 321 of the Act and then seeking a mandamus direction from this Court to implement those orders in complete disregard of the orders passed by the learned Trial Court deserves to be deprecated.
9. The petitions therefore deserve to be dismissed with costs. The same are accordingly dismissed with costs of Rs.10,000/- to be paid by the petitioners to the High Court Legal Services Committee within a period of one month from today. If the petitioners fail to deposit the said costs, the Registrar (Judicial) will bring the said fact to the notice of the Trial Court who may dismiss the Suit of the petitioners plaintiffs on that ground.
10. Copy of this order be sent to both the parties forthwith.
Sd/- JUDGE BMV*