IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL Nos.4650-4651 OF 2017 (LB-RES) BETWEEN:
SYED SIBGATHULLA SON OF LATE SYED ABDUL WAHAB AGED 50 YEARS REPRESENTED BY HIS G.P.A HOLDER SYED RAKEEBUR -RAHMAN SON OF LATE SYED ABDUL WAHAB AGED 52 YEARS RESIDING AT NO.E.W.S. 53, CITB UDAYGIRI, MYSURU – 570 005. ...APPELLANT (BY SRI.VINAY.N, ADVOCATE) AND :
1. SPECIAL TAHASILDAR DIVISION OFFICE-5A MYSURU URBAN DEVELOPMENT AUTHORITY MYSURU – 570 005.
2. THE MYSURU URBAN DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER JHANSI LAXMI BAI ROAD MYSURU – 570 005.
...RESPONDENTS (BY SRI. T.P.VIVEKANANDA, ADVOCATE) THESE APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 31/05/2017 PASSED IN WRIT PETITION 60529 OF 2016 AND WRIT PETITION No.11753 OF 2017 AND ETC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 31.05.2017 passed by the learned Single Judge in Writ Petition No. 60529 of 2016 and Writ Petition No.11753 of 2017, by which the petitions were dismissed, the writ petitioner is in appeal.
2. The petitioner filed the writ petitions under Articles 226 and 227 of the Constitution of India praying for a writ of certiorari to quash the endorsements dated 12.02.2015 and 10.09.2015 bearing No.MUDA/S.T-5A/2014-15; and No.MUDA/S.T-5A/2015-16 respectively and to set aside the order dated 29.04.2016 passed on an application filed under Order XXI Rule 58 of CPC in Execution No.374 of 2013 passed by the IV Additional Senior Civil Judge, Mysuru. The petitioner claims that he is the absolute owner of site bearing No.241 situated at 5th Main Road, Bannimantapa C-Layout Mysuru, having acquired the same under sale deed dated 03.02.2005. On the western side of the petitioner’s site there was a bit of vacant land. In respect of the said bit of land the petitioner filed O.S.No.380 of 2010 seeking for declaration that the petitioner is entitled for the said bit of vacant land, which is towards the western side of his site. The trial Court dismissed the suit by judgment and decree dated 21.07.2011. Aggrieved by the same, the petitioner filed R.A.No.561 of 2011, which was allowed vide judgment and decree dated 27.02.2012 holding that the petitioner is entitled to purchase the adjacent vacant land and directed the respondents to sell the same to the petitioner or by public auction. The petitioner filed Execution No.374 of 2013 seeking execution of judgment and decree passed in R.A.No.561 of 2011. The Executing Court passed an order of attachment. The respondents filed application to recall the attachment. The respondents in the meanwhile, had issued endorsement to the petitioner indicating the price of the bit of land measuring 1147 sq. ft. as Rs.32,05,865/- and penalty of Rs.8,01,466/- and totally the petitioner was asked to pay Rs.40,07,331/-. By another endorsement dated 10.09.2015 the petitioner was informed that if he pays the penalty amount further action would be initiated. The Executing Court by order dated 29.04.2016 allowed the application filed by the respondents and recalled the attachment directing compliance of decree on receipt of price of the land and penalty amount of Rs.8,01,466/-.
Aggrieved by the endorsements issued by the 2nd respondent – MUDA as well as the order passed by the Executing Court, the petitioner filed the instant writ petitions. The learned Single Judge was of the view that MUDA has rightly imposed penalty since the petitioner has encroached the land of the MUDA and constructed temporary shed. Hence the petitioner is in appeal.
3. Heard the Learned counsel for the appellant and Learned counsel for the respondents – MUDA. Perused the appeal papers.
4. The Learned counsel for the appellant would submit that the respondents are entitled to collect the value of the land i.e., 32,05,865/- but the respondents – MUDA is not entitled to impose any penalty on the petitioner. It is contended that the learned Single Judge failed to examine as to whether the respondents are justified in imposing penalty on the petitioner. It is stated that the levy of penalty is without jurisdiction. It is stated that the penalty is imposed only to circumvent the judgment and decree passed against the respondents. Hence prays to allow the appeal.
5. Per contra, Learned counsel for the respondents – MUDA submits that the petitioner is liable to pay penalty of Rs.8,01,466/- for encroaching the bit of land adjacent to his site and also for constructing the shed unauthorisedly. It is further contended that the Executing Court has rightly raised the attachment since, the petitioner is liable to pay the penalty imposed by the respondents. Hence prays for dismissal of the appeal.
6. The petitioner is the owner of site bearing No.241 situated on 5th Main Road, Bannimantapa C Layout, Mysuru, having acquired the same under registered sale deed dated 3.2.2005. It is stated that adjacent to his site, there is vacant bit of land, which the petitioner claimed by filing suit in O.S.No.380 of 2010. The suit came to be dismissed against which the petitioner filed R.A.No.561 of 2011, wherein it is held that the plaintiff is eligible and entitled to buy the plaint ‘B’ schedule property and the defendants are directed to sell the same to the plaintiff, otherwise, than by way of public auction, subject to the other legal formalities required to be complied with by the plaintiff. For having not complied with the decree the petitioner filed Execution No.374 of 2013, the Executing Court passed an order of attachment, the respondents – MUDA filed application to raise the order of attachment. In the meanwhile, the MUDA had issued endorsements to the petitioner indicating price of the adjacent bit of land and also penalty amount. It was also informed that if the penalty amount along with the price is paid, it would take further action in the matter. In the endorsement dated 10.09.2015 Annexure-J the MUDA had stated that since the petitioner has unauthorisedly put up shed on the bit of land, the petitioner is laible to pay penalty of Rs.8,01,466/-. Having taken note of the decree and in compliance of the decree, had taken decision to allot the bit of land adjacent to the site of the petitioner in favour of the petitioner. As the petitioner has utilized the bit of land by constructing shed, the respondents – MUDA imposed the penalty. The petitioner has not pointed out how the respondents have no jurisdiction to impose penalty, when the petitioner has utilized the land unauthorizedly by putting up a shed.
7. Hence, we are of the view, that the learned Single Judge on considering the material on record has passed a well reasoned order, which would not suffer from any perversity nor erroneousness calling for interference. No ground is made out to interfere with the order passed by the learned Single Judge. The Executing Court was of the view that since the respondents – MUDA in compliance with the judgment and decree intimated the decree holder – the petitioner herein, to pay the value of the site and penalty, hence, rightly recalled the attachment order. No ground is made out to interfere with the order of the learned Single Judge. Accordingly, the writ appeals are dismissed.
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JUDGE JUDGE NG* CT:bms