Satya Achayya vs M.A. Mohammed Amanullah

Dilip B. Bhosale, J.—Heard learned counsel for the parties. This writ petition was heard yesterday and, since the Court time got over, kept today for orders. Today, learned counsel appearing for respondent No. 1 submits that his client does not want him to appear in the writ petition and that he would take steps to seek discharge. On this ground, he seeks adjournment. His application for adjournment is rejected in view of the fact that the petition was already heard and it was kept today only for orders.

This writ petition is directed against the order dated 03.06.2014 passed by the Karnataka Appellate Tribunal (for short ''KAT''), rejecting the petitioner''s application filed in Appeal No. 767/2013, under Order 1, Rule 10(2) r/w Section 151 of CPC, seeking her impleadment as respondent in the appeal.

Respondent No. 1 filed appeal before the KAT under Section 443(A) of the Karnataka Municipal Corporations Act, 1976 (for short ''the Act''). Petitioner claims that the action against respondent No. 1 was initiated and the order under sub-section (3) of Section 321 of the Act came to be passed at her instance. The petitioner is a resident in the same neighbourhood where respondent No. 1 is constructing a multistoried building. According to the petitioner, when she noticed that respondent No. 1 was constructing the building, with rapid speed, by reducing the neighbourhood resources and width of the road, she made complaints to all concerned including Lokayuktha to take action against the illegal construction. In view of her complaints/representations, the Corporation initiated/took the action under Section 321 of the Act. Respondent No. 1, therefore, filed appeal, as provided for under Section 443(A) of the Act before the KAT, and obtained an order of stay. In view of the order of stay, respondent No. 1, according to the petitioner, is again proceeding with further construction. Stay was granted on 29.08.2013. Till today, respondent-corporation has not filed any application for either vacating interim order or for expeditious hearing of the appeal. As a matter of fact, according to learned counsel for the petitioner, the order of stay was granted ex parte and till today respondent-corporation has not even entered their appearance in the appeal. In this backdrop, the petitioner, apprehending that the respondent may complete the construction, filed an application seeking her impleadment as party respondent in the appeal. The Tribunal seems to have rejected the application on the basis of the order dated 25.07.2012 passed by this Court in W.P. No. 9742/2012. In that petition, it is apparent, mat this Court had noticed that the petitioner therein had instituted a civil suit for injunction, while rejecting the application for intervention. This Court in Mr. S. Mohanram Vs. Smt. Susheela Ranganath, Bruhath Bangalore Mahanagara Palike and The Assistant Executive Engineer, Shettihalli Sub-Division considered the similar question and in paragraph-6 observed thus:

"Necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision of the question involved in the proceeding. In the instant case, the proceeding under S. 321 of the Act by the respondents 2 and 3 having been initiated on the complaint lodged on 17.12.2009 by the respondent No. 1 and she also having sought her impleading in O.S. No. 25161/2010 filed by the petitioner, the suit was dismissed on the ground of availability of alternative remedy under the provisions of the Act. Hence, the Tribunal is justified in exercise of its discretion allowing I.A.2 filed by the respondent No. 2. No prejudice would occasion to the petitioner, on account of the presence of the respondent No. 1 herein, in the appeal. Neither of the decisions on which Sri. Rajeswara P.N., placed reliance have any application in view of the facts and circumstances of the case, noticed supra."

During last 1 1/2 month, I have come across several writ petitions wherein orders under Section 321 of the Act or the orders cancelling building licence were under consideration, and in most of the petitions, such orders were passed at the instance of the applications made by private individuals complaining that construction was being carried out deviating from sanctioned plan or in violation of building regulations. I have observed that the deviations and violation of the building regulations were brought to the notice of the authority/Corporation by the people in the neighbourhood/locality where the constructions were going on. Despite the deviations and the violations of building regulations are brought to the notice of the Corporation/authority, I often find, they do not act promptly/swiftly and as a result thereof, the persons making construction complete the same and then apply for regularization. If the persons, like the petitioner in the present case, are allowed to approach the authorities complaining deviation from the sanctioned plan and violation of the building regulations on time, that would definitely help the concerned authorities to either stop or to initiate appropriate action against such constructions. I am of the opinion that whenever such persons, such as the petitioner, come forward to bring to the notice of the concerned authority or the Courts, he should be allowed to intervene. In this view of the matter and in the light of the observations made by this Court in Smt. Susheela Ranganath (supra), I am inclined to allow this writ petition. It is pertinent to note that the respondent-Corporation did not notice irregularities/illegalities being committed or allegedly committed by respondent No. 1 while constructing the building in question and it was the petitioner who brought that to the notice of the Corporation. Moreover, respondent No. 1 is carrying on further construction in view of the order of stay granted by the KAT. In the circumstances, I am of the opinion that the petitioner would be proper party to the proceedings.

The impugned order is accordingly set aside. Respondent No. 1 is directed to add the petitioner as party-respondent in the appeal within a period of two weeks from today. It is open to the petitioner to file application for either vacating interim order of stay or for modification of the order of stay or for expeditious hearing of the appeal. If any such application is made, I hope and trust that the Tribunal shall consider the same in proper perspective.

With these observations, the writ petition is disposed of.