Sri. Krishnamurthy Shetty vs Bruhat Bangalore Mahanagara Palike and H.N. Maharudrappa

A.S. Bopanna, J.—The petitioner is before this Court assailing the impugned orders dated 02.06.2010 which are at Annexures-B and C. By the said orders, respondents No. 1 and 2 have issued the notice u/s 321(1) of the Karnataka Municipal Corporations Act and the provisional order as contemplated u/s 321(2) of the said Act has been issued. The petitioner is therefore assailing the said orders. The respondents No. 1 and 2 by alleging that the petitioner is putting up unauthorized construction on the property bearing 19/2, 11th B Cross, Vyalikaval, Bangalore has initiated the said action. Learned counsel for the respondents No. 2 and 3 at the outset would point out that what has been issued is only a notice as contemplated u/s 321(1) of the Act and since no material has been produced by the petitioner, the provisional order has been made. It is his contention that the instant petition is premature, inasmuch as the cause for challenging the action of respondents No. 1 and 2 would arise to the petitioner only if a confirmation order as contemplated u/s 321(3) of the Act is passed. Even in such event, an appeal is provided as contemplated u/s 443A of the Karnataka Municipal Corporation Act. It is therefore contended on behalf of respondents No. 1 and 2 that the petition is liable to be dismissed.

Learned counsel for the petitioner would however refer to the proceedings pending before the Civil Court and in that context would contend that the case of the petitioner is that the issue of notice u/s 321(1) and the provisional order u/s 321(2) of the Act itself is without jurisdiction at that point in time inasmuch as the same is actuated with malafides at the instance of the third respondent who has failed to obtain favourable orders in the pending suit and therefore has approached respondents No. 1 and 2 to achieve his purpose for interfering with the enjoyment of the property by the petitioner. Hence, it is contended that the petitioner has approached this Court in that context and it cannot be contended that the petition is premature or reference cannot be made to the alternate remedy in the facts of the instant case.

In the light of the rival contentions, with regard to the legal position relating to the procedure contemplated u/s 321(1) of the Act, the position is clear from the provisions contained therein. However, what requires to be noticed in the instant case is that the allegation of unauthorised construction against the petitioner is actuated by the complaint put forth by the third respondent herein. If this aspect of the matter is kept in view as seen from the document produced at Annexure-A, it would be clear that the third respondent at the first instance has filed a suit in O.S. No. 5257/2008 against the petitioner. In the said suit, the third respondent has made similar allegations with regard to the unauthorized construction being put up by the petitioner. In fact an application seeking temporary injunction was also filed and the said application came to be dismissed on 24.10.2008. The said suit is stated to be pending. The respondent-Bruhat Bangalore Mahanagara Palike has been impleaded as second defendant to the said suit.

If these developments are viewed in proper perspective, the case put forth by the petitioner with regard to the manner in which respondents No. 1 and 2 have initiated action in the year 2010, when the third respondent has not been able to convince the Civil Court, would indicate that if at an earlier point, there was no reason for respondents 1 and 2 to initiate any action, it was unnecessary for them to initiate action at this juncture when the suit is pending, more particularly when the Bruhat Bangalore Mahanagara Palike is also a defendant to the said suit. In any event, the very contention put forth by the third respondent in the said civil suit has been prima facie looked into at the time of disposing of the application and the Court below found that there is no cause for grant of any injunction against the petitioner herein after making reference to the sanction plan which has been obtained and also the renovation work which has been carried out. Therefore, when the suit is being considered, the aspects relating to the plan also would be adverted to by the Civil Court. Even in such circumstance, if it is found that the construction is unauthorized, respondents No. 1 and 2 would be in a position to initiate such action thereafter. Hence at this juncture, I am of the opinion that the action initiated cannot be sustained. The notice and the provisional order as at Annexures-B and C are quashed reserving liberty to the respondents to initiate such action, if the same becomes necessary subsequently after disposal of the suit.

In terms of the above, the petition stands disposed of. No costs.