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2017 DIGILAW 176 (KAR)

M. RAVI v. COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N. R. SQUARE

2017-01-31

R.S.CHAUHAN

body2017
ORDER : The petitioner, Mr. M. Ravi, has challenged the legality of two orders, both of which are dated 08.07.2016, passed by the Karnataka Appellate Tribunal (‘the Tribunal’, for short). 2. By order dated 08.07.2016 (Annexure ‘L’), the learned Tribunal has dismissed an application filed by the petitioner for impleadment under Order 1, Rule 10 of the Civil Procedure Code, 1908 (‘CPC’, for short). By the second order, also dated 08.07.2016 (Annexure ‘M’), the learned Tribunal has allowed the appeal filed by respondent No.3, wherein respondent No.3 had challenged the provisional order dated 10.08.2012 and the confirmation order dated 17.08.2012 passed by Bruhat Bengaluru Mahanagara Palike (‘BBMP.’, for short). 3. The brief facts of the case are that the petitioner claims that his family owns certain property falling in Sy.No.35/5 and Sy. No.35/6 situated in Nagavara village. Subsequently, the said ancestral property was partitioned between the family members. Due to the partition, the petitioner was allotted the property marked as ‘D’ schedule, which measures East to West 40 feet, and North to South on eastern side 42 feet, and on western side 35 feet, totally admeasuring 1540 Sq. feet. The petitioner further claims that he was in the exclusive possession of the said property. In fact, even the khata had been transferred to his name. 4. However, while the petitioner was enjoying the peaceful possession of the said property, respondent No.3, Mr. K.S. Prasanna Kumar, started to interfere with his peaceful possession. Therefore, the petitioner filed an original suit, namely O.S. No. 6315/2010 for permanent injunction before the Additional City Civil Judge, Bengaluru, and sought for an interim order of temporary injunction in the said suit. However, the application for temporary injunction was rejected by the learned Civil Court. Taking advantage of the rejection of the temporary injunction, the petitioner claims, that respondent No.3 started raising illegal constructions upon his land. Therefore, the petitioner filed a Writ Petition before this Court, namely W.P. No.38930/2010, seeking directions to the Commissioner, BBMP., and Assistant Executive Engineer, BBMP., to take action against respondent No.3 for raising an illegal construction. 5. By order dated 01.10.2012, this Court had directed the respondent Nos.1 and 2 to take action against respondent No.3 in accordance with law. Consequently, the respondent Nos.1 and 2 initially issued a provisional order on 10.08.2012, and subsequently issued a confirmation order on 17.08.2012 to the respondent No.3. 6. 5. By order dated 01.10.2012, this Court had directed the respondent Nos.1 and 2 to take action against respondent No.3 in accordance with law. Consequently, the respondent Nos.1 and 2 initially issued a provisional order on 10.08.2012, and subsequently issued a confirmation order on 17.08.2012 to the respondent No.3. 6. Since the respondent No.3 was aggrieved by the said two orders, he filed an appeal before the learned Tribunal. During the pendency of the appeal, the petitioner submitted an application under Order 1, Rule 10 of the CPC., for being impleaded as party – respondent. However, by order dated 08.07.2016 (Annexure ‘L’), the said application was dismissed by the learned Tribunal. Simultaneously, by another order, also dated 08.07.2016, the appeal filed by respondent No.3 was allowed and the matter was remanded back to the respondent No.2 with a direction to issue proper notice, and to pass the confirmation order in accordance with law. Hence, the present petition before this Court. 7. The learned counsel for the petitioner, Mr. C. Shankar Reddy, has vehemently raised the following contentions before this Court: firstly, the respondent No.3 is illegally encroaching upon the land that belongs to him. During the pendency of the Civil Suit, the respondent No.3 was trying to raise a construction. However, the construction has never been approved by the BBMP. Therefore, it was imperative for respondent No.3 to implead him as a party before the learned Tribunal. Secondly, it is only on the basis of the Writ Petition filed by the petitioner, and only on the basis of directions issued by this Court, by order dated 01.10.2012, that the respondent Nos.1 and 2 had taken action against respondent No.3. Therefore, the petitioner is a necessary party to the dispute, which has arisen between respondent No.3 and respondent Nos.1 and 2. Thirdly, the respondent No.3 has not approached the Appellate Court with clean hands. It is only the petitioner who could reveal the facts which were hidden by respondent No.3. Therefore, the petitioner happens to be necessary party in the appeal filed by respondent No.3. Hence, the learned Tribunal was unjustified in rejecting his application for impleadment by the impugned order dated 08.07.2016 (Annexure ‘L’). 8. Heard the learned counsel and perused the impugned order dated 08.07.2016 (Annexure ‘L’). 9. Therefore, the petitioner happens to be necessary party in the appeal filed by respondent No.3. Hence, the learned Tribunal was unjustified in rejecting his application for impleadment by the impugned order dated 08.07.2016 (Annexure ‘L’). 8. Heard the learned counsel and perused the impugned order dated 08.07.2016 (Annexure ‘L’). 9. Undoubtedly, the respondent Nos.1 and 2 have taken action against respondent No.3 only because of the direction issued by this Court by order dated 01.10.2012. However, since the respondent Nos.1 and 2 have taken action against respondent No.3 due to the direction issued by this Court, the role of the petitioner comes to naught. Since the respondent No.3 was aggrieved by the provisional order and the confirmation order passed by respondent Nos.1 and 2, he has challenged the same before the learned Tribunal. Therefore, the liswas confined to only between respondent No.3 on one side, and respondent Nos.1 and 2 on the other side. Since the provisional and confirmation orders were under challenge, it was for respondent Nos.1 and 2 to defend the same. Therefore, the petitioner is not in a position to reveal anything new to the Tribunal, which would have justified the order passed by respondent Nos.1 and 2. 10. Even if there is a civil dispute between respondent No.3 and the petitioner, even if respondent No.3 has allegedly encroached upon the land belonging to the petitioner, the petitioner has sufficient, efficacious and alternate remedy for challenging the same. Therefore, the learned Tribunal is justified in concluding that the dispute with regard to encroachment of the land cannot be decided by the learned Tribunal, but can be decided only by Civil Court. Moreover, as the dispute exists only between respondent No.3 and respondent Nos.1 and 2, the learned Tribunal is justified in concluding that the petitioner is neither a necessary nor a proper party. Since the learned Tribunal has given cogent and convincing reasons for rejecting the application for impleadment filed by the petitioner, this Court does not find any illegality or perversity in the order dated 08.07.2016 (Annexure ‘L’). 11. As far as the challenge to the order dated 08.07.2016 (Annexure ‘M’) is concerned, suffice it to say that the petition no longer survives for challenging the said order. 11. As far as the challenge to the order dated 08.07.2016 (Annexure ‘M’) is concerned, suffice it to say that the petition no longer survives for challenging the said order. Since, this Court has upheld the order dated 08.07.2016 (Annexure ‘L’) whereby, the application filed by the petitioner for impleadment was rejected, the petitioner does not have any locus standi to challenge the order dated 08.07.2016 (Annexure ‘M’) whereby, the learned Tribunal has allowed the appeal filed by respondent No.3. Therefore, the challenge to order dated 08.07.2016 (Annexure ‘M’) fails. 12. For the reasons stated above, this Court does not find any merit in this petition. Therefore, it is, hereby, dismissed.