B. Surya Prakash S/o Late B. R. Betaiah Setty v. State of Karnataka
2018-03-20
B.M.SHYAM PRASAD, DINESH MAHESHWARI
body2018
DigiLaw.ai
JUDGMENT : Having heard learned counsel for the petitioners/appellants and having perused the material placed on record, we are not persuaded to consider interference in these intra-Court appeals. 2. The petitioners/appellants preferred the writ petitions bearing Nos.65604-65611/2016 stating grievance against the proposed construction raised by respondent No.9. It was submitted before the learned Single Judge that the construction raised by respondent No.9 had caused loss to their adjoining properties and, therefore, sanctioned plan of respondent No.9 should be cancelled and respondent No.9 should be asked to repair their properties and pay damages to them. 3. The learned Single Judge has referred to the submissions made on behalf of the respondents, including the Bruhat Bengaluru Mahanagara Palike (BBMP), and has indicated that the complaint made by the petitioners/appellants was carrying several factual aspects, which could not be determined in the writ jurisdiction. The learned Single Judge has also observed that the question as to whether the damages had actually been caused on account of the construction activity by respondent No.9 or not was a question of fact, to be determined based on the evidence adduced. The learned Single Judge has further observed that the conditions for sanction of the construction plan were complied with by the builder as stated in the affidavit filed on behalf of the BBMP. The learned Single Judge, ultimately, disposed of the writ petitions, while keeping it open for the petitioners/appellants to take recourse to appropriate regular remedy in the Civil Court while observing, inter alia, as under:- “8. As stated above, if the petitioners succeed to prove that the damage to their property caused on account of the said construction activity by the 9th Respondent in an illegal or obnoxious manner, they have to prove the relevant facts for such cause and the quantum of damages caused to them and then claim the same by way of a decree in a competent Civil Court. All this exercise cannot be undertaken in the writ jurisdiction. 9. The Writ Petitions are accordingly disposed of at this stage, giving a liberty to the petitioners to approach the Civil Court, if the petitioners are still aggrieved and not satisfied with the safety measures already undertaken by the 9th Respondent under the close supervision of the Respondents-BBMP authorities. No costs.” 4.
9. The Writ Petitions are accordingly disposed of at this stage, giving a liberty to the petitioners to approach the Civil Court, if the petitioners are still aggrieved and not satisfied with the safety measures already undertaken by the 9th Respondent under the close supervision of the Respondents-BBMP authorities. No costs.” 4. Seeking to challenge the order aforesaid, learned counsel for the petitioners/appellants has strenuously argued that the grievance of the petitioners/appellants had been essentially against the respondent/BBMP who had failed to ensure compliance of all the stipulations in the construction permission and approved plan and particularly, when the builder has failed to protect the adjoining properties. Learned counsel has contended that because of digging activities, earth has caved in, causing damages to the properties of the petitioners/appellants. 5. Learned counsel has referred to and relied upon the decisions of Hon’ble Supreme Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others vs V.R. Rudani and Others, AIR 1989 SC 1607 and M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu and Others, (1999) 6 SCC 464 . 6. We are afraid, the submissions made on behalf of the petitioners/appellants do not make out a case for interference in these intra-Court appeals. 7. It is noticed that the grievance of the petitioners/appellants is that of infringement of their legal rights as regards their properties and the complaint, essentially, is that the construction activities by respondent No.9 had caused loss to their properties and is likely to result in further loss for want of adequate safety measures. 8. The submissions so made, in the first place, relate to several factual aspects, which cannot be determined in the writ jurisdiction. Secondly, such submissions essentially take the character of a grievance about infringement of their legal rights towards their own properties and loss being caused to such properties by the activities of respondent No.9. However, mandamus is sought against respondent authorities only, which has its own shortcomings. 9. As noticed, the basic grievance of the petitioners/appellants is against the construction activities of respondent No.9 and that too, with reference to the fact that such activities are causing loss to their properties or is likely to result in further injury.
However, mandamus is sought against respondent authorities only, which has its own shortcomings. 9. As noticed, the basic grievance of the petitioners/appellants is against the construction activities of respondent No.9 and that too, with reference to the fact that such activities are causing loss to their properties or is likely to result in further injury. Such nature of submissions is essentially for seeking relief in the nature either of injunction or damages against respondent No.9 and we are of the view that the learned Single Judge has rightly declined to exercise the writ jurisdiction, while leaving it open for the petitioners/appellants to take appropriate regular remedy. 10. The decision in the case of Shri Anadi Mukta (supra) that, a mandamus can be issued to a public authority even when the duty to be enforced is not imposed by the statute, was rendered in the context of grievance that a public trust affiliated to the university was refusing to make payment of salary and other benefits to the employees with reference to the revised pay scale. The said decision has no application to the facts of the present case and the grievance as projected. 11. The case of M.I. Builders Pvt. Ltd. (supra), is also of no application. Therein, a park of historical importance located in congested commercial-cum-residential area was handed over by the Corporation to a private builder under an agreement for construction of an air-conditioned underground shopping complex on the pretext of decongesting the area without inviting tender and without obtaining any project report. The Hon’ble Supreme Court, inter alia, found maintenance of the park because of its historical importance and environmental necessity being a public purpose and decision of the corporation being prejudicial to the public purpose; and that the contract with the builder was totally onesided in favour of the builder. The said decision too, in our view, does not make out a case for interference in the present matter. 12. In view of what has been observed and discussed hereinabove, these appeals fail and are, therefore, dismissed.