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2017 Supreme(Kar) 687
IN THE HIGH COURT OF KARNATAKA
RAGHVENDRA S. CHAUHAN, J.
Shrinivas Kongovi - Petitioner
Versus
Vijaya Kumari Shanmugam & Others - Respondents
Writ Petition No. 14690 of 2017 (LB-BMP)
Decided On : 31-05-2017
For the Petitioner:S. Sriranga, Advocate.
For the Respondents:Jayakumar S. Patil, Senior Counsel, Kumar J.C., R. Ramachandran, Advocates.
Headnote:
Civil Procedure Code,1908 - Rule 10(2) - Order 1 - Karnataka Municipal Corporation Act, 1976 - Sections 321 (1),(2),(3) ad 351 - Karnataka Appellate Tribunal - Challenge - Petitioner claims to be owner of a residential property bearing Cross West of Chord Road Stage Bengaluru - According to petitioner he resides in said property along with his family members - According to petitioner respondent is owner of residential property bearing Cross West of Chord Road Stage Bengaluru - Whether a party at whose behest BBMP has issued a notice under Section 321 (1) (2) and 321 (3) of Act should be permitted to be impleaded as a party-respondent in an appeal filed by party who has challenged notice issued by B.B.M.P before Tribunal or not ? whether respondent is a necessary or proper party to be joined as defendant under Or. 1, Rule 10 of CPC in suit instituted by appellant against respondent or not? whether it is justified or not whether in a dispute between respondent and respondent petitioner is a necessary or a proper party or not? whether petitioner has a direct and legal interest in action brought by respondent against respondent or not? - Held, courts below therefore failed to note that respondent has no direct interest in subject matter of litigation and addition of respondent would result in causing serious prejudice to appellant and substitution or addition of a new cause of action would only widen issue which is required to be adjudicated and settled - Joining of party would embarrass plaintiff and issues not germane to suit would be required to be raised - Mere fact that a fresh litigation can be avoided is no ground to invoke power under rule in such cases - Court has relied upon case of - Since both cases are based on a decision of Hon’ble Supreme Court they are equally binding on this Court - In both these cases this Court had upheld order passed by Tribunal whereby Tribunal had rejected application filed for impleadment by a third party - Petition dismissed
1. The petitioner is aggrieved by the order dated 19.12.2016, passed by the Karnataka Appellate Tribunal Bengaluru. By the impugned order, the learned Tribunal has dismissed the petitioner’s application filed under Regulation 40 (a) of the Karnataka Appellate Regulations, 1979 (“the Regulations”, for short), for being impleaded as a party-respondent, in an appeal filed by the respondent, namely Smt. Vijaya Kumari Shanmugam, wherein, she had challenged the Confirmation Order dated 10.06.2016, passed by the respondent No.3, Assistant Engineer, Bruhat Bengaluru Mahanagara Palike, Bengaluru (“ the BBMP”, for short).
2. Briefly the facts of the case are that, the petitioner, Mr. Shrinivas Kongovi, claims to be the owner of a residential property, bearing No.677, 9th ‘A’ Cross, West of Chord Road, 2nd Stage, Bengaluru-560 086. According to the petitioner, he resides in the said property along with his family members.
3. According to the petitioner, Smt. Vijaya Kumari Shanmugam, the respondent No.1 is the owner of residential property bearing No.676, 9th ‘A’ Cross, West of Chord Road 2nd Stage, Basaveshwaranagar, Bengaluru-560 086. Thus, the petitioner and the respondent No.1 are neighbours, as they are the owners of the adjacent plots.
Furthermore, according to the petitioner, the respondent No.1 entered into a Joint Development agreement, dated 24.04.2015, for constructing a multi- storied residential apartment on her property. Subsequently, the sanctioned plan was approved by the respondent No.2, and the construction began. However, when the petitioner discovered that the construction undertaken by the respondent No.1 was in violation of the sanctioned plan, on 02.05.2016, he addressed a letter to the BBMP, pointing out the illegal construction raised by the respondent No.1. Consequently, the BBMP, issued a notice on 10.05.2016 to the first respondent, clearly stating that, upon spot inspection it was discovered that there was violation of the sanctioned plan with regard to the set back measurement. The BBMP directed the respondent No.1 to file her reply to the said notice.
4. Notwithstanding the notice issued by BBMP, on 13.05.2016, the petitioner again sent a letter to the BBMP, pointing out the violation of sanctioned plan committed by the respondent No.1. Consequently, on 25.05.2016, the BBMP issued a provisional notice under Section 321 (1) of the Karnataka Municipal Corporation Act, 1976 (“the Act”, for short). The BBMP directed the first respondent to remove all the illegal construction, and to bring the construction in conformity with the sanctioned plan. On 10.06.2016, the BBMP passed a confirmation order under Section 321 (3) of the Act. It directed the respondent No.1 to report compliance of the order dated 25.05.2016, and to stop the construction.
5. Having sent two notices to the respondent No.1, on 13.06.2016, the BBMP informed the petitioner that upon the complaint filed by the petitioner, legal action has been taken by the BBMP. However, on 17.06.2016, the petitioner again complained to the BBMP that despite the notices, the construction was continuing unabated.
6. Since the petitioner was aggrieved by the inaction on the part of the BBMP, the petitioner filed a writ petition, namely W.P.No.36368/2016 before this Court. By order dated 11.07.2016, this Court directed the Assistant Executive Engineer, BBMP, to file an affidavit as to why he had failed to take any action pursuant to the confirmation notice passed under Section 321 of the Act.
7. On 20.07.2016, the learned counsel for BBMP informed this Court that since respondent No.1 herself was removing the illegal construction in terms of the order dated 11.07.2016, no action needs to be taken by the BBMP. However, notwithstanding the submission made by the learned counsel for BBMP, the petitioner pointed out that in fact, the illegal construction was not being razed by the respondent No.1, but instead the illegal construction continued to be raised by the respo
