Allowed

Shivaprasad Navada v. Leonard Fernandes

Karnataka HC30 Nov 2021WP/18150/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the Karnataka Appellate Tribunal's refusal to implead a complainant as a party respondent. Citing consistent High Court and Supreme Court precedents, the court held that complainants initiating Section 321 KMC proceedings are necessary parties and directed the Tribunal to permit the petitioner's impleadment and dispose of the underlying appeal exp

What did the court decide?

Writ petition allowed; impugned order quashed; impleadment granted; appeal to be disposed within six months.

Shivaprasad Navada Vs Leonard… — Constitutional and Fundamental Rights | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 30^TH DAY OF NOVEMBER, 2021

¶4

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

¶7

WRIT PETITION No.18150 OF 2018 (LB- BMP)

¶8

BETWEEN

¶9

SHIVAPRASAD NAVADA S/O KODINAGESHNAVADA, AGED ABOUT 45 YEARS, NO.768, 9^TH MAIN, KORAMANGALA 3^RD BLOCK, BENGALURU - 560 034.

¶10

... PETITIONER

¶11

(BY SRI S.SRIRANGA, ADVOCATE (PHYSICAL HEARING))

¶12

AND

¶13

LEONARD FERNANDES S/O. JOSEPH JACOB FERNANDES, AGED ABOUT 42 YEARS, NO.747, 9^TH MAIN, KORAMANGALA 3^RD BLOCK, BENGALURU - 560 034.

¶14

SAMEERA FARNANDES W/O. LEONARD FERNANDES, AGED ABOUT 38 YEARS, NO.747, 9^TH MAIN, KORAMANGALA 3^RD BLOCK, BENGALURU - 560 034.

¶15

THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, CORPORATION BUILDING,

¶16

¶17

HUDSON CIRCLE, BENGALURU - 560 001. REPRESENTED HEREIN BY ITS COMMISSIONER.

¶18

ASSISTANT EXECUTIVE ENGINEER BRUHAT BANGALORE MAHANAGARA PALIKE KORAMANGALA SUB DIVISION, PALIKE BUILDING, II CROSS, 5^TH BLOCK, KORAMANGALA, BENGALURU - 560 095.

¶19

ASSISTANT DIRECTOR OF TOWN PLANNING (SOUTH) MAHANAGARA PALIKE COMMERCIAL COMPLEX, 9^TH CROSS, 9^TH MAIN ROAD, BENGALURU - 560 011.

¶20

THE ADDITIONAL/JOINT COMMISSIONER (SOUTH) MAHANAGARA PALIKE COMMERCIAL COMPLEX 9^TH MAIN ROAD, 9^TH CROSS JAYANAGAR 2^ND BLOCK BENGALURU - 560 011.

¶21

... RESPONDENTS

¶22

(BY SRI CYRIL PRASAD PAIS, ADVOCATE FOR R1 & R2 (PHYSICAL HEARING); SRI T.M.VENKATA REDDY, ADVOCATE FOR R3 TO R6 (PHYSICAL HEARING))

¶23

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD:16.4.2018 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL AT BENGALURU ON I.A.NO.V IN APPEAL NO.233/2018 [ANNEXURE-N] AND ALLOW I.A.V FILED BY THE PETITIONER.

¶24

¶25

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

¶26

ORDER

¶27

The petitioner in this writ petition calls in question an order of the Karnataka Appellate Tribunal declining to permit the petitioner to get into the proceedings as party respondent.

¶28

The petition is filed on the ground that the proceedings initiated against the respondent Nos.1 and 2 emanated from a complaint that is lodged by the petitioner. Pursuant to the said complaint notices under Section 321(1) and (2) of the Karnataka Municipal Corporations Act, 1976 ('KMC Act' for short) are issued to the BBMP. These notices are called in question by respondent Nos.1 and 2 before the Tribunal. It is in these proceedings, the petitioner files an application seeking his impleadment into the proceedings on the ground that he is the complainant. The Tribunal rejects the same, by the impugned order, on the ground that he is not a proper and necessary party

¶29

¶30

to these proceeding. It is this order that is called in question in these proceedings.

¶31

Heard Sri.S.Sriranga, learned counsel appearing for

¶32

petitioner, Sri.Cyril Prasad Pais, learned counsel appearing for respondent Nos.1 and 2 and Sri.T.M.Venkata Reddy, learned counsel appearing for respondent Nos.3 to 6.

¶33

The issue with regard to whether a complainant is entitled to be a party to the proceedings instituted pursuant to a complaint registered by the complainant albeit the proceedings being between the owner of the property and the BBMP need not detain this Court for long or delve deeper into the matter, as judgments of the Apex Court, the Division Bench and the Coordinate benches of this Court in plethora of cases have considered the issue and ordered that the complainant at whose instance the entire proceedings have emanated against an owner of the property is entitled to be a party to the proceedings before the Tribunal.

¶34

¶35

5. The Division Bench in the case of SHANTESH

¶36

GUREDDY AND ANOTHER VS. COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE AND OTHERS¹ has held as follows:

¶37

" 3. The litigation has a chequered history. Adjacent owners residing in Cunningham Cross Road, Bengaluru, are fighting to establish their respective rights concerning a construction put up in premises bearing No.40, Cunningham Cross Road.

¶38

4. It is an admitted position that the residents of Cunningham Cross Road have formed a Forum known as ‘Citizens Forum for Safe Environment,’ (hereinafter referred to as the Forum, for short) of which they are the members.

¶39

5. The owner of the premises bearing No.40, Cunningham Cross Road, allegedly made a construction in violation of the sanctioned building plan.

¶40

6. The Forum and some of its members filed a complaint before the Bruhat Bengaluru Mahanagara Palike.

¶41

7. Our understanding of the Forum is that it is nothing but an assured name by a group of persons, who have assembled themselves under one umbrella.

¶42

8. However, the Bruhat Bengaluru Mahanagara Palike issued a notice under Section 321(1) of the Karnataka Municipal Corporations Act, 1976, asking responsible for the violation, to answer the person Ultimately, on September 17, 2014, an

¶43

1 ILR 2017 KAR 1583

¶44

¶45

order of demolition of the unauthorized structure was passed.

¶46

9. The person responsible for the alleged unauthorized construction preferred an appeal and obtained an order of status quo.

¶47

10. An application is filed by the Forum and some of its members seeking for their additions as parties in the appeal. The Tribunal rejected their application, but the Hon’ble Single Judge allowed the application.

¶48

11. Mr.D.L.N.Rao and Mr.Ananth Mandagi, learned senior advocates appearing for the appellants, strenuously argues that the application filed by the Forum was not maintainable as it is not a body corporate. It is submitted that an unregistered body cannot maintain a writ petition.

¶49

12. Secondly, it is submitted, relying upon a decision of the Supreme Court of India, in the case of RAMESH HIRACHAND KUNDANMAL –versusMUNICIPAL CORPORATION OF GREATER BOMBAY AND OTHERS reported in (1992) 2 Supreme Court Cases 524 that complainants are not necessary and proper parties in such a proceeding.

¶50

13. Mr.D.L.N.Rao has cited a decision of the Delhi High Court in the case of HARDAYAL SINGH MEHTA AND ANOTHER –versus- MUNICIPAL CORPORATION, DELHI AND OTHERS reported in AIR 1990 DELHI 170 to contend that the Tribunal has no power to add anyone except the Corporation.

¶51

14. We first deal with the judgment in Hardayal Singh Mehta (supra). In the said case, the Delhi High Court was dealing with the provisions of the Delhi

¶52

¶53

Municipal Corporations Act, and held that the Tribunal had no power to add anyone except the Corporation.

¶54

15. In the Karnataka Appellate Tribunal Regulations, 1979, Regulation 40 (a) expressly provides for the power of the Tribunal to add any party at any stage of the proceeding. Thus, the judgment in the case of Hardayal Singh Mehta has no application to the facts of this case.

¶55

16. Now, let us deal with the decision in the case of Ramesh Hirachand Kundanmal (supra). In a suit, the issue was whether the complainant was a ‘necessary or a proper party’ to be joined as the defendant. The Supreme Court of India recorded that a party could not be added, unless it has been proved that his presence was necessary for the effectual and complete adjudication of the dispute.

¶56

17. The judgment in the case of Ramesh Hirachand Kundanmal is also distinguishable, as the complainants who sought to add them as parties did not raise any objection as to the two chattels on the terrace stated to have been erected by the owner of the property. It was established on facts that the chattels were movable and meant for storing implements of the mechanics.

¶57

18. We are of the opinion that the power to add a party to a proceeding is not of initial jurisdiction, but of a discretionary nature.

¶58

19. We feel that some of the residents of the locality have pointed out that another resident of the same locality has constructed a building in deviation of the sanctioned building plan. The municipal authorities have passed an order of demolition. Against it, an appeal was filed by the residents and there is an order of status quo.

¶59

¶60

20. There is no attempt on the part of the authoritiesof the Mahanagara Palike to get that order vacated and get the alleged unauthorized construction demolished.

¶61

21. Under the apprehension that the matter may not be pursued before the Tribunal properly, some of the complainants have come forward seeking for their addition as parties.

¶62

22. The Hon’ble Single Judge, in exercise of his sound discretion, felt that they are proper parties. We, also, feel that no prejudice will be caused to the appellants if those persons are added as parties before the Tribunal. On the contrary, better justice is always done if a lis is decided upon a contested hearing.

¶63

23. We are, therefore, not inclined to interfere with the discretion exercised by the Hon’ble Single Judge directing addition of parties."

¶64

(Emphasis supplied)

¶65

A little earlier to the judgment in the case of SHANTESH GUREDDI (supra), the Division Bench in the case of

¶66

M.A.MOHAMMED AMANULLAH V. SATYA ACHAYYA² has held

¶67

as follows:

¶68

"3. Appellant is putting up construction on property bearing No.4, Old No.7, 2^nd Cross, Nandi Durga Road Extension, Bangalore. On the complaint of respondent No.1 and others the Bangalore Bruhuth Mahanagara Palike got issued notice to the appellant under Section 321(1) of the Karnataka Municipal Corporation Act, 1976. Aggrieved by the same

¶69

2 W.A.No.2525 of 2014 DD on 27.02.2015

¶70

¶71

appellant has filed an appeal before the Karnataka Appellate Tribunal in Appeal No.767/2013, which is pending decision. In the appeal the appellant has prayed for an order of stay of demolition. Therefore, respondent No.1, who was instrumental for initiation of the action by the BBMP filed an application to come on record as additional respondent to support her case. The application filed by the respondent No.1 for impleading had been rejected by the Tribunal. Aggrieved by the same she filed writ petition. The learned Single Judge after hearing the parties allowed the writ petition on the premise that respondent No.1 is a necessary party and she is also required to be heard in the matter by the Tribunal. In the circumstances, the present appeal is filed by the appellant.

¶72

4. Having heard the learned counsel for the appellant, we do not see any merit in this appeal because admittedly the respondent No.1 was also one of the Complainants’ before the BBMP complaining against the appellant herein for constructing the building in violation of the sanctioned plan. Therefore, BBMP has passed an order under Section 321 (1) (2) & (3) of the KMC Act on the complaint of respondent No.1 and others. It cannot be held that respondent No.1 is not a necessary party before the KAT, even after the application is allowed by the learned Single Judge allowing respondent No.1 to come on record before the KAT. If really the appellant is constructing the building in accordance with sanctioned plan, mere giving an opportunity to respondent No.1 to redress her grievance, this court cannot interfere with the same. "

¶73

(Emphasis supplied)

¶74

¶75

The judgment of the Division Bench in the case of SHANTESH GUREDDY (supra) was taken in appeal before the Apex Court in SLP No.24083-24087/2017 . The Apex Court by its order dated 05.09.2019 disposed the SLP by the following order:

¶76

"The present Special Leave Petitions have been filed to challenge the Order dated 14.03.2017 passed by the High Court, whereby the Respondents 3 to 7 have been allowed to be impleaded in Appeal No. 863/2014 filed by the Petitioner before the Karnataka Appellate Tribunal at Bangalore.

¶77

The Karnataka Appellate Tribunal had rejected their application for impleadment vide order dated 26.06.2015, which was set aside by the learned Single Judge of the High Court, on the ground, that Respondents 3 to 7 are not total strangers, but members of the Citizens Forum for Safe Environment who had filed the complaint before the Municipal Corporation regarding the unauthorised construction on the Terrace Floor, and additional floor above the Terrace Floor for commercial purposes. The Single Judge held that Respondents 3 to 7 are necessary and proper parties to the proceedings.

¶78

The Division Bench dismissed the Appeal filed by the petitioner herein.

¶79

We have heard the counsel for the parties.

¶80

¶81

We permit Respondents 3 to 7 to participate in the proceedings as Intervenors before the Karnataka Appellate Tribunal as they are proper parties to the proceedings.

¶82

The Interim order granted by this Court on 01.09.2017 is vacated.

¶83

The Special Leave Petitions are disposed of accordingly.

¶84

Pending applications, if any, shall also stand disposed of."

¶85

(Emphasis supplied)

¶86

It is also necessary to notice that this has been the consistent judicial view of this Court that a complainant must be permitted to be a party in the proceedings before the Tribunal. It is apposite to refer to the order passed by the Co-ordinate Bench of this Court in W.P.No.11780/2014 disposed on 17.03.2014, wherein it is held as follows:

¶87

"5. In RAMESH HIRACHAND KUNDANMAL, (supra), the power of the Court to add parties in exercise of the power under Order 1 Rule 10 of CPC has been considered and the scope of the provision has been explained. In HARDAYAL SINGH MEHTA, (supra), in an appeal against the order of demolishing the construction, with regard to the addition of the parties with reference to the provisions under Ss.343 and

¶88

¶89

343(c) of Delhi Municipal Corporation Act, it was held that the grievance in the appeal being against the demolition order made by the Commissioner, he has to defend the order in the appeal and the person who may have furnished information or material to the Commissioner for initiating demolition could only be a witness and the Tribunal would not justify the addition of such a person as party to the appeal. It was held that only a person who has an interest in the subject matter of the appeal can be a party.

¶90

6. In the instant case, application filed before the Tribunal vide Annexure-E makes it clear that the 1st respondent being neighbour of the property, made an allegation that the petitioner encroached her site to an extent of 1 ½ feet north to south and 45 feet east to west and had promised that he will set right whole thing and when the petitioner did not do so, a complaint dated 17.12.2009 was filed with regard to unauthorized construction and the proceeding under S.321 of the Act was initiated and order under S.321(3) of the Act passed. The Tribunal having considered the application and the objection and the rival contentions addressed by the learned advocates, who appeared for the parties, has recorded the finding that the applicant is a necessary party to the case and thus, has allowed I.A.2.

¶91

7. 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

¶92

¶93

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.

¶94

8. 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.

¶95

No ground is made out for exercising of the jurisdiction under Article 227 of the Constitution of India, to interfere with the impugned order. Consequently, the petition is rejected, by making it clear that the Tribunal shall decide Appeal No.38/2010 on its merit and in accordance with law and it is for the respondents 1 and 2 in the appeal, to defend the order dated 19.01.2010 questioned in the appeal."

¶96

(emphasis supplied)

¶97

Later, another Co-ordinate Bench in W.P.No.37915/2014

¶98

disposed on 09.09.2014 holds as follows:

¶99

"5. During last 1½ 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

¶100

¶101

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.

¶102

6. In this view of the mater 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 respondentCorporation 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.

¶103

¶104

The impugned order is accordingly set

¶105

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.

¶106

With these observations, the writ petition is disposed of."

¶107

(emphasis supplied)

¶108

In the light of the afore-quoted judgments of the Apex Court, the Division Bench and that of the Co-ordinate Benches, the order of the Tribunal is rendered unsustainable.

¶109

It is not in dispute that the proceedings before the Tribunal have emanated pursuant to notices issued by the BBMP under Section 321 of the KMC Act and such notices were issued against the owner of the property pursuant to a complaint registered by the petitioner. This fact not being in dispute, the Tribunal ought to have permitted the petitioner to come on record as a party respondent, particularly, in the light

¶110

¶111

of the observations made by several Co-ordinate benches of this Court (supra) , that the defence of the BBMP before the Tribunal is sometimes doubtful and it is the complainant who should be heard in the matter.

¶112

Despite the aforesaid orders being passed by this Court right from 2014 and the Apex Court also confirming such an order passed by this Court, the Tribunal on certain specious plea declines to permit the complainant to come on record which has lead to mushrooming of writ petitions being filed before this Court seeking impleadment into those proceedings pending before the Tribunal. It is therefore, necessary to direct the Tribunal not to unnecessarily dismiss the applications filed by the complainants, if the proceedings before the Tribunal are a result of complaint registered by the complainants and not drive every complainant to this Court seeking such impleadment.

¶113

The learned counsel appearing for the petitioner would

¶114

also submit that the notices issued by the Corporation are of the

¶115

¶116

year 2017, four years have passed but nothing has happened pursuant to the notice and the proceedings are pending before the Tribunal for the last three years. This Court has also come across proceedings that are pending adjudication before the Tribunal for five to seven years in many of the cases. If an illegal construction is brought up in the precincts of the BBMP and notices are issued against such illegal construction, the Tribunal ought to decide such cases as expeditiously as possible, as the purpose for which the notices are issued would be lost by sheer lapse of time.

¶117

It is therefore, for the Tribunal to endeavour expeditious disposal of the cases filed before it, particularly, concerning issuance of notice under Section 321 of the KMC Act, 1976 or under Section 248 of the BBMP Act, 2020, at any rate, within nine months to one year of filing of such cases.

¶118

¶119

10. For the aforesaid reasons, the following:

¶120

ORDER

¶121

(i) Writ Petition is allowed.

¶122

(ii) The impugned order dated 16.04.2018 passed by the

¶123

Karnataka Appellate Tribunal, Bengaluru insofar as it pertains to declining the petitioner to come on record in Appeal No.233/2018 stands quashed.

¶124

(iii) I.A.No.V filed by the petitioner stands allowed and the petitioner is permitted to enter the proceedings as party respondent in Appeal No.233/2018.

¶125

(iv) The Tribunal shall dispose Appeal No.233/2018 as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this order.

¶126

(v) It is needless to mention that the parties to the lis shall co-operate towards expeditious disposal of the case, failing which, the Tribunal would be at liberty to vacate the interim order, if any granted, in Appeal No.233/2018.

¶127

¶128

In view of disposal of the Writ Petition, I.A.No.1/2019 does not survive for consideration and accordingly, stands disposed.

¶129

Sd/JUDGE

¶130

bkp CT:MJ

Shivaprasad Navada v. Leonard Fernandes

Case brief

What is this about?

What did the court decide?

Shivaprasad Navada v. Leonard Fernandes

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. v. Sudindranath Vs Bruhat Bengaluru Mahanagara Palike

Rajanna Vs the Commissioner

Smt.Gowramma Vs State of Karnataka

Sri. Arun Kumar L Vs the State by Station House Officer

Smt.Lingamma Vs the State of Karnataka

M/S Skf Boilers and Driers Pvt. Ltd. Vs the State of Karnataka