Partly allowed

H S Puttakempanna v. Mrs P Bharathi Davi

Karnataka HC9 Feb 2023RP/428/2021

Case brief

AI extract

What is this about?

Court dismissed the Review Petition filed by a neighbor challenging site bifurcation, finding no legal injury or privity of contract to deny statutory power. However, the Court quashed the impugned order in the alternate Writ Petition, allowing the petitioners case for bifurcation.

What did the court decide?

Review Petition dismissed. Writ Petition succeeded; Writ of Certiorari issued quashing the impugned order of the 2nd respondent.

H S Puttakempanna Vs Mrs P Bharathi… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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RP No. 428/2021 C/W WP No. 21966/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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REVIEW PETITION NO. 428 OF 2021 C/W WRIT PETITION NO. 21966 OF 2016(BDA)

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IN R.P.NO.428/2021:

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BETWEEN:

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H S PUTTAKEMPANNA, S/O. LATE. K H SHAMAGOWDA, AGED ABOUT 80 YEARS R/O. PREMISES IN BDA SITE NO. 288, 5^TH MAIN, BMP, MAHALAKSHMI LAYOUT, BANGALORE 560 076.

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…PETITIONER

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(BY SRI. MANIAN K B S.,ADVOCATE)

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AND:

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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MRS. P BHARATHI DAVI, RESIDING AT NO.1806/A, 3^RD CROSS, 9^TH MAIN, PRAKASHNAGAR 3^RD STAGE, RAJAJINAGAR, BANGALORE-560 021.

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BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560 020, REPRESENTED BY ITS COMMISSIONER

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THE TOWN PLANNING MEMBER BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, KUMARAPARK WEST, BANGALORE-560 020.

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2 - RP No. 428/2021 C/W WP No. 21966/2016

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BRUHAT BANGALORE MAHANAGARA PALIKE, CORPORATION BUILDING, NARASIMHARAJ ROAD, BANGALORE-560 002, REPRESENTED BY ITS COMMISSIONER.

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THE ASSISTANT REVENUE OFFICER, MAHALAKSHMIPURAM SUB-DIVISION, BRUHAT BANGALORE MAHANAGARA PALIKE, MAHALAKSHMIPURAM, BANGALORE-560 086.

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…RESPONDENTS

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(BY SRI.JAIPRAKASH RAO .,ADVOCATE FOR R1; SRI. K KRISHNA, ADVOCATE FOR R2 & R3; SRI.K N PUTTEGOWDA, ADVOCATE FOR R4 & R5)

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THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC, PRAYING TO A) TO REVIEW THE ORDER DATED 30/01/2019 IN W.P.NO.19682/2016 (ANNEXURE-A) AND B) AND PASS SUCH OTHERS / RELIEF THAT THIS HON'BLE COURT DEEMS TO BE FIT IN THE INTEREST OF JUSTICE AND EQUITY.

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IN W.P.NO.21966/2016:

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BETWEEN:

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SMT. A. P. BHARANI, W/O. N. NAVEEN, AGED ABOUT 34 YEARS, RESIDING AT NO. 24/1, 1^ST CROSS, RAJAPPA BLOCK, J.C. NAGAR, BANGALORE-560 006.

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…PETITIONER

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(BY SMT. SAKSHI PREM, ADVOCATE FOR SRI. AJAY J N, ADVOCATE)

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AND:

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THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST EXTENSION, BANGALORE-560 020.

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3 - RP No. 428/2021 C/W WP No. 21966/2016

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THE TOWN PLANNING MEMBER BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST EXTENSION, BANGALORE-560 020.

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SRI.H.S. PUTTAKEMPANNA, S/O LATE K H SHAMAGOWDA, AGED ABOUT 81 YEARS, RESIDING AT PREMISES IN BDA SITE NO.288, 5^TH MAIN, BMP, MAHALAKSHMI LAYOUT, BENGALURU – 560 086.

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…RESPONDENTS

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(BY SRI.UNNIKRISHNAN M, ADVOCATE FOR R1 & R2; SRI.K B S MANIAN, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER OF THE R-2 DTD.26.3.2016 VIDE ANNEX-A.

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THIS RP AND WP COMING ON FOR ADMISSIONS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner being the non-party to the judgment dated

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30.1.2019 seeks review of the same on the ground that that has prejudiced his interest he being the owner of the neighboring land. Learned counsel for the Review Petitioner vehemently argues that but for the non bifurcation covenant engrafted in the subject Sale Deed,

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RP No. 428/2021 C/W WP No. 21966/2016

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comprising the site in question, he would not have bought his and therefore, what is interdicted by the covenant cannot be done by the BDA, which lacks competence too.

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Learned Senior Panel counsel appearing for the respondent BDA opposes the review, contending that what is bifurcated is not the site of Review Petitioner but of the petitioner in W.P. No. 19682/2016 which has been disposed off by the judgment now put in review and therefore he does not have locus standii. He further contends that, the owner of neighboring site cannot be said to have a legal injury as to what is done in the adjacent site in exercise of statutory power and therefore, this is a fit case for dismissal on the maxium damnum sine injuria vide MAYOR OF BRADFORD CORPORATION vs. PICKLES (1897) AC 538.

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Having heard the learned counsel for the parties and having perused the review petition papers, this Court being broadly in agreement with the submission made on behalf of the Respondent – BDA declines indulgence in the

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5 - RP No. 428/2021 C/W WP No. 21966/2016

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matter. Firstly, the petitioner being the owner of the neighboring site does not have locus standii to lay a challenge to the bifurcation of other site belonging to some other person. How the bifurcation as such has prejudiced his interest is not forthcoming from the vehement submission of learned counsel for the petitioner. There is also force in the submission of learned BDA Counsel that case of the Review Petitioner is one of damnum sine injuria , in the absence of right to oppose bifurcation is demonstrated.

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The contention of learned counsel appearing of the Review Petitioner that there is a clause in the Sale Deed comprising the said site in question barring its bifurcation; acting upon the same, his client has bought the neighbouring site and therefore, the judgment in Review which facilitates bifurcation exercise, is unsustainable, cannot be countenanced and reasons are not far to seek: firstly, petitioner is not a party to the subject Sale Deed & therefore, what is covenanted

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6 - RP No. 428/2021 C/W WP No. 21966/2016

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between the parties to the said Deed, cannot be made use

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of by the petitioner who does not have privity of contract; secondly, what is covenanted in a contract cannot constrict the statutory power to do the contra in the public interest. The BDA has power under Regulation 6.2(3) of the Extant Regulations that have been promulgated under the provisions of the Bangalore Development Authority Act, 1976. The text of the said Regulation makes it clear that this power is granted to effectuate a public purpose/interest. Therefore, BDA’s refusal to exercise this power having been faltered by this court, the subject Writ Petition came to be disposed off by the judgment now put in Review.

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In the above circumstances, the Review Petition being thoroughly devoid of merits, is liable to be dismissed & accordingly, it is, costs having been reluctantly made easy.

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RP No. 428/2021 C/W WP No. 21966/2016

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In view of rejection of Review Petition,

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W.P.No.21966/2016, that was structured on a particular substratum, contra of which being the basis of this Writ Petition, relief needs to be accorded to the petitioner, as sought for, as argued by the learned counsel appearing for him.

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In view of the above this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order of the 2^nd respondent. Costs made easy.

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Sd/JUDGE

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Bsv

H S Puttakempanna v. Mrs P Bharathi Davi

Case brief

What is this about?

What did the court decide?

H S Puttakempanna v. Mrs P Bharathi Davi

Case brief

What is this about?

What did the court decide?

What the court decided

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