Sri Balaji B Thimmegowda Vs Mrs v Rosaline

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.07.2023 PASSED IN REVENUE APPEAL NO.647/2020 PASSED BY KARNATAKA APPELLATE TRIBUNAL (CH-1) VIDE ANNEXURE-A, CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER 1 RULE 10(2) OF CPC R/W REGULATION 40 OF KAT REGULATIONS, 1979.

¶26

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶27

CORAM: HON'BLE MR. JUSTICE R. NATARAJ

¶28

ORAL ORDER

¶29

The petitioner is aggrieved by an order dated 10.07.2023 passed by the Karnataka Appellate Tribunal, Bengaluru, in Rev. Appeal No.647/2020, by which his application (I.A. No.III) to be impleaded in the proceedings as respondent No.3 was rejected.

¶30

3 -

¶31

NC: 2025:KHC:49640 WP No. 20219 of 2023

¶32

HC-KAR

¶33

The petitioner claims that he is a neighbour of the respondent Nos.1 and 2, who had put up construction in violation of the sanctioned plan. The petitioner had lodged a complaint before the Municipal authorities, which prompted action under Sections 321(1), 321(2) and 321(3) of the Karnataka Municipal Corporations Act, 1976 (for short, 'the KMC Act, 1976'). The respondent Nos.1 and 2 challenged the said order before the Karnataka Appellate Tribunal (henceforth referred to as ‘the Tribunal’) under Section 443A of the KMC Act, 1976. In the proceedings before the Tribunal, an application was filed by the petitioner to implead himself, which was rejected in terms of the impugned order. The petitioner, is therefore, before this Court.

¶34

Learned counsel for the petitioner contends that the petitioner is the neighbour of the respondent Nos.1 and 2 and his civil rights of drawing free air and light, is affected by the unlawful construction put up by the respondent Nos.1 and 2. He, therefore, contends that the petitioner is entitled to come on record. He submits that unlike a rank stranger, the petitioner has a better right to be impleaded as the role of a stranger would come to an end soon after he intimates the

¶35

4 - NC: 2025:KHC:49640 WP No. 20219 of 2023

¶36

HC-KAR

¶37

authorities concerned about the violation while the right of the petitioner continues so long as the building exists adjacent to his property. He submits that the Tribunal relied upon a judgment of the Division Bench this Court in W.A. No.100071/2018 (disposed off on 28.11.2018) to reject the application. However, a perusal of the judgment of the Division Bench of this Court shows that there was no reference whether the applicant who sought impleadment was a neighbour of the person who had violated the building plan. He, therefore, contends that the judgment of the Division Bench of this Court in W.A. No.100071/2018 is not applicable to the case on hand on all fours. He relied upon the judgment of a Division Bench of this Court reported in Sri Shantesh Gureddi and Another

¶38

v. The Commissioner, Bruhat Bangalore Mahanagara

¶39

Palike and Others [ILR 2017 Kar 1583] to contend that in similar circumstances, another Division Bench of this Court has held that the complainant is entitled to oppose an appeal filed and therefore has the locus to come on record in the proceedings before the Tribunal. He also submitted that this judgment of the Division Bench was upheld by the Hon'ble

¶40

5 - NC: 2025:KHC:49640 WP No. 20219 of 2023

¶41

HC-KAR

¶42

Supreme Court in SLP (C) Nos.24083-24087/2017 (disposed off on 05.09.2019).

¶43

Per contra, the learned counsel for respondent Nos.1 and 2 has opposed this writ petition primarily contending that the petitioner has no locus standi to come on record in the proceedings before the Tribunal as his role has come to an end soon after respondent Nos.3 and 4 have taken action under Sections 321(1), 321(2) and 321(3) of the KMC Act. In support of this contention, he relied upon the separate orders passed by two coordinate Benches of this Court in W.P No.8563/2017 (disposed off on 03.04.2017), W.P. No.64047/2016 (disposed off on 05.04.2017), W.P. No.45073/2017 and connected petitions (disposed off on 18.10.2021). He contends that respondent Nos.3 and 4 have already passed an order and therefore the lis is now between respondent Nos.1 and 2 as well as the respondent Nos.3 and 4 and the petitioner has no locus standi to come on record in the appeal before the Tribunal.

¶44

It is not in dispute that the petitioner is a neighbour

¶45

of the respondent Nos.1 and 2. It is now stated in the order

¶46

6 - NC: 2025:KHC:49640 WP No. 20219 of 2023

¶47

HC-KAR

¶48

passed under Section 321(3) of the KMC Act that the construction put up by the respondent Nos.1 and 2 is in violation of the building plan and the licence granted by the Assistant Director of Town Planning (Rajarajeshwarinagar Zone), Bruhat Bengaluru Mahanagara Palike (BBMP). The purpose of the setback prescribed in a plan is to ensure that there is free movement of air and light and the petitioner being the adjacent land owner, is entitled to the easementary right of free light and air from not only his property but also from the property of respondent Nos.1 and 2.

¶49

It is in this regard that respondent Nos.3 and 4 had entertained the complaint lodged by the petitioner and had initiated action against the respondent Nos.1 and 2. The appeal before the Tribunal is a continuation of the proceedings initiated by the respondent Nos.1 and 2 herein. In the event, the impugned order is set aside, the petitioner would definitely be put to difficulty and inconvenience as his attempt to bring down the construction put up by the respondent Nos.1 and 2 may prove futile. Therefore, denying an opportunity to the petitioner to support the order of confirmation passed by the respondent No.3, would deprive him of a valuable right to draw

¶50

7 - NC: 2025:KHC:49640 WP No. 20219 of 2023

¶51

HC-KAR

¶52

free air and light from not only his property but also from the property of the respondent Nos.1 and 2. In this regard, it is profitable to refer to the judgment of the Hon’ble Apex Court in

¶53

K. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Others [AIR 1974 SC 2177], where the Hon’ble Apex Court while considering similar circumstances held “ An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in

¶54

excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases .”

¶55

8 - NC: 2025:KHC:49640 WP No. 20219 of 2023

¶56

HC-KAR

¶57

In view of the above, it cannot be said that the petitioner does not have any locus standi to be impleaded in the proceedings before the Tribunal.

¶58

In that view of the matter, this petition is allowed and the impugned order dated 10.07.2023 passed by the Karnataka Appellate Tribunal, Bengaluru, in Rev. Appeal No.647/2020 is set aside. The application (I.A. No.III) filed by the petitioner herein under Order I Rule 10(2) of the Code of Civil Procedure, 1908 read with Regulation 40 of the Karnataka Appellate Tribunal Regulations, 1979 is allowed and the petitioner herein is ordered to be brought on record as respondent No.3 in Rev. Appeal No.647/2020 before the Karnataka Appellate Tribunal. The Tribunal shall consider the said appeal and dispose off the same at the earliest and at any rate, shall not be beyond six months from the date of receipt of a certified copy of this order.

¶59

Sd/(R. NATARAJ) JUDGE

¶60

SMA/List No.: 1 Sl No.: 8

Sri Balaji B Thimmegowda v. Mrs v Rosaline

Case brief

What is this about?

What did the court decide?

Sri Balaji B Thimmegowda v. Mrs v Rosaline

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Chikkahanumakka Vs the Municipal Commissioner

Sri Muthu C Vs Greater Bangalore Authority (Formerly Bbmp)

Bovi Naukarara Samskruthika Sangha (R) Vs State of Karnataka

Sri T Thimme Gowda Vs State of Karnataka

Sri D Prakash Vs the Chief Commissioner

Smt.Savithri K Vs the Chief Commissioner