B V S ANAND Vs. V VAJRAVELU

JUDGEMENT

(1.) THIS appeal is by some of the defendants arrayed in the suit. The dispute has a considerable history and the facts of the case are briefly stated here for the purpose of considering this appeal.

(2.) THE suit is directed against defendants 1 and 2, namely, the commissioner, Bangalore Mahanagara Palike (hereinafter referred to as 'the Corporation' for brevity) and the Inspector General of Police, Task force, Bangalore Mahanagara Palike, Bangalore (hereinafter referred to as 'the IGF for short ). The plaintiffs are residents of Rajajinagar area and the other defendants are also said to be residents of that area. The plaintiffs, who are respondents herein, contend that there is a temple called 'sri Shanidevaru' situated at No. 591/a, 5th Main, 4th Block, rajajinagar, Bangalore, in a site measuring about 41' x 80' and the plaintiffs claim that they are residents of the area and have been offering prayers at the temple for several years. They contend that the temple is headed by a Trust by the name of 'sri Shanidevara Seva mandali'. The said Trust is alleged to have laid claim to the property where the temple is situated and have approached the concerned authorities in this regard to perfect their occupation and title and the matter is pending before the said authorities. That the temple has been established several years ago and that prayers are being offered continuously, is an established fact according to the plaintiffs. It is alleged that on 14-11-2000, the officials of the Corporation arrived at the temple which is the suit schedule property and intended to demolish and dismantle the temple including the idol of Sri Shanidevaru in the temple. It is alleged that the plaintiffs were successful in preventing the officials of the Corporation from demolishing the temple. Yet again, on 14-2-2001, the Corporation officials are said to have made another attempt to demolish the temple and once again the plaintiffs were successful in preventing such action. According to the plaintiffs, there is no indication that the Corporation officials are proceeding in accordance with law in taking recourse to the drastic action of demolishing the temple and it is in this background that the suit is filed. The plaintiffs have also filed an application for temporary injunction seeking an order restraining the Corporation officials from demolishing the suit properties. According to the written statement filed by the defendant-Corporation and the written statement filed on behalf of other defendants, the suit schedule property is a civic amenity site reserved for the purpose of park and playground. That in the year 1968, the area came within the jurisdiction of the Corporation. It was noticed that one Seshadri was making attempts to construct sheds on the schedule property and the Corporation had. issued notice dated 9-5-1975 calling upon him to remove the unauthorised constructions. It appears, the said Seshadri had filed a suit in O. S. No. 1457 of 1975 restraining the Corporation from taking any action. The suit having been dismissed on 15-2-1977, the said Seshadri is said to have filed a writ petition challenging the eviction notice in W. P. No. 4007 of 1977. The said writ petition having been dismissed on 4-1-1982, a writ appeal in W. A. No. 247 of 1982 was filed. The said writ appeal also having been dismissed, seshadri and his wife appear to have registered a society which is now known as 'shanidevara Seva Mandali' and a suit has been instituted in o. S. No. 2468 of 1992 seeking an order of restraint against the bangalore Development Authority and Corporation against demolition of the said temple. This suit was ultimately dismissed on 23-3-1995. In the meantime, Seshadri and his wife are said to have died. One Savithri, who claimed as granddaughter of Seshadri, is said to have married one mahadeva and had occupied the sheds in the suit property and constructed a compound wall around the suit property and installed gates as well. At this point of time, the Corporation Council, at the behest of the Trust now run by Savithri and others, passed a resolution proposing to grant the land in favour of the Trust at an upset price of rs. 500/ -. The defendants who were opposed to the eustence of the temple in a civic amenity site, had filed a writ petition in W. P. No. 17750 of 1999 challenging the resolution to sell the property. In the said writ petition, the State Government which was a party, declared before the Court that it intended to preserve the park and, therefore, the resolution would be cancelled and withdrawn. Accordingly, the writ petition was disposed of on the basis of this statement by the State government on 3-7-2000. The State Government thereafter issued a government Order dated 23-9-2000 under Section 98 (3) of the karnataka Municipal Corporations Act, 1976, cancelling the resolution dated 9-6-1998 and thereafter the Council of the Corporation passed a further resolution dated 26-9-2000 directing the Commissioner of the corporation to demolish the temple on the suit property. The Trust had filed a writ petition in W. P. No. 39438 of 2000 before this Court in its writ jurisdiction against the Corporation and others not to demolish the temple. The writ petition came to be dismissed by an order dated 29-6-2001 holding that it was a clear abuse of process of Court and costs were imposed on the petitioner. Immediately thereafter, yet another suit in o. S. No. 5329 of 2001 was filed with a prayer to restrain the Corporation from demolishing the temple in the suit property. Temporary injunction was not granted. The appellants herein have impleaded themselves in that suit, which is said to be pending. It is in this background that the present suit O. S- No. 5360 of 2001 was filed by the respondents herein, since no order of temporary injunction was granted in O. S. No. 5329 of 2001 in respect of the very property against the very defendants. The trial Court having granted an order of temporary injunction, the present appeal is filed.

(3.) INCIDENTALLY a contempt petition was filed by these appellants before this Court in CCC (Criminal) No. 41 of 2001 and two interim orders dated 13-3-2002 whereby this Court had directed the impleadment of a private party in the contempt petition and by the order dated 20-3-2002 this Court had directed the demolition of the temple in the suit property. This was carried on the Supreme Court by way of a Special Leave Petition and leave was granted The appeal was numbered as Cri. A. Nos. 459 and 460 of 2003 and the Supreme Court was pleased to allow the appeals holding that this Court could not have directed the demolition of the unauthorised construction without deciding the question whether any contempt was committed by the contemnors and directed this Court to take a decision in the pending contempt petition in accordance with law. In the meantime, the Trial court having granted an order of injunction, the appellants have filed the present appeal.