S N SIMHA S/O LATE G R SWAMY Vs. COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N R SQUARE, BANGALORE

JUDGEMENT

(1.) Petitioners have sought for a direction to respondents No.1 and 2 to consider and take immediate action on the representation of the petitioners at Annexures-C to C8 to the writ petition and a direction to the respondents No. 1 and 2 to remove/demolish the unauthorized and illegal construction put up by respondent No.3 on the conservancy lane inter alia seeking to restrain the 3rd respondent from encroaching/or putting up construction on the conservancy lane in future.

(2.) Learned counsel for the petitioners has filed a memo seeking withdrawal of the writ petition in view of the subsequent developments viz., removal of the unauthorized construction put up by 3rd respondent in the conservancy lane, by respondents No. 1 and 2- BBMP. However, learned counsel for the 3rd respondent submitting his arguments on IA-1/2018 filed by respondent No.3 seeking directions to respondents No.1 and 2 not to demolish the building in question as well as IA-2/2018 for permission to put up construction of premises No.3/1, PSK Lane, III cross, Cottonpet, Bengaluru pending disposal of the writ petition had objected for the withdrawal of the writ petition by the petitioners and sought for an order against the petitioners and respondents No.1 and 2 for committing abuse of process of law.

(3.) Learned counsel for the 3rd respondent vehemently argued that the petitioners and respondent Nos.1 and 2 suppressing the material facts, behind the back of this respondent obtained an order in W.P.No.53507/2013 on 28.11.2013 whereby this court recording the submissions made on behalf of respondents No.1 and 2 that the illegal constructions made on the property in question would be removed by 29.11.2013, disposed of the writ petition. Thus, it is submitted that the 3rd respondent was oblivious of this proceeding before this court. It is the contention of 3rd respondent that his father had preferred O.S.No.127/1985 against 1st respondent seeking for a decree of permanent injunction against Corporation restraining it from interfering with plaintiffs' peaceful possession and enjoyment of the suit property (property in question). The said suit has been decreed and has reached finality, further confirmed by the letter of 2nd respondent addressed to the Circle Inspector of Police, Cottonpet on 22.11.2013 inasmuch as the property in question belonging to 3rd respondent. An application was filed before this court (IA-1/2018) on 2.4.2018 to direct respondents No.1 and 2 not to demolish the construction (structure) put up by 3rd respondent. In view of the demolition of the same by respondent No.2, highhandedly, seeks permission to put up residential building thereon, until the disposal of the writ petitions on merits. Thus, the arguments are two-fold. Firstly, writ petitions are not maintainable as interse civil dispute between the petitioners and 3rd respondent relating to the property in question cannot be resolved in the writ jurisdiction. Secondly, respondents No.1 and 2 acted highhandedly sans any order of this court to demolish the property in question which tantamounts to abuse of process of court calling for serious action against respondents No.1 and 2. Hence, the rights of the 3rd respondent who is enjoying the property in question as an absolute owner cannot be disturbed at the instance of the petitioners. It is submitted that no notice was issued before demolishing the structure in the property in question and despite resistance, the structures have been demolished affecting the valuable rights of the 3rd respondent. Accordingly seeks for permission to put up construction of a residential building in the property in question i.e. Site No. No.3/1, PSK Lane, III cross, Cottonpet, Bengaluru. In support of his arguments learned counsel for 3rd respondent placed reliance on the judgment passed in Pasupuleti Venkateswarlu -v- The Motor and General Traders, (1975) AIR SC 1409 and M/s Ram Chand and Sons Sugar Mills Private Ltd., Barabanki (U.P) - v- Kanhayalal Bhargava and others, (1966) AIR SC 1899.