(Prayer: These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to direct Respondents No.1 and 2 to exercise the powers vested in them under Section 321 of the Karnataka Municipal Corporations Act, 1976, to demolish the construction carried out by Respondent No.4 on the terrace portion of the schedule property to the extent which is constructed contrary to the sanctioned plan as per the confirmation order dated 9-10-2006 vide Annexure-D.)
1. The petitioners, seven in number, are pitched against respondent No.4, Mr. Mohammed HabeebullaShareiff, seeking a direction from this Court against the respondent-B.B.M.P. and its authorities to initiate action under Section 321 of the Karnataka Municipal Corporations Act, 1976, (for short, the Act ) for demolition of the construction raised by respondent No.4 allegedly without duly sanctioned plan.
2. Learned counsel for the petitioners brought to the notice of the Court the fact of respondent No.4, Mr. Mohammed HabeebullaShareiff, having filed a civil suit against the respondent B.B.M.P. The O.S No.8786 of 2006 came to be decreed in his favour on 5-12-2009 which reads as under:
The Suit of the plaintiff is decreed.
The defendant and their men are restrained by way of perpetual injunction from interfering with the peaceful possession and enjoyment of the plaintiff over the suit property and demolition of any portion of the suit property without due process of law, as this decree shall not come in the way of the defendant in taking any action in accordance with law for removal of such construction if any found to be in violation of the sanctioned plan or the byelaws.
Having regards to the facts and circumstances of the case, parties are directed to bear their own costs.
3. The petitioners , neighbours and residents of apartments of the same building even sought there impleadment in that suit filed by respondent No.4 against respondent-B.B.M.P., but their impleadment in that suit was rejected by the trial Court as the relief of injunction claimed by respondent No.4 herein was only against the respondent-B.B.M.P. The petitioners also appear to have earlier invoked the writ jurisdiction in this matter and despite dismissal of their Writ Petition No.18254 of 2006 and Writ Appeal No.63 of 2007 by the Division Bench of this Court, the petitioners are yet again before this Court by way of these writ petitions seeking direction to the respondent-B.B.M.P.to initiate action under Section 321 of the Act.
4. The observation made by the Division Bench of this Court in the judgment dated 28-6-2010 disposing of Writ Appeal No.63 of 2007 is quoted below for reference:
2. The petitioner in W.P.No.18254/2006 has preferred this appeal being aggrieved by the order passed by the learned single Judge dated 18-12-2006. In the Writ Petition, the appellant that sought for a direction to the second respondent Bangalore MahanagaraPalike (for short, BBMP ) to implement the confirmation order dated 09.10.2006 passed by the Commissioner, BBMP-respondent No.3 in the writ petition. The said writ petition was dismissed by holding that suit- O.S.No.8786/2006 had been filed challenging the proceedings under Section 321 of the Karnataka Municipal Corporations Act, 1976, (hereinafter referred to as the Act ). It is now submitted by the learned counsel appearing for the appellant that the said suit in O.S.No.8786/2006 has been disposed of finally setting aside the proceedings initiated against respondent No.1 herein and by reserving liberty to respondent No.2-BBMP to take action in accordance with law.
3. In view of the disposal of the suit-O.S.No.8786/2006 and the fact that the proceedings initiated under Section 321 of the Act have been set aside, this Writ Appeal does not survive for consideration and necessary directions have already been issued to the Bangalore MahanagaraPalike to initiate action, if necessary.
5. It was also brought to the notice of the Court that in the cross-examination of respondent No.4 herein in the course of trial of O.S.No.8786 of 2006, a copy of the same is placed on record at Annexure-G, the said respondent has stated before the trial Court is as follows:
It is true that I had submitted the application to the Defendant corporation for regularization of unlawful building by paying the requisite fee of Rs.1,02,407/- by way of Demand Draft bearing No.916541 dated 12-12-2007 drawn on S.B.I., Austin Town Branch in favour of B.B.M.P., along with another D.D., for Rs.1,683/- under D.D.NO.916542, dated 12-12-2007 drawn on the same Bank Towards the Scrutiny Fee. The document now shown to me is the xerox copy of said application, which contain my signatures. The xerox copy of Application is marked as Ex.D.3. It is not true to say that I have put up construction over the terrace portion of my Flat unauthorisedly in the year 2006 without obtaining sanctioned Plan and license from the Corporation.
6. From above, it appears to this Court that the petitioners have already tried their case more than once and having failed are again up against the respondent- B.B.M.P. seeking direction in the same nature of mandamus to the respondent-B.B.M.P. to initiate action to demolish of the alleged unauthorised construction, though it appears that respondent No.4 not only succeeded before the trial Court and there is decree in his favour, but the petitioners also failed in the writ jurisdiction and failed before the Division Bench of this Court.
7. It also appears that respondent No.4 got the alleged unauthorised construction regularised by the payment of regularisation charges, or perhaps such proceedings are pending with BBMP. To this effect, he has stated before trial Court by way of cross-examination as quoted above.
Therefore, at this stage, it is not considered appropriate to permit the petitioners to invoke the writ jurisdiction again for the same purpose. The writ petitions, not only barred by principles of res judicata, actual and constructive both but are also devoid of any merit, are hereby dismissed.