| SooperKanoon Citation | sooperkanoon.com/842530 |
| Subject | Civil |
| Court | Karnataka High Court |
| Decided On | Jan-08-2010 |
| Case Number | Writ Petition No. 16200 of 2005 |
| Judge | D.V. Shylendra Kumar and; L. Narayana Swamy, JJ. |
| Reported in | 2010(2)KCCR582 |
| Acts | Karnataka Municipal Corporations Act; ;Karnataka Municipal Corporations Rules; ;Karnataka Municipal Corporations Regulations |
| Appellant | J. Hemachandra and ors. |
| Respondent | State of Karnataka and ors. |
| Appellant Advocate | S.M. Babu, Adv. |
| Respondent Advocate | Geetha Menon, AGA for R-1,; Ashok Haranahalli Associates and; |
L. Narayana Swamy, J.
1. Ms Anjana Sundar, learned Counsel for respondents 3 and 4, made submissions that the matter, which is heard in part, may be released and she further submits the said submission has been made on the basis of a letter addressed by her clients - respondents 3 and 4 - to her and marking copy of it to brother Judge Justice D V Shylendra Kumar and also to the Hon'ble Chief Justice.
2. I have also gone through the letter dated 11-11-2009 produced along with the report submitted by the Registrar (Vigilance), wherein in para-3, a remark has been made against a former judge, which makes me to recuse from this matter. Accordingly, place the matter before the Hon'ble Chief Justice for appropriate orders.
D.V. Shylendra Kumar, J.
3. When the matter was taken up for hearing, Ms Anjana Sundar, learned Counsel for respondents 3 and 4, made a submission that the matter may be released from part heard. While I was personally inclined to accede to the request, as my learned brother Justice L Narayana Swamy had some reservation and insisted that the learned Counsel who has made this submission should mention the reason as to why such submission was made.
4. Ms Anjana Sundar, learned Counsel for respondents 3 and 4 preferred not to reveal the reason in the court, as the learned Counsel felt that the counsel and the judge are aware of the contents of the letter received from her clients, wherein she had been instructed to make a submission seeking to release the case from hearing before this Bench.
5. However, on counsel being apprised that she need not have any reservation in revealing the reasons and that the court proceedings are open proceedings; that there is no private transaction between a counsel and a judge or a party and a judge, and it will be in the fitness of things to reveal as to the reasons for making such a submission and in the meanwhile the counsel and all persons present in the court having been apprised that a copy of the letter had been received by me sent by Ms Prakashamma, President, Priyadarshini Manila Milan, No 13, 2nd Cross, Okalipuram, C Lakshman Rao Nagar, Bangalore-21, addressed to Ms Anjana Sundar, Advocate and had been received at my chambers, which reads as under:
PRIYADARSHNI MAHILA MILAN
C Lakshman Rao Nagar, # 13, 2nd Cross
Okalipuram, Bangalore - 560 021
(President: Prakashamma)
Date 11-11-2009
To:
Smt Anjana Sunder (Advocate)
# 170, MRCR, 18th Cross
Vijayanagar, Bangalore-40
Respected Madam,
Sub: Partiality by Judge Shailendra Kumar hearing WP No 16200/2005
We, the undersigned, (on behalf of 33 houses) wish to submit this my kind letter to your kind consideration and favourable orders. Amma! we comes from poor families and belongs to SC community. We are all very poor and straggling [sic] hard to find a square meal per day.
Amma! we are much thankful to you, for winning our cases successfully and made us to built [sic] our 33 houses, by borrowing the loan of a sum of Rs. 12,00,000/- [Rupees twelve lakhs only] for construction expenses, it is very appreciatable [sic] for your good affairs.
Amma! we were there at the court hall. The justice Sri Shailendra Kumar has neglected about our case. When the order passed by judge Chandrashekaraiah was shown, Shailendra kumar said 'it is not that judge's grand father's property to change dimention [sic].'. The dimention [sic] was changed according to corporation plan only.
P/note: One Mr Hanuman thappa was not in any association during 1999. He has writted [sic] the false case against us in WP No 16910/1996 that he was a president of Okalipuram Residents Welfare Association, 1st Cross, Bangalore-21. Then justice Chandrashekaraiah, found the reality and warned him not to repeat the same and stop cheating court. The case is not public interest but fraud by Hanumanthaiah. If is [sic] unforgettable Hanumanthappa cheated court for 20 years. Amma! when he is a cheater, Sri Shailendra kumar (Justice) has treated him very well at the court hall itself and asked him about the personal affairs though Hanumanthappa is not party to this case. 'Banni Hanumanthappa} How are you? How is your family? What are you doing at present? How many kinds you have? How about your house? It is small or big? You want fresh air and park, no? and asked questions on 2-11-2009 in open court.
On 30-10-2009, Sri Hanumanthappa had come and told us that 'you cannot do anything? You will be failed in this case, definite, the judge Sri Shailendra kumar is along with me. He will accept my words. 1 can take any order from that court.
On 03-11-2009 whenever you tried to argue, judge Shailendrakumar asked you to keep quite [sic]. Has left the Advocate Babu, to argue. We don't get any justice with this judge. We have no confident in court. We have won 7 justices, our case but this judge will have give the proper judgement. There are no persons interested in continuing case No 16200/2005. First two petitioners have come our of the case.
On 04-11-2009 next day Commissioner Bharathlal Meena has came [sic] to court, their Advocate Sri Babu made false statement. Sri Shailendrakumar, Judge, has scolded the corporation Advocate Sri Babu, we are not in position to ran the case. Orders passed without hearing you in the case. All the order in our favour so far judge said he is confused about case.
Amma! we shall approached the proper judge for suitable justice this justice shailendrakumar is doing the judgement as his own without hearing our Advocates. Amma! we shall transfer this case to some other justice in future. Otherwise, 33 families and 250 people will be on roads, we are poor and helpless.
Thanking you, in anticipation.
Your's faithfully,Sd/-(PRAKASHAMMA)TM(CHANDRAMMA)Copy to:
1. The Chief Justice, High Court of Karnataka, Bangalore.
2. The Chief Justice, Supreme Court of India, New Delhi
3. Justice Shailendrakumar, High Court of Karnataka, Bangalore
4. Sri R G Dinesh Gundu Rao, B E., MLA, Gandhinagar
5. Sri Bharthlal Meena, Corporation Commissioner, Bangalore
and on my recollecting that a certain letter of this nature had forwarded to the Registrar (Vigilance) for examination and to submit a report and that a report had been submitted by the Registrar (Vigilance) in a sealed cover, the report of the Registrar Vigilance was summoned to the court.
6. It was opened in the court hall in the presence of counsel etc. The report has been read in the court hall by Ms Anjana Sundar. Ms Sundar, learned Counsel for respondents 3 and 4, has taken us through the counter filed on behalf of respondents 3 and 4 to the main writ petition.
7, The main objection on behalf of the respondents 3 and 4 for hearing this matter before this bench appears to be that while according to these respondents, the present writ petitioners have no bona fides in presenting the writ petition or maintaining the petition and that they have deliberately suppressed certain earlier developments and particularly the fact that this Court had enquired about the facts of the case from one R Hanumanthappa, who had been described as the president of the Okalipura residents' welfare association, who was the writ petitioner in WP No 16910 of 1996 and who had sworn to a supporting affidavit to this petition and whose presence was secured before the court in the present case through the good offices of Sri S M Babu, learned Counsel appearing for the present writ petitioners and as this Court was very solicitous in enquiring the said Hanumanthappa, who, according to respondents 3 and 4, is the main person behind the present writ petition and who has been playing fraud on this Court not only while presenting WP No 16910 of 1996 but also till date and therefore showing some importance or giving some prominence to the said person in getting facts quite naturally has created doubts and suspicion in the minds of these respondents about they getting a proper order or justice from the hands of this Court and that is to be the reason for seeking the matter to be released from part heard.
8. The third respondent -Ms Prakashamma - who is present in the court and on enquiring, though initially indicated that she has no objection for the matter being heard by this bench, has later stated before the court that it would be better if the matter is released and sent to some other bench, as the second respondent-commissioner of Bruhut Bangalore Mahanagara Palike is not carrying out the directions of this Court in a proper manner and as he is taking undue advantage of the orders and directions issued by this Court and the third and the fourth respondents are put to harassment and in this state of affairs would state that it is desirable that the matter is heard before some other bench.
9. Sri S M Babu, learned Counsel for the petitioners has put forth a very strong objection for the matter being released, for the reason that the matter had been heard by this bench earlier and frivolous and scurrilous objections having been raised by the respondents 3 and 4 just to avoid the bench and if the request is to be acceded to, it amounts to giving encouragement to litigants to shop around for benches to hear their cases, which will not be a healthy development in the proper administration of justice and more over the present writ petition being in the nature of a public interest litigation [PIL], a request for transferring the matter to a different bench on the mere apprehension that the private interest of respondents 3 and 4 may suffer, does not merit acceptance, on the face of it and has, therefore, strongly urges for rejecting the request for transfer.
10. The report of the Registrar (Vigilance) has been perused, which gives the factual information of the state of affairs prevailing on the civic amenity site in question and the developments that have taken place from the year 1991 onwards.
11. It is the version of the respondents 3 and 4 that they had been issued with some hakku patras, on the basis of which further developments have taken place and they have already constructed dwelling units on the basis of some no-objection certificates issued by the Bangalore Mahanagara Palike authorities and the present effort is virtually to throw them out on the street, particularly with their apprehension being that the commissioner of Bruhut Bangalore Mahanagara Palike may in a highhanded manner take further action against them to their detriment and may throw them to the street.
12. This submission is supported by the learned Counsel for the respondents 3 and 4, by pointing out to the show cause notice that had been issued by the Commissioner calling upon not only the respondents 3 and 4 but also 31 other similarly placed persons to vacate the premises and to hand it over to the Bruhut Bangalore Mahanagara Palike within ten days, as per the notice dated 12-11-2009 and served on them on 20-11-2009 and failing which, the Mahanagara Palike itself will proceed to action to throw them out and demolish the buildings and recover the cost of demolition from them etc.
13. While the apprehension of the respondents 3 and 4 and similarly placed 31 persons, who are having dwelling units, on the civic amenity site in question that the commissioner may not adhere to the orders passed and directions issued to the corporation in their letter and spirit and may act in a highhanded manner, is quite reasonable and it is the duty of this Court to ensure that the directions issued by this Court are complied with by the commissioner in letter and spirit and in a proper and not in a highhanded manner, as any highhanded action or arbitrary action is frowned upon by the constitutional provisions and it is the duty of this Court to see that rule of law prevails and constitutional provisions are fully respected and implemented and given effect to by the authorities also, interest of respondents 3 and 4 can also be and is required to be protected only in accordance with law and not on sympathies or mere apprehensions and this can be achieved by issuing further necessary directions to the Commissioner, Bruhut Bangalore Mahanagara Palike as can be issued in law.
14. Be that as it may, in so far as the request for releasing the matter from part heard this writ petition, which is public interest litigation, from this bench is concerned, my brother Justice L Narayana Swamy has expressed some embarrassment to hear this matter further and has already dictated an order expressing his desire to recuse from this case.
15. While, the opinion of every judge of this Court should be respected and is an order, I have to express my inability to agree with my learned brother Justice Narayana Swamy for releasing this matter from part heard, for the following reasons.
16. This writ petition is in the nature of public interest litigation and whenever this Court entertains a public interest litigation, the petitioners are only persons who bring a cause before this Court and are not persons who are neither persons presumably interested [in the litigation] nor are persons seeking for any personal relief or benefit, unlike in a private interest litigation, where the petitioners are persons like plaintiffs in a suit or a petitioner in a writ petition, claiming relief for himself or herself.
17. Whether such petitioners pursue a petition or even file a memo seeking for withdrawal of the writ petition, that in itself is not the criterion for dismissing a public interest petition, but the court has a duty to examine the cause and to pronounce upon the merits of the matter in accordance with law.
18. In a matter of this nature, when the respondents 3 and 4 are pleading that their private interest may suffer if the matter is heard by the present bench, that basis for the request has to be examined in the background of the larger public interest involved in the writ petition, which is the welfare of all residents of the locality and assuming that respondents 3 and 4 and 31 other similarly placed persons claiming to be residing in the same place are also residents of the area and even if that is so, as between the interest of respondents 3 and 4 and other similarly placed persons and the interest of the writ petitioners, who are espousing a public cause, it is the public interest that has to prevail and not the private interest
19. Therefore, I ana of the opinion that the request for releasing this writ petition from part heard on the apprehension that ultimately if some orders are passed by this Court and directions are issued to the Bruhut Bangalore Mahanagara Palike, in the implementation of the directions and orders, the Bruhut Bangalore Mahanagara Palike may act in a highhanded manner to the detriment of the respondents 3 and 4 and others, is nothing beyond putting forth a defence for protecting a private interest against the larger interest of all residents of the locality for retaining the civic amenity site for the very purpose for which it had been earmarked and had been handed over to the then Bangalore city corporation for such maintenance and such apprehensions are again speculative for the present.
20. In so far as the letter addressed to the learned Counsel for the respondents 3 and 4, marking copies of which to me and the Hon'ble Chief Justice, is concerned, it is more scurrilous and appears to be an attempt to get the matter from out of the consideration by this particular Bench, for the reasons best known to the respondents 3 and 4 and not on any discernable legitimate apprehension of bias on the part of one of us, constituting the division bench.
21. Even on our repeated questioning, third respondent Ms Prakashamma has only expressed her apprehension that the orders and directions issued by this Court may be misused or abused by the commissioner, Bruhut Bangalore Mahanagara Palike to their detriment and therefore she is requesting the matter should go before some other bench.
22. As earlier indicated, it is the duty of this Court to ensure that no public authority acts in a highhanded manner and that law is not taken into their own hands and every action is to be in full consonance with the law and in consonance with fair-play and in compliance with the principles of natural justice.
23. We had earlier indicated in the order dated 4-11-2009 that the Commissioner, Bruhut Bangalore Mahanagara Palike should submit a report indicating the possibilities for rehabilitation of third and the fourth respondents and other like persons, if it becomes inevitable that they may have to vacate the present premises if their dwelling units are located within the civic amenity area.
24. On this aspect, Ms Anjana Sundar, learned Counsel for the respondents 3 and 4, submits that there appears to be some discrepancies with regard to the measurement of the area earmarked for a park and the subject matter of the earlier writ petition being only the area covered by park, it is sought to be expanded in the present writ petition. It is not material for the present purpose, as to what was the civic amenity area handed over by the then city improvement trust board in favour of the Bangalore city corporation, as to in what manner that should have been utilized or maintained is a matter on record and does not admit any controversy about it. The only issue in this writ petition is as to whether the Bangalore city corporation, now re-christened as Bruhut Bangalore Mahanagara Palike, has been adhering to its role of maintaining the civic amenity site for the purpose for which it is entrusted to it or has, in any way, deviated from the purpose for which it was handed over. Prima facie, it appears that there are deviations etc.
25. In so far as the hakku patras are concerned, I have perused one such placed before the court and while it appears to be dated 7-2-1994 and issued in favour of one Prakashamma wife of Kandasamy [third respondent herein) was an annexure to WP No 9776-77 of 1999, a writ petition filed by the present third and the fourth respondents, and indicates that it is only an identification of the beneficiary under the ashraya scheme for constructing house and allotment of house to said person in Ward No 121, Okalipura, No 2, 81-08, 2nd Cross, Okalipura, Lakshmanagar Area. Bangalore, it is not an allotment of a house property or site itself.
26. Be that as it may, the question is as to whether a civic amenity area which had been entrusted for maintaining and administering for a specific purpose by a civic body - the then city improvement trust board - can be diverted by the Bangalore Mahanagara Palike or even by the state government as though it is a property owned by either the mahanagara palike or the state government.
27. It is a well settled principle in law that a trustee cannot appropriate or misappropriate a property held in trust for the benefit of the beneficiary and the position of the mahanagara palike is not any different from that of a trustee to administer the civic amenity area for the benefit of the residents of the locality, to maintain it as a park, to put up construction to have a maternity home, child welfare centre and ward office. It is the duty of the mahanagara palike to maintain the civic amenity site as such and not to deviate from this objective and the legal obligation.
28. In this state of affairs and though my learned brother has expressed his desire to recuse from this case, 1 am not inclined to agree with the request made by Ms Anjana Sundar, learned Counsel for the respondents 3 and 4 to release this matter so that the matter has to go before another bench.
29. For a judge, allegations personal in nature are more an occupational hazard and a judge should not only learn to receive them with equanimity but also should objectively examined them to ascertain as to whether it is a bona fide apprehension of a legitimate litigant or a mere ruse to avoid a particular bench and therefore judges should take such a matter in their stride to discharge their duties in accordance with the laws and the oath taken under the Constitution. A judge has loyalty only to the Constitution and the laws of the land and not to any other person or authority. A judge is expected to act independently, fairly and objectively to decide cases in accordance with relevant law applicable to the facts of the case.
30. While the facts will not be known and for such purpose, evidence is collected and placed before the court by the parties and the duty of the court is only to appreciate such evidence to ascertain true facts and apply relevant law to the facts, the outcome or the decision emerges automatically and assuming that a decision is rendered erroneously, there are further remedies by way of appeals etc., if so provided in law. I am of the firm opinion that frivolous and scurrilous allegations should not detract a judge from performing his duties.
31. While at the first hint of lack of confidence about a judge on the part of a litigant, it is highly desirable that a judge hearing a case should recuse himself and allow the matter to be taken up before any another bench or court, in a matter such as the present one, which is essentially a public interest litigation, private interest cannot be given much importance or prominence nor can be taken note of for such purpose. Apart from this, this is a matter which has been specifically directed to be listed before this bench by a special order by the Hon'ble Chief Justice and therefore the matter has been clinging to this Bench, though it could have been before any other bench of this Court.
32. However, in view of the desire and sentiment expressed by my learned brother Justice Narayana Swamy, that he wants to recuse himself from further hearing of this case for the reason that the respondents 3 and 4 had written a letter to their counsel to make a submission requesting the change of bench and the learned Counsel for respondents 3 and 4 has also filed a memo to this effect before this Court expressing apprehension for continuing the matter before this bench, this bench in this combination cannot continue the hearing of the matter and therefore I direct the registry to place this matter before the Chief Justice of the High Court to set appropriate orders so that the matter is listed for further hearing on the constitution of the Bench for further hearing of the case.
33. As the learned Counsel for the respondents 3 and 4 and the respondents 3 and 4 themselves expressed apprehension about the manner of implementation of the orders of this Court by the Commissioner, Bruhut Bangalore Mahanagara Palike and if the contents of the notice that the respondents should vacate premises within ten days and hand over the vacant possession, failing which action will be taken, is to be accepted, that can definitely work to the great detriment of respondents 3 and 4 and other similarly placed persons, as it cannot be expected that they can vacate the premises in ten days if they had been dwelling in the place for the last more than 45 years or so. Fair-play and reasonableness warrant any action proposed against them even in accordance with law, should not be in a highhanded and arbitrary manner, but with sufficient time and opportunity to the respondents to defend their stand, position and interest.
34. The Commissioner, Bruhut Bangalore Mahanagara Palike is directed to act in a sober, moderate manner even while implementing the laws of the land, while taking action for eviction of persons like respondents 3 and 4, if that is warranted. I am informed that there is already an order passed in a pending civil suit at the instance of respondents 3 and 4 and 31 other similarly placed persons, to which the Commissioner, Bruhut Bangalore Mahanagara Palike is also a party and the interim order passed in the suit is to maintain status quo in terms of the order dated 21-11-2009 passed in OS No 7377 of 2009, on the file of City Civil Court, Bangalore. It is needless to emphasis that an order passed by a civil court equally binds on the commissioner and the commissioner is duty bound to obey that order.
35. However, in the meanwhile, the commissioner is directed to submit a report about the manner of rehabilitation of the respondents 3 and 4 and others, if they are ultimately to be displaced from their present position, if rule of law has to prevail and provisions of the Karnataka Municipal Corporations Act and the Rules and Regulations framed thereunder are to be implemented.
36. Sri T Jayaprakash, learned Counsel appearing for the second respondent-Bangalore Mahanagara Palike would like to place an affidavit sworn to by the Commissioner, Bruhut Bangalore Mahanagara Palike, indicating the action taken so far and the affidavit is placed before the court for such purpose.
37. For want of time, while it may not be possible to peruse the contents of the affidavit today itself, the Commissioner is directed to submit a further report about the comparative position of the proposed dwelling units located at the housing board houses at Lingarajapura, to be given in place of the present buildings in occupation of respondents 3 and 4 and other 31 persons if ultimately they are to be displaced from the place and as to whether the proposed dwelling units are in any way on par with the facilities that were available in the existing dwelling units now in their occupation.
38. The commissioner also to indicate if respondents 3 and 4 and other such persons will have to incur any additional expenditure for such purpose, as it is highly desirable that the respondents 3 and 4 and other 31 persons are as of now occupants in a structure built by bringing funds from a housing cooperative and belonging to weaker sections of society and they should not be burdened with any further cost or expenditure.
39. Though Ms Prakashamma [third respondent] would very passionately plead that third and the fourth respondents and other 31 persons would very much like to remain in their present place and would not like to be disturbed, that is a matter to be decided on the application of the relevant laws to the fact situation and is not a matter which I can say or pass orders in any other way other than in accordance with law, which is the duty of the court.
40. The report of the Registrar (Vigilance), submitted in the context of the letter dated 11-11-2009 from 3rd and 4th respondent, addressed to their counsel Ms Anjana Sundar, and a copy of which had been sent to my chamber and on which I had directed the Registrar (Vigilance) to submit a report, is hereby directed to make part of this case. Registry is directed to keep the report submitted by the Registrar (Vigilance) along with the records of this case.
41. List the matter next week before the Bench as constituted by the Chief Justice.