Sri H C Ananthaswamy vs Dr H R Mahadev, Ias
2021 Latest Caselaw 2605 Kant

                            1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JULY, 2021

                         PRESENT

       THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE

                          AND

       THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

              C.C.C. NO. 328 OF 2021 (CIVIL)

BETWEEN:
SRI H.C.ANANTHASWAMY
S/O LATE H.K.CHIKKA HONNE GOWDA
AGED 65 YEARS, NO.61
POORNAPRAGNA LAYOUT
3RD MAIN, 5TH CROSS,
BSK 3RD STAGE,
BANGALORE-560 085.
                                         ... COMPLAINANT

(BY SHRI B.V.SHANKARA NARAYANA RAO,                      ,
ADVOCATE)

AND:

Dr.H.R.MAHADEV. I.A.S.,
COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T.CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE-560 020.
                                               ... ACCUSED
(BY SHRI K.KRISHNA, ADVOCATE)
                            ---
                            2


      THIS C.C.C. IS FILED UNDER SECTIONS 11 AND 12
OF THE CONTEMPT OF COURTS ACT, 1971 PRAYING TO
INITIATE CONTEMPT OF COURT PROCEEDINGS AGAINST
THE ACCUSED FOR HAVING WILLFULLY DISOBEYED THE
ORDER DATED 15.12.2020 PASSED IN W.P. NO.14810/2020
AND   AWARD    APPROPRIATE        PUNISHMENT   TO    THE
ACCUSED IN THE INTEREST OF JUSTICE AND EQUITY,
AND ETC.


      THIS C.C.C. COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE
THE FOLLOWING:


                         ORDER

The learned counsel appearing for the

complainant, after arguing the petition for quite

some time, states that he will not press the petition,

but he may be granted liberty to challenge the order

dated 3rd July, 2021 on all permissible grounds. The

breach alleged in this contempt petition is of the

directions contained in paragraph 5 of the order

dated 15th December, 2020 passed by this Court in

W.P. No.14810 of 2020. Paragraphs 3 to 5 of the

said order read thus:

"3. In addition to reiterating various contentions urged in the petition and referring to various documents produced, learned counsel for the petitioner submits that it is the grievance of the petitioner that despite representation at Annexure-L dated 08.06.2020 submitted by the petitioner, the BDA has neither considered the same nor taken any steps/action on the same so far an as such, petitioner is before this Court by way of the present petition.

4. Learned counsel for the respondent submits that if reasonable time is given, the respondent would consider the grievance of the petitioner in accordance with law.

5. In view of the aforesaid facts and circumstances, the petition is disposed of directing the BDA to consider and take necessary steps/action in terms of the decision of the Hon'ble Division Bench of this Court in W.P. No.18496/2007 and connected matters dated 16.11.2020 (Annexure-J) and in accordance with law, within a period of three months from the date of receipt of a copy of this order."

2. There is an affidavit filed by the accused in

which by placing reliance on the order dated 3rd

July, 2021 passed by the Assistant Executive

Engineer of Bengaluru Development Authority

(BDA), it is contended that the aforesaid order has

been complied with.

3. The learned counsel for the complainant

submits that the order dated 3rd July, 2021 does not

constitute compliance with the direction issued by

the learned Single Judge under the order dated 15th

December, 2020. He invited our attention to what

is observed in paragraph 43 of the judgment and

order dated 16th November, 2010 in W.P. No.18496

of 2007 and other connected matters. He

submitted that even an opportunity of being

personally heard was not granted to the

complainant, though a notice was issued to the

encroacher by the Assistant Executive Engineer. He

submitted that on the same day on which

Smt.Bhadramma who is an unauthorized occupant

was summoned to appear for an enquiry, the

aforesaid order has been hurriedly passed. He

submitted that the encroacher was given an

opportunity of being heard, but not the complainant

who had complained about the encroachment. He

submitted that there is no compliance made of the

order of which breach is alleged. Therefore,

proceedings ought to be initiated against the

accused for committing civil contempt.

4. We have perused the contempt petition as well

as paragraph 43 of the judgment and order dated

16th November, 2010 in W.P. No.18496 of 2007. In

the contempt petition, there is a specific averment

that the complainant is claiming to be an allottee of

a site through Vishwa Bharati House Building Co-

operative Society (for short, "the said Society"). It

is claimed that the site is out of the area of 80 acres

and 13 guntas in respect of which bulk allotment

has been made to the said Society.

5. Though the order dated 15th December, 2020

refers to a representation at Annexure-L, the

petitioner has not placed on record a copy of the

same. At this stage, the learned counsel for the

complainant produces a copy of the said

representation dated 8th June, 2020. Even in the

said representation, the complainant has made it

clear that he is claiming through the said Society.

The prayer made in the representation is for

directing BDA to take action in terms of paragraph

43 of the aforesaid judgment and order in W.P.

No.18496 of 2007. Paragraph 43 of the said

judgment reads thus:

"43. As is clear from the aforesaid facts set out above, the schedule land has been the subject matter of litigation for more than four decades. Various proceedings were initiated in various Courts. Various interim orders and final orders are passed. Taking advantage of these orders if persons who are not entitled to site, persons who have no right to the site, persons who have encroached upon the property, entered upon schedule lands, put up construction on the schedule lands, certainly they would not be entitled to the allotment of sites either by virtue of the Government Order or by virtue of this order. Therefore, possession of such sites have to be taken over by BDA in accordance with law and after

clearing such encroachers, the said land is to be handed over to the society for being distributed to the genuine senior members. Therefore, it is the responsibility of the BDA to initiate appropriate action against such persons and in terms of the bulk allotment order to be made in favour of the society to make available the said lands as that would be a part of the subject matter of bulk allotment."

6. We have perused the order dated 3rd July,

2021 passed by the accused. The order records

that a notice was issued to one Bhadramma after

making a spot inspection when it was found that

site No.3247 which corresponds to old site No.610/A

was in possession of Bhadramma who was residing

therein by constructing a residential house. On 3rd

July, 2021, Bhadramma's son, Shankar appeared

before the Assistant Executive Engineer and

produced documents which revealed that the site

has been purchased by Bhadramma under a

registered sale deed executed by the said Society

which has issued the possession certificate in her

favour. Thus, the complainant as well as

Bhadramma are claiming to be allottees of the same

site through the same Society under different sale

deeds. That is how in the order dated 3rd July,

2021, the Assistant Executive Engineer of BDA has

observed that BDA cannot be dragged for resolving

inter se dispute between two allottees who are

claiming the same site on the basis of the allotment

made by the same Society. That is how the

representation made by the complainant has been

rejected by the order dated 3rd July, 2021.

7. There is no direction issued under the order

dated 15th December, 2020 to give personal hearing

to the complainant. The learned counsel appearing

for the complainant states that a request for

personal hearing was made in the representation

dated 8th June, 2020. Paragraph 3 of the order

dated 15th December, 2020 shows that the said

representation was very much before the learned

Single Judge. Still the learned Single Judge has

chosen not to issue a direction for giving an

opportunity of personal hearing to the complainant.

8. A perusal of paragraph 43 of the order dated

16th November, 2010 shows that a direction was

issued to take action against those persons who are

not entitled to a site but have encroached upon a

site. In this case, BDA found that there is inter se

dispute between two parties claiming through the

said Society. Therefore, we find that a substantial

compliance has been made with the directions

contained in paragraph 5 of the order dated 15th

December, 2020 by passing the aforesaid order

dated 3rd July, 2021. Hence, no case is made out to

initiate further action under the Contempt of Courts

Act, 1971. However, it will be always open for the

complainant to challenge the order dated 3rd July,

2021 on all permissible grounds and to adopt

appropriate proceedings in accordance with law

against the said Society and/or said Bhadramma.

9. Subject to what is observed above, the

contempt petition is disposed of. We make it clear

that we have referred to the findings recorded in the

order dated 3rd July, 2021 only for the limited

purpose of considering whether an action under the

Contempt of Courts Act, 1971 deserves to be taken.

We make it clear that we have made no

adjudication on the merits of the controversy.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

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