Karnataka High Court
Sri.G.S.Vivekananda vs Sri. Krishnamurthy on 22 June, 2023
Bench: Chief Justice, M.G.S. Kamal
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CCC No. 443 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
CCC NO. 443 OF 2022 (CIVIL)
BETWEEN:
SRI G.S.VIVEKANANDA
S/O LATE G.B. SIDDEGOWDA
AGED ABOUT 57 YEARS
R/O GUDDADUR VILLAGE AND POST
ALDUR HOBLI
CHIKKAMAGALUR TALUK - 577 101
OWNER OF SITE NO.46, CUDA LAYOUT
CHIKKAMAGALUR
...COMPLAINANT
(BY SRI M SHIVAPRAKASH, ADVOCATE)
Digitally signed AND:
by K P SWETHA
Location: HIGH
COURT OF SRI KRISHNAMURTY
KARNATAKA THE COMMISSIONER
CITY URBAN DEVELOPMENT AUTHORITY
KALYAN NAGAR BYPASS ROAD
CHIKKAMAGALUR TOWN
CHIKKAMAGALUR - 577 101
...ACCUSED
(BY SRI RAVISHANKAR A, ADVOCATE)
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CCC No. 443 of 2022
THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF
CONTEMPT OF COURTS ACT, PRAYING TO INITIATE CONTEMPT
PROCEEDINGS AGAINST THE ACCUSED AND PUNISH FOR
WILFUL DISOBEDIENCE OF ORDER PASSED BY THIS HON'BLE
COURT IN RSA NO.1348/2020 DATED 10/08/2021 FOR HAVING
TREATED THE ORDER OF THIS HON'BLE COURT WITH SCANT
RESPECT & ETC.
THIS CCC COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
This contempt petition is filed alleging willful disobedience
of the order dated 10.08.2021 passed by the learned Single
Judge in R.S.A.No.1348/2020.
2. Heard the learned counsel for the complainant and
the learned counsel for the accused-City Urban Development
Authority.
3. The learned counsel for the complainant submits
that though the learned Single Judge has directed the accused
to measure the land and collect the value of excess land
available in between Site Nos.57 and 46 from the complainant
and one Sri B.G.Nagesh equally and to demarcate their
respective sites, the accused failed to comply with the same.
He further submits that the complainant has also made a
representation dated 06.09.2021 for allotment of residential
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site bearing No.A-57 measuring 50' x 90' at CUDA Layout,
Kalyanagar, Chikkamagalur, however, the accused did not pay
any heed to the said representation.
4. The learned counsel for the accused submits that
the accused has made every attempt to comply with the order
passed by the learned Single Judge expeditiously, however, for
reasons beyond its control, there was some delay and there is
no deliberate or willful intention to flout the order. He invited
our attention to the sequence of events to justify that the delay
was for justifiable reasons and prayed for dismissal of the
contempt petition.
5. Challenging the judgment and decree passed in
O.S.No.380/2012 and also the judgment and decree dated
16.09.2020 passed in R.A.No.25/2020 C/w R.A.No.32/2020,
the said RSA No.1348/2020 was filed. While dealing with the
issues involved in the appeal, the learned Single Judge has
framed the following substantial question of law:-
"Whether the first appellate court is justified
in decreeing the claim made by the defendant
No.2 i.e., allowing the counter claim?"
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6. The contention of the complainant herein that he
has paid excess tax in respect of the entire extent of the site
measuring 50' x 90' was not accepted by the learned Single
Judge for the reason that even if any tax is collected, that will
not create any right in favour of the complainant to make a
counter claim to the extent of 50' x 90' and there must be an
absolute sale deed in favour of the vendor of the complainant
to claim such right. It was observed that in the absence of
absolute sale deed, the complainant cannot derive any title but,
in the case on hand, it has to be noted that the very claim of
Sri B.G.Nagesh seeking the relief of permanent injunction was
to an extent of 50' x 80' only. The complainant is claiming right
more than what he has accrued by virtue of the absolute deed
in terms of Ex.P8. It was further observed in paragraph 17 as
under:
"17. Hence, it is appropriate that when the
plaintiff and defendant No.2 got right in respect
of measurement of 50 x 80 feet and if excess
measurement is available in between the two
sites, it is the CUDA-defendant No.1 has to
measure and to collect the amount in accordance
with law to solve the existing problem or
otherwise this litigation would be in existence
forever. When the plaintiffs and defendants are
neighbourers and if any excess land is available,
then it is open to the defendant No.1 to measure
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the excess land and allot the same in favour of
plaintiff and defendant No.2 by collecting the
value of the property and sort out the dispute
between the plaintiff and defendant No.2."
7. By recording the above observations, the learned
Single Judge set aside the judgment and decree passed in
R.A.No.32/2020 as also the direction given to Sri B.G.Nagesh
to vacate and hand over the portion of 'B' schedule property to
the complainant. It was further directed that the accused shall
measure the land and collect the value of excess land available
in between Site Nos.57 and 46 from the said Sri B.G.Nagesh
and the complainant equally and demarcate their respective
sites after collecting the charges and ensure that there is no
room for further litigation by the parties.
8. Interestingly, the material placed on record by the
complainant himself shows that initially, a notice dated
26.11.2021 and thereafter, a final notice dated 19.08.2022 was
issued by the accused to the complainant and the said
B.G.Nagesh calling upon them to attend the spot inquest of the
disputed area on a particular date and time as per the order
passed in R.S.A.No.1348/2020, along with necessary
documents. The spot inquest was conducted on 25.01.2022 at
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11.00 a.m. in the presence of the parties, sketch was drawn
marking the excess construction and the said B.G.Nagesh was
directed to clear the additional building portion.
9. An interesting aspect which reflects the conduct of
the complainant is that even after the judgment in
R.S.A.No.1348/2020, he submitted a representation dated
06.09.2021 to the Authority requesting for re-calculation of the
amount paid and for the refund of the same claiming himself to
have made the payment for additional land. Further, despite
the observation made by the learned Single Judge that in the
absence of absolute sale deed in favour of the vendor of the
complainant, the complainant cannot derive any title to the
extent of 50' x 90'. That apart, in the first paragraph of the
contempt petition itself, the complainant reiterates this stand in
the following words:-
"The complainant acquired title under
registered sale deed dated 01.12.2011 for valuable
consideration, the site with measurement East to
West 50 ft. North to South 90 ft."
10. At this stage, an attempt is made by the learned
counsel for the complainant to submit that the complainant has
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made several representations and only in the representation
dated 06.09.2021, inadvertently by mistake, the area has been
mentioned as 50' x 90'. However, except the representation
dated 06.09.2021, no other representation is placed on record
in support of the said submission. On the contrary, the contents
of the representation dated 06.09.2021 as also the first
paragraph in the contempt petition make it clear that it is not a
mistake but, is a bold statement made by the complainant
despite the observations of the learned Single Judge.
11. The accused has filed an affidavit dated
01.03.2023. The statements made in paragraphs 6 to 10 of
the said affidavit shows that notice was issued to the
complainant and to Sri B.G.Nagesh calling upon them to attend
the spot inspection was conducted and sketch was drawn
marking the excess construction. It is further stated in
paragraph 12 that on 22.08.2022, the demolition activity was
carried out from 9.00 a.m. till evening and on the next day i.e.,
23.08.2022 when the Authority visited the spot for continuation
of demolition activity, it was brought to the notice of the
authority that there is an interim order dated 22.08.2022
granted by the learned Single Judge in W.P.No.16643/2022
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which was filed by Sri B.G.Nagesh and as such, the Authority
thought it fit not to proceed further so as to avoid any
complication in the matter.
12. The learned counsel for the complainant filed his
reply dated 02.03.2023 to the affidavit filed by the accused
reiterating the grievance of non-compliance of the order dated
10.08.2021 passed by the learned Single Judge. In paragraph
5, the complainant is bold enough to again make a statement
that he had acquired title under a registered instrument in
respect of the disputed area of 10 ft. between Site Nos.46
and 57.
13. Considering all these aspects, we are of the opinion
that the accused took all necessary steps to comply with the
order dated 10.08.2021 passed by the learned Single Judge in
R.S.A.No.1348/2020 by way of issuing notice to the
complainant and Sri B.G.Nagesh, visited the spot, demarcated
the excess construction and also directed Sri B.G.Nagesh to
clear the additional building portion. The accused also took
steps for demolition of the additional building portion, however,
in view of the interim order passed in W.P.No.16643/2022, the
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Authority thought it fit not to proceed further so as to avoid any
complication in the matter. This shows that the accused was
willing to comply with the order passed in R.S.A.No.1348/2020
and, therefore, it cannot be said that he has committed an act
of willful disobedience of the order. Since there was an interim
order dated 22.08.2022 granted by the learned Single Judge in
W.P.No.16643/2022 which was filed Sri B.G.Nagesh, the
accused was left with no other option but, to stop the
demolition activity at that stage only. The delay caused in
compliance of the order is due to bona fide reasons which
cannot be attributed to the accused. Thus, in our opinion, the
contempt petition is devoid of any merits.
14. Accordingly, the contempt petition is disposed of.
Notice is discharged.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KPS
