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Sri. Shanmugham R Vs. The State of Karnataka - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWP 56904/2016
Judge
AppellantSri. Shanmugham R
RespondentThe State of Karnataka
Excerpt:
.....11.2016 in w.p. nos.56904-908/2016 and w.p.no.57124/2016 sri.shanmugham.r. and others vs. the state of karnataka and others 5.6. residing at no.54/4 sanjeevappa lane avenue road cross bengaluru-560 002. sri harish p s/o paramashivaiah. c, aged41years residing at no.51, sanjeevappa lane, avenue road cross, bengaluru-560 002. sri. vinay. b. s/o banashankrappa, aged36years residing at no.49/1, sanjeevappa lane, avenue road cross, bengaluru560002. ...petitioners (by sri g r mohan, advocate) and1 the state of karnataka represented by its principal secretary, urban development department, vikasa soudha, bangalore560001. the commissioner bruhath bangalore mahanagar palike (bbmp) bangalore560002. the assistant executive engineer bescom, w5 division, 2.3. 3/9 krishibahvana, bengaluru560002.....
Judgment:

® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF NOVEMBER, 2016 BEFORE THE HON’BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION Nos.56904-908 OF2016AND WRIT PETITION No.57124 OF2016(LB-BMP) BETWEEN1 2.

3. 4. SRI. SHANMUGHAM R S/O V.RAMASWAMY, AGED80YEARS RESIDING AT NO.16, 24TH CROSS, CUBBONPET BENGALURU-560 002 SRI. BANASHANKARAPPA C S/O CHIKKASANKAPPA AGED66YEARS, RESIDING AT NO.49/1, SANJEEVAPPA LANE, AVENUE ROAD CROSS, BENGALURU-560 002 SRI VARADARAJU.C S/O CHIKKASANKAPPA, AGED61YEARS RESIDING AT NO.49, SANJEEVAPPA LANE, AVENUE ROAD CROSS, BENGALURU-560 002 SRI SATISH.K S/O KRISHNAPPA.B AGED42YEARS29 Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 5.

6. RESIDING AT NO.54/4 SANJEEVAPPA LANE AVENUE ROAD CROSS BENGALURU-560 002. SRI HARISH P S/O PARAMASHIVAIAH. C, AGED41YEARS RESIDING AT NO.51, SANJEEVAPPA LANE, AVENUE ROAD CROSS, BENGALURU-560 002. SRI. VINAY. B. S/O BANASHANKRAPPA, AGED36YEARS RESIDING AT NO.49/1, SANJEEVAPPA LANE, AVENUE ROAD CROSS, BENGALURU560002. ...PETITIONERS (BY SRI G R MOHAN, ADVOCATE) AND1 THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BANGALORE560001. THE COMMISSIONER BRUHATH BANGALORE MAHANAGAR PALIKE (BBMP) BANGALORE560002. THE ASSISTANT EXECUTIVE ENGINEER BESCOM, W5 DIVISION, 2.

3. 3/9 KRISHIBAHVANA, BENGALURU560002 Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 4.

5. M/S INDUS TOWERS LIMITED NO.12, SUBRAMANYA ARCADE, TOWER-D, 7TH FLOOR, BANNERAGHATTA ROAD, BENGALURU-560 029 REPRESENTED BY ITS LEGAL HEAD SRI. M .S. SHRINATH SRI BASAVARAJU.B MAJOR S/O LATE BANASHETAPPA, RESIDING AT NO.50/5, SANJEEVAPPA LANE, AVENUE ROAD CROSS, BENGALURU-560 022. ...RESPONDENTS (BY SRI V SREENIDHI, AGA FOR R-1) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF MANDAMUS OR DIRECTION OR ORDER

TO CONSIDER REPRESENTATION AS PER ANNEXURES-A AND B DATED0406-08-2016 BY R-2 & 3 AND TO REMOVE TOWER PUT UP ON THE THIRD FLOOR OF THE SHCEDULE BUILDING ILLEGALLY PUT UP BY R-5. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

4. 9 ORDER

Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others Mr. G.R.Mohan, Adv. for Petitioners. Mr. V.Sreenidhi, AGA for Respondent No.1.

1. 2. Heard the learned counsel for the petitioners. The petitioners are the local residents aggrieved by the putting up of a Mobile Tower, by the respondent No.4-M/s Indus Towers Limited on the property owned and possessed by respondent No.5-Mr.Basavaraju B.

3. The grievance raised in the present writ petition is that despite representations made by the petitioners vide Annexure-A dated 04.08.2016 on behalf of Sree Kodandarama Vyama Shala and a legal notice served by the Advocate vide Annexure-E just a week thereafter on 11.08.2016, no appropriate action is being taken by the respondent-authorities of BBMP. Therefore, a mandamus writ is prayed for. Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 5/9 4. Mr.G.R.Mohan, learned counsel for the petitioners has also relied upon an order passed by the cognate Bench of this Court in W.P.Nos.31193-197/2013 C/w W.P.No.34973/2013 decided on 02.07.2014 in which inter alia the Court had directed the respondent-authorities to examine and verify as to whether the stilt floor is kept open only for parking space and stair case is as per the sanction plan or not, within three weeks from the date of receipt of the said order. He has urged before the Court that the respondent- BBMP should be directed to consider the objections of the petitioners in accordance with the relevant Government Guidelines with regard to setting up of the said impugned Mobile Tower.

5. Having heard learned counsel for the petitioners, this Court is not inclined to invoke its extra jurisdiction under Article 226 of the Constitution of India in the present case for the following reasons: Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 6/9 The case apparently involves determination of i. certain question of facts as to whether the Mobile Tower in question is authorized or not and whether it is practically and legally permissible to exist there or not. ii. The writ petitions also appear to be pre-mature and uncalled for and it appears that the petitioners have approached this Court in a hot haste just after approaching the concerned authorities of the BBMP vide representation Annexure-A dated 04.08.2016 in the first instance, followed in quick succession by a legal notice Annexure-E dated 11.08.2016 and thereafter, these writ petitions are filed in this Court on 03.11.2016 that the respondent authorities to consider the objections of the petitioners is not narrated. iii. Exercise of mandamus directions in such matters to direct the public authorities to do, what they are otherwise also excepted in law to do, is an exercise in Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 7/9 futility. It unnecessarily interferes with the discretion, public duty and obligation on the part of the public authorities to discharge their functions in normal course. iv. There is no justification for this Court to presume that the public authorities like BBMP or its Commissioners would not abide by the extant Government Circulars and Guidelines. No such case of violation or deliberate deviation from such guidelines has been made out in the present case. v. The judgment relied upon by the learned counsel for the petitioners was rendered in different facts and circumstances of the case and the same cannot be relied upon as a precedent in these type of cases. vi. A direction to consider the representation of the petitioners by the authority even though could be issued in such cases, but as already observed above, it is Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 8/9 not necessary nor desirable to do so every now and then in all such individual cases of representations and objections. vii. Entertaining these kind of writ petitions in extra-ordinary jurisdiction of the Court under Article 226 of the Constitution of India would unnecessarily flood the dockets of this Court and the normal functioning of the public bodies like BBMP, BDA etc., is likely to be hampered and interfered with.

6. Without any proper mechanism in place, constantly monitoring and implementing these kind of mandamus directions, the Courts should be slow and loath to issue such directions, which it cannot monitor effectively.

7. In view of the facts stated above, it is expected from the petitioners to pursue their grievances/ representations before the concerned authorities of the BBMP only with the expectation that the respondent Date of order:

7. 11.2016 in W.P. Nos.56904-908/2016 and W.P.No.57124/2016 Sri.Shanmugham.R. and others vs. The State of Karnataka and others 9/9 authorities will consider their grievances/representations in accordance with law, at their own end. With these observations, the writ petitions are disposed of. No costs. Sd/- JUDGE TL


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