Full Judgment Text
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CASE NO.:
Appeal (crl.) 1959-60 of 2004
PETITIONER:
P. Varadarajulu
RESPONDENT:
Agricultural Produce Market Committee
DATE OF JUDGMENT: 01/04/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Civil) Nos. 23068-23069/2002)
ARIJIT PASAYAT, J.
Leave granted
A small matter which could have been sorted out at the
trial court level has unnecessarily been dragged through
the corridors of several courts. The challenge in the
present appeal is to the order passed by a learned Single
Judge of the Karnataka High Court which has been disposed
of under Section 115 of the Code of Civil Procedure 1908
(in short the ’CPC’). The respondent is an Agricultural
Produce Market Committee (hereinafter referred to as the
’Market Committee’). The appellant had filed a suit seeking
direction for renewal of the licence in his favour and
allotment of the vacant site. The same was the subject
matter of dispute in OS No. 1015 of 1987 in the file of the
Additional City Civil Judge, Bangalore. Decree passed in
the said case reads as follows:
"It is ordered and decreed that the
defendant is directed to allot a vacant
site in between site No. 10-C and 11/2
situated at 2nd main of AMPC Yard to
the plaintiff.
It is further decreed that the
defendant is directed to renew the
licence in favour of the plaintiff to
carry on business.
It is further decreed that the
defendant is further directed that if
any building or maliges are constructed
in vacant site in between sites 10-C and
11/2, the same shall be allotted to the
plaintiff."
An application for execution was filed, and the
Executing Court also took action against Market Committee
for disobedience. The stand of the Market Committee before
and /or subsequent to the decree, and in the execution
proceedings was that the decree was not executable. It
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appears that the High Court appointed an Advocate
Commissioner to report about the physical position of the
space between site nos. 10/C and 11/2. The High Court
after receipt of the Advocate Commissioner’s report and
looking at the photographs found that the decree was not
executable as in its view it refers to a space not in
existence on account of the drainage on the spot.
Accordingly the Civil Revision was allowed.
Learned counsel for the appellant submitted that after
having lost not only in the suit but the subsequent
applications filed before the Executing court, a frivolous
and non-maintainable petition was filed before the High
Court. Unfortunately, the High Court did not take note of
the actual state of affairs and proceeded as if the decree
was not executable. With reference to the sketch map
annexed to the report of Advocate Commissioner, it was
submitted that the space was still available and only on
the ground that a drain existed, the High Court should not
have interfered. It was submitted that if the space as
directed in the decree is allowed even over the drain, the
appellant is willing to accept it and he will ensure that
there is no seepage of drain water and no inconvenience
will be caused and no unhygienic condition shall be
created. It is further submitted that if any unhygienic
condition is created, then the appellant is willing to
accept the alternative suggestion given by the Market
Committee before the High Court regarding allotment of
equally spacious area in nearby available area.
In response learned counsel for the Market Committee
submitted that the High Court has rightly concluded that
the decree was not executable as no space was available. It
was submitted that if the appellant is allowed to put up
any structure over the drain it would lead to insanitary
conditions and rain water may overflow to the various
shops.
We find that the basic issues have been lost sight by
the High Court. The sketch map annexed to the report of the
Advocate Commissioner shows that there is a drain which is
of about two feet width and partially lies between site
nos. 11/2 and 10/C, and that there exist sufficient space
and extent of land, even excluding the drainage portion,
for satisfying the decree. The High Court seems to have
misread the report and misconstrued the physical features
as disclosed by the report and plan submitted by the
Commissioner.
We feel that the proper solution to the controversy
will be to direct Market Committee to allot the space
between site nos. 11/2 and 10/C which is vacant, in terms
of the decree and if necessary it can even be over the
drain as indicated in the sketch map appended to the
Advocate Commissioner’s report. The statement of learned
counsel for the appellant regarding preventive steps to be
taken to avoid seepage of drain water, and non-creation of
unhygienic condition shall be incorporated in an
undertaking along with the agreement expressed in such
circumstances to accept alternative allotment as indicated
above and it would be one of the conditions for the
allotment, directed to be made.
Necessary action be taken within six weeks.
Appeals are allowed and accordingly finally
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disposed of.