Vs. Agricultural Produce Market Committee  Insc 214 (1 April 2004)
Raju & Arijit Pasayat
out of SLP (Civil) Nos. 23068-23069/2002) ARIJIT PASAYAT, J.
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:
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
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 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.
the Civil Revision was allowed.
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.
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.
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.
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.
action be taken within six weeks.
are allowed and accordingly finally disposed of.
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