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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.