Mr G M Babu vs Mr. N. Sivasailam and Bangalore Metro Rail Corporation Ltd.

Shylendra Kumar, J.—This contempt petition is by the appellant in writ appeal No. 15252 of 2011 complaining that undertaking given by the respondents therein, particularly, second respondent - Bangalore Metro Rail Corporation Limited, Bangalore [for short ''BMRCL''] for providing an access road to connect the two properties of the appellant, in between the open land of the appellant''s property having been acquired for the purpose of BMRCL project, has been violated. Complaint is that though the undertaking was given and is subsequently directed by this court in terms of the order passed in writ appeal in paragraph-24 of the Judgment reading as under:

The Respondent No. 2 offered some proposals to minimize the harmful effects of acquisition suffered by the appellant. In the course of negotiation, keeping in view the railway safety measures, the Metro had offered to give access to the appellant by providing easementary right on the 15 feet road which will be located on the western side and the said road which connects two buildings of the appellant. It is said that Respondent No. 2 unconditionally undertakes to permit the appellant to use the said road. The gate would be erected on either side and one set of keys of the lock of the said gate is to be given to the appellant to use the road for his convenience whenever needed to have connectivity with his properties.

and inspite of the direction as contained in paragraph-25 reading as under:

The appellant on the other hand contends that the road should be his exclusive property and he would provide easementary rights to the railways, for which Metro railway did not agree. The question of ownership of the road would be unimportant and not a issue so long as both the parties use the road to serve their needs. In that view of the matter, we direct that Respondent No. 2 shall hand over one set of keys of the lock of the gate to the appellant and that appellant shall have right to use 15 ft. road to his convenience without any obstruction or hindrance from Respondent No. 2 in any manner and said easementary rights should not be discontinued by Respondent No. 2. It is only at the will of appellant, he can abandon the easementary rights. The appellant is not entitled to park the vehicles on the road. In the terms indicated above, the appeal is disposed of.

The Respondent No. 2 is directed to maintain status quo for three weeks.

the accused persons have not so far provided fifteen feet access road to connect the two buildings owned by the appellant and this has caused considerable hardship, injury apart from being in violation of the court order.

Notice had been issued to the accused persons and affidavit has been filed on behalf of the first and second accused sworn to by Mr. N. Sivasailam, Managing Director, BMRCL.

The stand taken is that while it is true that the BMRCL did undertake to provide access road to the complainant to connect the two properties of the complainant in the manner as indicated in the Judgment in writ appeal and as in the nature of easementary right, the accused persons are not acting contrary to this assurance to the complainant; that the time is not yet ripe, as construction is still gong on and when once construction is completed, fifteen feet passage road will be provided and will be made available for use of the complainant and such is the submission of Sri. Naganand, learned senior counsel appearing for the accused persons.

However, Sri. Aditya Sondhi, learned counsel for the complainant draws our attention to the specific averment made in paragraph-6 of the affidavit of the second accused reading as under:

It is not true that the Complainant is now prevented from having access to his neighbouring buildings. During the period of construction of the station, the road in front of the said two buildings has been temporarily blocked for public usage and thus the Complainant now has free access both ways between the two buildings. The Complainant is therefore, not put to any hardship even during the phase of construction.

and submits that it is subversion of the factual position; that it is nothing short of a false affidavit placed before this court to mislead this court and that is not the way to conduct for a Senior Officer like the second accused person and placing a false affidavit before this court independently invites commensurate action for committing perjury, but that apart it is submitted that the counter filed is evasive, not answering the point and in the name of construction being not complete, the accused persons cannot indefinitely deprive access as was assured before the court and as reflected in the order and therefore submits that action should be taken in contempt jurisdiction etc.

Our attention is drawn to good number of photographs produced on behalf of the complainant and a sketch which is produced on behalf of the accused persons.

We find it rather cumbersome to examine all these photographs with reference to the sketch and harmonize the same while exercising contempt jurisdiction. We also find that not all material was placed before the division Bench before the orders were passed.

In the circumstances, we do not propose to proceed further in contempt jurisdiction. It is open to the complainant to move the Bench which has passed the order and as it is submitted that there was an application made for some modification of the order, this aspect of the order may also be brought to the notice of the division Bench and if the complainant is so advised, it can also bring to the notice of the Bench the alleged false affidavit sworn to by the accused persons. All the contentions of the parties are left open. This contempt petition is dismissed.