Bangalore District Court
Sri. M. Nijalingappa vs The Commissioner on 31 October, 2022
KABC0A0005532019
IN THE COURT OF THE LVII ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-58)
Dated this 31st Day of October 2022
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
C/C.LVII Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 25224/2019
PLAINTIFF: Sri. M. Nijalingappa,
S/oK. Murudappa,
Aged about 75 years
R/at No. 661, II Phase, VII Block,
BSK III Stage,
Bangalore-560 085.
REP BY: M/s. NMR Associates, Advocate
V/s
DEFENDANT: The Commissioner,
Bruhat Bengaluru Mahanagara
Palike(BBMP)
Bengaluru-560 002.
REP BY: Sri.N.S., Advocate
2
OS.25224/2019
Date of Institution of the suit 27/11/2018
Nature of the Suit (Suit on pro-note, suit for
declaration and possession, suit for INJUNCTION SUIT
injunction, etc.)
Date of the commencement of recording of
30.01.2020
the Evidence.
Date of pronouncement of Judgment 31.10.2022
Total duration Year/s Month/s Day/s
03 11 04
JUDGMENT
Plaintiff has filed the instant suit for the relief of Perpetual Prohibitory Injunction restraining the defendant from demolishing and/or damaging the schedule building and/or in any way interfering with his possession of the said building and cost.
Facts of the case:
2. Under the registered sale deed dated:
27.06.1997 plaintiff purchased site bearing katha No.661, II phase,VII Block, BSK III Stage, Bengaluru . The said site is herein after referred to as suit site. Plaintiff contends that after purchase of suit site katha was 3 OS.25224/2019 effected in his name and he has been paying tax to the BBMP. He contends that by obtaining sanctioned plan dated: 22.02.2018 from the BBMP he started construction of commercial and residential hostel building in the suit site. He contends that despite he constructing the building as per the approved plan dt: 22.02.2018 and without deviation, during the last week of September 2018 the officials of BBMP came near the suit building and made vehement threats to demolish the building.
Therefore, he issued notice dated: 25.09.2018 to defendant u/s 482(1) of Katakana Municipal Corporation Act (KMC Act). Defendant received the said notice on 27.09.2018 without demur. Plaintiff contends that on 07.02.2019 the officials of defendant once again came near the suit building and made vehement threats of demolition and thereby interfered with his possession and enjoyment of the said building. Therefore, left with no alternative, he filed the instant suit. On these and other grounds stated in the plaint plaintiff prays to decree 4 OS.25224/2019 the suit and grant the relief of injunction as prayed for.
3. Defendant resisted the suit by filing written statement . He contends that plaintiff constructed the building unauthorisedly, therefore notice dated:
17.07.2018 was issued u/s 308 of KMC Act. Further he contends that he passed provisional order dated:
16.10.2018 u/s 321(1) of KMC Act for demolition of the suit building and issued notice to plaintiff u/s 321(2) of KMC Act. Plaintiff did not give response to the said notice. Therefore, he passed confirmation order dated: 28.01.2019 u/s 321(3) of KMC Act for demolition of the suit building by noting the deviations made by the plaintiff. Defendant contends that after passing of confirmation order dt: 28.01.2019 the instant suit for bare injunction is not maintainable and remedy for the plaintiff is to file appeal before the KAT. On these and other grounds stated in the written statement defendant prays to dismiss the instant suit.
4. On the basis of aforesaid pleadings, on 5 OS.25224/2019 12.12.2019 the then Presiding Officer has formulated the following Issues:
1. Whether the plaintiff proves that, he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves the alleged interference by the defendant authority as averred in the plaint?
3.
4. Whether the plaintiff is entitled for the relief of injunction as prayed for?
5. What Order or Decree?
5. Plaintiff examined himself as PW.1 and produced documents marked at Ex.P1 to Ex.P7. Though sufficient time given, defendant not lead evidence.
6. The Ld. Counsel for the plaintiff filed written arguments. Though sufficient time given, defendant not submitted arguments. Therefore the defendant's arguments was taken as nil on 17.10.2022 by giving liberty to file written arguments on or before 24.10.2022.
Within the time fixed, defendant not filed written 6 OS.25224/2019 arguments.
7. My finding on the above issues are as under:
Issue No.1: In the Affirmative Issue No.2: In the Negative Issue No.3: In the Negative Issue No.4:As per the final order for the following:
REASONS:
8. Issue No.1: Plaintiff who was examined as PW.1 has reiterated and reaffirmed the plaint averments. He produced Ex.P. 1 certified copy of sale deed dated:
27.06.1997, Ex.P. 2 katha certificate, Ex.P. 3 katha extract, Ex.P.4(1&2) tax paid receipts, Ex.P. 5 sanctioned plan, Ex.P. 6 legal notice dt:25.09.2018 and Ex.P. 7 postal acknowledgment. The recitals of Ex.P. 1 to 5 would support the testimony of PW.1 that under Ex.P. 1 sale deed dt: 27.06.1997 he purchased the suit site.
After purchase katha was effected in his name and by obtaining Ex.P. 5 sanctioned plan he constructed building in the suit site. A perusal of cross-examination of PW.1 7 OS.25224/2019 would show that defendant is not disputing plaintiff's possession over the suit site and the construction of building in the said site by obtaining Ex.P.5 sanctioned plan. The contention of the defendant that plaintiff constructed the building in the suit site by deviating the approved plan would support the testimony of PW.1 that he constructed the building in the suit site. PW.1 on oath has stated that he is in possession of the suit building. The said testimony of PW.1 was not challenged in the cross-examination. Therefore the unchallenged testimony of PW.1 and the recitals of Ex.P. 1 to 5 would offer cogent evidence to hold that plaintiff is in possession of the suit building as on the date of suit. In view of the above I answer Issue No.1 in the Affirmative.
9. ISSUE No.2:- PW.1 has stated that despite he constructed building as per Ex.P. 5, approved plan, the defendant without giving notice as contemplated in law is making threats to demolish and/or damage the suit building. Defendant contends that the plaintiff 8 OS.25224/2019 constructed the building in deviation of the approved plan therefore, by initiating proceedings u/s 321 of KMC Act, he passed provisional order dated: 6.10.2018 u/s 321(1) of KMC Act and confirmation order dt: 28.01.2019 u/s 321(3) of KMC Act. On 5.11.2019 defendant produced the copies of provisional and confirmation order and also the notice u/s 321(2) of KMC Act. During the course of cross-examination of PW.1 the Ld. Counsel for the defendant has made a suggestion that he constructed the building without leaving set-back, therefore the BBMP has issued notice to him. PW.1 has denied the said suggestion. Having regard to the contention of the defendant that he passed provisional order dated: 6.10.2018 and confirmation order dt:
28.01.2019 by virtue of the said order if the defendant and his officials went to the suit property for demolition, it cannot be said to be illegal or high-handed acts. After the defendant passed provisional and confirmation order, if the plaintiff is aggrieved by the said order, he has to 9 OS.25224/2019 challenge the same by filing appeal before the competent authority. The Hon'ble High Court of Karnataka in para No.6 of the order passed in "MFA.NO.8409/2019 (CPC) C/W. W.P.NO.19048/2019 (GM-CPC)" has held that, once the owner of a building came to know about the Orders passed by BBMP as provided Under Sec.321 of KMC Act, the remedy for him is as provided under the KMC Act.
Despite the BBMP passed Order Under Sec.321 of KMC Act, if the Civil Court grants Injunction by entertaining the suit for injunction, such order would stultify rendering the statutory mechanism provided in KMC Act ineffective.
10. It is the contention of the plaintiff that he did not receive any notice or order from the defendant regarding proceedings u/s 321 of KMC Act. For arguments sake, if the contention of the plaintiff that he did not receive the notice issued by defendant-BBMP u/s 321(2) of KMC Act and confirmation order dated:
28.01.2019 u/s 321(3) of KMC Act is accepted for a 10 OS.25224/2019 while, defendant produced the copies of the said notice and orders to the Court on 5.11.2019. After production of the said documents to the court, the plaintiff cannot contend that, he has no knowledge regarding passing of Provisional and confirmation orders u/s 321(1)&(3) of KMC Act. After the plaintiff came to know about the said orders on production of copies of the same to the court, the remedy for him is to file appeal before the competent authority under the KMC Act. As contended by plaintiff if he constructed the building as per the approved plan the concerned authority will appreciate the said contention and pass necessary orders. But, this court has no jurisdiction to decide the validity or otherwise of either provisional or confirmation orders dated: 6.10.2018 and 28.01.2019. As stated above after passing the provisional and confirmation orders, if the defendant and his officials went to the suit building to enforce the said orders, the said acts of defendant and his officials cannot be said to be illegal or high-handed giving a cause 11 OS.25224/2019 of action for the plaintiff to file the instant suit for injunction. As opined by the Hon'ble High Court of Karnataka in the above cited judgment, after the defendant- BBMP produced the document to show that it has taken steps u/s 321 of KMC Act if the court grant the relief of injunction, such an order would stultify rendering the statutory mechanism provided in KMC Act ineffective. In view of the above, I hold that after the defendant commenced the proceedings u/s 321 of KMC Act and passed orders fo0r demolition of suit buildings there is no cause of action for the plaintiff to file the instant suit. In view of the above, I answer Issue No.2 in the Negative.
11. ISSUE No.3 : A perusal of record would show that in the instant case, despite defendant appeared through panel advocate and filed written statement contending that he has passed orders u/s 321 of KMC Act for demolition of the suit building to help the plaintiff despite the court granted sufficient time, the defendant 12 OS.25224/2019 not lead evidence. During the course of cross- examination of PW.1, for the reasons best known, the panel advocate for defendant not confronted the orders passed u/s 321 of KMC Act despite they are available in the file. A perusal of Ex.P. 6 notice and Ex.P. 7 acknowledgment would show that the notice u/s 482(1) of KMC Act was served to defendant . After receipt of notice, if the defendant would have given reply stating that he has already passed provisional and confirmation orders for demolition of building and annexed copies of the said orders to the reply, filing of this case would have been avoided. Many number of cases are filed against BBMP or its commissioner seeking injunction restraining from demolition of the building by contending that the officials of BBMP are making attempts to demolish the building without taking steps under KMC or BBMP Act. Before filing the cse the plaintiff is giving notice to the BBMP u/s 482(1) of KMC Act and producing acknowledgment for service of notice to BBMP. After 13 OS.25224/2019 receipt of notice despite the BBMP is having 60 days time to give reply it will not give reply to the notice and welcome the anticipated suit against it or its commissioner. After appearance, despite the BBMP or its Commissioner filed written statement contending that the orders were passed as contemplated u/s 321 of KMC Act or 248 of BBMP Act for demolition of building in most of the cases either the BBMP will not produce the said orders to the court and if produced, will not give evidence despite sufficient opportunity is given . Therefore, in the cases against the BBMP by not defending the case effectively the BBMP indirectly support the case of plaintiff. Be that as it may, i n view of my finding on issue No.2 in the Negative the plaintiff is not entitled for the relief of injunction. Accordingly I answer Issue No.3 in the Negative.
12. ISSUE NO.4:- In view of my reasons and findings on the above issues, I pass the following: 14
OS.25224/2019 ORDER Plaintiff's suit is dismissed.
No order as to costs.
********** (Dictated to the Judgment writer, transcript thereof corrected and then pronounced by me in the open court on this the 31st day of October 2022) (MOHAMMED MUJEER ULLA C.G.) C/C.LVII Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 58) ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF: PW.1 - Sri. M. Nijalingappa LIST OF DOCUMENTS MARKED FOR PLAINTIFF: Ex.P. 1 Certified copy of sale deed dated:
27.06.1997,
Ex.P. 2 Katha certificate
Ex.P. 3 katha extract,
Ex.P. 4 2 tax paid receipts,
Ex.P. 5 Sanctioned plan
Ex.P. 6 Certified copy of the notice issued to BBMP
Ex.P.7 Acknowledgment card
LIST OF WITNESS EXAMINED FOR DEFENDANT:
- Nil-15
OS.25224/2019 LIST OF DOCUMENTS MARKED FOR DEFENDANT:
Nil (MOHAMMED MUJEER ULLA C.G.) C/C.LVII Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)