Bangalore District Court
) Sri. Syed Nayeemuddin vs ) The Commissioner on 12 February, 2015
1
O.S.No.7886/2011
sIN THE COURT OF THE XXVII ADDL.CITY CIVIL JUDGE,
Form No.9 BANGALORE
(Civil)
Title sheet
for Dated this the 27th day of March 2013
Judgment
in Suits
R.P.91) Present:- Sri Ramachandra.D.Huddar, B.Com,LL.M.,
XXVII Addl.City Civil Judge, Bangalore
O.S.No. 7886/2011
Plaintiffs 1) Sri. Syed Nayeemuddin
Aged about 42 years,
S/o late M.H. Meer Maqbool,
Residing at No.424B,
4th Main road,
Subramanyapura,
Srirampuram Post,
Bangalore -560 021.
By Sri.N.Raghubabu, Advocate
/Vs/
Defendant 1) The Commissioner,
Corporation of city of Bangalore ,
Bangalore City Corporation, Bruhat
Bengaluru Mahanagara Palike,
Bangalore .
By Sri. K.N.M.Advocate.
Date of Institution of the suit 5/11/2011
Nature of the suit Perpetual
injunction
Date of commencement of
Recording of the evidence 18-02-2013
Date on which the judgement
Was pronounced 27-03-2013
Total duration Day/s Month/ Year/s
s
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O.S.No.7886/2011
22 04 01
(Ramachandra D.Huddar),
XXVII Addl.City Civil Judge,
Bangalore
JUDGMENT
Plaintiff Sri. Syed Nayeemuddin, has filed this suit against the defendant seeking the relief of perpetual injunction restraining the defendant, its agents, men or anybody under or through it from demolishing any portion of the schedule building and or in any interfering with the plaintiff's lawful possession of the suit schedule property.
2. Plaintiff has described the suit schedule property as under:
Multi dwelling residential apartment building at property bearing Southern portion of property No.17(old No. 66/1/28) Earlier site No.28, in No. 67/1, 2nd cross, Umar bhag layout, Jaraganahally village, Uttarahally Hobli, Bangalore South Taluk, now comes within the limits of Bruhat Bengaluru Mahanagara Palike, ward No. 56 measuring East to West 50 feet, North to South 50 feet and bounded on:East by Property No. 38 & 40 3
O.S.No.7886/2011 West by Property No.37 & 29 North by Remaining portion of same site No.28 and South by Road Hereinafter referred to as suit schedule property for the purpose of brevity and convenience.
3. The brief and relevant facts of the case of the plaintiff are as follows:-
Plaintiff has purchased the suit schedule property under registered sale deed dated:15-7-2005 bearing southern portion of property No.17(old No. 66/1/28) earlier site No.28 in No.67/1, 2nd Cross, Umar Bhag Layout, Jaraganahally village, Uttarahally Hobli, Bangalore South Taluk, now comes within the limits of Bruhat Bengaluru Mahanagara Palike, ward No. 56, which is the suit schedule property.
It is further case of the plaintiff that, defendant has confirmed khatha in respect of the suit schedule property in the name of plaintiff. He has paid tax in respect of the same.4
O.S.No.7886/2011 It is further alleged by the plaintiff that, to put up multi dwelling residential apartment building in the suit schedule property, he obtained necessary sanctioned plan dated:
18-7-2006 from the defendant. Building of the plaintiff consists of stilt, ground, first and second floor including terrace floor. Thus, plaintiff has constructed multi dwelling residential apartment building in accordance with sanctioned plan without any deviation.
It is further alleged that by the plaintiff that, though the plaintiff has put up construction in accordance with sanctioned plan, officials of defendant in the 3rd week of June 2011 came to the suit schedule properties and gave vehement threat of demolition of suit schedule property. Though plaintiff apprehends that, his building is in accordance with sanctioned plan, but, they gave threat to demolish the building. Even they have not issued any notice as required under section 321(1) of Karnataka Municipal Corporation Act 1976. 5
O.S.No.7886/2011 It is further alleged by the plaintiff that, before filing the suit, he has also issued notice dated: 20-6-2011 as contemplated under the provisions of Karnataka Municipal Corporation Act 1976. It is further alleged that, on 4-11-2011, once again came to the suit schedule property and gave a threat to demolish the suit schedule property. Therefore, the present suit is filed seeking aforesaid reliefs. Hence, it is prayed to decree the suit.
4) In response to the suit summons, defendant appeared before the court, opposed the suit of the plaintiff by filing detailed written statement. It is contended that, defendant is not having any knowledge that plaintiff has purchased the suit schedule property. It is denied that, construction of the plaintiff is in accordance with sanctioned plan without any deviations. So also, it is denied that, in the 3rd week of June-2011, threat have been given by the officials of defendant to demolish the building.
It is specifically contended that, after observing gross violation of the sanctioned plan, the defendant authority has 6 O.S.No.7886/2011 taken action as per K.M.C. Act and issued notice. It is duly served upon. Plaintiff suppressing the said fact, has filed the present suit. This suit is filed before passing of confirmation order. Therefore, it is pre-mature. Hence, it is prayed to dismiss the suit.
5) On the basis of rival pleadings of both parties, in all 4 issues have been framed. They read as under:
(1) Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule property as on the date of the suit?
(2) If so, whether plaintiff further proves the alleged interference into his possession and enjoyment of the suit schedule property by the defendant and also attempt of threat of demolition of the suit building as alleged in the plaint? (3) Whether the plaintiff is entitled for the perpetual injunction as claimed?
(4) What order or decree?
6) To substantiate the assertions so made in the plaint, plaintiff herself entered the Witness-box as PW.1, got marked 7 O.S.No.7886/2011 Ex.P1 to Ex.P12. In the cross-examination, Ex.D1 being confronted to PW.1 and is marked in evidence. The defendant has not lead any evidence.
7) Heard the arguments of both parties. Meticulously perused the records.
8) My findings to the above issues are as under:-
Issue No. 1) ............ In the Negative Issue No. 2) ............ In the Negative Issue No. 3) ............ In the Negative Issue No. 4) ............ As per final Orders for the following:
REASONS
9) Issues No.1 to 3:- These issues require common discussion.. Therefore, I would like to discuss them together so as to avoid repetition and confusion.
10) PW.1 being plaintiff , has reiterated the plaint averments in her evidence on oath. So far as ownership over the suit schedule property is concerned, defendant, though pleaded 8 O.S.No.7886/2011 ignorance, but, admits that, plaintiff is the owner in possession of the suit schedule property.
11) In support of plaintiff's evidence, plaintiff has produced certain documents. Amongst them, Ex.P1 is sale deed in favour of plaintiff for having purchased the suit schedule property on 15-7-2005. The suit schedule property so described in the plaint as well as in the schedule tallies with each other. Ex.P2 and Ex.P3 are khatha certificates Ex.P4 is the khatha extract and Ex.P5 is khatha registration issued by the Bruhat Bengaluru Mahanagara Palike standing in the name of plaintiff and Plaintiff has paid tax in respect of the suit schedule property and they are as per Ex.P6 to 10. Ex.P11 is the permission issued by the Bruhat Bengaluru Mahanagara Palike to construct building and Ex.P12 is the sanctioned plan. These documents do demonstrate that, plaintiff is the owner in possession of the suit schedule property.
12) Ex.P5 is registration of khatha in the name of plaintiff.
This document is also not disputed by the defendant. Ex.P11 is 9 O.S.No.7886/2011 the permission issued by Bruhat Bengaluru Mahanagara Palike to construct the building and Ex.P12 is sanctioned plan issued by defendant itself permitting the plaintiff to construct stilt, ground floor, first floor and second floor including terrace floor. According to the plaintiff, his construction is in accordance with sanctioned plan. Defendant has specifically alleged that, the construction is not in accordance with sanctioned plan. Plaintiff has issued legal notice before filing this suit. It is also not in dispute.
13) In the course of cross-examination, it is elicited that, one Mr. Akram Shariff is the Supervisor of construction and he is always available at the site. He also admits that, Akram Shariff informed him about issuance of notice by the defendants. He further admits that, "after inspection of the building Corporation officials informed the said Akram Shariff that, the building so constructed is with deviations from the sanctioned plan". This admission on the part of plaintiff do demonstrate that, plaintiff is having knowledge with regard to the inspection did by officials of 10 O.S.No.7886/2011 defendant and also noting the deviations from the sanctioned plan while putting the construction. He further clarifies and proves the theory of defendant that, based upon the notice issued by the Corporation, present suit is filed.
14) Provisions of Section 321(1) of Karnataka Municipal Corporation Act 1976 prescribes that, initially show cause has to be issued, thereafter, if the Corporation is not satisfied with the reply by the owner or builder of the building, then has to pass provisional order. Even to the provisional order, builder or owner is at liberty to file objections. Thereafter, if satisfied, Corporation has to pass confirmation order. In this case, there is no evidence placed on record by the plaintiff that, really reply given by him stating that, his construction is in accordance with sanctioned plan. When plaintiff admits about the receipt of provisional order, it is his duty to reply the same. But, he has filed the present suit. Thus, in the considered view of this Court, plaintiff has approached the court in hasty manner.
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O.S.No.7886/2011
15) However, defendant being regulator of the building, have to exercise his power under the provisions of Karnataka Municipal Corporation Act 1976 by following the mandatory provisions of section 321 of Karnataka Municipal Corporation Act 1976. Without following the same, he cannot give any threat of demolition of the deviations if any. Even the defendant has to mention the percentage of deviations. If they are compoundable, they can be compounded by imposing penalty if any, if not such deviations have to be removed. So, therefore, evidence of PW.1 cannot be accepted that, his construction is in accordance with sanctioned plan as alleged. There is suppression of material facts by the plaintiff about the issue of provisional order, knowledge about the inspection of the officials of the defendant. Falsely , it is pleaded that, without issuing an show-cause notice or passing of provisional order, officials of defendant gave threat to demolish the building alleging the violation of sanctioned plan. But, the admission of PW.1 falsify his pleadings. When plaintiff is seeking equitable relief of injunction, he must disclose 12 O.S.No.7886/2011 all the true material facts without any suppression. In this case, plaintiff has suppressed the material facts, hence, he is not entitled for equitable relief of injunction. Hence, I record my findings to the above Issues in the Negative.
16) Issue No.4:- In view of my foregoing discussions and the reasons stated thereon, the suit of the plaintiff fails and liable to be dismissed. Accordingly, I pass the following:-
ORDER The suit of the plaintiff is dismissed with no order as to costs. However defendant is at liberty to take appropriate action in accordance with provisions of Karnataka Municipal Corporation Act 1976.
(Dictated to the Judgment-Writer, transcript thereof, is corrected and then pronounced by me in the open court on this the 27th day of March 2013) [Ramachandra D.Huddar], XXVII Addl. City Civil Judge, Bangalore ANNEXURE List of the witnesses examined for the plaintiff P.W.1 Syed Nayeemuddin List of the documents marked for the plaintiff Ex.P 1 Registered sale deed dated: 15-7-2005 13 O.S.No.7886/2011 Ex.P 2 Khatha certificate Ex.P 3 Khatha certificate Ex.P 4 Khatha extract Ex.P 5 Khatha registration Ex.P6 To 5 tax paid receipts Ex.P10 Ex.P11 Permission letter issued by Bruhat Bengaluru Mahanagara Palike Ex.P12 Sanctioned plan.
List of the witnesses examined for the defendants:
D.W.1 NIL List of the documents marked for the defendants:
Ex.D 1 NIL [Ramachandra D.Huddar], XXVII Addl. City Civil Judge, Bangalore.14
O.S.No.7886/2011 Judgment pronounced in the open court (Vide separate detailed judgment) The suit of the plaintiff is dismissed with no order as to costs.
However defendant is at liberty to take appropriate action in accordance with provisions of Karnataka Municipal Corporation Act 1976.
(Ramachandra D.Huddar), XXVII Addl.City Civil Judge, Bangalore 15 O.S.No.7886/2011 "80 Notice - [(1)] [Save as otherwise provided in sub-section (2), no suit shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;] [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government any other officer authorities by that Government in this behalf;]
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him; or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
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O.S.No.7886/2011 Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(5) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice -
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]