Bangalore District Court
Mrs.Molley Alex vs Bruhath Bangalore Mahanagara Palike on 24 July, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 24th day of July, 2015
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.7857/2010
PLAINTIFF : Mrs.Molley Alex,
W/o Alexander Abraham,
Aged about 69 years,
R/at No.11, Annapoorneshwari
Temple Road, 80 feet Road,
9th Cross, Nagadevanahalli,
Bangalore - 560 056.
Represented by her
Power of Attorney Holder
Mr.Tom Alex, S/o T.U.Alex,
Aged about 44 years,
R/at No.11, Annapoorneshwari
Temple Road, 80 feet Road,
9th Cross, Nagadevanahalli,
Bangalore - 560 056.
(By Sri H.N.Shashidhar, Advocate)
-Vs-
DEFENDANTS : 1. Bruhath Bangalore Mahanagara Palike,
Hudson Circle, Bangalore.
Represented by its
Commissioner.
2. The Assistant Executive Engineer,
Kengeri Sub-Division,
Bruhath Bangalore Mahanagara
Palike, Mysore Road,
Kengeri, Bangalore.
(By Sri N.S.B. Advocate)
2 O.S.No.7857/2010
ORDER ON PRELIMINARY ISSUE
This suit is filed by the plaintiff for permanent
injunction restraining the defendants or anybody claiming
under or through from in any manner interfering with the
suit schedule property and from invoking the provisions of
Section 321 of the Karnataka Municipal Act (For short 'Act')
against the plaintiff as it is not applicable to the suit schedule
property and grant such other reliefs costs.
(Note:- This case has been transferred from the Court of IX
Addl. City Civil & Sessions Judge, Bangalore City, to this court
as per Notification dated:01.12.2014.)
2. It is asserted by the plaintiff in the plaint through her
Power of Attorney that she is the absolute owner in
possession of suit schedule property katha No.22791/6177/
54/5/11, located at Nagadevanahalli, as she has purchased it
under registered sale deed dated 13.4.2007 and the property
was coming within the jurisdiction of City Municipal Council,
Kengeri. Previous owners Smt.K.V.Prema Kumar and
Smt.Leelamma have paid property taxes to City Municipal
Council, Kengeri and that there was small construction made
by them. But it was not brought to the notice of City
Municipal Council and it was continued and thereafter the
property was purchased by one Kenchappa under a registered
3 O.S.No.7857/2010
sale deed dated 29.4.2004 and thereafter the plaintiff
purchased it from the said vendor Kenchappa. The plaintiff
has constructed the building, though she has applied for
licence with City Municipal Council, Kengeri, she could not
get it in time. However she was informed by the City
Municipal Council, Kengeri that permission would be given
and plan would be sanctioned. Hence, she constructed three
storied building by investing Rs.50 lakhs by borrowing from
the financial institutions and private finances. She is an
aged lady and she has to depend upon on her son-in-law,
who is the Power of Attorney Holder. She took electricity
connection to the entire building, consisting of six separate
dwelling units which were rented out to various persons and
enjoying it since last 3 years by paying taxes to the City
Municipal Council, Kengeri. Thereafter Nagadevanahally was
included within the jurisdiction of B.B.M.P. During the year
2008-09 suit schedule property was subjected to property tax
by the defendants, but no receipts were issued for the last
two years. She is paying Rs.20,000/- per annum as property
tax and the defendants have not raised any objections
regarding the construction made by the plaintiff and
defendants have issued katha certificate in respect of suit
4 O.S.No.7857/2010
schedule property. This being the state of affairs, the
defendants having fully knowledge about the same, issued a
notice dated 26.7.2010 calling upon the plaintiff to produce
title deeds, katha extract, sanctioned plan etc. The plaintiff
gave a reply dated 3.8.2010 that she could not have the
sanctioned plan and licence and the building was constructed
much earlier to the inclusion of the suit schedule property to
the B.B.M.P. area Having not satisfied with the explanation
offered by the plaintiff, the defendants have issued show-
cause notice under Section 321(3) of the Act, dated 10.8.2010
and threatened the plaintiff to demolish the three storied
building. Hence, having left with no option, the plaintiff has
constrained to file an appeal in Appeal No.605/2010 before
the Karnataka Appellate Tribunal under Section 443A of the
Act, 1976. In fact the action of the defendants in invoking the
provision of the Act itself is bad in law, as the construction
was completed much prior to property come within the
jurisdiction of B.B.M.P. The provisions of the act cannot be
made applicable to the building already in existence before
the same was come into the jurisdiction of the BBMP. The
plaintiff being an innocent lady having constructed the
building, leaving set back areas in accordance with the
5 O.S.No.7857/2010
building bye-laws and the requirement of law. The City
Municipal Council, Kengeri confirmed to issue the permission
and sanctioned plan. But the defendants bent up to issue
final confirmation order under Section 321(3) of the Act,
1976, which is illegal. The appeal preferred before the
Karnataka Appellate Tribunal is only misconceived. The suit
schedule property itself was not within the jurisdiction of
BBMP when the building was constructed, therefore the
invoking to the provisions of the Act. 1976 by the defendants
itself is bad in law. The plaintiff is under the threat of
demolition of the suit schedule property by the defendants as
per the confirmation order and they have also threatened the
plaintiff to demolish the building constructed by the plaintiff.
Hence, the plaintiff has constrained to file this suit and
prayed to decree it.
3. On issuance of suit summons to the defendants after
registering the case, the defendants appeared through their
counsel and filed the written statement denying the material
allegations of the plaint averments stating that the plaintiff
has filed a frivolous and relief of permanent injunction
restraining them from invoking the provisions of Section 321
6 O.S.No.7857/2010
of KMC Act is not maintainable either in law or on facts. The
plaintiff is highly frivolous, vexatious tainted with malafide
objects and illegal motives by suppressing the material facts
and she has not approached the court with clean hands. The
plaintiff has filed the above suit after confirmation order
passed by the defendants, the very suit of the plaintiff is in
the nature of literally preventing the BBMP from performing
its statutory duty, even though the corporation has right to
determine whether the construction is illegal or not and these
are all statutory functions which has to be done by the
Corporation in accordance with law and no injunction can be
granted to prevent the authority from exercising its statutory
duty and functions under Section 321 of the Act. Hence, the
suit is not maintainable and it is devoid of merits. The
plaintiff has already admitted the issuance of notice under
Sections 321(1), 321(2) and also confirmation order under
Section 321(3) of the KMC Act and aggrieved by the
confirmation order, the plaintiff has already filed an appeal
before KAT. Hence, the present suit is not maintainable.
There is no cause of action to file the suit. The plaintiff has
not complied the provisions of Section 482(1) of KMC Act.
7 O.S.No.7857/2010
Hence, the plaintiff is not entitled to any relief and prayed to
dismiss the suit.
4. On the basis of pleadings of the parties, the Learned IX
Addl. City Civil & Sessions Judge, Bangalore, has framed in
all 6 issues and out of it Issue Nos.1 to 3 are taken up as
preliminary issues, as per order dated 19.12.2014, because,
the plaintiff has commenced the evidence and deposed as
P.W.1 and relied upon Ex.P.1 to P.6. In the meanwhile the
defendants have filed the application I.A.10 for rejection of the
plaint under O.7 R.11 of CPC, the order has been passed to
consider issue Nos.1 to 3 as preliminary issue and said
application under Order 7 Rule 11 of CPC on 19.12.2014.
This order has not been challenged and got it set aside.
Accordingly, heard the arguments on preliminary issue. In
view of the same, it is proceeded to adjudicate upon on these
issue Nos.1 to 3 as preliminary issue. Issue Nos.1 to 3 reads
thus:
1. Whether the plaintiff proves that when the
building was constructed in the suit schedule
property, it was not within the jurisdiction of
BBMP?
2. Does she prove that provision of the Act,
1976, cannot be made applicable to the
buildings already in existence before the same
8 O.S.No.7857/2010
written statement come into the jurisdiction of
the BBMP?
3. Whether the defendants prove that suit for
permanent injunction is not maintainable
against defendants as per the provisions of
S.482 of KMC Act and no cause of action has
arisen to institute the suit against them?
5. My finding on Issue Nos.1 to 3 as preliminary issue are
as follows:
Issue No.1 : In the negative;
Issue No.2 : In the negative;
Issue No.3 : In the affirmative;
for the following:
R E A S O N S
6. Since the defendants have raised the defence touching
to the very legal aspect, hence they are considered to be
preliminary issues i.e. the alleged building constructed in the
suit schedule property was not within the jurisdiction of
BBMP and the provision of Section 1976 of KMC Act, are not
applicable to the present suit property and the
maintainability of the suit, in view of non-complaisance of
Section 482 of KMC Act.
7. Therefore, the nature of suit is at this stage has to be
considered. Because, the plaintiff has filed the suit against
the statutory bodies i.e. BBMP represented by its
9 O.S.No.7857/2010
Commissioner and Assistant Executive Engineer as defendant
Nos.1 and 2, who are govern by KMC Act. The suit property is
katha No.22791/6177/54/5/11, located at Nagadevanahalli.
It is contended by the plaintiff that she has purchased it
under registered sale deed on 13.4.2007 and it was coming
within the jurisdiction of City Municipal Council, Kengeri and
the previous owners are Smt.K.V.Prema Kumar and
Smt.Leelamma and it was comprised in Sy.No.54/5 and the
entire extent of area 13 guntas including the suit schedule
property was converted into non-agricultural land on
27.1.2001 and the original owners have paid property taxes to
City Municipal Council, Kengeri and the suit property was
purchased by one Kenchappa under a registered sale deed
dated 29.4.2004 and subsequently, the plaintiff purchased it
in the year 2007 and for construction of a building, she had
applied for licence to the City Municipal Council, Kengeri, but
it was under consideration and the officials of CMC, Kengeri
informed that the permission would be given and the plan
would be sanctioned. Based on such, information, she has
constructed three storied building by investing Rs.50 lakhs
etc.
10 O.S.No.7857/2010
8. Thus, the plaintiff has contended that when the suit
schedule property was coming within the limits of City
Municipal Council, Kengeri, the construction was
undertaken. Subsequently, the suit schedule property was
included in the BBMP, somewhere in the year 2008-09. In
this regard, the taxes were paid and the receipt was issued by
the defendant etc. So, the defendants representing B.B.M.P.
have no authority to challenge her such construction and to
initiate any action under KMC Act.
9. So, it is the specific grievance of the plaintiff that the
notice was issued by the defendant dated 16.7.2010 under
Section 321(1) of the KMC Act, 1976 calling upon the plaintiff
to produce the documents and also the notice dated
26.7.2010, calling upon the plaintiff to show cause with
regard to the construction of the building and that she gave a
reply dated 3.8.2010, that she could not have the sanctioned
plan and licence and the building was constructed much
earlier to the inclusion of the suit schedule property to the
B.B.M.P. area Having not satisfied with the explanation
offered by the plaintiff, the defendants have issued show-
cause notice under Section 321(3) of the Act, dated 10.8.2010
giving threat of demolition. Hence, the plaintiff has filed an
11 O.S.No.7857/2010
appeal in Appeal No.605/2010 before the Karnataka
Appellate Tribunal under Section 443A of the Act, 1976 and
specifically contended that the provisions of the KMC Act
cannot be made applicable to the building when the suit
schedule property was within the jurisdiction of CMC
Kengeri, before inclusion of the same to the jurisdiction of
the B.B.M.P. Thus, contending so, the plaintiff has
specifically challenged the final confirmation order under
Section 321(3) of the Act, 1976 and sought for notifying it by
grant of injunctory relief.
10. In this connection the defence raised is that this court
has no jurisdiction to entertain the suit as the plaintiff has
already availed the remedy available under Appeal before the
KAT and there is no compliance under Section 482, of the
Act, as no emergency has been pleaded and put forth by the
plaintiff with materials, prima-facie, to be considered in
connection with the relief claimed by the plaintiff.
11. Therefore the specific relief claimed is that a permanent
injunction restraining the defendants or anybody claiming
under or through them, from in any manner interfering with
the suit schedule property by invoking the provisions of
12 O.S.No.7857/2010
Section 321 of the Karnataka Municipal Act and thus specific
claim is not to invoke the provisions of 321 of the KMC Act,
i.e. issuance of said notices. Therefore it is the legal aspect
to be considered at this stage without recorded the entire
evidence of the parties to the suit and it can be dealt with at
the initial stage itself.
12. Admittedly the defendants-B.B.M.P. has issued the
provisional and confirmation notice with reference to
demolition of the building of the plaintiff and it was under
Section 321(3) of the Act. The suit schedule property as on
the date of issuance of said notice, was and now is coming
within the jurisdiction of B.B.M.P. There is no dispute in this
regard. The plaintiff aggrieved by this notice and is under
apprehension of demolition of the building built up in the suit
schedule property. But she has availed already the remedy
available under appeal before KAT established under the KMC
Act under Section 443-A. The order of the KAT under the
Act is final. As such the statute itself provided efficacious
remedy before the statutory forum which was established
under Amendment Act inserting it by Act No.32 of 2003, with
effect from 20.8.2003. No doubt, there is serious question,
13 O.S.No.7857/2010
whether KMC Act is applicable or not? whether the issuance
of notice by the defendants for demolition of the building is
illegal? These are touching to the very root of the case falling
under Section 433-A of the statue.
13. It is also relevant to consider the prevailing provisions of
the KMC Act which itself made it clear under Section 4 of the
Act about inclusion of area in or from the larger urban area,
subject to Section 3 of the Act. Specific explanatory profiosns
Section 321-A of the Act.
14. Section 4(4) of the Act reads thus:
"When a local area is included in the (larger urban area)
the provisions of this Act and all taxes, notifications ,
rules bye-laws orders, directions and powers levied,
issued, made or conferred under this act or any other
law applicable to the (larger urban area) shall apply to
the said area from the date of inclusion of such are
within the (larger urban area) .
15. Section 321-A of the Act reads thus:
Regularization of certain unlawful buildings - 1)
Notwithstanding anything contained in this Act,
when construction of any building is completed inc
contravention of the Sections 300 and 321 and
building bylaws made under Section 432, the
commissioner may regularize building constructed
prior to the date of commencement of the Karnataka
Town and Country Planning and Certain Other
Laws (Amendment) Act, 2004 subject to the
following restrictions and such rules as may be
prescribed and on payment of the amount specified
in sub-section (2).
14 O.S.No.7857/2010
16. Section 443-A of the Act reads thus:
Appeal to Karnataka Appellate Tribunal or District
Court - 1) Any person aggrieved by any notice issued,
action taken or proposed to be taken by the
Commissioner under Sections 308, 309 and 321(3) may
appeal -
i) to the Karnataka Appellate Trb9nal in case of
the (Bruhat Bangalore Mahanagara Palike);
ii) to the District Court having jurisdiction in case
of other corporations.
2) The decision of the Karnataka Appellate Tribunal
or as the case may be the District Court shall be final.
3) All appeals made against any notice issued or other
action taken or proposed to be taken by the
Commissioner under Sections 308, 309 and 321(3) and
pending before the standing committee on the date of
commencement of this section shall stand transferred to
the Karnataka Appellate Tribunal, or as the case may be,
District Court and such appeals shall be disposed off by
them as if they were filed before them.
17. Thus Sections 321, 321-A and 321-B of the Act have
conferred the discretionary power upon the Commissioner to
regularise the building which was constructed prior to
Karnataka Town and Country Planning and Certain Other
Laws (Amendment) Act 2004 and if it is in contravention of
Section 300 and 321 of the Act, then, the Commissioner with
due process of law regularise such construction, as
contemplated under Section 321-A of the Act and penalise
under Section 321-B of the Act. Thus, it has conferred duty
15 O.S.No.7857/2010
to perform, and its violation results in sufferance of penalty.
Thus Sections 321-A and 321-B of the Act are imposing
statutory duty upon the B.B.M.P. to be exercised - in
accordance with law. So the impugned notice issued by the
commissioner- B.B.M.P. is in exercise of power and duty
under Sections 321-A and 321-B of the Act. Hence, the
plaintiff cannot take shelter of Section 4 (4) of the Act. Hence
the matter in issue as mandatory provision Sections 321 A
and 321-B of the Act, have made clear that, now the
unauthorised construction made prior to inclusion in to the
limits of B.B.M.P. shall be subject to Sections 321-A,
r/w.S.321(3) of the Act, so that the law breaker cannot
escape from the supreme laws and such shall have to be
dealt with as per law only. The plaintiff has got remedy
under Section 321-A of the KMC Act. So, Commissioner-
B.B.M.P. has power and duty to proceed as against the
plaintiff who has clearly admitted that she has put up
construction of 3 storied building without due sanction plan.
It cannot be interfered with by granting injunction as prayed
for i.e. not to proceed under Section 321 of the Act.
16 O.S.No.7857/2010
18. The plaintiff is disputing the said notice Ex.P.24 which
also produced by defendant at Ex.D.1 shall be the question
relating to and falling under Section 443-A of KMC Act and
the plaintiff has already to proceeded with before the KAT.
But this court cannot go into the matter in issue i.e. the suit
for injunction by nullifying the order of the defendant-
B.B.M.P., without any jurisdiction. It has to be agitated
before K.A.T.
19. The law under KMC Act impliedly bars the suit as
appeal provision under Section 443-A of the Act, has provided
the right to challenge the order and which has been appealed
by the plaintiff before KAT and it was pending. There is
statutory bar to entertain this suit and the said appeal
provisions made it clear that the order of Appellate Tribunal
(KAT), now established, shall be final. Civil court cannot go
into the matter, invoking the Section 443-A of the Act.
Therefore, the suit can be disposed of at this preliminary
stage, without recording the entire evidence of the parties, as
it goes to root of the case, and jurisdiction of the court is
impliedly barred by the statute itself. The plaintiff has already
challenged the legality of the provisional and final order
17 O.S.No.7857/2010
passed under Section 321(3) of the Act before the KAT and
thereby efficacious remedy has been availed. Hence, the suit
itself liable to be dismissed.
20. It is relevant to refer certain decisions pertaining to
preliminary issue.
1) AIR 1980 Delhi 212 - pertaining to order 14 R.2 of CPC -
court can decide the following only as preliminary issue
1) jurisdiction
2) bar to a suit created by any law
2) AIR 1978 M.P.16 - Issue of law which disposes of the
whole suit may be decided as a preliminary issue.
3) AIR 1984 Karnataka 191 - Pure question of law and
decision as preliminary issue is permissible and not in
case of mixed question of law and facts requiring record
of evidence.
21. Thus, Order 14 Rule 2 of CPC states that a case may be
disposed of on a preliminary issue, if the court is of the
opinion that the case may be disposed of on an issue of law
only. It may try that issues first if that issue relates to the
jurisdiction of the court or it is barred by law. In the present
case the plaintiff herself admitted that her construction prior
to inclusion of suit property in the territorial jurisdiction of
B.B.M.P., she did not obtained sanctioned plan and
permission. It is apparent violation of building byelaws and
provisions of statues, which are applicable prior to and after
18 O.S.No.7857/2010
the inclusion of suit area in the B.B.M.P. (urban area). So
she shall be bound by the Sections 300, 321 and 321-A of
the Act there is efficacious remedy available under Section
443-A of the Act. This court is statutorily prohibited to
regularise the plaintiffs illegal construction by granting
permanent injunction. This is certainly a statutory bar and
court cannot entertain the suit of such violator of previsions
of law and the plaintiff is not at all entitled for judicial
protection under Specific Relief Act. She has to avail remedy
available under KMC Act. So, as this suit is purely based on
law, court need not record any evidence. Which amounts
futile exercise and wasting of time and more so, by keeping
this case for recording of evidence it amounts to interference
of this court in the statutory powers and duties of B.B.M.P.
represented by its statutory authority specifically the
Commissioner. However this court cannot ignore the
observations to be made in the interest of justice that, the
plaintiff is at liberty to avail the remedy available and the
B.B.M.P. through its statutory concerned authority
specifically defendant No.1 shall proceed in accordance with
law under Section 321 A and B of the Act. Apart from this
both plaintiff and defendants have to put up their genuine
19 O.S.No.7857/2010
claim before Hon'ble KAT and get the appropriate remedy.
The said notice issued by defendants under Sections 321 of
the Act i.e. final order is in exercise of power under Section
300, 321, 321-A, as the suit building, even if construction is
much prior to inclusion of the property within the limits of
B.B.M.P. the provisions of the KMC Act are applicable as
contemplated under Sections 300, 321, 321-A and 321-B of
the Act. So Commissioner B.B.M.P. shall exercise his power
with due process of law. It is challenged before KAT under
Section 443-A and thus equally efficacious remedy is availed.
22. Therefore, in view of the above discussion the present
suit has to be dismissed at the initial stage itself without
recording the evidence of the parties as it is the pure question
of law as discussed above, which are covered under as issue
Nos.1 and 2.
23. Now coming to issue No.3 with reference to issuance of
legal notice under Section 482 of the Act, as the plaintiff has
contended about the emergency, that under the said notice
the defendants are interfering. The prayer is not specific that
which kind of alleged interference. As already it is held about
the failure of suit, on the ground that efficacious remedy is
20 O.S.No.7857/2010
available and it has been availed by the plaintiff before KAT.
So, there cannot be any emergency to grant any interim relief.
No doubt the notice under I.A.No.2 2as dispensed with, but it
does not come in the way of deciding this matter at this stage.
So without notice suit is not maintainable. The plaintiff
ought to have issued statutory notice under Section 482 of
the KMC Act. So, this issue also goes to the root of the case
and it is held that plaintiff has not proved that without satoty
notice suit can be entertained.
24. In view of the above discussion, it is therefore concluded
that the suit of the plaintiff is not maintainable and hence
issue Nos.1 and 2 is answered that these issues are already
raised before the Hon'ble KAT in appeal under Section 443-A
of the Act. Issue No.3 is answered in the affirmative. In the
result, the suit shall be discussed, on preliminary issues.
Accordingly, it is proceeded to pass the following:
O R D E R
In view of the findings on these preliminary issues, about baring of suit to be interested before this Civil court, this suit is hereby dismissed as there is statutory bar to entertain the suit under Section 443 A r/w.Ss.300, 321, 321- 21 O.S.No.7857/2010 A and 321-B of KMC Act & efficacious remedy is available and under Section 482 of the Act, for non-complaisance of the statutory notice.
(Dictated to the Judgment Writer, transcribed by her, corrected and then signed and pronounced by me in the open court on this the 24th day of July, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
22 O.S.No.7857/2010