Bangalore District Court
Smt.H.S.Bhagyalakshmi vs The Commissioner on 21 January, 2015
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41)
AT BENGALURU.
Dated this the 21st day of January 2015.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl. City Civil & Sessions Judge, Bengaluru.
O.S.NO.807/2007
PLAINTIFF: SMT.H.S.BHAGYALAKSHMI,
W/o. H.A.Kempegowda,
Aged about 44 years,
R/o. No.14, K.G. Layout,
BSK III Stage, Bengaluru-560 085.
(By Sri.K.T.Dakappa, Advocate.)
AND:
DEFENDANTS: 1. THE COMMISSIONER,
Bangalore Mahanagara Palike,
N.R.Square, Bengaluru.
2. THE ASSISTANT EXECUTIVE
ENGINEER,
Richmond Town Sub-Division,
Bangalore Mahanagara Palike,
Bengaluru.
(By Sri.M.R.Vijaykumar, Advocate.)
*****
i) Date of Institution of the 27.01.2007
suit.
ii) Nature of the suit. Declaration & permanent
injunction.
iii) Date of the
commencement of recording 11.04.2011
2
O.S.807/2007
of evidence.
iv) Date on which the
judgment was pronounced. 21.01.2015
v) Total Duration Year/s Month/s Days
07 11 24
***
JUDGMENT
The plaintiff has filed this suit against the defendants for declaration to declare the Provisional Order dated 18.12.2006 bearing No.AEE(RT) PO/23/2006-07 and the Confirmation Order dated 18.12.2006 bearing No.AEE(RT)CO/23/2006-07, under Sec.321(3) of KMC Act, pasted on 23.12.2006 issued by the 2nd defendant are void and unenforceable under law; consequential relief of injunction restraining the defendants, their subordinates or anybody claiming under them from in any way demolishing any portion of the suit schedule property-All the piece and parcel of premises bearing No.50, General Kariyappa Road, BMP Ward No.76, Bengaluru consisting of Ground plus Two Floors and measuring 3820 feet of land i.e., 6,250 Square feet of building as per the annexed plan and bounded on East by: Fire Station, West by: 28 feet 3 O.S.807/2007 wide Road, North by: Field Marshal Kariyappa Road, and South by: Property of Anthony Daman Jatany, now called Jyothi Towers, pending disposal of the suit and costs, etc. .2. The averments of the plaint in brief are that:
The plaintiff is absolute owner in possession of the suit schedule property having purchased the same under registered Sale Deed dated 31.12.2004 from M/s.Balachi Thane Larado and another. The schedule property so purchased by the plaintiff consisting of ground floor, first floor and second floor measuring 6250 square feet of built up area and same was constructed in the year 1965 by obtaining license and plan from the Corporation of City of Bengaluru.
After construction of the ground and first floor, the plaintiff's vendor let out the said building to M/s. Indian Aluminum Company Ltd., as early as in the year 1965 and the said Company was using the schedule premises as its office premises through out. The plaintiff's vendor applied for sanction of plan for 4 O.S.807/2007 construction for further floor during 1985. The Bangalore Mahanagara Palike sanctioned the plan for construction of second floor and the said floor was constructed by the tenant as per the Memorandum of Understanding and continued to be as tenant under the plaintiff's vendor. The building was constructed as per the plan by leaving required setback area on all the four sides of the building. The tenant M/s. Indian Aluminum Company Ltd., continued as a tenant under the plaintiff till recently and Thereafter, the said Company vacated the premises.
After vacating of the said tenant, the plaintiff has not effected any alterations or additions to the schedule property, except replacing the glasses to the front portion as the said glasses were damaged during some Royts that is to say, at the time of demise of Dr.Rajkumar. Thereafter, the plaintiff leased the said entire premises in favour of new tenant namely M/s.Reebok India Company and the said Company is doing business from 05.10.2006 in the suit schedule premises by investing huge amount. The schedule 5 O.S.807/2007 premise is in existence from 1965 onwards and same is assessed by the Corporation from time to time and collecting taxes without any objection.
Things standing thus, the 2nd defendant issued a notice under Sec.308 of KMC Act, 1986 contending that the plaintiff is renovating the schedule property and demanding to produce LP Number. The said notice is suitably replied by the plaintiff on 21.07.2006. The 2nd defendant, after receipt of the notice, kept quiet all along for more than 4 months, but to the shock and surprise, after the tenant started business in the schedule premises, got issued another notice under Byelaw No.205 read with Sec.428 of KMC Act dated 25.11.2006 and the plaintiff has replied the said notice.
Without offering any opportunity and without there being any inspection of the property and not having any notice to the plaintiff to offer the explanation. The entire notice is silent about the type of violation and the kind of renovation effected to the building. The said notice is prima facie, vague, vexatious and got issued to satisfy some one else and at the instruction of 6 O.S.807/2007 somebody. There is no provision in the plan for vehicle parking. The building was constructed in 1965 and the tenant is in occupation from 1966, till today without there being any inconvenience to anybody. The building is having 9.9 feet setback towards main road as per the plan. There is no Cellar floor as such.
The Provisional Order is silent regarding alterations and renovation and also what construction is going on. The said Provisional Order is also suitably replied. The 2nd defendant without considering the replies and without application of mind and not even inspecting the spot and with oblique motive, got passed Confirmation Order dated 18.12.2006 under Sec.321(3) of KMC Act, which is nothing but carbon copy of the Provisional Order. The 2nd defendant not even able to say what was the deviated portion and what are all the modifications and alterations. The notice and orders motivated are under challenge. The 2nd defendant and its officials after issuance of the said order, making hectic efforts to damage the building on the strength of 7 O.S.807/2007 the alleged order, which is highly illegal and vexatious. The 2nd defendant, which is delegated authority of 1st defendant is bound to consider the objection of the plaintiff and further must have applied mind and the order is suffering from defects and illegality. The defendant has failed to appreciate the fact that the plaintiff has left required setback on all sides of the building and his subordinates have failed to take measurement of the setback. In fact, there is no inspection before issuing the Provisional Order. The issuing of Provisional Order and Confirmation Order is malafide exercise of jurisdiction and power in as much as the 2nd defendant acted at the instance of some one else with an oblique motive. The notice under challenge is a cyclostyle notice, which does not contain the particulars regarding portion of building is altered or renovated. The Notice under challenge is vague, illegal and bad in the eye of law as well as in breach of provisions of Sec.321 of the Act. The 2nd defendant should not have issued Confirmation Order on the basis 8 O.S.807/2007 of such vague, vexatious, illegal provisional order and the very 2nd notice is unsustainable.
The notice of the 2nd defendant dated 18.12.2006 is vague, vexatious and does not satisfied the particulars of alleged deviations and unauthorized construction. The 2nd defendant has not at all considered the objections of plaintiff. The order is a stereotype order and without application of mind and considering the objections. The words "remove all the deviation portion", itself goes to show that the 2nd defendant has passed the order confirming the provisional order without application of mind, as such, both orders are liable to be set aside. The 2nd defendant being the delegated authority must consider that, there is no re-construction or alteration in the building. Further, the building is under use from last fifty years and no portion of the building is in any way deviated from the plan. There is no provision or condition in the plan or license that, any portion of the building must have used for parking. The word used as 9 O.S.807/2007 parking slot is imaginary one in as much as there is no plan sanctioned providing any parking slot in any portion of the building. Hence, the plaintiff has filed the present suit.
.3. In pursuance of summons, the defendants appeared through their counsel and filed written statement denying the material averments/allegations of the plaint with regard to the construction of building as per plan by leaving required setback, no alterations or addition to the suit schedule property, etc. However, the defendants admitted obtaining sanctioned plan for construction of additional floor by the then owner of the suit property in the year 1985; issuance of notices, etc. Further defendants contended that certain deviations are found in the construction made by the plaintiff, which has been verified by the 2nd defendant recently for which legal action was to be taken, but in the meantime, the plaintiff has filed the suit. After seeing the renovation being done on the suit schedule property, the 2nd defendant issued a notice under 10 O.S.807/2007 Sec.308 of the Karnataka Municipal Corporations Act, 1976 calling upon the plaintiff to produce sanctioned plan for renovation and the plaintiff has replied to the notice, which is not satisfactory, in fact, the 2nd defendant has called for the sanctioned plan, the alteration being done by the plaintiff, but the plaintiff has only furnished sanctioned plan for constructing the second floor, so, the 2nd defendant has issued notice dated 25.04.2006 informing the plaintiff to remove renovations or alterations being done without permission. The plaintiff had given evasive reply denying the alterations or modifications carried by her. The very alteration or modification is in violation of the relevant provisions of the KMC Act and Byelaws framed there under. So, any alterations or modifications carried out do require permission from the defendants as per Bylaw No.98 of the Building Byelaws. The modifications or alterations carried out are illegal as no sanction was secured by the plaintiff. 11
O.S.807/2007 The plaintiff has violated the Byelaws and constructed the suit building by making illegal alterations and modifications, which amounts to unauthorized construction. As such, the defendants issued a Provisional Order under Sec.321(1) of the KMC Act along with Show Cause Notice to the plaintiff informing about the alterations or modifications to the original building without sanctioned plan, directing to remove the said alterations or the modified portion and further directed the plaintiff not to build or modify or alter until further orders. The plaintiff gave reply to the Provisional Order denying the alterations. As the said reply was not satisfactory, Confirmation Order under Sec.321(3) of the KMC Act issued, but, no response till 18.12.2006. The affixing the order on the outer wall of the suit schedule property was carried out. Confirmation and Provisional Orders were given stating details of violations of the Byelaws.
There is no any motive for issuance of Provisional Order or Confirmation Order. The action taken by the 12 O.S.807/2007 defendants are legal and orders passed are based on real facts and applicable byelaws. The plaintiff has illegally constructed the building by making deviations. The plaintiff and her predecessors have not obtained Completion Certificate by filing the completion report. Hence, there is no opportunity for the 2nd defendant to know about the completion of construction of the suit building. The objections of the plaintiff have been duly considered before passing the orders. This Court has no jurisdiction to decide the legality of the order issued under Sec.321(3) of the KMC Act, as there is separate provision under Sec.443(A) of the said Act providing an appeal to KAT. Hence, the suit is not maintainable. There is no cause of action to file the suit. The defendants prayed to dismiss the suit with exemplary costs.
.4. On the basis of above pleadings, my learned predecessor has framed following issues:
1. Whether the plaintiff proves hat she has not put up any unauthorized construction on the suit schedule property?13
O.S.807/2007
2. Whether the plaintiff further proves that 2nd defendant has illegally issued the Provisional Order dated 18.12.2006 and Confirmation Order dated 23.12.2006 under Section 321 of the KMC Act and the said notices are illegal, void and unenforceable under law as alleged?
3. Whether the plaintiff further proves that the defendants have illegally interfered with her lawful possession over the suit schedule property as alleged?
4. Whether the defendants prove that the plaintiff has put up illegal construction under the guise of repairs and renovation of the building and violated the building byelaws and as such they have issued provisional notice and also passed Confirmation Order under Section 321(3) of the KMC Act 1976 as alleged in Para-11 of the written statement?
5. Whether the plaintiff is entitled for the relief of declaration and permanent injunction against the defendants as prayed?
6. To what reliefs, if any, the partiers are entitled?
.5. In support of the case, the plaintiff's Power of Attorney Holder examined as PW.1, got marked documents at Ex.P.1 to Ex.P.9 and closed the side. The defendants have not adduced evidence on their behalf. .6. Heard arguments on both side.
14
O.S.807/2007 .7. My answers to the above Issues are:
Issue No.1 - In the negative.
Issue No.2 - In the negative.
Issue No.3 - In the negative.
Issue No.4 - In the affirmative.
Issue No.5 - In the negative.
Issue No.6 -As per final order for the following:
REASONS .8. ISSUE Nos.1 TO 4: As these Issues are connected to each other, I have taken all together for discussion for the sake of convenience and to avoid repetition.
The plaintiff contended that she has purchased the schedule property, which was constructed in the year 1965 and same is leased out in favour of the tenant, during the time of demise of Dr.Rajkumar, the front portion glasses were damaged in Royts. She has not effected any alterations to the schedule property except replacing the damaged glasses to the front portion; she has not put up any unauthorized 15 O.S.807/2007 construction, but the 2nd defendant has illegally issued Provisional Order dated 18.12.2006 and Confirmation Order dated 18.12.2006 under Sec.321(3) of the KMC Act; same are illegal, void and unenforceable under law and the defendants have illegally interfered with her lawful possession over the suit schedule property, etc. Per contra, the defendants in the written statement denied the said contention of the plaintiff and interalia contended that the plaintiff has put up illegal construction under the guise of repair and renovation by violating building byelaws, as such, they have issued Provisional Order and also passed Confirmation Order under Sec.321(3) of the KMC Act, etc. .9. In support of the case, the plaintiff got examined her Power of Attorney Holder as PW.1 who in his affidavit evidence stated regarding purchase of schedule property by the plaintiff; leasing out the same in favour of the tenant; replacing glasses to the front portion as the said glasses were damaged during Royts at the time of demise of Dr.Rajkumar; not making any 16 O.S.807/2007 alterations or additions to the property; no unauthorized construction or deviation; issuance of notice under Sec.308 of the KMC Act; another notice on 25.11.2006; Confirmation Order, etc., by reiterating the averments of the plaint and got marked documents at Ex.P.1 to Ex.P.9.
.10. The plaintiff has produced Notice issued by the Corporation at Ex.P.5, wherein the 2nd defendant has issued Notice under Bylaw 205 No.9.8 Section 428 of KMC Act, 1976, stating inspection of the schedule property, observing renovation, altering the front block; bound to take permission from the Zonal Office as per building bylaw 2003 No.9.80; violation of byelaws as per KMC Act; calling upon the plaintiff to give reply, etc. The plaintiff has produced reply as per Ex.P.6, wherein only denying the inspection made on 25.12.2006; renovation or alteration of front block and further stated that no work is to be carried out to the building and not committing any violations of the KMC Act or byelaws, etc. The plaintiff also produced 17 O.S.807/2007 Provisional Order dated 06.12.2006 at Ex.P.8, wherein the 2nd defendant has passed Provisional Order referring Notice dated 25.11.2006 stating that on comparing with the actual sanctioned plan of the building, it is noticed that the said building altered is not in accordance with the sanctioned plan of the original building, there is no scope for vehicle parking in the building; there must be a scope for parking lot in the building, as per Bylaw 205, in this road No.9.8 Sec.428 of KMC Act, any addition, alteration to existing building, bound to take permission from Zonal Office and directing to remove the altered portion and restraining from proceeding with further construction of the building, etc. From the above referred documents produced by the plaintiff show that the plaintiff is renovating / altering the front block without obtaining permission and proceeding with the work and trying to complete the alteration work. Though the plaintiff under Ex.P.6 denied the spot inspection and renovation or alteration of front block, has not adduced satisfactory evidence to show that she has not taken up 18 O.S.807/2007 work to the front block of the schedule building. The defendants being statutory authority, on inspection and noticing alteration on the front block of the building have issued Provisional Order and Confirmation Order as required under KMC Act and the same cannot be termed as they have illegally interfered with the possession over the suit schedule property. From Ex.P.8-Provisional Order go to show that the plaintiff is taking up construction under the guise of repair of the building and proceeding with the completion of alteration work. Hence, the plaintiff has failed to prove that she has not taken up any unauthorized construction and the defendants have illegally issued Provisional Order and Confirmation Order, same are illegal, void and alleged interference by the defendants. On the other hand, from Ex.P.8-Provisional Order go to show that the plaintiff is taking up construction under the guise of repair of the building and proceeding with completion of alteration work and also from the plaint averments go to show that the defendants have issued Provisional Notice and also passed Confirmation Order 19 O.S.807/2007 under Sec.321(3) of KMC Act. Hence, for these reasons, I answered Issue Nos.1 to 3 in the negative and Issue No.4 in the affirmative.
.11. ISSUE NO.5: The plaintiff has filed the suit against the defendants for declaration to declare the Provisional Order dated 18.12.2006 bearing No.AEE(RT)PO/23/2006-07 and the Confirmation Order dated 18.12.2006 bearing No.AEE(RT)CO/23/2006-07, under Sec.321(3) of KMC Act, pasted on 23.12.2006 issued by the 2nd defendant are void and unenforceable under law; consequential relief of injunction restraining the defendants, their subordinates or anybody claiming under them from in any way demolishing any portion of the suit schedule property and costs, etc. .12. The learned counsel for the plaintiff during the course of arguments submitted that the plaintiff has not taken the work of alteration or renovation, only she has replaced damaged front portion glasses, which cannot 20 O.S.807/2007 be termed as alterations or additions to the building; the repair work carried out by the plaintiff do not affect position or dimension of the building, as such, the Provisional Order and Confirmation Order issued by the defendants are illegal, null and void, etc., and also relied upon the following decisions reported in :-
1995(4) Karnataka Law Journal 694 in a case between Rathnavathi -Vs- Assistant Executive Engineer, Bengaluru City Corporation, Bengaluru and others, wherein their Lordships held that:
"KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976, Section 320 - Alteration and addition to building - Prior approval of Authorities required - Repairs not affecting position or dimension of building not to be deemed alteration and addition - Whether repair amounts to alteration or addition
-Question to be referred to Standing Committee for decision - Order made by Authorities under Section 321(3) on the question without decision of the Standing Committee - Order made in breach of law, illegal, null and void and liable to be quashed."21
O.S.807/2007 1996(2) Karnataka Law Journal 312 in a case between M.P.Ramachandrachar -Vs-
Commissioner, Mysore City Corporation, Mysore, wherein their Lordships held that:
"(B) KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976, Section 320- Repairs - Works which do not affect position or dimension of building or of any room therein - Putting up R.C.C. roofing for bathroom and latrine in place of tiled roof which had collapsed amounts only to repairs as change in roofing does not affect position or dimension of structure -
Requirement of taking permit for such repair works is not contemplated in Act."
"(C) KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976, Section 321 - Demolition-
Notice of and order for - Work carried out with no permission, in violation of any order, in contravention of approved plan or in breach of law or bylaw - Commissioner must be satisfied that there is a case -
Notice issued to party must specify whether work carried out in breach of law, etc., is work of construction, reconstruction, additions or alterations - 22
O.S.807/2007 Specific provision of Act or Rule that has been breached must be cited - Notice not containing these particulars is vague - Order of demolition passed after serving such vague notice is illegal and bad in law and in breach of the provisions of Section 321 of Act."
1987(2) Karnataka Law Journal 235 in a case between Vaman Nayak M. and another-Vs- Planning Authority, Mangalore and others, wherein their Lordships held that:
"(A) KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976, Sec.299 - Renovation of existing building - Grant of licence for -
Challenge on ground that building plan and licence granted are not in conformity with building bye-laws - Held, in the absence of any material to show that such building bye-laws are violated question of quashing licence granted does not arise."
The facts and circumstances of the present case are not applicable to the above cited decisions. In the instant case, the plaintiff has not adduced satisfactory evidence 23 O.S.807/2007 to show that she has not taken up any unauthorized construction or alternation of the building, which do not affect the position or dimension of the structure. Further, the defendants in the written statement taken contention that this Court has no jurisdiction to decide the legality of the order passed under Sec.321(3) of the KMC Act, as there is separate provision under Sec.443(A) of the said Act providing an appeal to KAT, as such, the suit is not maintainable, etc. .13. The plaintiff sought the relief of declaration in respect of the Provisional Order dated 18.12.2006 and Confirmation Order dated 18.12.2006 passed under Sec.321(3) of the KMC Act by the 2nd defendant are void and unenforceable under law, etc. The KMC Act itself provides remedy under Sec.443(a) by way of appeal. Hence, there being an alternative remedy by way of appeal before the KAT, the suit is also not maintainable. The plaintiff having failed to prove that she has not put up any unauthorized construction, the defendants have illegally issued Provisional and 24 O.S.807/2007 Confirmation Order and alleged interference, as such, she is not entitled for the relief sought for. Hence, the plaintiff is not entitled for the relief of declaration and permanent injunction against the defendants as prayed, accordingly, I answered Issue No.5 in the negative. .14. ISSUE NO.6: In view of the reasons and discussion on the above Issue Nos.1 to 5, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 21st day of January 2015).
(JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF:
PW.1 -Sri.H.A.Kempegowda S/o. Late Amase Gowda.
25
O.S.807/2007
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFF:
Ex.P.1 General Power of Attorney.
Ex.P.2 Lease Agreement dated 01.08.1985. Ex.P.3 Letter dated 28.07.1975 written by the tenant to the previous owner of the property.
Ex.P.4 Letter dated 20.03.2006 regarding delivery of possession of the property to the plaintiff.
Ex.P.5 Notice issued by the Corporation. Ex.P.6 Reply given by the plaintiff to the Corporation.
Ex.P.7 Notice issued by the Corporation under Sec.321(1) of the KMC Act.
Ex.P.8 Provisional Order dated 06.12.2006. Ex.P.9 Reply given to Provisional Order dated 18.12.2006.
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
-NIL-
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
-NIL-
(JINARALAKAR. B.L.)
XL Addl.City Civil & Sessions judge, Bengaluru.
26 O.S.807/2007