Karnataka High Court
Commissioner vs Sri D Mohan on 15 September, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL No.1650/2006 (INJ)
BETWEEN:
COMMISSIONER
BANGALORE MAHANAGARA PALIKE
J C ROAD, BANGALORE - 2.
...APPELLANT
(BY SRI S N PRASHANTH CHANDRA, ADV.)
AND:
1. SRI D. MOHAN
S/O LATE K DORAI KANNU
MAJOR
NO.1075/C, 10TH MAIN
HAL II STAGE, INDIRANAGAR
BANGALORE - 560 008.
2. SRI B L SUNDARESH
S/O LATE LOKANATHAPPA
AGED 45 YEARS
842, 5TH CROSS
INDIRANAGAR II STAGE
BANGALORE - 560 008.
3. SRI M BALAKRISHNA
MAJOR
NO.1011/B, 17TH 'B' CROSS
INDIRANAGAR II STAGE
BANGALORE - 560 008.
2
4. R SUDHARSHAN SINGH
MAJOR
S/O LATE KRISHNA SINGH
MAJOR
R/AT NO.F6, KEB QUARTERS
INDIRANAGAR
BANGALORE - 560 008.
5. H D JAYARAM PRASAD
MAJOR
S/O SRI H B DYAVARAPPA
R/AT NO F18, K E B QUARTERS
INDIRANAGAR
BANGALORE - 560 008.
6. M SESHADRI
MAJOR
R/AT NO F8
K E B QUARTERS
4TH CROSS, 7TH MAIN
INDIRANAGAR
BANGALORE - 560 008.
7. B SRINIVASA NAIK
S/O SRIRANGAPPA
MAJOR
RESIDING AT NO.A5
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
8. B N SATHYA PREM KUMAR
S/O B NARASIMHAIAH
MAJOR
RESIDING AT NO.F18
KEB QUARTERS
4TH CROSS, 7TH MAIN
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
3
9. PANDURANGAN CHETTY
S/O V LOGANATH CHETTY
MAJOR
RESIDING AT NO.1011/B
17TH 'B' CROSS, INDIRANAGAR
BANGALORE-8.
10. PRAKASH KUMAR
S/O SKV MURTHY
MAJOR
RESIDING AT NO.1073
11TH CROSS, HAL II STAGE
INDIRANAGAR
BANGALORE - 8.
11. M T RAMESH
S/O SRI THIMMAPPA
MAJOR
RESIDING AT NO.D5
KEB OFFICERS COLONY
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
12. SRI D AMMOGASIDHA
S/O SRI RAMANNA
MAJOR
R/AT NO.D13
KEB OFFICERS COLONY
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
13. V VIJAYAKUMAR
S/O K B VENKATASWAMY
MAJOR
R/AT NO.2/11
KEB OFFICERS COLONY
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
14. B N MOHAN KUMAR
S/O N NARASIMHAIAH
4
MAJOR
R/AT NO.D2, KEB COLONY
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
15. R VIVEKANANDA
S/O RAMAKRISHNAN
MAJOR
R/AT NO.3302/13
12TH MAIN, HAL II STAGE
BANGALORE - 8.
16. B R PREM KUMAR
S/O SRI M RANGAPPA
MAJOR
R/AT NO. 772, 10TH CROSS
10TH MAIN, HAL II STAGE
INDIRANAGAR,
BANGALORE - 8.
17. T KAMALANATHA NAIDU
S/O THIMMAIAH
MAJOR
R/AT NO.951, 12TH MAIN ROAD
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
18. MR. JAYAN T N
MAJOR
R/AT NO.901, 7TH MAIN ROAD
HAL II STAGE, INDIRANAGAR
BANGALORE - 8.
...RESPONDENTS
(BY SRI S G PRABHAKAR, ADV. FOR R1, R2, R9,
R15 & R17-ABSENT;
SMT. SOWBHAGYA N.A., ADV. FOR R4, R12, R16 & R18
R5 & R10 ARE SERVED
V/O DATED 14.12.2013, R3, R6 TO R8, R11, R13 &
R14 NOTICE H/S)
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THIS R.F.A. IS FILED UNDER SECTION 96 OF THE
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
AND DECREE DATED 17.04.2006 PASSED IN
O.S.NO.87/1999 ON THE FILE OF THE XVI ADDL.CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS R.F.A COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
Heard Sri.S.N.Prashanth Chandra, learned counsel for the appellant.
2. There is no representation for the respondents.
3. The present appeal is filed by the Commissioner, Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as "BBMP" for short), challenging the judgment and decree passed in O.S.No.87/1999 on the file of the Additional City Civil and Sessions Judge, Bangalore.
4. The brief facts of the case are as under: 6
The plaintiffs who are 18 independent persons filed a suit jointly against the BBMP with a prayer for declaration that the residents of the HAL II stage, Indiranagar, Bangalore and adjoining layouts are entitled to have the existence of Lord Ganesha, Shivalinga, Subramanya temples in the suit schedule property belonging to the BBMP and perform their religious poojas to the idols and a mandatory injunction directing the officials of the BBMP to consider the representation given by the plaintiffs and other residents and to regularize the constructed temples in the Layout with a permanent injunction restraining the officials of the defendant or their agents from demolishing the existing temples over the suit property.
5. Admittedly, there is a public park in 10th Main, HAL II Stage, Indiranagar, Bangalore which is adjacent to Dr.Ambedkar College and the park measures approximately 190 x 400 feet with a small temple 7 erected thereon having Ganesha, Shivalinga and Subramanya idols being worshipped by the residents of HAL II Stage and the general public from the adjoining layouts. The plaintiffs further contended that the park space was earmarked as civic amenity site and Bangalore Development Authority (hereinafter referred to as "BDA" for short) had kept it for development of the park. By a notification, BDA handed over the entire area including the park to the BBMP and Corporation did not take any initiative for development of the park from the date of handing over possession of the property from the BDA.
6. The existence of open space earmarked for the park became a nuisance and annoyance to the people in the locality and the purpose of handing over the same to the BBMP did not materialize. Therefore, the residents therein, developed the said open area and also decided to have temples erected on the said place having 8 Ganesha, Shivalinga and Subramanya idols in the said temples. It is also contended that since there are no other temples in the vicinity, the temples were constructed and idols were established and regular poojas to the idols are being performed. It is further contended that the civic amenity site meant for the park is now totally developed by the plaintiffs with the temples. The government officials including IAS, IPS officers, retired Judges residing in the area are the devotees of the said temples. It is also contended that the plaintiffs and others have contributed their personal money for the construction and maintenance of the temples and representation was given to the BDA and the Chief Minister to regularize the construction. Local MLA has also recommended for the regularization.
7. When the matter stood thus, the officials of BBMP are making hectic efforts to demolish the existing temples over the suit schedule property without any 9 notice and to cause not only hardship to the plaintiffs and other residents of the locality but also put to untold hardship and misery and sought for the relief as prayed.
8. The defendant on receipt of the suit summons, entered appearance and filed detailed written statement contending that the suit is not maintainable either in law or fact and lacks bonafides. The defendant denied that the plaintiffs are residents of HAL II Stage, Indiranagara and their grievance are common and they have common interest in respect of the suit property. The defendant further contended that the park has been developed by the BDA and handed over to BBMP in the year 1998. Since then, the defendant is maintaining the park and it is the owner of the park. It is contended that the construction of the temple on the civic amenity site is illegal and therefore, sought for dismissal of the suit.
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9. The trial Court framed the following issues based on the rival contentions of the parties:
(i) Whether the plaintiffs prove that they are in lawful, peaceful possession and exclusive enjoyment of the suit schedule property with a given boundaries and measurement as on the date of the filing of the suit?
(ii) Whether the plaintiffs further prove that the defendant without having any right, title or interest owing to ill advice of unwanted persons is in hurry to demolish the existing temples thus causing interference in the religious function and poojas?
(iii) Whether the plaintiffs are entitled to have a relief of perpetual injunction against the defendant as prayed?
(iv) If so, what order and decree?
10. In order to prove the case of the plaintiffs, among the plaintiffs, few of the plaintiffs namely Sri.B.L.Sundaresh, Sri.D.Mohan and Sri.R.Vivekananda 11 are examined as P.Ws.1 to 3. They have relied on 26 documents which were exhibited and marked as Exs.P1 to 26.
11. On behalf of the defendant, Sri.A.Chandan Kumar is examined as D.W.1 and no documents are marked on behalf of the defendant.
12. On conclusion of the recording of evidence, the trial Court appreciated the oral and documentary evidence on record and passed the judgment as under:
"The suit of the plaintiffs is decreed in part. The defendant is directed to consider the representation given by the plaintiffs and other residents if any, only in accordance with the law, rules and regulations enunciated under the Act.
Further, the defendant, its officials or anybody claiming through them are hereby restrained from demolishing the existing temples or from removing the idols from suit Schedule park, by means of permanent injunction.
In view of the peculiar nature of dispute, I direct both parties to bear own costs."12
13. Being aggrieved by the same, the BBMP has preferred the present appeal on the following grounds:
"The lower court has given a finding that the area in question is a park area that the respondents / plaintiffs have not obtained any permission before putting up construction and that the Respondents / plaintiffs are in illegal and unlawful possession of these temples. Despite giving such a finding. the court also decrees the suit for permanent injunction. Once it is held that the property in question is a park, then the same vests with the corporation. Under Sec. 174 of the KMC Act, all public parks, playgrounds and open spaces vests in the corporation shall "held and applied by it as a trustee". As such the encroacher of a public park cannot have the benefit of a decree of permanent injunction. The relief of permanent injunction is an equitable remedy, and such discretionary jurisdiction cannot be exercised to protect the possession of an encroacher of a public property.
The lower court ought to have noticed that the Appellant Corporation has taken steps to remove the illegal constructions at the earliest possible time. The Respondents tried to put up construction of the temple by putting a small shed, and immediately thereafter the 13 Corporation initiated steps to demolish the same. At this stage, the Respondents filed Writ Petition No. 27094/98 seeking to restrain the corporation from demolishing the temple. As the Division Bench was not inclined to grant any relief, the Respondents did not pursue the Writ Petition and approached the Civil Court. Before the Civil Court they obtained an interim order of temporary injunction and continued with their construction on the strength of the said interim order. At the initial stage, the Respondents had contended that it was a Lord Ganesha temple and the same was further extended to Lord Shivalinga temple and Lord Subramanya Temple. The extent of the property also underwent a change. The entire exercise of the Respondents was to grab public property by making use of the religious sentiments of the people.
The lower court ought to have noticed that the Respondents / plaintiffs are trespassers. The Corporation holds the park for the benefit of the public. It is a well settled principle of law that a trespasser is not entitled for an injunction as against the true owner. That being so, the lower court has erred in decreeing the suit for permanent injunction thereby protecting the possession of an encroacher / trespasser. Such 14 a decree would amount to giving legal sanction to an illegal act of grabbing public property, and the same is detrimental to larger public interest.
The lower court ought to have noticed that the appellant has never allowed the respondents to remain in settled possession at the earliest point of time. When an attempt was made to put up shed in the form of a temple, the appellant took action to demolish the property. At this stage the Respondents. filed Writ Petition No. 27094/98 wherein it was contended that they have taken the step of putting up the temple, as the park area was not properly taken care of. This Writ Petition was not pursued when this Hon'ble Court was not inclined to entertain the same. Thereafter the present suit has been filed. In the representation produced along with the said Writ Petition, the Respondents have made it clear that the construction of a temple was done only in the year 1998. The Respondents cannot claim to be in settled possession at any point of time. As such the lower court is not justified in decreeing the suit for permanent injunction.
The lower court ought to have noticed that a decree for permanent injunction cannot be passed, which has the effect of restraining the appellant-Corporation from exercising its 15 statutory powers. It is an admitted fact that the temple has been constructed without obtaining sanction plan. As such the appellant-corporation is entitled to demolish the same after issue of notice under Sec. 321 of the Act. That being so, the lower court ought not to have restrained the Corporation from interfering with its possession. Such a decree has the effect of restraining the appellant-. Corporation from exercising its statutory powers.
The lower court ought to have noticed that the park area vests with the public and has to be used for the purpose for which it is meant. Even the BMP is expected to take care of the part as a trustee for the benefit of people. Such areas cannot be allowed to be occupied by private persons The lower court has acted without jurisdiction in directing the Corporation to consider the representation in accordance with the Rules / Regulations. It is not open to the Civil Court to issue a decree in the nature of a direction. The impugned judgment & decree is therefore one without jurisdiction.
The lower court ought to have noticed that it is not pleaded by the Respondents that they are in settled possession of the property. It is alleged in the plaint that the existence of the temple is 16 required for the public benefit. It is in this background, they have sought for regularization of the said land. As such they have sought for mandatory injunction to consider the representation for regularization of their temples. The Corporation is not competent to consider any representation for regularization, as they do not have such power under the KMC Act. Hence the impugned judgment & decree is without jurisdiction."
14. Reiterating the grounds urged in the appeal memorandum, Sri.S.N.Prashanth Chandra, learned counsel for the BBMP vehemently contended that the trial Court grossly erred in decreeing the suit of the plaintiffs as referred to supra. He further pointed out that neither the plaintiffs nor anybody had any right to seek a declaration that they are entitled to have the temple to be regularized constructed on the civic amenity site which is meant for the park and sought for allowing the appeal. He further contended that the plaintiffs did not establish a valid legal right to have a declaration of the nature claimed in the suit, the 17 consequential relief of granting permanent injunction restraining the appellant to interfere with the existing structure and also mandatory injunction to consider the representation of the plaintiffs is perse illegal and sought for allowing the appeal. He also pointed out that when the BDA has handed over the entire layout to the BBMP, by resorting to the powers vested in BBMP under Section 174 of the Karnataka Municipal Corporations Act, 1976, all open spaces, parks, etc., the Municipal Corporation would be the deemed owner and therefore, there cannot be a declaration against the true owner and therefore sought for allowing the appeal.
15. The respondent though served and engaged the counsel, remained absent and did not chose to address the arguments despite granting sufficient time. As such, this Court perused the materials on record, in the light of the arguments put forth on behalf of the appellant.
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16. In view of the contentions urged on behalf of the appellant and the materials on record, following points would arise for consideration:
(i) Whether the plaintiffs had a right to seek for consideration of the representations given by the plaintiffs and other residents, if any, to be considered by the BBMP? and
(ii) Whether the impugned judgment suffers from legal infirmity and perversity and thus, calls for interference?
17. On perusal of the materials on record, though plaintiffs sought for declaration that they have a right to have the temple regularized, the said relief is denied by the learned trial Judge in the impugned judgment. Therefore, the present appeal is restricted only to the extent of granting permanent injunction, restraining the appellant from demolishing the temples in the suit property and to consider the representation of the 19 plaintiffs and other residents, if any. It is crystal clear from the materials on record that the plaintiffs themselves have stated that they are residents of HAL II Stage. As many as 18 plaintiffs have joined the suit and sought for an action against the BBMP from interfering with the constructed temple on the park property. Further, it is unequivocal say of the plaintiffs themselves that the temples are constructed in the park which is a civic amenity site carved out by the BDA while forming the layout. Therefore, by operation of law and having regard to Section 174 of Karnataka Municipal Corporations Act, 1976, handing over of the layout by the BDA to BBMP, the BBMP has become the owner of schedule property. However, much before BBMP took over the park to its custody, the temples had been constructed on the civic amenity site.
18. Whether a civic amenity site should be meant only for developing a park or any other purpose is not the 20 subject matter of this appeal and the law in this regard is very clear and a portion of the civic amenity site can also be given for the purpose of erecting a temple or social activities or for construction of a Milk booth or similar activities. The temple is not in existence in the whole of the park area. Therefore, the representations given by the plaintiffs ought to be considered by the BBMP. Being a statutory authority, BBMP is required to consider the representations given by the plaintiffs and pass appropriate orders. To that extent, the impugned judgment cannot be interfered. However, the impugned judgment says that not only the representation of the plaintiffs but also other residents if any, is a omnibus observation and therefore, the same needs interference. The plaintiffs have produced before the Court, the letters which have been written to various governmental authorities, marked as Exs.P1 to
14. In fact, such representations when given by the residents, the same was also brought to the notice of 21 the local MLA. It is averred in the plaint that local MLA has also recommended for regularization of the temple. The appellant-Corporation being the statutory body cannot take side of any one set of people in the Society. Therefore, representation needs to be considered judiciously.
19. While considering the said representations, the appellant is bound to follow the procedure laid down for regularization of the temples. It is needless to emphasize that such exercise is to be carried out by the BBMP in accordance with law. Therefore, the appellant cannot have any grievance on the direction given by the learned trial Judge to consider the representations. However, the observation should have been only to the extent of plaintiffs and not a omnibus observation. Therefore, the same needs modification in the present appeal. Further, since the temple is in existence and consideration of the representations and passing 22 appropriate orders thereon would have a bearing about the demolition of the temple or otherwise, the grant of permanent injunction by the trial Court in the impugned judgment cannot also be interfered in this appeal. It is a settled principle of law that if a person is in settled possession of the property, he cannot be disturbed from his possession without due process of law.
20. In this regard, Sri.S.N.Prashanth Chandra submitted that the temple or any association is not the plaintiff and it's the individual person who are plaintiffs. It is needless to emphasize that the Corporation being the statutory body while considering the representation, is required to invite objection/s of all concerned with regard to intended action of removal of the long existing temple. When such an exercise is carried out by issuing a public notice, if any person/s comes forward including the temple authorities or management of the temple or 23 its association thereon, the BBMP is also required to consider their objections judiciously and pass appropriate orders. Such an observation in this appeal would meet the apprehensions of all concerned, including the persons those who are interested in the existence of the temple. So also it will facilitate the BBMP to take appropriate action in accordance with law. The BBMP after considering the representation, and the result thereof, is entitled to take action in accordance with law. Till such time, the injunction passed by the trial Court needs to be in force.
21. In view of the aforesaid discussion, this Court is of the considered opinion that the impugned judgment needs to be modified only to the extent of making an omnibus observation regarding consideration of the representations from the other residents of the Society. Accordingly, the points are answered and following order is passed:
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ORDER The appeal is allowed in part. The operative portion of the impugned judgment insofar as taking representation from other residents is deleted in the impugned judgment. The order of permanent injunction passed by the trial Court which is impugned in this judgment will be subject to the result of consideration of the representations of the plaintiffs, in accordance with law.
Sd/-
JUDGE mpk/* CT:bms