Karnataka High Court
Sri Munivenkatappa vs The Commissioner on 12 December, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
R.F.A. NO. 2160/2011
BETWEEN:
1. SRI MUNIVENKATAPPA,
S/O N.CHENNAPPA,
AGED ABOUT 73 YEARS,
RESIDING AT NO.9/4,
LAKSHMI NILAYA,
LOTTEGOLLAHALLI, RMV 2ND STAGE
BANGALORE - 560 094
2. SRI.C.RAMU,
AGED ABOUT 57 YEARS,
S/O N.CHENNAPPA,
R/AT NO.9/2, LAXMI NILAYA,
LOTTEGOLLAHALLI, RMV 2ND STAGE,
BANGALORE - 560 094
3. SRI C.NARASIMHAMURTHY,
S/O N.CHENNAPPA,
AGED ABOUT 47 YEARS,
R/AT NO.9/1, LAXMI NILAYA,
LOTTEGOLLAHALLI, RMV 2ND STAGE,
BANGALORE - 560 094
4. SRI C.GOPI,
2
S/O N.CHENNAPPA,
AGED ABOUT 44 YEARS,
R/AT NO.9/3, LAXMI NILAYA,
LOTTEGOLLAHALLI, RMV 2ND STAGE,
BANGALORE - 560 094
... APPELLANTS
(BY SRI VISHNU HEGDE FOR M/s M.T.NANAIAH
ASSOCIATES, ADVs.)
AND:
1. THE COMMISSIONER
BANGALORE MAHANAGARA PALIKE, (BBMP)
HUDSON CIRCLE,
BANGALORE - 560 001
2. SRI M.V.NAGARAJA SETTY,
AGED ABOUT 63 YEARS,
S/O VENKATTACHALA SETTY,
NO.324, II CROSS,
LOTTEGOLLAHALLI, RMV 2ND STAGE,
BANGALORE - 560 094
3. H.MUNISWAMAPPA,
AGED ABOUT 92 YEARS,
S/O LATE HANUMAIAH,
NO.06, II CROSS,
LOTTEGOLLAHALLI, RMV 2ND STAGE
BANGALORE - 560 094
... RESPONDENTS
(BY SRI S.J.PURANIK AND SMT.C.S.NAGARATNA, ADVs.)
THIS RFA FILED U/SEC.96 R/W O-41, RULE-1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.09.2011
3
PASSED IN O.S 6447/2002 ON THE FILE OF THE XXVII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING
THE SUIT FOR PERMANENT INJUNCTION.
This appeal coming on for admission this day, the
court delivered the following
JUDGMENT
Unsuccessful plaintiffs are in appeal against dismissal of the suit and declining to grant decree of permanent injunction as sought for in their favour.
2. The appeal has come up for admission after prior notice to the respondent Corporation.
3. Heard. I am satisfied the matter requires consideration. The appeal is admitted and by consent, taken up for final disposal on merit.
4. As could be seen from the factual matrix borne out from the averments in the plaint, defence taken by the Corporation through its written statement and the stand of intervening defendants 2 and 3, it is evident there is no dispute plaintiffs are lawful owners of residential houses described in the schedule to the plaint. Asserting that they 4 have acquired the property through their father-Chennappa, they contend the Corporation has, without any sanction of law, attempted to demolish a portion of the property acquired by them under a deed of partition, to form a road, or rather to expand the existing road. They described the acts of the Corporation officials as mischievous and against their interest. They sought an order of injunction to restrain them from demolishing the portion of their premises either for formation of road or to expand the road or for any other purpose.
5. The 1st defendant entered contest taking inconsistent pleas in the written statement.
6. As could be seen from the material proposition in the pleadings, the core contention of the Corporation is, the suit is not maintainable as it is filed against a statutory body constituted under the provisions of the Karnataka Municipal Corporations Act, 1976. The second contention is, there is long-pressed demand from the local residents to form a road in Ward No.100 of Lottegollahalli village. It is their 5 case there are several residential houses in the area having approach road of only 20 feet width and because of persistent demand from the residents, it sanctioned the scheme to form a road with an outlay of four crore rupees and in this regard, amenities like supply of water to the area through BWSSB has been successfully achieved. They contend, Corporation is in the process of re-laying the road by asphalting it for the convenience of the public. The road which was otherwise a mud road, is now made pucca for the benefit of residents. However, before embarking on such work, they conducted a survey and learnt that property in Survey No.9/1 belonged to Chennappa (father of plaintiffs) who had formed 20 feet wide road to sell sites out of the said land. That was inherited by the purchasers. After the death of Chennappa, plaintiffs are in possession of the property along which passes the road. To this extent, the stand of the defendant about lawful title of the plaintiffs in respect of the property in question and existence of the road is admitted.
6
7. The question is, whether as alleged by the appellants, the Corporation is likely to demolish a portion of their property to expand the road or form a road. As could be seen from the plaint averments, plaintiffs have been very miserly in words in describing the fact situation. They have made a vague plea that they are owners and defendants are trying to demolish a portion of their property. There are no further details in the plaint for ascertainment as to which portion and to what extent their property is likely to be demolished by the Corporation. It is further noticed the main grievance of the appellants appears to be, they have not been paid compensation for formation of road.
8. Defendants on their part have stated they had called upon Chennappa (father of plaintiffs) to show his title to the property in question for further action in the matter, but he did not respond. From such statement in the defence and the vague statement of the plaintiffs, it could be seen both sides have not come up with a clear case for raising relevant issues for adjudication before the trial court. Even 7 otherwise, in a suit simplicitor for an order of injunction, the trial court could not have ventured to frame issues regarding title. However, it is well settled whenever plaintiff claims to be in possession, the factum of possession and alleged threat of interference becomes material. The stand of the Corporation through its written statement speaks volumes that they are not disputing ownership or title of the plaintiffs, nor the fact that they are in possession of the premises described in the schedule. It is also not disputed, the Corporation has embarked upon constructing a pucca road by asphalting it. Had they stopped at that, a view could have been taken that there is no threat to plaintiffs' possession. But it is material to note during evidence, defendants have taken the stand and elicited from the plaintiffs' witnesses that they have now decided to expand the road and in this regard notice was issued to plaintiffs for response.
9. The other contention is, since they have not responded to the notice, Corporation wants to perform its 8 statutory duties. This would undoubtedly lead to the conclusion that the defendants felt inaction on the part of the plaintiffs gives them power to demolish the property and form the road. Even presuming, and as assertively contended by the defendants, that a portion of the plaintiffs' property is on the road, or that they have encroached it, a clear procedure is prescribed under the Municipal Corporations Act for appropriate action.
10. It is necessary to draw the attention of the 1st defendant to the provisions of Section 321(1) and (2) of the Act which mandates if there be any encroachment or illegal construction, the Commissioner of the Corporation is required to pass a provisional order directing demolition of such illegal construction against which show-cause may be submitted by the affected person. If that is not accepted, then a second provisional order could be passed under Section 321(2) of the Act confirming the provisional order, making it implementable. All these procedures have been flouted. Therefore, it will be reasonable to hold that 9 dismissal of the suit by the trial court in its entirety is not justified.
11. In the result, the appeal is allowed. The suit of the plaintiffs is decreed partly, restraining the respondents from interfering with their peaceful possession and enjoyment of the property described in the schedule and demolishing any portion thereof except in accordance with law, and after giving full opportunity to them, which is statutorily prescribed in the Act. In the circumstances, there shall be no order as to costs.
Sd/-
JUDGE vgh*