Bangalore District Court
D. Govinda Reddy vs The Commissioner on 7 November, 2019
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 7 th day of November 2019
PLAINTIFF: D. Govinda Reddy
S/o D. Thimma Reddy,
Aged about 66 years,
R/o No. 464, 2nd Floor,
Ashoka Pillar Road,
2nd block, Jayanagar,
Bangalore-560 011.
[By Sri Ramalingegowda. B., Advocate]
/v e r s u s/
DEFENDANT: The Commissioner,
Corporation of City of
Bangalore, (BCC) BBMP,
Bangalore.
[By Sri KNM, Advocate]
Date of institution of the : 18/02/2016
suit
Nature of the suit : For injunction
Date of commencement of : 31/1/2019
recording of the evidence
Date on which the : 7/11/2019
Judgment was
pronounced.
2 CT0028_O.S._1460_2016_Judgment_.doc
.
: Year/s Month/s Day/s Total duration 3 8 19 (Prashanthi. G) XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendant for the relief of permanent 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 way interfering with the plaintiff's construction of the building upon the schedule property and grant such othe reliefs.
2. In brief, the plaintiff's case is as under:
The plaintiff purchased under a registered sale deed dated 19/6/2000 immovable property bearing New No.27, (Old No.702), (Old No.442 and 596), PID No.50-37-27, Subramanya Swamy Temple Road, Ward No.143, (Old Ward No.50), Visweswarapuram, (V.V.Puram), BBMP, Bengaluru measuring east to
3 CT0028_O.S._1460_2016_Judgment_.doc .
west 40 feet and north to south 90 feet which is referred to as suit schedule property.
Plaintiff further submitted that thereafter the defendant authority has conferred katha of the schedule property upon the plaintiff and the plaintiff has also paid the necessary tax due upon the samd to the defendant authority. Plaintiff with a view to construct a residential apartment building upon the schedule property obtained the necessary sanctioned plan from the defendant authority in L.P. No.Ad.Com/SUT/1647/13-14 dated 28/11/2014 to construct a residential apartments building consisting of basement, ground, first, second and third floor including the terrace floor, and the plaintiff has been constructing the super structure of the residential apartments building in accordance with the sanctioned plan without any deviation whatsoever. When this being the factum of situation, and further when the plaintiff has been constructing the super structure of the residential apartments building in 4 CT0028_O.S._1460_2016_Judgment_.doc .
accordance with the sanctioned plan issued by the defendant authority, very strangely the official os the defendant authority abruptly appeared near the schedule property during the second week of December 2015 and made vehement illegal threats to demolish portions of the schedule residential apartments building and also made threats to prevent the plaintiff from proceeding further with the construction work and thought he plaintiff prevented the officials of the defendant authority from causing any damage/interference to the schedule building by apprising them that the same is being built in accordance with the sanctioned plan without any deviation whatsoever, but considering this aburpt threat of damage/interference to the schedule building, posed by the defendant authority, that too without any prior notice to the plaintiff as per law, the plaintiff in all prudence caused a legal notice to the defendant authority on 10/12/2015 as per Section 482(1) of the Karnataka Municipal Corporation Act, 5 CT0028_O.S._1460_2016_Judgment_.doc .
1976, received by the defendant authority on 14/12/2015.
Plaintiff further submits that defendant authority again sent its officials near the schedule property on 17/2/2016 and made vehement threats of damage/interference to the suit building and this time it was a herculean task for the plaintiff to prevent the officials of the defendant authority from causing any damage/ interference to the schedule building.
The cause of action for the suit arose on 10/12/2015 when the plaintiff caused a legal notice to the defendant authority as per Section 482(1) of the KMC Act and again on 17/2/2016 when the officials of the defendant authority made threats of damage/interference to the schedule building for the second time in Bangalore within the jurisdiction of this Court. Hence this suit.
3. After the service of the summons, defendant appeared through his counsel and filed written statement.
6 CT0028_O.S._1460_2016_Judgment_.doc .
4. The main contentions of the written statement filed by defendant are as under:
Defendant contended that the suit is speculative, lacks bonafide, bereft of erits and the same requires to be rejected in limine. Further the averments made in para 2 and 3 of the plaint are not within the knowledge of this defendant and the plaintiff be put to strict proof of the same. It is further contended that the averments made in para 4 of the plaint t hat the plaintiff obtained the sanction plan from the defendant authority to construct a residential building consisting of basement, ground, first, second and third floor including the terrace floor are not disputed, the rest of the allegations are denied as false.
Defendant further denied the averments made in para 5 and 6 of the plaint as false and incorrect.
Defendant further contended that the after obtaining the sanctioned plan from the defendant, the plaintiff started construction of building without taking commencement certificate from the defendant 7 CT0028_O.S._1460_2016_Judgment_.doc .
authority before commencement of construction of building. While the defendant authority routine inspection it is noticed the plaintiff has violated the sanctioned plan has not left proper setback in all sides of the building. After observing the gross violation against the sanctioned plan, the defendant authority has taken action as per KMC Act and passed a provisional order under Section 321(1) of the KmC Act and also show cause notice under Section 321(2) of the KMC Act on 8/10/2015 and calling upon the plaintiff to remove the deviated construction and the same was served to the plaintiff personally on 13/10/2015 and through registered post. The actual deviations are mentioned in the provisional order. But the plaintiff did not comply with the provisional order and issued reply on 19/10/2015 and undertakes to remove the deviated construction and the same was received by the defendant authority on 20/10/2015. Therefore, the defendant has proceeded to pass the confirmation order under Section 321(3) of the KMC 8 CT0028_O.S._1460_2016_Judgment_.doc .
Act, 1976 on 13/11/2015 and the same was served to the plaintiff personally on 20/11/2015 and through registered post, again the plaintiff issued reply dated 24/11/2015 and undertake to remove the deviated construction and the same was received by the defendant authority on 24/11/2015. The plaintiff did not comply with the said notice, he has filed the suit by suppressing the real facts of service of the provisional order and confirmation order notices, and on this ground alone the suit may be dismissed.
Defendant further contended that the plaintiff has violated the provisions of KMC Act and by suppressing all the material facts before this Court and he has taken an exparte interim order against the defendant and continue the illegal constructions. The suit is not maintainable on the ground that the plaintiff has issued the notice as required under Section 482 (1) of KMC Act, 1976. There is no cause of action for the suit and the one alleged is neither true nor correct. Therefore, prayed to dismiss the suit. 9 CT0028_O.S._1460_2016_Judgment_.doc .
5. On the basis of the pleadings of the parties, the following issues were framed for consideration:
(1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the dae of the suit?
(2) Whether plaintiff proves the alleged interference by the defendant?
(3) Whether the defendant proves that the construction of the building is not as per the sanctioned plan issued by the BBMP?
(4) Whether plaintiff is entitled for the reliefs as sought for?
(5) What order or decree?
6. In order to prove the case, the plaintiff is examined as PW.1 and got marked 6 documents as per Ex.P1 to Ex.P6 and closed his side of evidence. On behalf of the defendant, neither it examined nor produced any documents on its behalf.
7. Heard both sides and perused the entire records of the case. The counsel for the plaintiff 10 CT0028_O.S._1460_2016_Judgment_.doc .
produced memo along with the documents as well as Building Byelaws of BBMP 2003. The defendant also produced citations in support of his case.
8. My findings on the above issues are as under:
Issue No. 1) ............In the affirmative; Issue No. 2) ............In the affirmative; Issue No. 3) ............In the negative; Issue No. 4) ............In the affirmative; Issue No. 5) ............As per final order for the following:
9. ISSUE NO.1 AND 2 : It is the specific case of the plaintiff that the suit schedule property came to the possession of the plaintiff by virtue of the registered sale deed dated 19/6/2000 and after the date of sale deed all the revenue records pertaining to the schedule property stands in the name of the plaintiff. For the purpose of construction of the residential apartment, the plaintiff obtained the necessary sanctioned plan from the defendant 11 CT0028_O.S._1460_2016_Judgment_.doc .
authority. Ex.P1 is the sale deed produced by the plaintiff which clearly shows that on 19/6/2000 the plaintiff purchased the properties from 17 sellers. The document is registered and after that katha certificate and katha extract which are marked as Ex.P2 and Ex.P3 clearly shows that the revenue documents pertaining to the schedule property stands in the name of the plaintiff. Even this matter is admitted by the defendant also.
10. For the purpose of construction of the house, the plaintiff obtained the sanctioned plan from the BBMP which is marked as Ex.P6. As per the sanctioned plan, the plaintiff started constructing building consisting of a basement, ground, first, second and third floor including the terrace floor. It is the case of the plaintiff that during the second week of December 2015 the defendants without any notice, came near the schedule property and made vehement threats to demolish the portion of the schedule 12 CT0028_O.S._1460_2016_Judgment_.doc .
property. In this regard, the plaintiff issued the notice to them on 10/11/2015 under Section 482(1) of the KMC Act which is received by them on 14/12/2015. Ex.P4 is the copy of the legal notice issued by the plaintiff in favour of the defendant and Ex.P5 is the acknowledgement for issuing the same. Even after this legal notices, the officials of the BBMP came near the schedule property on 17/2/2016 and made threats to demolish the same. One of the contentions taken by the defendant is that the suit schedule property is not constructed as per the sanctioned plan issued by the BBMP and there is a deviation. Though he contended that he has issued notice under Section 321(1) of KMC Act and also passed the orders under Section 321(3) of KMC Act with regard to the violation of the sanctioned plan, same are not produced by him. Even how much of violation has taken place in the schedule building is not explained by the defendant. No documents are produced by the defendant nor he led the evidence to show that the plaintiff has constructed 13 CT0028_O.S._1460_2016_Judgment_.doc .
the building in violation of the sanctioned plan. Even in the cross-examination of PW.1, nothing is elicited in order to show that plaintiff constructed the house in violation of the sanctioned plan. More than that, PW.1 clearly admits that he has not received notice from the Corporation for the violation of the sanctioned plan and also he has not received the confirmation order dated 13/11/2015 from the Corporation. More than that, PW.1 clearly admitted that in the December 2015, the defendant authority have trespassed into the schedule property interfered in the peaceful possession of the plaintiff and also made vehement threats to demolish the schedule property. Though defendant contended that since there is a violation of the sanctioned plan and whatever the visit or interference of the defendants to the schedule property are legal and as per the procedure established by law, same is not proved by him. No documents are produced by him to show that the interference made by the defendants to the schedule 14 CT0028_O.S._1460_2016_Judgment_.doc .
property are legal and only after issuing the notice under Section 321(1) and passing of the order under Section 321(3) of the KMC Act. Under the above circumstances, whatever the contentions taken by the defendant with regard to the construction of the houses without license and sanction are does not holds good. Further, though defendant contended that Corporation has the power to initiate action. The same is not correct, because without issuing the notice and without due process of the law, the defendant authority cannot initiate action against the plaintiff. Even after giving the suffiicient opportunities the defendant did not led any evidence nor produced any documents to show that the construction of the house by the plaintiff is in violation of the sanctioned plan issued by the BBMP. So, I am of the opinion that the suit schedule property is in the peaceful possession of the plaintiff and he is the lawful owner of the same and whatever the interference made by the defendant is without the authority of law. Under 15 CT0028_O.S._1460_2016_Judgment_.doc .
the above circumstances, I answer issue no.1 and 2 in the affirmative.
11. ISSUE NO.3: In the written statement of the defendant, he has contended that the construction of the residential apartment in the suit schedule property is in violation of the sanctioned plan. Further defendant contended that in this regard he has issued the notice under Section 321(1) of the KMC Act and for that notice the plaintiff has replied. Even defendant contended that he has issued the confirmation order dated 13/11/2015 and the same was served to the plaintiff. No documents are produced by the defendant to show that he has issued the above said notices to the plaintiff. Even in the cross-examination of PW.1, he has clearly stated that he has not received any notice from the Corporation for the violation of the sanctioned plan and also received the confirmation order from the said authority nor defendant led any evidence to show that 16 CT0028_O.S._1460_2016_Judgment_.doc .
the plaintiff has violated the sanctioned plan. In this regard, advocate for the plaintiff produced building byelaws of BBMP 2003 wherein clause 6 of the same clearly says that:
"wherever any construction is in violation or deviation of the sanctioned plan the Commissioner may if he considers that, that violations/deviations are within 5 per cent of (1) the set back to be provided around the building, (2) plot coverage (3) floor area ratio and (4) height of the building and that the demolition under the Chapter XV of the Act is not feasible without affecting structural stability, he may regularise such violations - deviations after recording detailed reasons for the same."
12. In the present instance, the defendant did not stated how much of deviation and violation of sanctioned plan is occurred in the suit schedule building. No explanation is given by him in this 17 CT0028_O.S._1460_2016_Judgment_.doc .
regard. Further, no documents are also produced to show that the plaintiff's building is not in accordance with Ex.P6. Even in the cross-examination of PW.1 this matter is elicited by the counsel. Under the above circumstances, I am of the opinion that the defendant has failed to prove that the plaintiff has violated the sanctioned plan while constructing the residential apartment. Accordingly, I answer issue no.3 in the negative.
13. ISSUE NO.4: The suit of the plaintiff is for permanent injunction against the defendant restraining him from demolishing the schedule property without the procedure established by law. Only after obtaining the sanctioned plan the plaintiff has constructed the building and from the above discussions, it is clear that he has not violated any sanctioned plan. More than that the defendant failed in proving the constructed building is not accordance with the building byelaws of the BBMP. Though the 18 CT0028_O.S._1460_2016_Judgment_.doc .
defendant has challenged the order of this court before the Hon'ble High Court of Karnataka in W.P.No.2882/2017 stating that the suit itself is bad for want of cause of action and in violation of the sanctioned plan, the Hon'ble High Court of Karnataka has clearly stated that whether the building constructed by the building is in accordance with law can be decided only after the full pledged trial and also the contention of the defendant that there is no cause of action is not correct. The Hon'ble High Court of Karnataka clearly held that the plaint can be rejected only on the basis of the plaint averments and not on the basis of the contentions raised in the written statement or in the application filed by the defendant. Hence, as per the orders of the Hon'ble High Court of Karnataka, it is clear that it is the duty cast on the defendant to prove the suit schedule building is not constructed as per the law. From the above discussions, it is very clear that the defendant has failed to prove issue no.3 which is in his favour. 19 CT0028_O.S._1460_2016_Judgment_.doc .
More than that from the discussions in issue no.1 and 2, it is clear that the plaintiff is the lawful owner of the schedule property as on the date of the suit and also the defendant without issuing the notice are trespassing into the schedule property in order to demolish the construction of building in the suit schedule property. If at all, the defendant continued in interfering with the work of the plaintiff, certainly the plaintiff will suffer irreparable loss which cannot be compensated in monetary terms. Therefore, it is necessary to restrain the defendant by the order of this court as claimed by the plaintiff. Accordingly, I answer issue no.4 in the affirmative.
14. ISSUE NO.5: From my above discussions and reasoning, the suit of the plaintiff deserves to be decreed. In the result, I pass the following:
The suit of the plaintiff is hereby decreed.
20 CT0028_O.S._1460_2016_Judgment_.doc .
The defendant, its agent, men or anybody under or through it are hereby restrained by way of permanent injunction from demolishing any portion of the schedule building or in any way interfering with the plaintiff's construction of the schedule building upon the schedule property.
Under the facts and circumstances of the case, there is no order as to costs. Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 7 th day of November 2019.] [PRASHANTHI.G] XXVII Additional City Civil Judge. BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 D. Govinda Reddy
2. List of witnesses examined on behalf of the Defendant/s:
NIL.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Certified copy of sale deed dated 19/06/2000 Ex.P2 Katha certificate Ex.P3 Katha extract 21 CT0028_O.S._1460_2016_Judgment_.doc .
Ex.P4 Office copy of legal notice dated 10/12/2015 Ex.P5 Postal acknowledgement Ex.P6 Certified copy of the sanctioned plan issued by BBMP
4. List of the documents marked for the defendants:
NIL.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
7/11/2019 P -RG D- KNM For Judgment...
............Judgement pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby decreed.
The defendant, its agent, men or anybody under or through it are hereby restrained by way of permanent injunction from demolishing any portion of the schedule building or in any way interfering with the plaintiff's construction of the schedule building upon the schedule property.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
2 CT0028_O.S._1460_2016_Judgment_.doc 3 .
2 CT0028_O.S._1460_2016_Judgment_.doc 4 .
fdfdf