Bangalore District Court
Vasudevan P vs The Commissioner on 24 June, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 24th day of June, 2015
PRESENT: Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.4110/2014
PLAINTIFF : Vasudevan P.,
Aged about 62 years,
S/o late Padavittan,
R/at No.18, Khata No.22,
'F' Street, Keshavanagar 1st
Cross, Magadi Road,
Bangalore - 560 023.
(By Sri Chikkavenkataiah, Advocate)
-Vs-
DEFENDANTS : 1. The Commissioner,
Bhruhath Bangalore Mahanagara Palike,
Corporation Building, N.R.Square,
Bangalore - 560 002.
2. The Assistant Executive Engineer,
Bruhat Bangalore Mahanagara Palike,
Corporation Building, N.R.Square,
Bangalore - 560 002.
(By Sri N.R.J., Advocate,)
Date of institution of the suit: 4.6.2014
Nature of the suit: Mandatory Injunction
Date of commencement of
recording of evidence: 10.3.2015
Date on which Judgment was
pronounced: 24.06.2015
2 O.S.No.4110/2014
Duration:
Days Months Years
20 00 01
JUDGMENT
This suit is filed by the plaintiff for mandatory injunction directing defendant Nos.1 and 2 to remove the unauthorised construction put up by an unauthorised person in 'F' street shown in suit schedule property i.e. public road to an extent of 20' feet and to award costs and damagers 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. Brief facts of the case are that the plaintiff is the absolute owner of the house property bearing No.18, situated at "F" Street, Keshavanagar, I Cross, Magadi Road, Bangalore
- 560 023 and described it in the schedule to the plaint and that there is "F" street adjoining to his property and it is a public road. He has purchased it under the registered sale deed dated 31.7.1996 and the same was executed before the Sub-Registrar, Srirampuram, Bangalore. There was discrepancy in the schedule and the Rectification deed was executed on 2.7.2007. Thereby he became the absolute 3 O.S.No.4110/2014 owner of the suit schedule property purchased under the sale deed. The plaintiff after construction of the building is residing therein. A person by name Anniyappan put up an unauthorized temporary hut in the "F" Street attached to Binny Mill, for which, the plaintiff has brought to the notice of defendant Nos.1 and 2, for which the defendants have promised to and assured to remove the unauthorized hut. But the defendants have not taken any action against the complaints lodged by the plaintiff. Even the complaint was lodged before the police. The police authorities issued an endorsement stating that it is a civil dispute and directed the plaintiff to approach the jurisdictional civil court for appropriate relief. The construction on the said "F" street was caused inconvenience and hardship to the plaintiff as he has use it for ingress and egress to his property, as he has no alternative way to approach the schedule property and he has facing lot of difficulties due to the inaction of the concerned authorities and they failed to take any appropriate action. Hence, the plaintiff has constrained to file the suit and prayed to decree it as prayed for.
4 O.S.No.4110/2014
3. On issuance of suit summons to the defendants after registering the case, defendants appeared through their counsel, but the defendants have not filed any written statement. Hence, the case was posted for evidence of plaintiffs. The plaintiff deposed as P.W.1 and the plaintiff has relied upon the documents which are marked at Exs.P.1 to P.22. The defendant has not adduced any evidence nor cross-examined P.W.1. The defendants have placed reliance on Exs.D.1 to D.5 during the cross-examination of PW.1.
4. The points formulated for consideration of this Court are as follows:
1) Whether the plaintiff proves that he has right to use the "F Street shown in the schedule?
2) Whether the plaintiff proves that there is obstruction by putting up construction on the "F" Street and that he can entertain the suit in the absence of the alleged obstructer?
3) Whether the plaintiff has made out the grounds to maintain the suit under proviso to Section 482 of KMC Act?
4) Whether the plaintiff is entitled for the relief as prayed for?
5) What order and decree?
5. My findings on the above points are as under:5 O.S.No.4110/2014
Point No.1 : Does not survive for consideration. Point No.2 : Does not survive for consideration. Point No.3 : In the Negative.
Point No.4 : In the Negative.
Point No.5 : As per the final order, for the following:
R E A S O N S
6. Points No.1 to 4:- Since these three points are interlinked with each other. They require common discussion. Hence they are taken together for common consideration to avoid repetition of facts and circumstances of the case.
7. The plaintiff has asserted his lawful possession over the suit property bearing Sy.No.18, situated at 'F' Street, Keshavanagar, I Cross, Magadi Road, Bangalore, totally measuring East to West - North side 25'9" and South side 30' North to South-East side 27' and West side 28' 3" and bounded on East by - Binny Mill property, West by - Property No.87, North by "F" Street and South by - conservancy Galli.
He has purchased it under a registered sale deed dated 31.7.1996 (Ex.P.1), which was executed by the Deputy Commissioner (West) B.B.M.P., in the office of the Sub- Registrar, Srirampuram, Bangalore, vide Regd. Document No.1884/96 -97 in Book No.I, Vol.1366 and there was 6 O.S.No.4110/2014 discrepancy in the schedule and hence a Rectification Deed dated 2.7.2007 (Ex.P.2), has been executed by the Joint Commissioner, BBMP and registered the same as document No.1230/07-08, in the office of the Sub-Registrar, Srirampuram, Bangalore. His name is registered in the revenue records and for having paid the tax in connection with the same property purchased by him. In this connection the khatha extract is at Ex.P.3 and tax paid receipts is at Ex.P.4. He has referred the Air force and defence identity cards belonging to him, they are Exs.P.21 and P.22.
8. To rebut the evidence of plaintiff, the defendants have not cross-examined PW.1. They failed to step into the witness box. Apart from this, they have not filed written statement contesting the suit of the plaintiff. Thus from this conduct of the defendants, it is revealed that they are not having any defence as against them. The dispute is unauthorized construction put up by alleged person one Annappa, on the said public street called "F" street, which is lying on the north of his property. Therefore, much discussion is not necessary with reference to the plaintiff's lawful possession over the suit property purchased by him of 7 O.S.No.4110/2014 his own. The facts reveal under the said Exs.P.1 and 2 specifically the existence of 'F' street is on the north of his property. It is pertinent to note that the defendants, though they have not filed the written statement but, during cross- examination of P.W.1 they have referred the sketch at Ex.D.1, which is not seriously disputed by the plaintiff, except stating that the unauthorized construction was put up on "F" street.
9. With reference to the inconvenience caused due to the unauthorized construction over the said public road, he has made representations to B.B.M.P. and he has stated that he made an application to remove the unauthorized construction by lodging the complaint before the police. He has stated that the police directed him to approach the court seeking appropriate relief. The efforts made by the plaintiff are supported by Exs.P.5 to P.7. These representations are made by the plaintiff on 22-09-2008, 28-04-2009, to defendant No1. They are evidencing that the plaintiff has submitted his complaint that there was unauthorized construction made by one Anniyappa and that it is creating obstacle and inconvenience to use the suit 'F' street and to 8 O.S.No.4110/2014 reach his property. He has specifically contended in Ex.P.7, making allegation against said Anniyappa, which reads thus:
"Now, he is picking up quarrels every now and then and threatening to do anything to me and my family members regarding the issue of dumping dairies and blocking of my complete movements in the said 'F' street. He has taken law by his rowdy activities and cutting the clothes wire in front of my house which was kept for drying the cloths. He is not allowing me to move the 'F' street as he had erected the unauthorized structure very closed to my house and thus the movements in the said 'F' street have completely blocked.
I have made my request before the Hon'ble Deputy commissioner, as cited in the reference and also the matter was made to the knowledge of the concerned immediate authorities, but action has been taken as on date, which delay caused and causing more damages and hindrance and interruption to me due to the unlawful activities of the said Mr.Anniyappa".
10. Thus he has the grievance against said Anniyappa stating that, by putting construction on 'F' street, he has creating obstruction to use the public road and that except said street he has no other way to have an entry to his property and to enjoy his property. But the said person Anniyappa is not party to the suite and that the plaintiff has not sought any relief of declaration. In this connection the learned council for the defendants argued that suite itself is not maintainable, as the plaintiff has failed to seek appropriate relief and he has not filed the suit against the 9 O.S.No.4110/2014 appropriate person i.e. Anniyappa. Nor he has stated about his effort to take action against the said Anniyappa. Ex.P.8 is the letter 26-03-2014 of Joint Director of City Planning, Bangalore Metropolitan Task Force, Bangalore, addressing to the plaintiff, has stated that said office has no jurisdiction to conduct enquiry about private property, on the allegation of unauthorized construction and that plaintiff may proceed before BBMP, with reference to the alleged unauthorized construction as complained of by the plaintiff. Exs.P.9 to P.15 are postal acknowledgements, pertaining to the representations issued to the defendants. On different occasions Exs.P.16 to P.20 are the set of five postal receipts, of the said notices /representations.
11. The endorsement of the Police Inspector, K.P. Aghrahar police station (Dated-19-05-2009) is against the complaint of the plaintiff 4-02-2009 and he directed him to approach the civil court, to get the appropriate relief. The plaintiff has not got it marked, but has stated in this regard. It has not been rebutted by these defendants.
12. The allotted property to plaintiff under sale deed Ex.P.1, was not free from undisputed identification. But it 10 O.S.No.4110/2014 was duly rectified under Ex.P.2. It is also made it clear in the form of admission by the defendants by putting suggestion and referring the very sketch and report of defendants authorized person, who has prepared it and the deed was duly rectified as per Ex.P.2. The suggestion reads thus:
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13. Thus plaintiff's property location of 'F' street as pleaded by the plaintiff i.e. north of his property and the plaintiff's property being land locked, having only an access road i.e. 'F' Street to the north of his property and the said road is nobody's private property, much less the said Annappa. So the plaintiff has approached the defendants to 11 O.S.No.4110/2014 get the unauthorized construction removed on the public street. The defendants under the statute take up the necessary process as known to law, i.e. K.M.C.Act. But he cannot seek injunctory relief without seeking declaratory relief and against the person, who is said to be infringed his right to use the 'F' street. The defendants are not infringers of plaintiff's right. But they have to take appropriate steps against the said Anniyappa and if it is found as unauthorized construction then it has to be proceeded to remove the same with due process of law. For these reasons, the plaintiff has not come to the court with due compliance of the required provisions and without filing suit against the infringer of his right to enjoy the said street. This suit is under Specific Relief Act. Right to sue accrued to the plaintiff is against the infringer of his right to use the suit 'F' Street. The infringer is the said person Annappa and relief of injunction is available against the said Annappa. But without filing suit against him, the present suit mere injunction seeking direction against the defendants the statutory authorities, to take action against the unauthorized construction on the 'F' Street and it is not as against the said Annappa, and hence the suit is not maintainable, without due compliance under the law. 12 O.S.No.4110/2014 The defendants are governed by Special Act i.e. K.M.C. Act. The plaintiff has approached the authority i.e. defendants seeking efficacious remedy to get the obstacle alleged to be put up by said Annappa, removed. But he has not complied with the statutory requirement, prior to filing of the suit against the defendants in connection with filing of the suit in case the defendants did not take appropriate action against the unauthorized construction of 'F' Street by the alleged Annappa, by issuing statutory notice.
14. The specific applicable provisions are now considered and they read as follows:
Section 285. Prohibition against obstructions in streets. - No one shall build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street or any public place the control of which is vested in the Corporation expect as hereinafter provided.
Section 287. Removal of encroachment- 1) The Commissioner may, by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar or ground floor window) situated against or in front of such premises and in or over any street or any public place the control of which is vested in the corporation.
2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a prescriptive title (or where such period is less than thirty years, for a period of thirty years), or that it was erected with the consent of any municipal authority duly empowered in that behalf, and that the period, if any, for which the consent is valid has not expired, the corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.13 O.S.No.4110/2014
But Section 482 reads thus:
Institution of suits against municipal authority, officers and agents- 1) No suit (xxx) shall be instituted against the Corporation or any municipal authority, Corporation Officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution, or intended execution of this Act or any rule, bye- law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye-law, regulation or order made under it until the expiration of after a noticed has been delivered or left at the Corporation office or at the place of abode of such officer, servant or person, stating the cause of action, the relief south, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
(1-A) A suit to obtain an urgent or immediate relief against the Corporation or any municipal authority, Corporation Officer or servant in respect of any act done or purporting to be done by such officer or servant in his official capacity, may be instituted with the leave of the Court, without serving any notice as required by sub-section (1), but the Court shall not grant relief in the suit, whether interim or otherwise except after giving to the Corporation Officer or servant, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
2) Every such suit shall be commenced, within six months after the date on which the cause of action arose or in case of a continuing injury or damage during such continuance or within six months after the ceasing thereof.
From this, it is no doubt, conferring the right to the plaintiff to seek relief against the defendants B.B.M.P., but it shall be subject to compliance under Section 482 of KMC Act, and against the necessary party also.
15. It is important to note that the plaintiff by filing I.A.II filed under Section 482 of KMC Act, has sought 14 O.S.No.4110/2014 permission to file the suit by dispensing the statutory notice. However the case is registered and the then my learned Predecessor in Officer holding that "learned counsel for the plaintiff files I.A.II under Section 482 of KMC Act 1976 r/w.S.151, CPC. I have perused the plaint papers and contents of I.A.II, accordingly, order to issue SS and notice of I.A.II against the defendant Nos.1 and 2....," etc., has not considered, this I.A.No.2, which was under consideration. But defendant did not file objections and also written statement. Meanwhile the plaintiff chooses to lead evidence. Thus, it is clear that the plaintiff did not issue notice under Section 482 of KMC Act, prior to filing of suit. However, filed the application I.A.II for dispensation. Therefore, this I.A.II has been considered simultaneously with this suit on the ground of statutory requirement, and maintainability of the suit.
16. Now, question is whether the plaintiff has made out any grounds to file suit without statutory notice. First of all, it is relevant to consider that the conduct of plaintiff is revealed from record, assisted by his learned counsel. Because, the plaintiff has made out the cause of action alleging that the said Annappa had put up the illegal construction on 'F' Street, obstructed his beneficial use and 15 O.S.No.4110/2014 enjoyment of his property by using the said public street and it was firstly in the year 2008 and referred the alleged notice issued to the defendants as per Ex.P.6 and thereafter again he refers the notice issued to the defendants in that regard in the year 2009, as per Ex.P.7 and these both notices are calling upon the defendants to take necessary action to remove the unauthorized construction on the 'F' street.
17. Sub-clause (2) of section 482 contemplates that suit shall be commenced within 6 months after the date on which cause of action arose, etc., and thus the plaintiff has to invoke the right to sue before the court of law, within 6 months from the date of the alleged cause of action. But in the present case on two occasions, Exs.P.6 & P.7, the plaintiff has not availed the right to sue against the defendants, after the lapse of 2 months statutory period and by filing the suit within 6 months after the date on which the cause of action arose. Thus since from the year 2008, the plaintiff has been alleging about the illegal construction and making efforts before the BBMP Authority seeking remedy to take action against the unauthorized obstruction on the public road and now without issuing statutory notice of 60 days as required 16 O.S.No.4110/2014 under section 482(1) of the Act, the present suit is filed without making the infringer as party to the suit. Hence it cannot be believed that, the plaintiff has made out an urgent or immediate relief to be obtained against the Corporation i.e., defendants and thereby the plaintiff has failed to satisfy this court, in this regard and there is no any urgency or immediate relief for dispensation of notice and to permit the plaintiff to file the suit against the defendant Corporation. Therefore, the proviso to section 482(1) has made it clear about the mandatory requirement to be complied with and plaint shall be returned for its presentation after due compliance as per the requirements of sub-section (1) of section 482 of the Act.
18. Hence without going to the merits of the case, at this stage, the plaint shall have to be returned for proper compliance i.e., for issuance of statutory notice under section 482(1) of KMC Act.
19. Apart from this, the plaintiff has to avail the remedy first before the statutory authority as against the said person to get the obstruction put up by him, to be removed. If within the statutory period if it has not been complied with 17 O.S.No.4110/2014 by BBMP with due process of law, with appropriate relief can be sought for by filing suit against the person alleged to be infringed the right of the plaintiff to enjoy the public street, free from obstruction. Thus the plaintiff can present the suit as required under section 482(1) of KMC Act, if there is no response and with due process of law and seek appropriate relief against all the necessary parties as discussed above, if there accrues right to sue after statutory compliance. So, in view of the statutory fiction, the plaintiff cannot maintain this suit. However as per proviso to section 482(1) of KMC Act, plaint shall have to be returned, for presentation, after compliance with the requirements of section 482(1) of KMC Act. Hence, at this stage, order cannot be passed granting any relief as prayed for, except to return the plaint. Hence, Points No.1 & 2 are answered accordingly as they do not survive for consideration and Points No.3 & 4 are answered in the 'Negative'.
20. Point No.5:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby disposed of.18 O.S.No.4110/2014
In the result, the plaint is hereby returned to the plaintiff for its presentation after compliance of statutory notice as required under section 482(1) of KMC Act, if the right to sue accrues, with due process of law.
Parties are directed to bear their own costs.
Draw up the decree accordingly.
(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 June 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 Vasudevan P List of the documents marked for the plaintiff:
Ex.P.1 Sale deed.
Ex.P.2 Rectification Deed.
Ex.P.3 Khatha extract.
Ex.P.4 Tax paid receipt.
Ex.P.5 to P.7 Representations given to B.B.M.P.
Ex.P.8 Letter received from Joint Director.
Ex.P.9 to P.15 Postal acknowledgments.
Ex.P.16 to P.20 Postal receipts.
Ex.P.21 & P.22 Identity cards issued by Air Force &
Defence.
List of the witnesses examined for the defendants:
- Nil -19 O.S.No.4110/2014
List of the documents marked for the defendants:
Ex.D.1 Xerox copy of Sketch.
Exs.D.2 to D.5 4 photos.
(Yadav Vanamala Anandrao)
LII Addl. City Civil & Sessions Judge,
Bengaluru.
20 O.S.No.4110/2014
Judgment pronounced in the open Court
(vide separately)
ORDER
Suit of the plaintiff, is hereby disposed of. In the result, the plaint is hereby returned to the plaintiff for its presentation after compliance of statutory notice as required under section 482(1) of KMC Act, if the right to sue accrues, with due process of law.
Parties are directed to bear their own costs. Draw up the decree accordingly.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
In view of the judgment passed in this case, returning the plaint for proper compliance of statutory notice as required under section 482(1) of KMC Act, I.A.No.II filed by the plaintiff seeking dispensation of statutory notice, is hereby dismissed.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.21 O.S.No.4110/2014
22 O.S.No.4110/2014