Bangalore District Court
Veeranna Niranjan Foundation (R) vs Bangalore Mahanagara Palike on 17 July, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 17th day of July, 2015
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.10671/2005
PLAINTIFF : Veeranna Niranjan Foundation (R),
No.264, 19th Cross,
21st Main, Behind Maruthi Mandir,
Vijaynagar, Bangalore - 40.
Represented by Founder Trustee,
Sri K.Veeranna,
S/o Dodda Kenchappa,
Aged about 74 years,
R/at 'Rasmi', No.115,
6th Main, M.C.layout,
Behind Gayathri Hospital,
Vijaynagar, Bangalore - 40.
(By Sri H.Kantharaju, Advocate)
-Vs-
DEFENDANTS : 1. Bangalore Mahanagara Palike,
Represented by the Commissioner,
J.C.Road, Bangalore.
2. Karnataka Housing Board
(deleted)
3. Karnataka Housing Board Multi-storeyed,
Building Owner's Welfare Society,
Represented by the Secretary,
No.116, 5th Block, KHBMS Building,
18th, 19th 20th Cross,
21st Main, Vijaynagar,
Bangalore - 560 040.
2 O.S.No.10671/2005
4. H.S.R.Sharmma,
Aged about 60 years,
R/at No.97, 5th Block,
KHBMS Building,
19th Cross, 21st Main,
Behind Maruthi Mandira,
Vijaynagar, Bangalore - 560 040.
5. Subramannyam,
Aged about 60 years,
R/at No.112,
KHBMS Building,
19th Cross, 21st Main,
Behind Maruthi Mandira,
Vijaynagar, Bangalore - 560 040.
6. Smt.Andal,
Aged about 55 years,
KHBMS Building,
19th Cross, 21st Main,
Behind Maruthi Mandira,
Vijaynagar, Bangalore - 560 040.
(By Sri K.S.R., Advocate, for D.3 to 6)
Date of institution of the suit: 31.12.2005
Nature of the suit: Permanent Injunction
Date of commencement of 1.7.2011
recording of evidence:
17.07.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
16 06 09
JUDGMENT
This suit is filed by the plaintiff against defendant Nos.4 to 6 and their agents restraining them from putting up any 3 O.S.No.10671/2005 construction in 'B" schedule property and mandatory injunction against the defendants directing them to demolish the illegal and unauthorised construction, constructed over the 'B' schedule property 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 asserted by the plaintiff-Trust, represented by its Founder Trustee, that the plaintiff is the owner and in possession of corner site bearing No.264, situated in Vijaynagar, Bangalore, measuring East to West 12 meters and North to south 7.20 meters, described in the schedule 'A' to the plaint. The said site was purchased in the auction conducted by defendant No.2 on 7.12.1986 and it was with due process of law and complying with all the conditions of auction sale, by making payment of auction price, a sale deed dated was executed and registered on 21.3.2003, as he was the highest bidder in the auction held. Accordingly, khata certificate was issued and the plaintiff is paying the taxes and put up the permanent structure and took the telephone connection and power supply. It is running its administrative office of V.N.Foundation therein. Towards southern side of 4 O.S.No.10671/2005 'A' schedule property, there are apartments built up by defendant No.2 and defendant Nos.4 to 6 are residing in apartment No.97 in ground floor, apartment No.112 in first floor and apartment No.113 in second floor immediately behind 'A' schedule property. Behind the property of the plaintiff towards southern side totally 168 apartments are constructed in two rows and 'A' schedule property is facing towards East and another facing towards West. Defendant Nos.4 to 6 being residents of said apartments in the said floors are putting up construction in the rare portion towards west covering the passage left, which was kept open for free air and light around. Defendant Nos.4 to 6 are putting up construction in 3rd floor in collusion obtaining permission from defendant Nos.1 and 2. The portion of the passage in their rear portion of defendant Nos.4 to 6 apartments is described in 'B' schedule of the plaint. Defendant Nos.4 to 6 have no manner of right, title and interest over the suit schedule 'B' property for putting up construction and they are not at all owners of the schedule 'B' property. The construction is illegal and unauthorised and liable to be demolished. The Karnataka Housing Board has retained the 'B" schedule property. It has conveyed the houses built by it 5 O.S.No.10671/2005 to the allottees through a registered lease-cum-sale agreement. Under the lease-cum-sale agreement dated 27.10.1983 site No.97 was allotted to vendor Mariyappa of defendant No.4 and subsequently defendant No.4 has purchased house built on site No.97 measuring East to West 20 feet and North to South 22 feet, by keeping open common place of 14 feet and as such 'B' schedule property is of KHB open space and western boundary of house No.97 and it was kept open for free flow of air and light to all 168 apartments owners and for neighbouring houses. Defendant Nos.4 to 6 are undertaking unauthorised construction obstructing the plaintiff's right. Hence, it is being unauthorised construction is liable to be removed from 'B' schedule property, as they have rising pillars and they may put up roof at any moment. Noticing the same, the plaintiff given complaint dated 28.12.2005 to defendant Nos.1 and 2 to take necessary action against defendant Nos.4 to 6. Defendant No.1 having received the said complaint, had failed to take any action against illegal construction. Therefore for having obstructed flow of free air and light to the 'A' schedule property, he has constrained to file this suit and prayed to decree it. 6 O.S.No.10671/2005
3. On issuance of suit summons to the defendants after registering the case, defendant No.1 did not appear, hence he remained absent. Defendant No.2 has been deleted as per memo filed by the plaintiff on 2.1.2005. Defendant Nos.3 to 6 appeared through their counsel and filed the written statement.
In the written statement, defendant Nos.3 to 6 have specifically denied the material allegations of the plaint averments in connection with the alleged right of plaintiff to receive free flow of air and light through 'B' schedule property and the plaintiff is not the owner in possession of 'A' schedule property and that defendant Nos.3 to 6 are owners in possession of 'B' schedule property. The plaintiff-Trust was not in existence during the year 1986 to participate and bid the alleged auction held by KHB in respect of 'A' schedule property and in the year 1986 KHB was not the owner and having possessory right over 'A' schedule property. Defendant No.3 on its behalf and on behalf defendant No.4 to 6 filed the suit against the plaintiff in O.S.No.8215/2004, for declaration and consequential relief's and that suppressing the real state of affairs the present case has been filed by the plaintiff as a counter-blast to it. The claim of the plaintiff is referring the 7 O.S.No.10671/2005 registered sale deed dated 21.3.2003, but KHB had no title to 'A' schedule property during the year 1986-2003 to have the property auctioned and convey its title to the plaintiff. Defendant Nos.5 and 6 presently putting up the construction on the open space to the West of house Nos.97, 112 and 113. Defendant Nos.4 to 6 have possessory right and title over their respective flats, as owners and the plaintiff has not any right, title or interest in respect of the construction of these defendant Nos.4 to 6. They did not put up the construction on the 'A' Schedule property. 'A' schedule property located at a distance of 18 feet after the northern building wall of house Nos.97, 112 and 113 and it will not effect any construction undertaken by the defendants. 'A' schedule property is a vacant site and a temporary shed standing thereupon. It is a commercial site as per the Auction Notification issued by the KHB during the year 1986. Hence, the plaintiff has no right to question the construction undertaken by these defendants and it is not affecting any free flow of air and light to 'A' schedule property. Hence, prayed to dismiss the suit. 8 O.S.No.10671/2005
4. On the basis of the pleadings of the parties, the learned IX Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 2.3.2006.
1) Whether the plaintiff proves that the construction put up by defendant Nos.4 to 6 in the suit 'B' schedule property is an obstruction to the free flow of air and light to its suit 'A' schedule property, as pleaded in the plaint?
2) Whether the plaintiff proves that it is entitled for the grant of permanent and mandatory injunctions against the defendants, as sought for in the suit?
3) Whether the defendant Nos.4 to 6 prove that the suit is not maintainable in the present from as contended in the written statement?
4) To what decree or order?
5. To prove the case, the GPA holder of the plaintiff- Trust is examined as PW.1 and relied upon the documents at Exs.P.1 to P.19. On the other hand, the defendants though filed the written statement, but failed to adduce the evidence.
6. Heard the arguments of the learned counsels for the plaintiff and defendants.
7. Perused the pleadings of the parties, evidence and record on hand.
8. My findings on the above issues are as under: 9 O.S.No.10671/2005
Issue No.1 : In the negative;
Issue No.2 : In the negative;
Issue No.3 : In the affirmative;
Issue No.4 : As per final order;
for the following:
R E A S O N S
9. Issue Nos.1 to 3 :- Issue Nos.1 to 3 are interlinked with each other, based on similar oral and documentary evidence, hence, they are taken for common consideration. (Note: Though the plaintiff filed the amended plaint, has wrongly arrayed defendant No.3 as defendant No.2. However, the cause title of original plaint is sufficient for consideration of parties to the suit i.e. defendants and they are referred to as defendant Nos.1 to 6.)
10. Defendant No.1 is the statutory authority represented by the Commissioner. Defendant No.2 Karnataka Housing Board has been deleted. Defendant No.3 is Karnataka Housing Board Multi-storeyed Building Owner's Welfare Society, represented by its Secretary and defendant Nos.4 to 6 are the allottees of the flats by defendant No.3. The suit filed by the plaintiff is for permanent injunction restraining them from putting up any construction in the suit property and mandatory injunction against the defendants directing them to demolish the illegal and unauthorised construction, constructed thereupon and specifically described as 'B' 10 O.S.No.10671/2005 schedule property i.e. all that piece and parcel of the property rear portion of apartment Nos.97, 112 and 113 towards western side situated on Magadi Chord Road, Vijaynagar, Bangalore - T, measuring East to West : 16 feet, North to South 22 feet. The suit 'A' schedule property described is site bearing No.264, measuring East to West 12 meters and North to south 7.20 meters, belonging to the plaintiff. 'B' schedule property is rear portion of apartment Nos.97, 112 and 113 towards western side measuring East to West 16 feet and North to South 22 feet, owned by defendant Nos.4 to 6 respectively. Defendant No.1 is B.B.M.P. represented by the Municipal Authority i.e. the Commissioner, defendant No.2 was deleted, defendant No.3 referred to be the Karnataka Housing Board Multi-storeyed Building Owner's Welfare Society, who has allotted sites/apartments to defendant Nos.4 to 6, represented by its Secretary.
11. Reiterating the plaint averments, the GPA holder of the plaintiff-Trust himself has examined as P.W.1 and placed reliance on the documents at Ex.P.1, certified copy of Power of Attorney Executed by the plaintiff-Trust in favour of P.W.1, 11 O.S.No.10671/2005 since there is no serious dispute raised regarding the authorization of P.W.1. He has deposed that the suit 'A' property was purchased by the plaintiff-Trust as a highest bidder in the auction conducted by defendant No.2 on 7.12.1986 and the sale deed was executed in pursuance of the said auction sale on 21.3.2003 and he referred the sale deed at Ex.P.2 in this regard, as it was executed by defendant No.2 in respect of 'A' schedule property. These are supported by contents of Ex.P.2. Katha is standing in the name of plaintiff, which is referred at Ex.P.3, dated 28.10.2004. Ex.P.4 is a tax paid receipt dated 28.10.2004 for having paid the property tax in respect of schedule 'A' property from 1998-1999 to 2004-2005 and the payment made by the plaintiff-Trust.
12. Thus, referring it P.W.1 has specifically stated that the plaintiff-Trust is the absolute owner of schedule 'A' property by putting up the permanent structure thereupon, having telephone connection, power connection, sanitary connection and water supply etc. Ex.P.8 is the khata extract in respect of schedule 'A' property, standing in the name of plaintiff- Trust, dated 28.10.2004. For having taken electricity 12 O.S.No.10671/2005 connection water connection telephone connection etc. plaintiff relied upon power sanction letter dated 17.11.2004, electricity bill dated 19.7.2011, water charges/bill paid dated 25.2.2008, telephone connection bill 7.2.2008 and receipt dated 22.2.2008 are at Ex.P.P.9 to P.12 respectively. 5 photos pertaining to the suit property are at Ex.P.14 to P.18 and Ex.P.19 is the C.D. Ex.P.20 is the tax paid receipt, dated 28.10.2004. Ex.P.21 is the sanction plan, in respect of suit 'A' schedule property.
13. To the southern side of schedule 'A' property, defendant No.3 has built-up the apartments and defendant Nos.4 to 6 are residing in the apartments bearing No.97 on the ground floor (defendant No.4), No.112 on the first floor (defendant No.5) and No.113 on the second floor (defendant No.6). These apartments just abutting southern portion of schedule 'A' property. There is no dispute regarding the apartment ownership of defendant Nos.4 to 6 and there are 168 apartments constructed in 2 rows of apartments and which are behind schedule 'A' property. One is facing to the East and second is facing the West and opposite to each other. Defendant Nos.4 to 6 are residing in the said apartments of 13 O.S.No.10671/2005 respective floors There is no dispute regarding possession of respective apartments of defendant Nos.4 to 6. The plaintiff has pleaded and tried to brought on record through P.W.1 about the cause of action, who has stated that defendant Nos.4 to 6 are putting up the construction in the rear portion towards West covering the passage left while constructing apartments, blocking the air and light to be received by the plaintiff to his 'A' schedule property. The plaintiff therefore claimed free flow of air and light through the passage kept open in the said apartments.
14. It is contended by P.W.1 pressing the cause of action that defendant Nos.4 to 6 were putting up construction specifically in the 3rd floor in collusion with and obtaining permission from defendant Nos.1. Portion of passage in the rear portion of apartments of defendant Nos.4 to 6 got blocked and creating obstruction to the free flow of air and light. Defendant Nos.4 to 6 have no any legal right or title to utilize the said passage for putting up any unauthorized construction and thereby the plaintiff-Trust had constrained to file the suit. The other documents referred at Exs.P.5 and P.7 are the complaints submitted by the plaintiff-Trust to the 14 O.S.No.10671/2005 Commissioner, B.B.M.P.-defendant No.1 to take action against the unauthorized construction undertaken by the different flat owners and specifically reference is made in respect of schedule 'B' property stating the flat owners are not having any right over the open space. The flats are allotted to allottees by the KHB after construction and the ownership of open space around the building (apartment structure) is with the KHB since 1996. It is coming within the jurisdiction of BBMP. Contrary to the building bye-laws of Corporation, the construction is undertaken by the site owners i.e. Defendant Nos.4 to 6 and called upon them to take appropriate action and prevent the construction. Ex.P.6 is the receipt for having received the said complaint.
15. Defendant No.1 stood neutral to the case of plaintiff and defendant Nos.3 to 6 did not contest the case. But defendants 3 to 5 stated in their written statement that the plaintiff-Trust was not in existence during the year 1986 to participate and bid the alleged auction held by KHB in respect of 'A' schedule property and in the year 1986 KHB was not the owner and having possessory right over 'A' schedule property. Defendant No.3 on its behalf and on behalf 15 O.S.No.10671/2005 defendant No.4 to 6 filed the suit against the plaintiff in O.S.No.8215/2004, for declaration and consequential relief's and that suppressing the real state of affairs the present case has been filed by the plaintiff as a counter-blast to it. The claim of the plaintiff is referring the registered sale deed dated 21.3.2003, but KHB had no title to 'A' schedule property during the year 1986-2003 to have the property auctioned and convey its title to the plaintiff. Defendant Nos.5 and 6 presently putting up the construction on the open space to the West of house Nos.97, 112 and 113. Defendant Nos.4 to 6 have possessory right and title over their respective flats, as owners and the plaintiff has not any right, title or interest in respect of the construction of these defendant Nos.4 to 6. They did not put up the construction on the 'A' Schedule property. 'A' schedule property located at a distance of 18 feet after the northern building wall of house Nos.97, 112 and 113 and it will not effect any construction undertaken by the defendants. 'A' schedule property is a vacant site and a temporary shed standing thereupon. It is a commercial site as per the Auction Notification issued by the KHB during the year 1986. Hence, the plaintiff has no right to question the construction undertaken by these defendants 16 O.S.No.10671/2005 and it is not affecting any free flow of air and light to 'A' schedule property.
16. Thus, the defendants have specifically denied the plaintiff's status and title to 'A' schedule property which is not so serious, and that the defendants 3 to 6 stated about the suit filed by them in O.S.No.8215/2014. both the plaintiff and these defendants have suppressed the materials pertaining to the said suit about the matter in dispute and its result or the stage in which it was or is pending. So that court can adjudicate this matter effectively. Both plaintiff and these defendants, it seems that something they do not want to bring on record, for the reason best known to them. But such suppression itself fatal to the case of the plaintiff, as the plaintiff come to the court and it has to bring on record these materials relevant and necessary to adjudicate upon the matter in issue in this case. It is now settled aspect that plaintiff shall stand upon the case pleaded and to prove the material dispute raise, which is touching to the suit and suit property. But it shall not take shelter of weakness of defendants 1 and 3 to 6 stating that these defendants have not effectively contested. The suit and not substantiated their 17 O.S.No.10671/2005 alleged defence and hence the plaintiff's case to be believed and relief as argued for can be granted. So plaintiff has to prove its case with cogent and corroborative evidence, i.e. the alleged right to receive air and light to its property. So plaintiff has to prove its locus standi to file the suit, as its existence is challenged. Prima-facie material on record is the property extract, khata certificate etc. showing name of plaintiff as Trust having ownership over suit property. So the defendants 3 to 6 not being either members or beneficiary to that Trust, and that they did not claim any such relief touching to the said Trust. Hence, the defence challenging the status as it is not in existence as plaintiff Trust and it does not own the 'A' schedule property does not sustain. Even it is not suit for declaration of title. The sale deed and property records as referred above are evidencing the plaintiff's actual possession over 'A' schedule property as on the date of filing of the suit and for this suit for injunction, the possessory right if established, it is sufficient, but plaintiff's claim is easementary right as the __________________ over the property of defendants 3 to 6. So this court has to consider whether plaintiff has proceed prima-facie that such right accrued to the Trust.
18 O.S.No.10671/2005
17. As the defendants 3 to 6 stated that the alleged open space is 18' feet in width from their said apartment i.e. from their northern wall to the plaintiff's boundary i.e. southern line ('A' schedule property). The measurement of 'B' schedule property i.e. north to south as 22 feet id disputed. Though there is elaborated cross-examination of P.W.1, but nothing has been brought on record to disbelieve his version and the contents of said documents, in connection with the lawful possession of the plaintiff-Trust over the schedule 'A' property and the existence of open space in the apartment areas while described in schedule 'B' property. Even the nature of site of plaintiff is disputed that there exits only the temporary shed and entire site is vacant. Ex.P.21 is the proposed plan. The plaintiff's case is vague about building on 'A' schedule property. So, plaintiff not proved such building suffers from receiving free flow of air and light.
18. It is notable point that the very plaintiff has contended in the complaint submitted to B.B.M.P. at the earliest point of time that defendant Nos.3 to 6 have affected the alleged right to receive air and light to the property of the plaintiff-Trust and it is evident from the contents of Exs.P.5 to P.7, which are 19 O.S.No.10671/2005 much prior to filing of the suit. So, the plaintiff ought to have sought the relief of declaration that he has acquired the alleged easementary right to 'A' Schedule property. The required provisions are prevailing under the Specific Relief Act and also Easement Act. Without seeking the declaratory relief under Section 34 of Specific Relief Act, the suit itself is not maintainable as the denial of plaintiff's right to receive air and light. The plaintiff has pleaded in this connection stating cause of action for filing the suit that the defendant Nos.3 to 6 have interfered with the right to receive the air and light by putting up the construction on the 'B' schedule property. The main dispute is pertaining to the alleged open space in the property of defendant Nos.3 to 6 i.e. apartment building with open space. What is the total extent of area owned by defendant Nos.3 to 6 over the apartments and the common area beneath the apartment alleged to be kept open. Whether the open space belonged to defendant No.3 and defendant Nos.4 to 6 have no any right thereupon, are the material aspects and the plaintiff has to put forth the documents in this regard.
20 O.S.No.10671/2005
19. The plaintiff has described 'B' schedule property as open space and it is excluding the apartments in the entire building. It is ambiguous description of 'B' schedule property, as the plaintiff has not put forth the material documents pertaining to the 'B' schedule property and also the properties of defendant No.3, as its entirety and defendant Nos.4 to 6 in respect of their specific apartments and the open space to show the nature of properties acquired and owned by defendant Nos.3 to 6. There is no document showing the location of 'A' and 'B' schedule properties, at lest the rough sketch.
20. To the south of plaintiff's property the alleged open space 'B' schedule property is described as flats of defendant Nos.3 to 6. But, no material put forth in this connection that the specific location of entire property owned by defendant No.3 and apartments of defendant Nos.4 to 6 in particular in respect of their respective flats. Even the plaintiff has not produced any revenue records or sketch or plan pertaining to the property of defendant Nos.3 to 6 or certified copies of title deed of respective defendant Nos.3 to 6 to explain and describe their respective properties specifically the B' schedule property 21 O.S.No.10671/2005 alleged to be kept as open space and that it has to be for enjoyment of plaintiff to receive air and light, thereby the plaintiff has acquired right to receive the air and light through B' schedule property, beneficial use and enjoyment of his 'A' schedule property.
21. Thus the material documents and evidence has been suppressed by the plaintiff. Which goes against the plaintiff. It create doubt about bonafides, whether the plaintiff has come to the court with clean hands to protect the alleged right to receive air and light under a suit for mere injunction. Prima-facie at the earliest point of time the plaintiff has to show the property proper description of defendant's property. Even it has not produced any sketch, for the clarity, how these properties adjoining to each other and location for its identification. Therefore in the absence such materials and evidence and also in the absence of seeking declaratory relief, it is difficult to believe that there was evasion of plaintiff's alleged right. The plaintiff for this reason has not come to the court with clean hands and failed to establish the alleged right to receive air and light to its property as asserted. 22 O.S.No.10671/2005
22. Even the documents referred by the plaintiff i.e. the sale deed Ex.P.2 and the plan at Ex.P.21 pertaining to the suit 'A' schedule property which are not disclosing any picture of defendant Nos.3 to 6 adjoining to the plaintiff's property to the southern side, as described in the 'B' schedule property to the plaint. The sale deed refers only the property purchased by the plaintiff showing the location of property belonging to defendant No.3 to the southern side (schedule of Ex.P.2). But there is no any specific mention about the existence of open space as described in 'B' schedule property to the plaint. Ex.P.21 the approved plan in respect of 'A' schedule property, if it is perused, there is reference regarding the location of roads to the east, north, west and to the sough property. But there is no description regarding the existence of 'B' schedule property i.e. open space to the southern side of plaintiff's property. Apart from this, to the southern side the plaintiff has to leave set back of 1 meter which goes to approximately 3 feet distance from the southern boundary line to the proposed construction. The disputed open space 'B' schedule property described is East to West 20 feet and North to South 22 feet and this very claim of plaintiff to receive air and light, inspite of having 1 meter space in 'A' schedule property is not a 23 O.S.No.10671/2005 bonafide claim and abnormal things are claimed. So on this count also it is apparent that the plaintiff does not come to the court with clean hands. In the title deed Ex.P.2 there is no grant of easementary right. So, plaintiff did not acquire the alleged easementary right by virtue of Ex.P.2. It is not the case that it has acquires easementary right by prescription. Nor it has proved it with cogent evidence as the shed put up by it is not abutting to 'B' schedule property, and there was obstruction to receive air and light.
23. Thus, with reference to the civil right accrued to the plaintiff under Law of Easement i.e. to receive free flow of air and light to enjoy 'A' schedule property, the plaintiff has utterly failed to prove with cogent evidence in this connection that it has acquired such right under any title deeds either through its own sale deed Ex.P.2 or of the defendant Nos.3 to
6. Even it has failed to seek declaratory relief regarding the right to receive air and light by way of prescription. Therefore, what remains now is the alleged the unauthorized construction and claim of alleged injunction against defendant Nos.4 to 6, as the plaintiff has made cause of action for filing this suit.
24 O.S.No.10671/2005
24. As discussed above, there is no material to show the alleged area kept open for the beneficial use and enjoyment of 'A' schedule property by receiving free flow of air and light or it is provided under any of the title deeds.
25. Therefore, the allegation about construction pleaded, is certainly coming within the purview of the subject matters to be dealt with by B.B.M.P. Municipal Authority established under KMC Act, under the specific provision provided thereunder i.e. Section 321. If there is any unauthorized construction then the course open to the plaintiff is to approach the competent authority established under KMC Act, specifically defendant No.1. Instead of doing so the plaintiff has approached the court of law, without there being any materials to substantiate about the alleged right existing and that it has been infringed by defendant Nos.3 to 5 and hence the right to sue accrued to it to file a suit seeking the bare injunction. Without seeking declaratory relief, suit is not maintainable. The dispute pertaining to unauthorized construction falls within the purview of KMC Act, the plaintiff has to approach the Corporation/forum specifically the municipal authority under specific provision of law, to get the 25 O.S.No.10671/2005 unauthorized construction, if any, to be removed. On the other hand, defendant No.1 has to proceed with the objections so raised against the alleged unauthorized construction of defendant Nos.4 to 6 over the 'B' schedule property and if it is in violation of building bye-law and the permission etc., then it has to take appropriate action, even to remove the unauthorized construction. The statute KMC Act which is proved and conferred the power to exercise and to perform the duty as contemplates under Sections 321, of the Act and certainly defendant No.1 will take the appropriate action, if the plaintiff approaches the defendant No.1 with due process of law. Hence, on this count also, the plaintiff is not entitled for the relief bare injunction against the defendants.
26. Even there is no emergency pleaded. The facts and circumstances of the case, as discussed above, it des not even indicate that there was emergency and it was duly urged. So under such present situation, as discussed above, it is the plaintiff ought to have proceeded against defendant No.1, only after issuance of notice as required under Section 282 of KMC Act. Instead of doing so straight away it has approached the civil court. Even it is evident that without exhausting the 26 O.S.No.10671/2005 remedy before appropriate forum and absence of notice to the competent authority of BBMP, the suit itself is premature, as against defendant No.1 and suit itself is not tenable. However over all consideration of facts and circumstances of the case, having regard to the evidence put forth by the plaintiff, it is clear that the plaintiff has failed to prove the alleged obstruction of his right to receive air and light to its property.
27. At this juncture whether decisions relied upon by the learned counsel for the plaintiff would come to the aid of the plaintiff is the matter now for consideration. The decision reported in AIR 2004 NOC 12 (ALL.), in the case of Ram Narain Vs Mirza Mohammad Hasnain and another, wherein it is held that:
Specific Relief Act (47 of 1963), S.41 - suit for demolition of construction and possession - Raising of unauthorized construction by defendant on land in question - plaintiff respondent had objected to it in very beginning even when foundation for raising new construction by defendant was being dug - Therefore it cannot be said that plaintiffs had acquiesced to constructions in question - Fact that defendant had neither any right nor title in land in dispute - concurrent finds given by lower courts as to right,. Title and ownership of plaintiff- Not liable to be disturbed - Further suit in question filed within five years from raising of constructions- Not barred by limitation - Order of trial court decreeing suit, confirmed by first appellate court proper.27 O.S.No.10671/2005
Further, he has relied upon the decision reported in AIR AIR 2000 BOMBAY 444, in the case of Smt.Fatima Joao, Village Panchayat of Merces and another, wherein it is held that:
Specific Relief Act (47 of 1963), S.38 - Suit for perpetual injunction - Maintainability - Municipal laws of Building - violation, of by neighbour affecting plaintiff's right to light, air etc - Would furnish cause of action to plaintiff- Civil suit for perpetual injunction by plaintiff; against such infraction - Is maintainable.
Further, he has relied upon the decision reported in AIR AIR 1972 Patna, in the case of Sarab Lall Jha and another Vs Ucheshwar Jha and others, wherein it is held that:
Specific Relief Act (47 of 1963), S.38 - Plaintiff establishing his legal right of easement and the fact of its disturbance - Plaintiff is entitled to a permanent injunction without proof of substantial damage, to avoid multiplicity of proceedings.
Further, he has relied upon the decision reported in AIR AIR 2000 BOMBAY 444, in the case of Smt.Fatima Joao, Village Panchayat of Merces and another, wherein it is held that:
Specific Relief Act (47 of 1963), S.38 - Suit for perpetual injunction - Maintainability - Municipal laws of Building - violation, of by neighbour affecting plaintiff's right to light, air etc - Would furnish cause of action to plaintiff- Civil suit for perpetual injunction by plaintiff; against such infraction - Is maintainable.28 O.S.No.10671/2005
Further, he has relied upon the decision reported in AIR AIR 2004 Andhra Pradesh, in the case of Smt.Samdani Begum Vs Dir Mohammed Khan, wherein it is held that:
Easements Act (5 of 1882), S.28- Easementary rights of air and light - Deprivation - Plaintiff and defendant's houses were adjacent to each other - finding of fact recorded by trial court that extension of balcony in first floor by defendant deprived easemetnary rights of air and light to house of plaintiff- defendant wouldn't be entitled to take advantage of interlocutory orders passed by court in miscellaneous application or in application for grant of police aid - Fact that unauthorized construction of defendant was subsequently regularized would not in any way alter the situation - Plaintiff would be entitled to mandatory injunction directing removal of portion of balcony.
28. Therefore, in view of the above discussion, the plaintiff has failed to prove that the construction put up by defendant Nos.4 to 5 in the 'B" schedule property is the obstruction to the free flow of air and light to the schedule 'A property. Hence for the above reason the plaintiff is not entitled for grant of permanent and mandatory injunctions. Therefore, the defendants disputed that the suit is not maintainable in the present form, as the plaintiff has to seek declaratory relief. Hence very suit for injunction is not maintainable. However it is left open for the plaintiff to approach the appropriate forum i.e. BBMP defendant No.1 to get the unauthorized constriction, 29 O.S.No.10671/2005 if any, undertaken by defendant Nos.4 to 5 over the 'B' schedule property with due process of law and defendant No.1 has consider the same as dealt with under provisions of KMC Act. Hence, these issue Nos.1 and 2 are answered in negative and issue no.3 in the affirmative.
29. Issue No.4:- In view of the above discussion and conclusion arrived at, it is proceeded to pass the following;
O R D E R The Suit of the plaintiff is hereby dismissed. However the plaintiff is at liberty to proceed before defendant No.1 BBMP against defendant Nos.4 to 6 if there is any unauthorised construction in violation of building byelaws and building plan, to get it removed with due process of law and defendant No.1 has to follow the due procedure while considering the requisition of plaintiff if submitted in accordance with law.
Parties are directed to bear their own costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then signed and pronounced by me in the open court on this the 17th day of July2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
30 O.S.No.10671/2005ANNEXURE List of the witnesses examined for the plaintiff:
P.W.1 Niranjan V.K. List of the documents marked for the plaintiff:
Ex.P.1 GPA. Ex.P.2 Sale deed Ex.P.3 Khata certificate Ex.P.4 Tax paid receipt Ex.P.5 Complaint submitted to BBMP Ex.P.7 Acknowledgment issued by BBMP Ex.P.8 Complaint submitted to BBMP Ex.P.9 Notification Ex.P.10 Electricity bill Ex.P.11 Water bill Ex.P.12 Telephone bill Ex.P.13 Receipt Ex.P.14 to P.18 photos Ex.P.19 C.D.
List of the witnesses examined for the defendants: Nil List of the documents marked for the defendants: Nil LII Addl. City Civil & Sessions Judge, Bengaluru.