Bangalore District Court
Smt. Rangamma vs The Commissioner on 30 November, 2016
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 30th day of November, 2016
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
: O.S. NO. 4039/2014:
PLAINTIFF : Smt. Rangamma,
W/o. Late B.V. Thimmappa,
Aged about 75 years,
Residing at No.12, Laxmi Road,
6th Cross, Shanthi Nagar,
Bangalore - 560 027.
(By Sri. Prasad Hiremath, Advocate)
-V/S-
DEFENDANTS : 1. The Commissioner,
Bangalore City Corporation,
Bangalore - 560 001.
2. Janardhana,
S/o. Late Mohan Singh.
3. Shankar,
S/o. Late Mohan Singh.
4. Ram Singh,
S/o. Late Laxman Singh.
Respondents No.2 to 4 are
residing at No.12/1,
Balaji Nivas, 6th Cross,
Laxmi Road, Shanthi Nagar,
Bangalore - 560 027.
(By Sri. KVM, Advocate, for D-1)
(By Sri. SS, Advocate, for D-4)
2 O.S.No.4039/2014
(Defendants' No.2 & 3 placed exparte)
Date of institution of the suit: 06.06.2014
Nature of the suit:
Declaration & Injunction
Date of commencement of 11.12.2014
recording of evidence:
30.011.2016
Date on which Judgment was
pronounced:
Duration:
Days Months Years
24 05 02
: JUDGMENT :
This suit is filed by the plaintiff against the defendants for seeking declaration with the sanctioned plan dated 05.06.2000, is an anti-dated and issued in the name of 4th defendant during the pendency of suit in O.S.No.6269/1993 and contrary to bye-law and its illegal and without any authority of law and the construction made in the setback area of site No.12/1 constructed by defendants No.2 to 4 as illegal and through the said property for the purpose of business is also illegal and the direction to the 1st defendant to remove illegal construction put up by defendants No.2 to 4 shown in the schedule map by issuing mandatory injunction and such other reliefs with costs.
3 O.S.No.4039/2014(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 owner in possession of residential building Corporation bearing No.12, 6th Cross, Laxmi Road, Shanthi Nagar, Bangalore, and she is residing with her children as owner in possession of the said site measuring 30 X 70 feet and she is residing since 1967. One Krishna Singh was the owner of adjoining property bearing No.12/1, measuring 45 X 75 feet. Earlier the plaintiff and defendants kept setback area. The original owner Krishna Singh kept the setback area measuring 4 X 10 feet on one side and 13 X 17 feet on the other side and since they were enjoying the property and getting sufficient air and light. In the year 1993, Krishna Singh made an attempt of illegal construction without due sanctioned plan. Hence, the plaintiff gave complaint to defendant No.1 about the illegal construction. No action was taken in that regard. Hence O.S.No.6269/1993 was filed against Krishna Singh for injunctory relief not to put up any type of construction on the setback area and not to give any sanctioned plan to put the construction thereon in violation of building bye-laws of B.B.M.P. During the pendency of the said suit Krishna Singh 4 O.S.No.4039/2014 died. The LRs brought on record. One of the LR by name Mohan Singh started illegal construction on 5.6.2003. Again complaint was lodged before the Corporation and also before the police authority. But both the authorities have not taken any action. The said suit was filed on 27.1.2005. She has preferred RFA No.1912/2005 and during pendency of RFA she filed amendment application seeking amendment of the plaint and also additional facts. It was rejected during the year 2013. It was challenged in SLP No.1572/2013 before the Hon'ble Supreme Court. It was also dismissed on 3.1.2014. The defendant No.4 in collusion with defendant No.1 has made construction during the year 2003-04 obtaining sanctioned plan stating that it was obtained in the year 2000. Defendant NO.4 was not the owner of the property. He has not paid any tax. Defendant Nos.2 to 4 contending illegally that there was a sanctioned plan of the year 2000 itself. Ram Singh was not owner and subsequently he died in the year 2009-10. One Manjula Devi W/o Shankar Singh is the owner of property. Neither Ram Singh nor Janardhan or Shankar have any right, title, or interest over the said property. On the basis of the illegal sanctioned plan, the defendants have put the illegal construction during the 5 O.S.No.4039/2014 pendency of RFA. The plaintiff has issued legal notice on 18.2.2014 under Section 482 of KMC Act. Inspite of issuance of notice defendant No.1 has not taken any steps in connection with the illegal construction. There was no any due compliance of defendant No.1. Hence, the plaintiff has constrained to file the suit. Therefore, there arose cause of action and prayed to decree the suit.
3. On issuance of suit summons to the defendants after registering the case, defendant Nos.1 and 2 have appeared through their counsel, but failed to file the written statement. Whereas, defendant Nos.2 and 3 were placed exparte at the first instance. Subsequently, with the leave of the court, they have filed their written statement in view of the order passed on I.A.5. Though the written statement refers to defendant Nos.2 and 3, but it is signed by defendant No.2 only. Defendant No.2 has denied the material contents of the plaint averments and that the suit is not maintainable on facts and law and that the said suit is barred by limitation. It is denied the allegations disputing the owner of Krishna Singh and the alleged construction of the year 1993 without sanctioned plan or approval of defendant No.1 and the alleged illegal 6 O.S.No.4039/2014 construction over the said set back area. However, the suit filed by the plaintiff in O.S.No.6269/1993 was dismissed against the plaintiff and the plaintiff has filed RFA 1912/2005 and she has also filed the amendment application and the same was dismissed in the year 2013 and she filed SLP before the Hon'ble Supreme Court and the same was dismissed on 3.1.2014 and specifically denied the alleged collusion of defendant NO.1 obtaining of sanctioned plan. There was no cause of action to file the suit and he has denied the plaint averments and prayed to dismiss the suit.
4. On the basis of the pleadings of the parties, the following issues are framed:
1. Whether the plaintiff proves that she is in lawful possession of the property bearing No.12 measuring 30'x70'?
2. Whether the plaintiff proves that defendant No.2 has put up illegal connection on the southern side of the property bearing No.12/1, without leaving setback area?
3. Whether the plaintiff is entitled for the relief prayed for?
4. What order or decree?
5. To prove the case, plaintiff No.1 deposed as PW.1 and she has examined one more witness as P.W.2 and relied upon 7 O.S.No.4039/2014 the documents at Exs.P.1 to P.16. On the other hand, the defendant have not adduced any evidence.
6. Heard the arguments of the learned counsels. Perused the pleadings of the parties, evidence and record on hand.
7. My findings on the above issues are as under:
(1) Issue No.1 .. In the Affirmative.
(2) Issue No.2 .. Does not survive for
Consideration.
(3) Issue No.3 .. In the negative.
(4) Issue No.4 .. As per final order for the
following:
R E A S O N S
9. Issue Nos.1 to 3:- These issues are interlinked with
each other, hence they are taken up for common
consideration, since the plaintiff has field the suit specifically against the statutory authority- defendant No.1 challenging the very sectioned plan dated 5.6.2000 as it is antedated and granted during pendency of the suit O.S.No.6269/1993, contrary to the bye-laws and it is illegal and also challenged the construction of building undertaken by defendant Nos.2 to 4 on the site No.12/1, specifically in connection with the alleged construction covering set back area to be declared as 8 O.S.No.4039/2014 illegal, which is granted for the purpose of business in their residential area and to direct defendant Nos.1 to 4 to remove the illegal construction put up by defendant Nos.2 to 4 by issuing mandatory injunction and also against defendant No.1. On the other hand, the contesting defendant No.2 has seriously disputed the claim of the plaintiff and asserted the said construction, that it is with due procedure and as per bye-laws and has denied the allegation of illegal construction, as contended by the plaintiff. At this stage, it is necessary to consider the very conduct of the other defendants, as defendant No.1 being statutory authority has failed to contest the suit of the plaintiff, who is litigating since 1992-93 in connection with the alleged illegal construction of the adjoining owners in these property, by asserting her right over her property bearing No.12, located in 6th cross, Laxmi Road, Shanthinagar, residing along with her children in a residential house and it is measuring 30'x70' since 1967; and that the erstwhile owner i.e. predeceased-in-title of defendant Nos.2 to 4 one Krishna Singh was the owner of the adjoining property bearing No.12/1, measuring 45'x75' . The plaintiff has disputed the very right, title and interest of defendant Nos2 to 4 and specifically contended that this adjoining suit 9 O.S.No.4039/2014 property bearing No.12/1 is of the ownership of wife of defendant No.3 now who is representing as defendant No.3(a) on account of death of defendant No.3. However defendant NO.2 has contested the suit, though defendant Nos.2 and 3 appeared through their counsel. The defendant No.3 or now his LR i.e. defendant No.3(a) did not effectively contest the suit. Therefore, on the basis of pleadings, these issues have been framed and they are interlinked with each other based on similar and oral documentary evidence. Hence, they are taken up for common consideration.
10. The plaintiff adduced evidence as P.W.1 reiterating plaint averments and has relied upon the documents supporting her case as Ex.P.1 to P.16. Ex.P.1 & P.2 are the certified copies of the order sheet in RFA 1912/2005, referring this document the plaintiff has stated that the said case is still pending. The relevant orders are considered at the subsequent discussion. Ex.P.3 is the plan, which is disputed by the plaintiff dated 24.1.2000 with reference to the construction undertaken by defendant Nos.2 to 4 in property No.12/1. Ex.P.4 is the khata extract in respect of suit schedule property No.12/1, dated 3.11.2009 which is 10 O.S.No.4039/2014 revealing the claim of original owner Krishna Singh; Ex.P.5 and P.6 are the complaints to the Commissioner i.e. defendant No.1 in respect of undertaking of construction it is dated 17.6.2003 and 4.6.2003; Ex.P.7 and P.8 are the complaints submitted to the Police Commissioner and the Police Sub-Inspector, Ashok Nagar P.S. in the year 2013 in connection with the alleged illegal construction of House No.12/1; Ex.P.9 is the certified copy of the order sheet in O.S.No.6269/1993, wherein it is revealed that the said suit was filed on 20.10.1993 Ex.P.10 to P.13 are the photographs.
Referring them by the plaintiff, it has stated about the unauthorized construction on the setback area on the property No.12/1. Ex.P.14 is the notice to the PSI referring the complaint of by the plaintiff dated 27.11.2013; Ex.P.15 is the private complaint submitted by the plaintiff to the Police Commissioner it was dated 17.8.2015, Ex.P.16 is the endorsement of the Police Inspector of Ashoknagar P.S. dated 16.11.2015, intimating that the necessary action would be taken against the accused persons and it is with reference to the disputed construction in property No.12/1. Thus, referring these materials on record, she has claimed the 11 O.S.No.4039/2014 declaration that the sanctioned plan is against the law and in the form of cancellation of the same.
11. Apart from this, she has adduced the evidence of one witness by name Krishanppa, who is nothing but the brother of the plaintiff. He has stated that before the marriage of the plaintiff, himself and his sister were residing together as joint family and after the marriage of the plaintiff, he constructed a separate house and started living there and weekly once or twice he used to visit the plaintiff and specifically stated about one Krishna Singh has constructed house next to the house of the plaintiff, over the set back area without due sanctioned plan and caused hindrance to free flow of air and light to the plaintiff's property.
12. It is pertinent to note that at the time of arguments the learned counsel for the plaintiff submitted written notes of arguments and also additional submission with documents i.e. the petition form in RFA 1912/2005, copy of the plaint in O.S.No.6269/1993 and deposition of P.W.1 and 2 in that suit and the judgment passed in the said suit. Thus, on perusal of the materials on record, it is clear that earlier the plaintiff has filed the suit seeking injunctory relief against the original 12 O.S.No.4039/2014 owner of property No.12/1 alleging that he had attempted to put the illegal construction.
13. The learned counsel for the plaintiff has referred the decision reported in ILR 1998 Kar. 2655, the relevant portion reads thus:-
"once a claim is made by the plaintiff and such claim is not barred by any law for the time being in force then the court must pass a decree in favour of the defendant. These salient features have not been followed. Therefore, it has become necessary for me to hold that (1) when the defendants do not appear and the court is satisfied that the summons have been duly served, the court shall pass a decree as prayed for by the plaintiff unless the relief itself is pf barred by limitation or unknown to law. But when it involves a factual allegation, it is not duty of the court to go into such factual allegation and find out whether factual allegations are true or not.
Referring the same, he has argued that the defendants though served with summons and defendant No.2 filed the written statement and other defendants appeared through their counsel, they failed to contest the suit effectively. Hence, the case made out by the plaintiff considered that it is not barred by law and also it is not barred by limitation and that this suit being in civil in nature involving factual allegations and that, in view of the said decision, the duty of the court to not to go into the such factual allegations and 13 O.S.No.4039/2014 find out whether factual allegations true or not and plaintiff is entitled for a decree in her favour of the plaintiff. With due respect to the said decision it is considered the legal principles with reference to the present suit.
"Each court of law "in the judicial system of the State, (The State has universal application), shall decide "the right of the parties, irrespective of choosing wrong forum, for redressel of grievance and that, it is the duty of the court to analyze and decide the matter in dispute of civil in nature, irrespective of the availability and lack of proper, legal assistance to a litigant and on the basis of material placed on record" and that to consider the facts and circumstances through which the litigants have passed, for the declaration of their alleged legal rights and status, with reference to their person and property, to have peaceable and dignified life to be lead in the human Society".
14. The reliefs claimed specifically against defendant No.1 challenging the sanctioned plan and to be declared as illegal itself goes to very root of the case. No doubt, reiterating the plaint averments, the plaintiff has asserted her right to enjoy her property bearing No.12, adjoining to property No.12/1 that, she has right to receive free flow of air and light and this easementary right claimed against defendant Nos.2 to 4 and the property described is of defendant Nos.2 to 4 i.e. two storied residential RCC building bearing NO.12/1 Lakshmi Road, 6th Cross, Shanthinagar, bounded by East road, West 14 O.S.No.4039/2014 by drainage compound wall, North by House No.13 and south by house No.12. She has specifically asserted about the set back i.e. 4'x10' on one side and 13'x7' on the other side.
15. It is important to note that suit property described is of defendants 2 to 4 only, but not her property. She has stated that earlier the erstwhile owner of suit schedule property Krishna Singh attempted to undertake illegal construction without getting sanctioned plan in the year 1992-1993 and it was complained to the Corporation. But there was no any action taken in that regard. Though the deceased Krishna Singh had attempted to put up the construction over the set back area. Hence O.S.No.6269/1993 was filed by the plaintiff against him. During pendency of the suit, Krishna Singh died. His LRS i.e. Mohan Singh was brought on record. There is no dispute regarding filing of suit by the plaintiff in O.S.no.6269/1993 against said Krishna Singh for permanent injunction not to put up the construction over the set back area in violation of building bye-laws of B.B.M.P. and she has asserted in that suit her easementory right to receive free flow of air and light to her property No.12. That suit was 15 O.S.No.4039/2014 dismissed on 27.10.2005 and she filed RFA.No.1912/2005 before the Hon'ble High Court of Karnataka, challenging the judgment and decree passed in the said suit and contended that though she has produced number or documents and examined the witnesses and though the defendants have not entered into the witness box nor examined any body nor produced any documents, her suit was dismissed. Hence, the said RFA in which the judgment and decree of the said suit under challenge was still pending even today. The plaintiff has stated about pendency of the said RFA. In the said suit neither present defendant No.1, nor the original owner of property Nos.12/1 i.e. Krishna Singh nor his LRs did effectively contest that suit. The plaintiff has filed an application in the said RFA seeking amendment of the plaint and also additional facts by filing I.A. during 2011. However the application was rejected. Against that order the plaintiff has approached Hon'ble Supreme Court by filing SLP No.1572/2013. Hon'ble Supreme Court at the initial stage granted interim order. However, the SLP was dismissed on 3.1.2014. It is therefore relevant to consider that the said application, in which the plaintiff has sought for amendment to the plaint. It was in connection with the illegal 16 O.S.No.4039/2014 construction undertaken by the LRs of Krisha Singh on the suit schedule property No.12/1 during pendency of the suit and the plaint in O.S.No.6269/1993 revealed that the plaintiff has asserted the attempt of illegal construction over the set back and without due sanction plan and that she had submitted the complaint/representation to the defendant No.1 (B.B.M.P.) to take action to stop the attempt/construction. In RFA proceedings i.e. order sheet dated 3.10.2012 i.e. the order on Misc.Civi.2363/2010, it is revealed that present defendant No.1 through his counsel had states that, "as the said RFA 1912/2005 was pending and hence the defendant No.1 (B.B.M.P.) did not take action against the illegal construction of plaintiff and the defendants i.e. in property No.12 and 12/1". It is one of the notable point.
16. The plaintiff has further stated that, during pendency of the suit behind the back of the plaintiff, an attempt was made to construct the building in the year 2003-2004, in collusion with the first defendant; The 4th defendant Ram Singh alleged to have obtained sanctioned plan in the year 2000 itself; There was no such sanctioned plan in the year 2000 as 17 O.S.No.4039/2014 alleged by the defendants; Ram Singh was not the owner and he did not pay any tax to claim ownership over the property; Defendant No.1 in collusion with defendant Nos.2 to 4 illegally contending that there was a sanctioned plan in the year 2000 itself; The said sanctioned plan could not have been granted in the name of Rama Singh, who was not the owner at all, who subsequently died during the year 2009-2010. One Manjula Devi w/o Shankar Singh is the owner of the property. Therefore, grant of sanctioned plan by defendant No.1 is mainly disputed in the present case and the plaintiff has claimed the declaratory relief and mandatory injunction against the defendant to remove the illegal construction put up over the set back area of suit property No.12/1.
17. It is important to note that the Commissioner, B.B.M.P. has discretionary power conferred under Section 321 of the Act, regarding demolition, alteration of buildings or well worth-unlawfully commenced, carried or completed and hence on being satisfied by such unauthorized construction if found, he may make a provisional order directing the owner of the building to demolish the work done etc., under Section 321 (1) and to restrain such owner or such builder from 18 O.S.No.4039/2014 proceeding with the construction of building and he has to issue the show-cause notice or notice to the owner to satisfy the Commissioner with reference to the construction undertaken and such notice shall be within a prescribed period; If the owner fails to show cause to the satisfaction of the Commissioner, he may confirm the order with modification, as he may think fit and that such order then, is binding on the owner. It is also important to consider the legal consequence regarding the unauthorized construction already completed and hence Section 321-A deals with the regularization of certain unlawful building and it reads thus:
321-A. Regularisation of certain unlawful buildings. - (1) Notwithstanding anything contained in this Act, when construction of any building is completed in contravention of the Sections 300 and 321 and building bye- laws made under Section 423, the Commissioner may regularize building constructed prior to the date of commencement of the Karnataka Town and Country Planning and Certain Other Laws (Amendment) Act, 2004 subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub- section (2),
18. Thus, there is discretionary power conferred upon the Commissioner of B.B.M.P. So also he has power to make regularization of unauthorized construction. In the present case, both the plaintiff and defendant No.2, as referred above in connection with the RFA pending, the specific defence taken by the D.2 is that they have put up the construction 19 O.S.No.4039/2014 in accordance with the building bye-laws. Whereas, there is specific submission before the Hon'ble High Court of Karnataka by the present defendant No.1 stating that there is unauthorized construction by both the sides i.e. the plaintiff and defendant Nos.2 to 4 and because of pendency of the said appeal, no action has been initiated against the plaintiff and defendant Nos.2 to 4 in respect of their respective property and it refers to the property of the plaintiff and defendant Nos.2 to 4 i.e. property No.12 and 12(1). Therefore, it is the domain of the B.B.M.P. authority i.e. Commissioner to consider with due process of law regarding the violation of building bye-laws with reference to their construction of the building in property No.12 and also 12(1) which are adjoining proepites belonging to the plaintiff and defendant Nos.2 to 4 and he has to make out the extent of area encroached upon the set back if any and that he has to take action regarding the encroachment, which can be considered as illegal construction. For this, of course he has to follow due procedure and also an opportunity to be given to the aggrieved parties specifically the plaintiff who is the adjoining owner of property No.12/1. But it is revealed from the record and arguments put forth by the learned counsel for the 20 O.S.No.4039/2014 plaintiff and the defendants that the dispute is civil in nature regarding infringement of easementary right of free flow of air and light and that it has been raised by the plaintiff in the earlier suit of the year 1993 and pending disposal before the Hon'ble High Court of Karnataka, for consideration and adjudication.
19. The legality and propriety of the decree has been challenged by the plaintiff. Those questions relating to easement because of illegal construction etc., involved to be duly considered in the said suit. Hence, this subsequent suit only claiming relief of declaration against the defendant No.1 challenging the action for having issued the sanctioned plan, etc., now in this case is purely legal aspect to be dealt with under KMC Act and the relief as claimed cannot be granted as the subject matter is within the jurisdiction of the Commissioner to be considered. However there is statutory provision providing for regularization of unauthorized construction under Section 321-A of the Act. In this connection the Commissioner has to exercise the discretionary power and discharge the duties, as because there is no any order against him restraining him from 21 O.S.No.4039/2014 proceeding with the legal requirements under KMC Act, to take due steps against the unauthorized construction and also regularization of unauthorized construction. But he should do it with due process of law. Thereby he can set right the matter in issue in this connection with illegal construction and the court has no jurisdiction to interfere with the discretionary power and authority of the Commissioner. Thus, in this regard efficacious remedy provided under the statute itself to the plaintiff and defendants 2 to 4 to approach the proper forum as provided under KMC Act. Under such circumstances, such declaratory relief cannot be claimed by the plaintiff and the court cannot grant such relief of declaration, which will operate against the defendant No.1, as because it is purely pertaining to "unauthorized construction-dispute".
20. It is further notable point that, Chapter 15 of the Act contemplates the regulation of buildings and deals with the general power. Section 295 of the Act refers to make the byelaws by the Corporation with the approval of the government which is called building bye-laws for renewal or reconstruction of the house or sites or buildings and for 22 O.S.No.4039/2014 renewal or reconstruction of buildings etc. Section 308 of the Act, deals with that, "The power of Commissioner to require alteration of work if, he finds that the work:-
a) is otherwise than in accordance with the plans or specifications which have been approved or
b) in contravention of provisions of the Act or any rules bye-laws, order or regulations etc., under the Act he may by notice require the owner of the building within a period stipulated, either,-
i) to show cause why such alterations should not be made or,
ii) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans, specifications or the provisions.
2) If the owner does not show cause as aforesaid he/she shall be bound to make the alterations specified in such notice.
3) If the owner shows cause as aforesaid the Commissioner shall by an order cancel the notice issued under Sub-Section 1 or confirm the same subject to such modifications as he may think fit.
21. In the present case, it is revealed from Ex.P.2, the order in the said RFA Misc.No.2363/2010, dated 3.10.2012, specifically the contention raised by defendant NO.1 before the Hon'ble High Court of Karnataka that "because of pendency of the appeal the steps are not taken against the unauthorized construction". But defendant No.1 has never made efforts with due process of law and not shown that there was such prohibition prevailing. It is so, observed here because there 23 O.S.No.4039/2014 is specific direction also in RFA.No.1912/2005 under Ex.P.1, the order dated 6.9.2011 i.e. the order sheet which reads thus:
"The plaintiff-appellant filed suit for injunction against the first defendant. The first defendant, according to the appellant, has not left any set-back as required under the provisions of the Corporation Act or Bye laws. During the pendency of the suit itself, he has put up construction of first and second floor Only blue- print of the plan was produced in the suit. Two Misc. Applications are filed for amendment of plaint and also for production of additional documents. Misc. Cvl.no.19966/10 is also filed for direction.
On 10.6.2011 respondents were directed to file objections if any on or before 20.6.2011. So far no objections have been filed by either of the respondents.
In the midst arguments of both the parties, as to what could be the set back for 70'x30' schedule property and what is the provisions governing the set back, both the learned counsels seek time to make further submission with reference to provisions.
The respondents are directed to file statement of objections in the meanwhile.
Call on 16.9.2011. The respondent to remain present on that day".
22. It is pertinent note that there is no representation of respondent in the said RFA on 16.9.2011. From which it cannot be make out that the defendant No.1 (B.B.M.P.) has complied with the said order. If, it has complied with, the real state of affairs would have been brought on record. However, the defendant No.1 has to comply the said direction and exercise the powers under KMC Act regarding alleged construction over property No.12 and 12/1 and to give clear 24 O.S.No.4039/2014 picture about extent of area for construction and the set back to be left, and it is in violation building bye-laws and sanction plan, if any and same can be regularized etc.
23. Hence, the said cause for not taking steps by defendant No.1 as revealed in Ex.P.2 as referred above, has no legal acceptance that it comes in the way of exercising his discretionary power and discharge of his statutory duties in connection with the unauthorized constructions over property Nos.12 and 12/1. Apart from this, it will assist the court to adjudicate upon the matter in issue. Defendant No.1 is the proper authority who is representing as respondent No.2 in that suit, to give the materials pertaining to the unauthorized construction. It will help to adjudicate upon the rights of the party specifically the plaintiff, with reference to her alleged easementory right of receiving free light and air to her building in property No.12 and those materials in that suit specifically in the said RFA which is pending. No doubt, she has pleaded regarding the violation of building plan and construction of the building over the setback area. But in the present case what would be the exact set back area to be left in property No.12/1, towards her property No.12 is vague. But to what extent her alleged right to receive air and light 25 O.S.No.4039/2014 has been curtailed is in issue in the earlier suit pending disposal in the said RFA.
24. Without such due assistance of defendant NO.1 the Corporation B.B.M.P. one cannot resolve the matter in issue, which is civil in nature, pertaining to the unauthorised construction which will be the material to decide the civil rights of the parties specifically the plaintiff regarding her easementary right, to receive free flow of air and light to her property No.12. Therefore, under the guise of pendency of the appeal, the Corporation authorities are not expected to refrained from discharging their duties However they can proceed with the case considering the dispute pertaining to violation of building bye-laws and construction of the structure over the set back area etc., It is within the domain of the Commissioner of B.B.M.P. & has to proceed against the plaintiff as well as the defendants, by following due process of law So also, the plaintiff and defendant Nos.2 to 4 have to proceed before the B.B.M.P. specifically the defendant No.1, putting forth their grievance regarding the alleged unauthorized construction, specifically the plaintiff regarding the alleged construction over the set back area of property 26 O.S.No.4039/2014 No.12/1, towards her property. She has alleged the curtailment of her easementory right to receive light and air. This court cannot interfere with the such discretionary power of defendant No.1 to deal with the alleged construction under KMC Act, by issuing direction which is in the form of mandatory injunction. It is under writ jurisdiction to issue direction to the statutory authority for having not discharge their duties and to exercise the powers with reference to the alleged construction. The matter in issue is pertaining to the alleged easementary right to receive and air is not the subject matter of this case, but it is already under consideration and pending for adjudication in the earlier suit which is now in R.F.A.No.1912/2005. So, this suit of the plaintiff disputing the statutory duty and power of the defendant No.1 (B.B.M.P.) does not sustainable, as this court having no jurisdiction to entertain it, which is pure question of law, hit by KMC Act. The alleged right of the easement as claimed by the plaintiff that could be decided in RFA.No.1912/2005, to give end to the litigation of the parties to that suit, with due process of law and that in the interest of justice, it will avoid multiplicity of litigations and proceedings. Though plaintiff proves lawful possession over the suit schedule property. But failed to 27 O.S.No.4039/2014 maintain this suit to get the reliefs as prayed for. Hence, it does not survive to consider the alleged construction, as illegal over the alleged set back area of property No.12/1. Hence, plaintiff is not entitled for the relief as prayed for. Therefore, issue No.1 is answered in the affirmative, issue No.2 is answered that it does not survive for consideration and issue No.3 is answered in the negative.
25. Point No.4:- 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 claiming declaratory relief regarding the sanctioned plan dated 5.6.2000, in connection with the construction made in the alleged setback area of site No.12/1, and mandatory injunction thereunder, is hereby dismissed.
However, the plaintiff and defendant Nos.2 to 4 have to approach defendant No.1 or the higher forum (established under KM.C. Act), as the case may be, with due process of law in connection with the construction of building in their respective areas of site Nos.12 and 12/1.
Or the plaintiff can proceed with due process of law (in RFA No.1912/2005 before the Hon'ble High Court of Karnataka, against the present defendant NO.1, who is respondent No.2 in the said appeal) so as to get the alleged "issue 28 O.S.No.4039/2014 of interference caused due to construction alleged to be on the setback area of property No.12/1 by defendant Nos.2 to 4, in connection with the alleged easemtory right of free flow of air and light to her property bearing NO.12, etc.", decided, in the interest of justice.
It is also the power and duty of defendant No.1 under Special Statute (KMC Act), to be exercised, with due procedure of law, with reference to the alleged illegal construction if any in property No.12 and 12/1 located at 6th Cross, Laxmi Road, Shanthi Nagar, Bangalore, by securing documents and to provide opportunity and remedial measures, resolving the dispute pertaining to the construction if any over the set back area and also to submit the report in RFA No.1912/2002, so that the litigation pending since 1993 can be effectively decided, in he interest of justice and, thereby respecting "the principle of neighourhood" will be protected, 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 him, corrected and then signed and pronounced by me in the open court on this the 30th day of November, 2016) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
:: A N N E X U R E ::
List of the witnesses examined for the plaintiff PW.1 Smt.Rangamma P.W.2 Krishanappa 29 O.S.No.4039/2014 List of the documents marked for the plaintiff :
Ex.P.1 Certified copy of order sheet in
R.F.A.1912/2005
Ex.P.2 Certified copy of order sheet in
R.F.A.1912/2005
Ex.P.3 Plan copy
Ex.P.4 Copy of the khata extract
Ex.P.5 to P.8 Copies of complaints
Ex.P.9 Certified copy of plaint, affidavit,
I.A. in O.S.No.6269/2013
Ex.P.10 to P.1 Photographs
Ex.P.14 Notice to PSI
Ex.P.15 Certified copy of PCR
Ex.P.16 Police endorsement
Ex.P.21 & P.22 Reply to the said complaints
List of the witnesses examined for the defendants: Nil List of the documents marked for the defendant: Nil LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.