Bangalore District Court
Sri.H.C.Amarnath vs The Commissioner on 28 January, 2020
1 O.S. No.26606/2014
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH74)
Present: Sri.Yamanappa Bammanagi,
B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 28th day of January, 2020
O.S. No.26606/2014
Plaintiff: Sri.H.C.Amarnath,
S/o.Late.Sri.Kasipathy.H.C.,
aged about 50 yrs.,
R/at.No.10, 4th Cross,
Shankarmutt Road,
Shankarapuram,
Bangalore560004.
(By Sri.G.S.Ravishankar - Adv.)
Vs.
Defendant: The Commissioner,
Corporation of City of Bengaluru,
BCC, BBMP, Bengaluru.
(By Sri.D.Nagaraja Adv.)
Date of Institution of the suit 26112014
Nature of the (Suit or Pronote,
suit for declaration and Injunction Suit
2 O.S. No.26606/2014
possession, suit for injunction,
etc.)
Date of the commencement of 11102018
recording of the evidence
Date on which the judgment was 28012020
pronounced
Year/s Month/s Day/s
Total Duration 05 02 02
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.UNIT,
Bengaluru (CCH74)
JUDGMENT
The plaintiff has filed this suit for perpetual injunction against the defendant, its servants, men anybody claiming under or through it, restraining from demolishing any portion of the schedule building or interfering with plaintiff's lawful possession of the suit schedule property.
2. Brief facts of the plaintiff's case:
It is the case of the plaintiff that, the plaintiff along with S.Madhava, S.Prabhakar and S. Krishnakanth have 3 O.S. No.26606/2014 entered into an joint development agreement dated:07.12.2012 with Omer Khalid to develop the property bearing No. 2608/48/1, Valgerehally Village, Kengeri Hobli, Bangalore South Taluk, Ward No.130, Ullalu, BBMP, measuring total 1152.38 square feet of suit schedule property. In terms of Joint Development Agreement, the said Omer Khalid got the said property under a registered release deed dated 18.08.2012, defendant authority has confirmed khatha of the schedule property upon the owner of the suit property.
3. Such being the facts, with view to construct a Residential Apartment on the suit schedule property, the owner of the property obtained the necessary sanction plan from the defendant authority in L.P. No.AD.Com/RJH/1727/201213, dated 3.4.2013 to construct Residential Apartment, consisting of stilt, ground, first, second and third floor including the terrace floor and the plaintiff constructing the building in accordance with 4 O.S. No.26606/2014 sanction plan without deviation whatsoever.
Such being the fact, the officials of the defendant strangely appeared near the suit schedule property in third week of September 2014 gave threat to demolish portion of the schedule property, threat to interfering with the further construction work, hence, plaintiff got issued notice u/S 482(1) of KMC Act, same was served on defendant. In view of repeated threats, the plaintiff has filed this suit for necessary relief.
4. In pursuance of the summons, issued by this court, the defendant appeared through its counsel, filed written statement, contending that Joint Development Agreement said to have been entered in between the plaintiff, S.Madhava, S.Prabhakar and S. Krishnakanth with Omer Khalid, its terms and conditions, are not within the knowledge of the defendant, hence, denied as false. It is the specific case of the defendant that the plaintiff has constructed the Residential Apartment by obtaining the 5 O.S. No.26606/2014 necessary sanction plan, but, plaintiff deviated the sanction plan while constructing the building. When defendant authority came to know about the deviation, had visited the spot, found deviation, issued notice u/s 321 of KMC Act to the plaintiff to submit necessary plan and remove the deviated portion. But, plaintiff did not responded to the notice, and filed this suit, suppressing the material facts, the plaintiff obtained the status quo order from this court. Hence, suit is liable to be dismissed on the ground of suppressing of the material facts. There is no cause action to file this suit, the plaintiff constructed the building by deviating the sanction plan, the defendant has given sufficient opportunity to the plaintiff for removal of deviated portion, but, plaintiff failed to comply with the notice. Hence, the defendant is constrained to issue notice and passed necessary orders u/S 321 (1), (2) and (3) of the KMC Act and initiated the action against the plaintiff and passed the provisional order and confirmation order u/S 321 of KMC 6 O.S. No.26606/2014 Act against the plaintiff. Hence, suit is liable to be dismissed.
5. Initially this suit is filed before the CCH22, in view of the Notification No.ADMI(A)413/2018, dated 31.7.2018, this case has been transferred to this court as per order dated 04.8.2018 from CCH22. And suit was called out in this court for the first time on 16.8.2018.
6. On the basis of the pleadings of the parties my learned Predecessor has framed the following: ISSUES
1. Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves that the alleged threat of defendant to demolish portion of the schedule apartment building?
3. Whether the plaintiff proves that he is entitled to the relief's of as sought for in the plaint?
7 O.S. No.26606/2014
4. What order or decree?
7. In order to prove his case, plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.4 and P.W.1 was cross examined by the learned counsel for the defendant.
On the other hand the defendant, though appeared through counsel and filed written statement, but, defendant did not choose to lead his evidence to prove his defence taken in the written statement. Heard argument of the learned counsel for the plaintiff and argument on the defendant side is taken as heard after giving sufficient opportunity to the defendant to submit its argument.
8. My answer to above issues are as follows: Issue No.1: In the Affirmative, Issue No.2: In the Negative, Issue No.3: In the Negative, Issue No.4: As per the final order, for the following: 8 O.S. No.26606/2014 REASONS
9. ISSUE No.1: In order to prove his case the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.4. P.W.1 has deposed by filing affidavit in lieu of examination in chief by reiterating the averments of the plaint. It is the case of the plaintiff that the plaintiff and S.Madhava, S.Prabhakara and S.Krishnakanth have entered into joint development agreement on 7.12.2012 with one Omerkhalid to develop the property bearing No.2608/48/1, situated at Valgerehally Village, Kengeri Hobli, measuring total extent of 1152.38 sq meters. And said Omerkhalid got the said property under registered release deed dated 18.8.2012. As per the joint development agreement the residential apartment has been constructed on the said property after obtaining the sanctioned plan from the defendant authority in LP No.AD.COM/RJH/1727/201213, dated 3.4.2013, for construction of building consisting of stilt, ground, first, second and third floor including the terrace floor. Further he 9 O.S. No.26606/2014 contended in the plaint that he has not violated the sanctioned plan.
10. I have perused the written statement filed by the defendant, it is clear that the defendant has not disputed the possession and ownership of the plaintiff, only disputed fact is that the plaintiff has violated the terms and conditions of the sanctioned plan. On account of which the defendant authority has initiated action u/S 321 of KMC Act against the plaintiff and passed the order u/S 321 of KMC Act. In order to show the possession of the suit schedule property, the plaintiff has produced Ex.P.1, which is registered joint development agreement and sanctioned plan and Ex.P.3 is the office copy of the legal notice and acknowledgement and postal receipt. So the possession of the plaintiff at the time of filing of the suit in respect of suit schedule property is not in dispute. On perusal of the pleadings of both the parties and materials placed before the court it is clear that parties are not disputed in respect of possession of the suit schedule 10 O.S. No.26606/2014 property as plaintiff has taken sanctioned plan and licence for construction of the apartment over the suit schedule property. Hence, I hold that plaintiff is in possession of the suit schedule property. With this observation I answer this point in the Affirmative.
11. ISSUE No.2 & 3: These two issues are interconnected to each other, hence, I propose to answer these two issues commonly. It is the case of the plaintiff that he is the owner and in possession of the suit schedule property by virtue of registered release deed marked at Ex.P.1 and obtained sanctioned plan from the defendant authority for construction of residential building over the suit property and he has constructed residential building in accordance with the sanctioned plan without any deviation. But, on the other hand, the defence of the defendant is that the plaintiff has obtained sanctioned plan for construction of residential building over the suit schedule property, but, plaintiff has not constructed residential building over the suit schedule 11 O.S. No.26606/2014 property in accordance with sanctioned plan and constructed building deviating the sanctioned plan. When defendant authority came to know about the deviation, has visited the spot and found deviation in construction of residential building over the suit property. Hence, the defendant authority has issued notice to the plaintiff calling upon him to produce the documents and to remove the deviated portion of the building and plaintiff not responded the notice issued by the defendant authority. After compliance of the provisions of Section 321 of KMC Act, the defendant authority has passed provisional and confirmation order as per Section 321 of KMC Act. After receiving the notice u/S 321 of KMC Act, the plaintiff has challenged the order of defendant as per Ex.D.1, which is memorandum of appeal No.757/2017, preferred by the Omer Khalid and M/s.Shanmukha Builders. The present plaintiff is one of the party of the said joint development agreement. When defendant being a statutory authority and under the 12 O.S. No.26606/2014 obligation and duty as a public servant has visited the spot for inspection. Such a lawful act which confirmed under the provisions of law is not amounts to interference in the possession of the suit schedule property. Further it is clear from the Ex.D.1 that the present plaintiff has challenged the order passed by the defendant before the Tribunal, under such circumstances, it can be safely held that suit filed by the plaintiff is not maintainable under the law.
12. The plaintiff has produced document in support of his case and he is examined as P.W.1. In support of his oral evidence the plaintiff has produced 4 documents which have been marked at Ex.P.1 to P.4. Ex.P.1 is original joint development agreement dated 7.12.2012 and Ex.P.2 is sanctioned plan issued by the BBMP for construction of residential apartment and Ex.P.3 is the legal notice issued by the plaintiff on 20.09.2014 and Ex.P.4 is the postal receipt and acknowledgement.
13. I have perused Ex.P.1, on perusal of the same it is 13 O.S. No.26606/2014 seen that Omerkhalid has executed joint development agreement on 7.12.2012 in favour of H.C.Amarnath, Mr.S.Madhava, S.Prabhakar and Mr.Krishnakanth in respect of property shown in its schedule, which reads thus:
"All that piece, part and parcel of the property bearing converted Sy.No.48/1 (Duly converted for residential purpose by the Deputy Commissioner, Bengaluru District, Bengaluru by Order No.ALN(S)/SR (kem)145/201112, dated
14.06.2012) measuring to an extent of 0 10.79 Guntas out of 014.08 Guntas situated at Valagerehalli Village, Kengeri Hobli, Bengaluru South Taluk, and bounded on the:
East by: Private Road;
West by: Dubasipalya Main Road;
North by: Private property; and on
South by: Private road."
14. It is the defence taken by the defendant in the written statement that the plaintiff has constructed the residential apartment by obtaining the necessary sanctioned 14 O.S. No.26606/2014 plan. But, plaintiff has deviated the sanctioned plan while constructing the building over the suit schedule property. When the defendant authority came to know about the deviation, had visited the spot and found the deviation, issued notice to the plaintiff u/S 321 of KMC Act, when plaintiff failed to reply and failed to remove the deviated portion the defendant authority has passed the provisional order and thereafter the defendant has passed the confirmation order u/S 321 of KMC Act. Such being the fact though the defence taken by the defendant in the written statement, but he did not lead his evidence. But, plaintiff was crossexamined by the learned counsel for the defendant and got marked documents on confrontation during the cross examination of P.W.1, which have been marked at Ex.D.1 and D.1 (a). Now it is relevant to appreciate the cross examination of P.W.1 and Ex.D.1 and D.1 (a). Ex.D.1 is the memorandum of appeal preferred before the Karnataka Appellate Tribunal, Bengaluru. And further during the cross 15 O.S. No.26606/2014 examination it is elicited and confirmed that the present plaintiff has put his signature on Ex.D.1 which is marked at Ex.D.1 (a) on confrontation.
15. I have gone through the oral and documentary evidence placed before the court, it is clear that the plaintiff is the developer along with S.Madhava, S.Prabhakar, and S.Krishnakanth and entered the joint development agreement and undertaken under the registered release deed, dated 18.8.2012 and constructed residential apartment over the suit schedule property after taking sanctioned plan from the defendant company. This fact is not disputed fact in between the parties. The disputed fact is that the plaintiff has constructed residential apartment over the property by deviating the sanctioned plan. When defendant authority came to know about the deviation, has visited the spot and inspected the suit schedule property, found deviation and issued the notice to the plaintiff calling upon him to produce the necessary documents and remove the deviated portion of 16 O.S. No.26606/2014 the building, but, plaintiff did not replied it and defendant authority passed the provisional and confirmation order u/S 321 of KMC Act.
16. On perusal of the materials placed before the court the question arises before the court as to whether this court has jurisdiction to answer the issues involved in the suit?
17. The passing of order u/S 321 of KMC Act is well within the knowledge of plaintiff. When such being the fact the plaintiff's partner Omerkhalid and M/s.Shanmukha Builder, represented by its partner H.C.Amarnath before the Karnataka Appellate Tribunal, Bengaluru, under its appeal No.757/2017 u/S 443A of KMC Act. Now it is relevant to appreciate the crossexamination of P.W.1 dated 16.8.2019, first para, which reads thus:
"It is true that, Omerkhalid is the owner of the suit property. It is true that, khatha and sanctioned plan stands in the name of Omerkhalid in respect of suit 17 O.S. No.26606/2014 schedule property. I am the developer and I have taken construction work over the suit schedule property."
Now it is relevant to extract the suit schedule property, which reads thus:
"Residential Apartment building on property bearing No.2608/48/1, Valgerehally Village, Kengeri Hobli, Bangalore South Taluk, Ward No. 130, Ullalu, BBMP, measuring in total 1152.38 square meters and bounded on the:
East by: Private Road;
West by: Dubasipalya Main Road;
North by: Private Property; and on
South by : Private Road."
18. Further I have perused the joint development agreement which taken place between the plaintiff and the appellant before the KAT referred above. The cause title of the joint development agreement reads thus:
"This agreement of joint 18 O.S. No.26606/2014 development is entered into on this Seventh day of December Two Thousand Twelve (07.12.2012) by and SRI OMER KHALID S/o late Mohammed Khaliq Shariff, aged about 60 yrs, R/at ENKAY FARM, Dubasipalya R.V. College Post, BANGALORE 560059 Hereinafter called the "First Party"
(which term wherever the context so requires or admits of shall mean and include all his heirs, legal representatives, executors successors, administrators and assigns) of the ONE PART and
1. H.C. AMARNATH Aged about 48 years S/o Late Sri. Kashipathi. H.C. Residing at No. 10 "ARATHI"
4th Cross, Shankarmatt Road, Bangalore560004.
2. Mr. S. Madhava, Aged about 57 years, S/o Sri. Subbaya Naidu, Residing at No. 71/1, Rathnavilasa Road, Basavanagudi, Bangalore560004
3. Mr.S. PRABHAKAR, 19 O.S. No.26606/2014 Aged about 33 years Residing at No.2, Subramanyapura Main Road, Bangalore.
4. Mr.S. KRISHNAKANTH, Aged about 19 years, S/o Late S. Srinivas, Residing atNo.18, O.V.H. Road, Basavanagudi, Bangalore560004."
19. So on perusal of the above material evidence it is clear that the present plaintiff who being one of the partner in joint development agreement has challenged the order passed by the defendant before the Karnataka Appellate Tribunal, Bengaluru, in its appeal No.757/2017, u/S 443A of KMC Act. Now it is relevant to extract Section 443A of KMC Act, which reads thus:
443A. Appeal to Karnataka
Appellate Tribunal or District
Court:
(1) Any person aggrieved by any
notice issued, action taken
or proposed to be taken by
the Commissioner under
20 O.S. No.26606/2014
Sections 308,309 and 321(3)
may appeal.
(i) to the Karnataka Appellate
Tribunal in case of the
(Bruhat Bengaluru
Mahanagara Palike)
(ii) to the District Court having
jurisdiction in case of other
corporations.
(2) The decision of the Karnataka
Appellate Tribunal or as the
case may be the District Court
shall be final.
All appeals made against any notice issued or other action taken or proposed to be taken by the Commissioner under Sections 308, 309 and 321(3) and pending before the standing committee on the date of commencement of this section shall stand transferred to the Karnataka Appellate Tribunal, or as the case may be, District Court and such appeals shall be disposed off by them as it they were filed before 21 O.S. No.26606/2014 them.
So, on perusal of the provisions of Section 443A of KMC Act, it is clear that when action initiated against the plaintiff u/S 321 of KMC Act and it is also challenged by the partners of the plaintiff before the Appellate Tribunal, this court has no jurisdiction to entertain the issue involved in the suit. Further it is clear from the materials placed before the court that the fact involved in Ex.P.1 and the fact challenged before the appellate court by one of the partner of the plaintiff is one and the same and action initiated by the defendant u/S 321 of KMC Act is in respect of fact involved in the suit.
20. On careful perusal of the material placed before the court it is clear that the suit is barred by the provisions of Section 443A of KMC Act and this court has no jurisdiction to entertain the suit. In support of my finding I relied on the Judgment reported in 1993 SCR (3) Page 522 Shiv Kumar Chadha Etc. Etc. Vs Municipal Corporation of Delhi and others 22 O.S. No.26606/2014 17, The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition by the Commissioner, in terms of section 343 (1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act.
Order of demolition and stoppage of buildings and works in certain cases and appeal ..........(2) Any person aggrieved by an order of the Commissioner made under sub section (1) may prefer an appeal against the order to the Appellate Tribunal within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is
preferred under subsection(2)
23 O.S. No.26606/2014
against an order of demolition, the Appellate Tribunal may, subject of the provisions of subsection (3) of section 347C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:
Further I relied on decision reported in 1977 AIR 2421
- Arivandandam Vs T.V. Satyapal and another HELD; (1) If on a meaningful nor formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he (Munsif) should exercise his power under Order VII rule 11, CPC taking care to see that the ground mentioned therein fulfilled, And, if clever drafting has created the illusion of a cause of action, it should be ........but at the first hearing by examining the party searchingly under Chapter X, CPC, An activist Judge is the answer to irresponsible law suits, the Trial 24 O.S. No.26606/2014 Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shotdown at the earliest stage.
Again I relied on the judgment in WP No.10350/2008 (LBBMP)Smt. Kausalya V/s The Commissioner, BBMP and another.
This petition is not maintainable since what is called in question is a noticecumorder passed under sub section (2) of Section 321 of the Karnataka Municipal Corporations Act, 1976. It is for the petitioner to file his explanation to the notice and bring to the notice of the authorities that the construction activity is strictly in accordance with the sanctioned plan and the building byelaws and that there has been no deviatrion or unauthorized construction, based upon which the authority would take a final decision in accordance 25 O.S. No.26606/2014 with subsection(3) of Section 321 of the Act. The petitioner, instead of approaching the authority, has come rushing to this Court calling in question the notice. Writ petition is accordingly dismissed.
On perusal of the material placed before the court and reasons assigned above and the observation made on the question raised above I am of the opinion that the plaintiff is not entitled for the relief sought in the plaint. With this I answer issue Nos.2 to 3 in the Negative.
21. ISSUE No.4: In view of the discussion made on issue Nos.1 to 3, I proceed to pass the following: ORDER Suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court 26 O.S. No.26606/2014 on this the 28th day of January, 2020).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY Residential Apartment building on property bearing No.2608/48/1, Valgerehally Village, Kengeri Hobli, Bengaluru South Taluk, Ward No.130, Ullalu, BBMP, measuring in total 1152.38 square meters and bounded on the:
East by: Private Road;
West by: Dubasipalya Main Road;
North by: Private Property; and on
South by: Private Road.
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru. (CCH74)
ANNEXURE
List of witness examined for the plaintiff's side:
PW.1 - Sri.H.C. Amarnath, 27 O.S. No.26606/2014 List of documents exhibited for the plaintiff's side:
Ex.P.1 Original joint development agreement dated:07.12.2012 Ex.P.2 Original sanction plan issued by BBMP Ex.P.3 Legal notice dated 20.09.2014 Ex.P.4 Original postal receipts and acknowledgement(marked together) List of witness examined for the defendant's side:
Nil List of documents exhibited for the defendant's side:
Ex.D.1 Xerox copy of memorandum of appeal prepared by Omer Khalid & M/s.Shanmukha Builder.
Ex.D.1(a) Signature of P.W.1 on Ex.D.1 (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 28 O.S. No.26606/2014 29 O.S. No.26606/2014