Bangalore District Court
Ananda Alias Ananda Reddy vs Karnataka Power Transmission ... on 5 April, 2024
TITLE SHEET FOR JUDGMENTS IN SUITS
KABC010215322020
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH.No.13)
Present: Sri. ONKARAPPA.R, B.Sc., LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 5th day of April, 2024
O.S. No.6074/2020
PLAINTIFFS: 1. Sri. Ananda @ Ananda Reddy,
S/o Late Malige Ramaiah,
Aged about 62 years
2. Sri. S.A. Satish,
S/o Sri. Ananda @ Ananda Reddy,
Aged about 31 years
3. Smt. Neelamma,
W/o Sri. Ananda @ Ananda Reddy,
Aged about 54 years
All are R/at No.33/2, 7th Cross,
Singasandra, Hosur Main Road,
Bengaluru.
(By Sri. NRN, Advocate)
.Vs.
DEFENDANTS: 1. Karnataka Power Transmission
Corporation Ltd.,
1st floor, Cauvery Bhavan,
K.G. Road, Bengaluru.
Rep. by its Managing Director
2. Sri. Rajappa,
S/o Late Sri. Malige Ramaiah,
Aged about 64 years,
R/at No.817, 4th Main,
Channakeshavanagar,
Singasandra, Bengaluru.
(D.1- Sri. HVD
D.2- Sri. NM advocates)
EFENDANTS: 1. HOMIGO REALTY PRIVATE LTD.,
2
O.S.N.6074/2020
Date of Institution of the suit 02/12/2020
Nature of the suit Injunction Suit
Date of Commencement of recording of 12/07/2023
evidence
Date on which judgment was 05/04/2024
Pronounced
Total Duration Year Months Days
03 04 03
[ONKARAPPA.R]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:JUDGMENT:
The plaintiff has filed the suit for permanent injunction to restrained defendant No.1 and their henchmen from erecting new tower for the purpose of drawing new transmission line in the schedule property or any portion thereof without acquiring the required land with due process of law and paying compensation on market value.
2. Brief facts are as under:-
That, the plaintiffs and other family members are the joint owners in possession and enjoyment of the property measuring 01 acre 05 guntas in Sy.No.47 of Singasandra 3 O.S.N.6074/2020 village, Begur Hobli, Bengaluru South Taluk, BBMP No.47, E City Daba NH 7 Hosur Main Road, Singasandra, Bengaluru, which is more fully described as schedule property. The name of Sri. Malige Ramaiah who is father of plaintiff No.1 and defendant No.2, is reflected in the revenue records like R.T.C., as well as in the records of BBMP in respect of the schedule property. The said Malige Ramaiah died on 18/02/2005 and after his death the schedule property was brought within the limits of BBMP Bengaluru. Thereafter, the BBMP has assessed the schedule property for the purpose of collecting tax and assigned property number as 47 to the schedule property. The Plaintiffs have also remitted tax in respect of the schedule property to the BBMP for the years 2009-2010, 2010-2011, 2011-2012, 2012-2013, 2013-2014, 2014-2015, 2015-2016, 2016-17, 2017- 2018, 2018-19, 2019-2020 and 2020-21. Thus, the plaintiffs and defendant No.2 have been in joint possession of the schedule property as joint owners. Constructions also exist in the schedule property. Power connection has been taken to the said constructions. The schedule property has been in the name of Malige Ramaiah. The said Malige Ramaiah has two sons namely Rajappa i.e. defendant No.2 and Ananda @ Reddy i.e. plaintiff No.1 herein and four daughters. The said Malige Ramaiah and his children have constituted Hindu Undivided 4 O.S.N.6074/2020 Family jointly owning and possessing immovable properties including the schedule property herein. That land measuring 01 acre 11 guntas in Sy. No. 47 of Singasandra Village was granted in the name of Malige Ramaiah by the Land Tribunal, Bangalore South Taluk vide order dated 20/10/1981 in LRF No.2945, 2946 and 2223/1975-76 while the joint family was existing. The land so granted in name of the Malige Ramaiah would enure to the benefit of the joint family members. The plaintiffs herein had filed a suit O.S. No.2654/2004 before CCH-16 claiming decree for partition and separate allotment of their legitimate share in the ancestral joint family properties including the land measuring 01 acre 11 guntas in Sy. No. 47 of Singasandra Village, against Malige Ramaiah, Rajappa i.e. defendant No.2 herein and others. During pendency of the said suit, Malige Ramaiah died on 18/02/2005 and his wife Smt. Janakamma was brought on record as his legal representative. The said Janakamma and her three daughters have given up their shares in the schedule properties in O.S. No. 2654/2004 including the schedule property herein in favour of the plaintiffs and Rajappa, defendant-2 by filing compromise petition on 24/11/2011 and also receiving consideration from them. Out of four sisters, one sister Smt. Papamma @ Padma and other defendants in 5 O.S.N.6074/2020 the said suit had contested the matter on merits. After full pledged trial and hearing both parties, the court was pleased to decree the suit O.S. No. 2654/2004 vide judgment and decree dated 08/01/2020. As per the said judgment and decree, the plaintiffs and defendant No.2 are entitled for 1/7 th share each in the properties and also plaintiff No.1 and defendant No.2 were also allotted 04 shares belonging Smt. Janakamma and his three daughters namely Kanthamma, Lakshmamma and Rajamma. Thus, the plaintiffs and defendant No.2 are entitled for six shares in the family properties including the schedule property herein and legal heirs of the deceased Papamma @ Padma are entitled for 1/7th share as per the said judgment and decree dated 08/01/2020. In the year 2015 and 2017, the KIADB has acquired 92 square meters and again 165 square meters for metro rail project in the schedule property and awarded compensation on prevailing market value. The KIADB has awarded a compensation of Rs.1,78,000/- per square meter.
Further, it seems that a portion of the land in Sy. No.47 was utilized for road/NH7. It is only available extent of land measuring 01 acre 05 guntas is shown as against the name of Malige Ramaiah in the R.T.C. Defendant No.1 has no legal right or possession over the schedule property. Even then, the subordinate officials of defendant No.1 had invaded over 6 O.S.N.6074/2020 a portion of the schedule property and tried to erect tower and draw transmission line by illegally laying foundation approximately in an area measuring 5500 square feet in addition to existing 220kv transmission line without acquiring land with due processes of law during the period of lockdown i.e., on 28/05/2020. Further, they tried to demolish the existing garage in the schedule property. The high handed and illegal acts of defendant No.1 were resisted by the plaintiffs. Plaintiff-2 had also given notice/representation on 28/05/2020 to defendant No.1 calling upon it to drop its illegal activities and furnish necessary documents and if they fail to do so as demanded in the notice, they would approach court seeking redressal. Aggrieved by the high handed and illegal acts of Defendant-1, the plaintiffs had approached the High Court of Karnataka by filing W.P. No. 7805/2020(GM- KEB) against Defendant No.1. The writ petition so filed was disposed of on 30/09/2020 based on the memo filed by defendant-1 and also given liberty to the plaintiffs to seek redressal in accordance with law. The Plaintiffs and other members of the family had not satisfied with the proposal of defendant No.1. Defendant No.1 has no authority to invade over the schedule property or any portion thereof without acquiring the land with due processes of law and also paying compensation on market value of the property. After disposal 7 O.S.N.6074/2020 of the writ petition, the subordinates, agents or workers of defendant No.1 again on 18/11/2020 came and dumped materials in a portion of the schedule property with an intention to erect tower and draw transmission line without acquiring the required land with due processes of law and tried to lay foundation/base to erect electric tower and the same was resisted by the Plaintiffs with assistance of others. The subordinate officials of defendant-1 are bent upon to invade over the schedule property and erect tower and draw transmission line with police help and usurp a portion of the schedule property illegally. The high handed and illegal acts of the defendants cannot be resisted without an order of injunction from this court. Hence having no alternative efficacious remedy the plaintiffs have approached this court with this suit seeking redressal. The cause of action for this suit arose on 28/05/2020 when the subordinates, workers and agents of defendant No.1 had invaded over a portion of the schedule property and tried to lay foundation with an intention to erect tower and draw transmission line and on 30/09/2020 the Hon'ble High Court of Karnataka has disposed of the writ petition No. 7805/2020 (GM-KEB) by giving liberty to seek redressal in accordance with law and on 18/11/2020 when the subordinates and agents of defendant No.1 have dumped materials in a portion of the 8 O.S.N.6074/2020 schedule property with an intention to erect tower and draw transmission line. The plaintiffs valued the suit as per law. Paid court fee is sufficient. Hence, the plaintiffs sought for decreed the suit.
3. Defendant No.1 have appeared through its choice counsel and they chosen to filed their written statement. Wherein the written statement it contended that, the plaintiffs have filed the above Suit, praying this Court for Judgment and Decree for grant Permanent Injunction, restraining 1st defendant, its sub-ordinates, agents, workers, labours, licensees or anybody claiming through it from erecting new Tower for the purpose of drawing new Transmission Line in the Suit Schedule Property or any portion thereof without acquiring the required Land with due process of law and paying compensation on market value and to grant such other relief/s. The Suit filed by the Plaintiffs is not maintainable under law and on facts and even otherwise, the plaintiffs are not entitle for any of the Decree as prayed in the Suit and therefore, the Suit is liable to be dismissed with exemplary costs. The KPTCL has proposed a Scheme for establishing 3 X 500 MVA, 400/220 KV Station with Gas Insulation on 400 KV side and Air Insulation on 220 KV Station at Mylasandra in Bengaluru South Taluk, along with Associated Transmission Lines and 220 KV Terminal 9 O.S.N.6074/2020 Bays out of which, one of the Associated Line of construction of 220/220 KV MC Line from proposed 400/220 KV Station at Mylasandra and conversion of existing 220 KV DC Somanahalli Hoody Line to 220/220 KV MC Line from Location No. 77 upto HSR LILO Point to connect 220/66 KV Somanahalli, Naganathpura, HSR Layout Sub-stations to 400/220 KV at Mylasandra. The Technical Co-ordination Committee has approved the said Scheme dated 25/06/2010. The Project details have been published in the Karnataka Gazette, dated 11/10/2013 and the same has been notified to the public in Paper Notification published in 'Kannada Prabha' and 'Times of India' dated 12/03/2013. The said work has been revised DPR Cost and the same has been approved by Technical Co-ordination Committee and issued an Official Memorandum dated 30/01/2017. The commissioning of the said Project is very much necessary in order to cater Power Supply the said Locality. The said Work has been awarded in favour M/s. Larsen and Turbo Ltd., on 'Total Turnkey Basis'. The Survey has been conducted and the Tower Schedule has been fixed by the Surveyor and the same have been approved. The said Scheme has been published as stated above for the information of the Public, however, for approval of the said Scheme have entrusted to Survey the entire area for the purpose of fixing the Tower 10 O.S.N.6074/2020 Schedule having regard to the Soil Classification within the Corridor Area for conversion of 220 KV DC Line to 220/220 MC Line and have fixed the Tower Schedule out of which existing Location No. 24 in the Lands of the Plaintiffs will be replaced by Location No. 25 and once the Location No.25 has been Erected and the Location No. 24 will be removed. The Electricity Act 2003 (Central Act No. 36 of 2003) has come into force on 10th of June 2003. The provisions of the Section 51 of the Indian Electricity Act, 1910 are Para- material with that of the provisions of Section 164 of the Electricity Act 2003. The erstwhile State of Mysore exercising powers under the provisions of Section 51 of the Indian Electricity Act, has conferred powers of the Telegraph Authority under the provisions of Sections 10 to 19 and 19A of the Telegraph Act, 1885, those powers will be exercised by the Telegraph Authority under the provisions of Sections 10 to 19 and 19A of the said Act. The State of Karnataka exercising powers under Section 164 of the Electricity Act, 2003 has issued a Notification conferring the powers of the Telegraph Authority under Sections 10 to 19 and 19A for erection of Towers, drawal of Transmission Lines to keep apparatus on the Lands belonging to the private citizens. Since those powers have been conferred on the Electricity Board by the State of Karnataka Officers of the Board now 11 O.S.N.6074/2020 KPTCL are exercising powers under the provisions of Section 10(d) of the Indian Telegraph Act, 1885. Having regard to the provisions of Section 10(d) of the said Act, the Officers of the KPTCL have every right to enter upon the Lands belonging to the Private Citizens without prior notice to them and without their permission for the purpose of Erection of Towers and placing of Apparatus for the drawal of Transmission Lines. The State of Karnataka, exercising powers under Section 164 of the Electricity Act, 2003 has conferred powers of the Telegraph Authority on the Officers of the Board and now KPTCL by issuing a Notification, dated 24/03/2006 conferring powers of Telegraph Authority under Sections 10 to 19 and 19A of Telegraphic Act, 1885. As stated above the provisions of Section 164 of the Electricity Act, 2003 are Para-material with the provisions of Sections 51 of the Indian Electricity Act 1910 and the State Government exercising powers under Section 164 of the Electricity Act 2003 has issued a Notification, dated 24/03/2006 with the earlier Notification conferring powers of the Telegraph Authority on the Supply Companies and the and KPTCL for the drawal of Electricity Supply Lines, Appliances Lines, there by conferring power upon the KPTCL, all Electricity Supply Apparatus and for Erection of Towers for the drawl of the Transmission Authority possesses 12 O.S.N.6074/2020 under the provisions of Sections 10 to 19 and 19A of Companies and generating Companies of the State, which the Telegraph Indian Telegraphic Act, 1885 (Central Act 13 of 1885). With respect of placing of Lines and Towers for the purpose of Telegraph established or maintained by the Government or to be so established or maintained and the Government of Karnataka further directs that the powers conferred under the order are exercisable subject to the provisions of the Indian Telegraph Act, 1885. Therefore, there is no necessary for acquiring the Lands for the said purpose. The KPTCL/Board Corporation is exercising powers of Telegraph Authority under the provision of Sections 10 to 19 and 19A of the Act, since those powers have been conferred on the KPTCL by the State of Karnataka exercising powers under the provisions of Section 164 of the Electricity Act, 2003. The Officers of the KPTCL have every right to enter upon the Lands belonging to the Private Citizens without prior notice for the proposed of refection of Towers and placing of Apparatus of Transmission Lines. The work is to be carried out by the Board/Corporation in executing the Project causing least damages to the Property of the Private Citizens and while exercising the powers conferred as per Clause (d) of Section 10 of the Indian Telegraphic Act, 1885, the Supply Company has to pay the compensation to all 13 O.S.N.6074/2020 persons interested towards any damages sustained by them, by reason of the existence of those powers and therefore the District Magistrate/Deputy Commissioner has passed on Order in W.P. No. 7805/2020 and if the compensation awarded by the District Magistrate is insufficient it is for the aggrieved person to approach before the Jurisdictional District Judge for enhancement under Section 16(3) of the Telegraphic Act, 1885. For execution of the Scheme for Erection of Tower and drawl of Transmission Line there is only provision for award of compensation as per Indian Telegraphic, Act 1885 for Right of Way (RoW) and there is no need for acquisition for tower Base area and corridor area and even after laying Transmission Line, the Land vested with the Owners and therefore, the compensation payable is only for diminution value of the Land by way of damages. The ownership of the Land Owner will not get transferred to Transmission Utility after construction of the Transmission Line. Section 16 (3) of the Indian Telegraphic Act, 1885 empowers for fixing the compensation towards damages caused during construction of Poles/Towers, but as per the Regulations 64 of Central Electricity Authority (Measures Relating to Safety and Electric Supply) Regulations, 2010, it is clearly stated that "No material or earth work or Agricultural produce shall be dumped or stored, no Trees grown below or 14 O.S.N.6074/2020 in the vicinity of, bare overhead conductors, or lines to contravene the provision of Regulations 60 and 61".The Plaintiffs admittedly have filed the Writ Petition in W.P. No. 7805/2020 against 1st Defendant as to the similar relief/s as sought the above Suit. 1st Defendant has filed the Statement of Objections and after hearing the Arguments, the Hon'ble High Court of Karnataka was pleased to pass an Order on 11/08/2020, considering the Order dated 04/08/2020 that, 1 st defendant herein carrying out the Project to sub-serve the large interest of the Society, but that does not by itself absolve 1st defendant of the duty cost upon under the Statue and directed 1st defendant to assess and pay the damages and accordingly, the Officers assessed the damages under Section 10(d) of the Indian Telegraph Act, 1885, for a sum of Rs. 3,52,737/- and filed a Memo before bringing to the notice of the Hon'ble High Court of Karnataka as to the calculation of damages of Rs. 3,52,737/- and accordingly, the aforesaid Writ Petition was disposed and however, liberty has been reserved to the Plaintiffs herein, if they have dis-satisfied with the quantum of the compensation, it is open for the Plaintiffs to seek redressal in accordance with law. The conjoint reading of the Section 10 (d) and Section 16(3) of the Indian Telegraph Act, if the Plaintiffs are felt insufficient with regard to the compensation, they are entitle to file a Petition under 15 O.S.N.6074/2020 Section 16 (3) of the Indian Telegraph Act, the Plaintiffs instead of filing the Petition under Section 16(3) of the Act, they have filed the above present Suit as similar relief sought before the Hon'ble High Court of Karnataka, which is not maintainable under law and on facts. After disposal of the aforesaid Writ Petition, the KPTCL issued notices to the Plaintiffs to produce the documents vide Notices, dated 02/11/2020, 17/11/2020, 23/11/2020 and 11/01/2021, even despite service of the same, the Plaintiffs have not come forward to produce the documents and to receive the compensation and therefore, the KPTCL has no other alternative except to invoke Section 16(4) of the Act, to deposit the same before this Court for disbursement. The Erection of Transmission Line is not a case of acquisition of Land as contemplated under Section 165 of the Electricity Act 2003, but use of surface of Land in terms of Section 164 of the Electricity Act, 1885 applicable for erection of the Transmission Line. Under such acquisition, Land continues to vest with the Land Owner and however, for use of Land for erecting Transmission Line, compensation is contemplated under Section 10(d) of the Telegraphic Act. Against such Award of compensation, aggrieved party may seek adjudication of the amount of compensation from the Court of District Judge within whose jurisdiction the Property is 16 O.S.N.6074/2020 situated. Therefore drawing of Transmission Line doesn't attract Land Acquisition Act as the Land continuous to vest with the Land Owner as such the grounds raised by the Plaintiffs are untenable since Drawing of Transmission Line doesn't attract Land Acquisition Act as the Land continuous to be vested with the Land Owner. The Law on the point is very well settled. Public Interest is an essential ingredient of public purpose. If any Act to achieve public purpose has to be accomplished expeditiously such an Act must be reckoned to have been done by the State exercising its power of eminent domain, which does not offend any of the rights of the Land Owner. The right of eminent domain is the right of the State through its Agencies to assert its dominion even over a Private Property without the consent of the Owner, if there exists any public exigency or is necessary for the benefit of the Public and after all private interest must give way to the public purpose and therefore, the Plaintiffs are not entitled to seek any of the relief/s as prayed for in the Suit. The averments made in para 2 of the Plaint are not within the knowledge of 1st defendant. The averments made in the Plaint that, the said Sri. Malige Ramaiah had two sons and four daughters and there was a dispute among them in O.S. No. 2654/2004, which came to be compromised on 24/11/2011 in between the Plaintiff and 2 nd Defendant, 17 O.S.N.6074/2020 are not in dispute. However, the Suit was decreed as per Judgment, dated 08/01/2020 declaring that, the Plaintiff and 2nd Defendant are entitle for 1/7th share and in pursuant to the said Preliminary Decree, there is no Final Decree proceedings as to the division of the said property in respect of their respective portions by metes and bounds. Suit is not an alternative efficacious remedy to the Plaintiffs to approach this Court in terms of the Order passed in W.P. No. 7805/2020 and therefore, the Suit of the Plaintiffs is not maintainable under law and on facts. There is no cause of action as alleged in para 5 of the Plaint and however, as per the Order, dated 30/09/2020, passed in W.P. No. 7805/2020, if the Plaintiffs dis-satisfied with quantum of compensation awarded, it is open for the Plaintiffs to seek redressal in accordance with law, wherein the Plaintiffs are entitle to file a Petition under Section 16(3) of the Telegraph Act and as such the Suit of the Plaintiffs for Injunction is not maintainable and therefore, the Suit is liable to be dismissed with exemplary costs.
4. Defendant No.2 also appeared through his counsel of choice and filed his written statement. Wherein the written statement defendant No.2 admits that the averments made in paragraphs 2 of plaint that the plaintiff and other family members are the joint owners in possession and enjoyment 18 O.S.N.6074/2020 of the property of land bearing Sy. No.47, measuring to an extent of 01 acre 05 guntas, situated at Singasandra village, Begur Hobli, Bengaluru South Taluk, now within the limits of B.B.M.P. No.47, E City Daba, N.H.7, Hosur Main Road, Singasandra, Bengaluru are true and correct. It is also true and correct that R.T.C. records are stands in the name of father of the plaintiff No.1 and defendant No.2. it is also true and correct that Malige Ramaiah died on 18-02-2005. It is also true and correct that plaintiff No.1 defendant No.2 have been in joint possession of the schedule property and the constructions also exist in the schedule property and power connection has been taken to the said building. Ddefendant No.2 admits that the averments made in para 3 of the plaint that the schedule property has been in the name of Malige Ramaiah and the said Malige Ramaiah had two sons Rajappa I.e. defendant No.2 and Ananda the plaintiff No.1 herein and four daughters. The said Malige Ramaiah and his children have constituted Hindu Undivided family jointly owning and possessing immovable properties including the schedule property of land bearing Sy.No.47, measuring to an extent of 01 acre 11 guntas, situated at Singasandra Village, Begur Hobli, Bengaluru South Taluk. It is also true and correct that the said land was granted by the land Tribunal, Bengaluru South Taluk dated 20/10/1981. It is 19 O.S.N.6074/2020 also true and correct that plaintiff No. 1 and his children have filed the suit for partition and separate possession and enjoyment of properties including this suit schedule property in the Court of the Additional City Civil Judge (CCH-16) at Bengaluru in O.S.No.2654/2004. It is also true and corrects that after recording of evidence the court Passed the judgment and Decree dated 08-01-2020. Against the judgment and Decree this defendant has preferred the appeal in the High Court of Karnataka in R.F.A. No.1356/2020. The said appeal is pending for adjudication. Defendant No.2 admits that the averments made in para 4 of the plaint that in the year 2015 and 2017, the K.I.A.D.B has acquired 92 square meters and again acquired 165 square meters for metro rail project in the said suit schedule property and awarded the compensation on prevailing market value. It is also true and correct that the K.I.A.D.B has awarded a compensation of Rs. 1,78,000/- per square meter and it is also true and correct that a portion of land in survey No.47 was utilized for formation and widening of National Highway No.7. Defendant No.2 admits that the averments made in para 5 of the plaint that the defendant No.1 has no legal right or possession over the suit schedule property and even then the subordinate officials of the defendant No.1 had invaded over a portion of the schedule 20 O.S.N.6074/2020 property and tried to erect tower and draw transmission line by illegally laying foundation approximately in an area measuring 5,500/- square feet in addition to existing of 220 K.V, transmission line without issuance of any notices or publication and without acquiring of land with due process of law. During the lock down period on 28-05-2020 defendant No.1 tried to demolish the existing garage in the schedule property. Defendant No.2 admits that the averments made in para 6 of the plaint that the subordinate agent or workers of defendant No.1 again on 18/11/2020 they came and dumped materials in a portion of the schedule property with an intention to erect tower and draw transmission line without acquiring the required of land with due process of law and tried to lay foundation/base to erect electric tower are true and correct. It is also true and correct that the subordinate officials of Defendant No.1 are bent upon to invade over the schedule property and erect tower and draw transmission line with police help and usurp a portion of the schedule property illegally are true and correct. Defendant No.2 admits that the averments made in para 7 of the plaint that the cause of action arose are true and correct. Accordingly, defendant No.3 pray to decreed the suit in against defendant No.1.
21O.S.N.6074/2020
5. On the basis of the above pleadings, this court has framed the issues at below:-
1. Whether the plaintiffs prove that they are in lawful possession and enjoyment over the suit schedule property as on the date of suit ?
2. Whether the plaintiffs prove the alleged interference by the defendants ?
3. Whether the plaintiffs are entitled for the relief as sought for ?
4. What order or decree?
6. To prove the case, 2 nd plaintiff has examined himself as PW-1 and got marked eight documents in total at Ex.P.1 to P.8. On the other hand, defendant No.1 and 2 have not chosen to examined any of the witnesses in their favour.
7. Heard argument on both sides. Perused the records.
8. My findings on the above issues are as under:-
Issue No.1 : In the negative Issue No.2 : In the negative Issue No.3 : In the negative Issue No.4 : As per final order for the following:22
O.S.N.6074/2020 :R E A S O N S:
9. Issue No.1 to 3 :- Since Issue No.1 to 3 are interlinking with each other and to avoid the repetition of facts, that I have taken Issue No.1 to 3 in together for my common discussion.
10. 2nd plaintiff himself examined as PW1. In lieu of examination in chief he filed sworn affidavit. Wherein the affidavit the plaintiff have reiterated the averments of plaint. As per the plaintiffs, the plaintiffs and other family members are the joint owners in possession and enjoyment of the property measuring 01 acre 05 guntas in Sy.No.47 of Singasandra village, Begur Hobli, Bengaluru South Taluk, BBMP No.47, E City Daba NH 7 Hosur Main Road, Singasandra, Bengaluru, which is more fully described as schedule property. The name of Sri. Malige Ramaiah who is father of plaintiff No.1 and defendant No.2, is reflected in the revenue records like R.T.C., as well as in the records of BBMP in respect of the schedule property. The said Malige Ramaiah died on 18/02/2005 and after his death the schedule property was brought within the limits of BBMP Bengaluru. Thereafter, the BBMP has assessed the schedule property for the purpose of collecting tax and assigned property number as 47 to the schedule property. The 23 O.S.N.6074/2020 Plaintiffs have also remitted tax in respect of the schedule property to the BBMP for the years 2009-2010, 2010-2011, 2011-2012, 2012-2013, 2013-2014, 2014-2015, 2015-2016, 2016-17, 2017- 2018, 2018-19, 2019-2020 and 2020-21. Thus, the plaintiffs and defendant No.2 have been in joint possession of the schedule property as joint owners. Constructions also exist in the schedule property. Power connection has been taken to the said constructions. The schedule property has been in the name of Malige Ramaiah. The said Malige Ramaiah has two sons namely Rajappa i.e. defendant No.2 and Ananda @ Reddy i.e. plaintiff No.1 herein and four daughters. The said Malige Ramaiah and his children have constituted Hindu Undivided Family jointly owning and possessing immovable properties including the schedule property herein. That land measuring 01 acre 11 guntas in Sy. No. 47 of Singasandra Village was granted in the name of Malige Ramaiah by the Land Tribunal, Bangalore South Taluk vide order dated 20/10/1981 in LRF No.2945, 2946 and 2223/1975-76 while the joint family was existing. The land so granted in name of the Malige Ramaiah would enure to the benefit of the joint family members. The plaintiffs herein had filed a suit O.S. No.2654/2004 before CCH-16 claiming decree for partition and separate allotment of their legitimate share in the ancestral joint family 24 O.S.N.6074/2020 properties including the land measuring 01 acre 11 guntas in Sy. No. 47 of Singasandra Village, against Malige Ramaiah, Rajappa i.e. defendant No.2 herein and others. During pendency of the said suit, Malige Ramaiah died on 18/02/2005 and his wife Smt. Janakamma was brought on record as his legal representative. The said Janakamma and her three daughters have given up their shares in the schedule properties in O.S. No. 2654/2004 including the schedule property herein in favour of the plaintiffs and Rajappa, defendant-2 by filing compromise petition on 24/11/2011 and also receiving consideration from them. Out of four sisters, one sister Smt. Papamma @ Padma and other defendants in the said suit had contested the matter on merits. After full pledged trial and hearing both parties, the court was pleased to decree the suit O.S. No. 2654/2004 vide judgment and decree dated 08/01/2020. As per the said judgment and decree, the plaintiffs and defendant No.2 are entitled for 1/7 th share each in the properties and also plaintiff No.1 and defendant No.2 were also allotted 04 shares belonging Smt. Janakamma and his three daughters namely Kanthamma, Lakshmamma and Rajamma. Thus, the plaintiffs and defendant No.2 are entitled for six shares in the family properties including the schedule property herein and legal heirs of the deceased Papamma @ Padma are entitled 25 O.S.N.6074/2020 for 1/7th share as per the said judgment and decree dated 08/01/2020. In the year 2015 and 2017, the KIADB has acquired 92 square meters and again 165 square meters for metro rail project in the schedule property and awarded compensation on prevailing market value. The KIADB has awarded a compensation of Rs.1,78,000/- per square meter. Further, it seems that a portion of the land in Sy. No.47 was utilized for road/NH7. It is only available extent of land measuring 01 acre 05 guntas is shown as against the name of Malige Ramaiah in the R.T.C. Defendant No.1 has no legal right or possession over the schedule property. Even then, the subordinate officials of defendant No.1 had invaded over a portion of the schedule property and tried to erect tower and draw transmission line by illegally laying foundation approximately in an area measuring 5500 square feet in addition to existing 220kv transmission line without acquiring land with due processes of law during the period of lockdown i.e., on 28/05/2020. Further, they tried to demolish the existing garage in the schedule property. The high handed and illegal acts of defendant No.1 were resisted by the plaintiffs. Plaintiff-2 had also given notice/representation on 28/05/2020 to defendant No.1 calling upon it to drop its illegal activities and furnish necessary documents and if they fail to do so as demanded in the notice, they would approach 26 O.S.N.6074/2020 court seeking redressal. Aggrieved by the high handed and illegal acts of Defendant-1, the plaintiffs had approached the High Court of Karnataka by filing W.P. No. 7805/2020(GM- KEB) against Defendant No.1. The writ petition so filed was disposed of on 30/09/2020 based on the memo filed by defendant-1 and also given liberty to the plaintiffs to seek redressal in accordance with law. The Plaintiffs and other members of the family had not satisfied with the proposal of defendant No.1. Defendant No.1 has no authority to invade over the schedule property or any portion thereof without acquiring the land with due processes of law and also paying compensation on market value of the property. After disposal of the writ petition, the subordinates, agents or workers of defendant No.1 again on 18/11/2020 came and dumped materials in a portion of the schedule property with an intention to erect tower and draw transmission line without acquiring the required land with due processes of law and tried to lay foundation/base to erect electric tower and the same was resisted by the Plaintiffs with assistance of others. The subordinate officials of defendant-1 are bent upon to invade over the schedule property and erect tower and draw transmission line with police help and usurp a portion of the schedule property illegally. The high handed and illegal acts of the defendants cannot be resisted without an order of 27 O.S.N.6074/2020 injunction from this court. Hence having no alternative efficacious remedy the plaintiffs have approached this court with this suit seeking redressal. The cause of action for this suit arose on 28/05/2020 when the subordinates, workers and agents of defendant No.1 had invaded over a portion of the schedule property and tried to lay foundation with an intention to erect tower and draw transmission line and on 30/09/2020 the Hon'ble High Court of Karnataka has disposed of the writ petition No. 7805/2020 (GM-KEB) by giving liberty to seek redressal in accordance with law and on 18/11/2020 when the subordinates and agents of defendant No.1 have dumped materials in a portion of the schedule property with an intention to erect tower and draw transmission line. On the other hand 1 st defendant denied the case of plaintiffs and 2nd defendant in entirety as false. As per 1st defendant, 1st defendant being a authority they are discharging their duties as per the law with the interest of public. Further 1st defendant have also contended in against the land which claimed by the Plaintiffs, the defendant have awarded the compensation and deposited the same at before the competent court for its apportionment. Hence, 1 st defendant sought for dismissal of the suit.
11. On assimilating the controversy the factum, derival of title in the suit schedule property to the plaintiff at Ex.P1 28 O.S.N.6074/2020 and Ex.P8 judgment and decree emerged as undisputed fact. Further to evidence the plaintiffs are the owner in possession of suit schedule property and they are paying Revenue tax to the concerned authority regularly, PW1 have Ex.P2 RTC extract and Ex.P3 property tax receipt. Only the controversy, whether the plaintiffs are in the possession of the suit schedule property as on the date of filing the suit and alleged interference of the defendant. Suit schedule property admittedly the agricultural land at Ex.P2 RTC extract. Case of the plaintiff that, 1 st defendant is being not an owner of the suit schedule property he tried to interfere with the possession of plaintiffs over the suit schedule property. As per the plaintiffs, subordinate official of 1 st defendant invaded over the portion of schedule property and they tried to erect the tower and draw transmission line by illegally by laying foundation approximately in an area measuring 5500 Sq. ft. in addition to 220 KV transmission line without acquiring the land with due process of law during the period of lock down. Further also case of plaintiffs that, 1st defendant have demolished the existing garage in the schedule property. However plaintiff and 2 nd defendant resisted the act of 1st defendant by giving a notice/representation dated 28.05.2020 at Ex.P4 and by filing a WP No.7805/2020 at Ex.P5 at before Hon'ble High 29 O.S.N.6074/2020 court of Karnataka. Further case of the plaintiff again on 18.11.2020 the subordinates, agents, workers of the 1 st defendant came and dumped materials in the portion of schedule property with intention to erect tower and draw transmission line without acquiring the required land with due process of law and tried to laid foundation/base to erect electric tower at in the suit schedule property. Also case of plaintiffs that, though the plaintiffs resisted the invade act of 1st defendant and their agents, 1 st defendant are bent upon to invade over the suit schedule property and erected the tower and drawn an transmission line with the police help and usurp a portion of the suit schedule property illegally. Hence, the plaintiffs now at before the court for redressal of the remedy. With this much of pleadings of the plaintiffs herein evidence, the plaintiffs have not so sure about to on which portion of the suit schedule property 1st defendant's have attempt to interfered with the possession of the property. Admittedly suit schedule property is the landed property as per Ex.P.2 RTC extract. Ex.P.2 RTC extract herein evidence suit schedule property under Sy.No.47 is having total extent of 1 acre 0.05 guntas. Not in dispute at in the portion of total extent of the suit schedule property 1 st defendant have proposed to erected an electrical tower and transmission line. Neither a pleadings nor any of the 30 O.S.N.6074/2020 evidence remains on record to find out the exact area in which 1st defendant proposed to erected an electrical tower and drawn an electrical transmission wire. It pertinent to note, the plaintiffs himself have at particularly para 5 and 6 of the plaint that he has stated 1 st defendant have already in the possession of portion of the suit schedule property by laying foundation approximately in an area measuring 5500 square feet. Further it also relevant to record the averments of para 6 of the plaint. Wherein para 6 of the plaint, the plaintiffs have specifically averred that on 18/11/2020 the subordinates, agents, workers of the 1 st defendant came and dumped materials in the portion of schedule property with intention to erect tower and draw transmission line without acquiring the required land with due process of law and tried to laid foundation/base to erect electric tower at in the suit schedule property. Also case of plaintiffs, though the plaintiffs resisted the invade act of 1 st defendant and their agents, 1st defendant have not bent upon to invade over the suit schedule property and erected the tower and drawn an transmission line with the police help and usurp a portion of the suit schedule property illegally. From this much of pleadings have also make confined 1 st defendant have already in the possession of portion of the schedule property. Further, the documents at Ex.P.4 requisition letter, Ex.P.6 31 O.S.N.6074/2020 colour photographs and Ex.P.7 C.D. herein evidence the plaintiffs and defendant No.2 have been already ousted from the suit schedule property and in alternative 2nd defendant have in the possession of portion of the suit schedule property. It also could been seen and as to believe 1st defendant have the possession of the suit schedule property, in the cross-examination portion of P.W.1 take much more significance. The same significant cross-examination portion herein extracted ಈ ದಾವೆಯನ್ನು ಹೂಡುವ ಕಾಲಕ್ಕೆ 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ದಾವಾ ಸ್ವ ತ್ತಿ ನಲ್ಲಿ ಕರೆಂಟಿನ ಕಂಬವನ್ನು ನೆಡೆಸಿದ್ದ ರು. ಸಾಕ್ಷಿ ಯು ಪುನಃ ನುಡಿಯುತ್ತಾ ರೆ ಈ ದಾವೆಯನ್ನು ಹೂಡವ ಕಾಲಕ್ಕೆ electrical ಕಂಬವನ್ನು 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ಸ್ಧಾ ಪನೆ ಮಾಡಿದ್ದ ರು. ದಾವಾ ಸ್ವ ತ್ತಿ ನಲ್ಲಿ 1 ನೇ ಪ್ರ ತಿವಾದಿಯು electrical ಕಂಬವನ್ನು ಸ್ಧಾ ಪನೆ ಮಾಡುವ ಪೂರ್ವದಲ್ಲಿ 1 ನೇ ಪ್ರ ತಿವಾದಿಯನ್ನು ನಾವು ಪ್ರ ಶ್ನಿ ಸಿರುತ್ತೆ ೕವೆ. ಆದರೂ ಸಹ 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ದಾವಾ ಸ್ವ ತ್ತಿ ನಲ್ಲಿ ತನ್ನ ಕೆಲಸವನ್ನು ಮುಂದುವರೆಸಿರುತ್ತಾ ರೆ. ಈ ಬಗ್ಗೆ 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ತನ್ನ ಕೆಲಸವನ್ನು ನಿಲ್ಲ ಸದೇ ಇದ್ದ ಕಾರಣಕ್ಕಾ ಗಿ 1 ನೇ ಪ್ರ ತಿವಾದಿಯ ವಿರುದ್ದ ಅವರ ಮೇಲಾಧಿಕಾರಿಗಳಿಗೆ ದೂರನ್ನು ನಾನು ನೀಡಿರುತ್ತೆ ೕನೆ. Further at in the mouth of P.W.1 it also elicited ದಾವಾ ಸ್ವ ತ್ತ ನ್ನು 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ಸ್ವಾ ಧೀನ ಪಡಿಸಿಕೊಂಡಿದ್ದು , ಈ ಬಗ್ಗೆ 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ಪರಿಹಾರ ಹಣವನ್ನು ನ್ಯಾ ಯಾಲಯಕ್ಕೆ ಠೇವಣಿ ಇಟ್ಟಿ ರುತ್ತಾ ರೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ಪರಿಹಾರ ಹಣ ನ್ಯಾ ಯಾಲಯಕ್ಕೆ ಠೇವಣಿ ಇಟ್ಟಿ ರುವ ಪ್ರ ಕರಣಕ್ಕೆ ಇಲ್ಲಿ ಯವರೆಗೂ ಹಾಜರಾಗಿರುವುದಿಲ್ಲ . ಪರಿಹಾರ ಹಣ ಠೇವಣಿ ಹಿಡಲು ನ್ಯಾ ಯಾಲಯದಿಂದ ಆಜ್ಞೆ ಆಗಿರುತ್ತ ದೆ. ಸದರಿ ಪರಿಹಾರ ಹಣವನ್ನು ದಾವಾ ಸ್ವ ತ್ತಿ ಗೆ ಸಂಬಂಧಿಸಿ ನ್ಯಾ ಯಾಲಯ ಆಜ್ಞೆ ಮಾಡಿರುತ್ತ ದೆ. 1 ನೇ ಪ್ರ ತಿವಾದಿಯು ದಾವಾ ಸ್ವ ತ್ತಿ ನ ಸ್ವಾ ಧೀನವನ್ನು ಪರಿಹಾರ ಹಣವನ್ನು 32 O.S.N.6074/2020 ನ್ಯಾ ಯಾಲಯಕ್ಕೆ ಠೇವಣಿ ಇಡುವ ಪೂರ್ವದಲ್ಲಿ ಯೇ ನನ್ನಿ ಂದ ಸ್ವಾ ಧೀನವನ್ನು ಬಿಡಿಸಿಕೊಂಡಿರುತ್ತಾ ರೆ. From this extent of material evidence which elicited at through the mouth of P.W.1 that herein consistently evidence suit schedule property have already been acquired by 1st defendant, in against such acquisition of the suit schedule property 1 st defendant have deposited awarded compensation amount at before the competent court and on the basis of such acquisition 1 st defendant have the possession of the suit schedule property. Further from the material which elicited at through the mouth of P.W.1 have also evidence neither the plaintiffs nor 2 nd defendant was in the possession of the suit schedule property as on the date of filing of the suit. Suit of the plaintiffs one for permanent injunction in against 1 st defendant. To restrained 1st defendant, its subordinates, agents, workers, labours, licensors or anybody claiming through 1st defendant from erecting new tower for the purpose of drawing transmission line in the schedule property or any portion there of without acquiring the required land with due process of law and paying compensation on the market value is the specific prayer that the plaintiffs herein sought in the suit. If compared the prayer of the suit sought along with averments of the plaint, the same prayer as sought by the plaintiffs herein have 33 O.S.N.6074/2020 already get infructuated. Since the relief which sought by the plaintiffs in this suit have already got infructuated the same relief cannot to be granted. Accordingly, I answer Issue No.1 to 3 are in the negative.
12. Issue No.4:- For the above all foregoing reasons, I proceed to pass the following;
:ORDER:
The suit of the plaintiffs hereby dismissed.
No order as to cost.
Draw decree accordingly.
As the suit decide finally on its merit, the pending I.A.s if any are all disposed accordingly.
(Dictated directly to the Stenographer on computer typed by her, corrected and then signed by me and pronounced in the open Court on this the 5th day of April, 2024) [ ONKARAPPA.R] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : S.A. Satish
WITNESSES EXAMINED FOR THE DEFENDANTS:
NIL
34
O.S.N.6074/2020
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P1 Certified copy of decree in O.S.No.2654/2004
Ex.P2 RTC pertaining to hte land bearing Sy.No.47
Ex.P3 10 Tax paid receipt
Ex.P4 Requisition letter
Ex.P5 Certified copy of order in W.P.No.7805/2020
Ex.P6 3 photos
Ex.P7 C.D
Ex.P8 Certified copy of judgment passed in O.S.No.2654/2004
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:-
NIL [ ONKARAPPA.R ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 35 O.S.N.6074/2020 Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER The suit of the plaintiffs hereby dismissed.
No order as to cost. Draw decree accordingly. As the suit decide finally on its merit, the pending I.A.s if any are all disposed accordingly.
[ ONKARAPPA.R ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU