Bangalore District Court
Chandrashekhar B.Jamakhandi B.Sc vs Commissioner on 18 April, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS JUDGE
(CCH-53), BENGALURU CITY.
Dated this the 18th day of April, 2015
- : PRESENT :-
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
O.S. NO. 8356/2013
PLAINTIFF: Chandrashekhar B.Jamakhandi B.Sc.,Ag.
No.27, 2nd Conservancy,
1st Cross, Subedarchatram Road,
Gandhinagar,
Bangalore-560 009.
(By Sri. B.C.Ramamurthy, Advocate)
/ Versus /
DEFENDANTS: 1. Commissioner,
Bruhat Bengaluru Mahanagara
Palike, Corporation Buildings-
Head office, Hudson Circle,
N.R.Square, J.C.Road,
Bengaluru.
2. The Deputy Commissioner-West,
Bruhat Bengaluru Mahanagara
Palike, Bengaluru.
3. Assistant Revenue Officer,
Bruhat Bengaluru Mahanagara
Palike, Gandhinagar,
Bengaluru-560 009.
(By Sri. N.R.J., Advocate.)
2 O.S.8356/2013
Date of institution of the suit: 16.11.2013
Nature of the suit:
Permanent Injunction
Date of commencement of 28.08.2014
recording of evidence:
Date on which Judgment was 18.04.2015
pronounced:
Duration:
Days Months Years
02 05 01
JUDGMENT
This suit is filed by the plaintiff for permanent injunction against the defendants, their henchmen, or any other person claiming through them restraining them from interfering with plaintiff's peaceful possession and enjoyment of suit schedule premises and to accept the monthly lease rents to be deposited in this court till final disposal of the suit and such other reliefs with costs. (Note:- This case has been transferred from CCH5 to this court as per the notification No. PPS(CCC) 68/2014 dt.1-12-2014 of Hon'ble Prl. City Civil & Sessions Judge, Bengaluru.)
2. Brief facts of the case are that, the plaintiff is the absolute owner of the schedule property as he is the allottee from 3 O.S.8356/2013 the defendant and took the possession on lease for a period of three years from 10-9-1997, to run the telephone booth on self- employment scheme on monthly lease (monthly rent ) of Rs.500/- and it was under approval of BBMP Standing Committee dated 10-09-1997, he was paying monthly lease rent amount and necessary documents are executed, with reference to the suit property under lease for a period of 3 years. The plaintiff has made an application on 1-9-2009 for renewal of lease agreement after expiry of lease agreement period. The defendant has approved the same for another 5 years, on 23-10-2007. But no agreement was entered into between the plaintiff and defendant though he has applied for the same. The plaintiff being assessed under Professional Tax and was paying Professional Tax. He is running STD PCO booth as per order of sanction by the defendant. He has taken the Electricity connection and referred the electricity and telephone bills. Some strangers are coming near the place of business of the plaintiff demanding the money to be paid unofficially without giving any receipt for their demand and the plaintiff is not interested in encouraging such illegal and unlawful demands. The plaintiff 4 O.S.8356/2013 apprehending danger of such strangers taking law into their hands by influencing the concerned officials of the defendant, the plaintiff has constrained to file this suit as cause of action arisen on 23-10-2007 and the plaintiff has continued in peaceful possession of the suit property and accordingly it is prayed to decree the suit as prayed for.
3. On issuance of suit summons, the defendants appeared through their counsel and filed the written statement through the Head of legal cell denying the material contents of plaint averments as the suit for injunction is not maintainable. It is frivolous and vexatious suit based on created and concocted documents. The plaintiff has suppressed the material facts and he has not approached the court with clean hands. There is no doubt compliance as required u/Section482 of KMC Act, since there was no urgency in the matter and there was no need to dispense with the notice under section 482 of KMC Act. The license has been granted to run the telephone booth for a period of three years i.e., since 10-9-1997, subject to renewal of conditions of the license on expiry of licence period and subject to enhancement of licence fee and he has been permitted to 5 O.S.8356/2013 install and run the telephone booth and he was not permitted to do any other business or illegal activities. The license was not renewed from time to time and it was not at all renewed from 1-9-2007 as such, the plaintiff has no right to continue in the occupation of premises. The inspection done by the official of the defendant No.1 noticed that the plaintiff is mis-using the licensed premises for other illegal activities for which he has no permission obtained from the competent authority and there was no permission to deal with other business activities and the allegation that the illegal demand made by the officials of defendant etc., are specifically denied. Merely on making application for renewal of licence for a period of 5 years does not give any right to the schedule premises. The plaintiff is making an attempt to squat on the premises by obtaining an order of this court. There was no cause of action to file a suit. The suit is not properly valued, nor court fee paid is correct. On these grounds, it is prayed to dismiss the suit.
4. On the basis of pleadings of the parties, the IX Addl. City Civil & Sessions Judge, Bangalore has framed the following issues: 6 O.S.8356/2013
ISSUES
1. Whether plaintiff proves subsistence of lease in respect of schedule property as on the date of suit?
2. Does he prove his occupation of schedule property as lessee and prove renewal of license from time to time?
3. Whether defendants prove that suit is not maintainable for non issuance of notice as contemplated u/Sec.482 of KMC Act,1976?
4. Do they prove that plaintiff has no right to continue his occupation of the suit premises as contended?
5. Whether plaintiff is entitled for relief as sought for?
6. What order and decree?
5. To prove the case, plaintiff himself examined as P.W1 and marked the documents Exs.P.1 to P.45. The defendants have not chosen to lead oral or documentary evidence. Hence, heard the arguments, perused the pleadings and evidence of the parties of record on hand.
6. The following are the findings on the above issues: 7 O.S.8356/2013
Issue No.1 :- In the Negative.
Issue No.2 :- In the Negative.
Issue No.3 :- In the Negative.
Issue No.4 :- Partly affirmative and partly negative. Issue No.5 :- In the Negative.
Issue No.6:- As per the final order for the
following-
REASONS
7. Issue No.3:- The defendants have taken specific defense that suit itself is not maintainable for non-issuance of statutory notice as contemplated u/Sec.482 of KMC Act, 1976. It is pertinent to note that the plaintiff by pleading emergency has applied for dispensation of notice under I.A.No.1. It is filed under section 80(2) of C.P.C. However, at the initial stage the then learned predecessor in office, duly considered the memo filed by counsel for the plaintiff along with copy of the notice issued under section 482 of K.M.C. Act and thereafter the application filed under I.A.No.1 treating it as application filed under section 482 of KMC Act and permitted the plaintiff to sue the defendants without issuance of notice as contemplated under section 482 of KMC Act. The said order till today has not been challenged; nor it was set aside. Therefore, in view of 8 O.S.8356/2013 the dispensation of the said notice, the suit of the plaintiff is maintainable. So, the decision reported in "ILR 2001 Kar.3722 in the case of Smt. Rangamma Vs Chairman, Bangalore Development Authority, Civil Procedure Code, 1908 (Central Act No.V of 1908)
- Order VII Rule 11 (d) And Bangalore Development Authority Act, 1976 (Karnataka Act No.12 of 1976), If the Court decides to reject the plaint for want of statutory notice, it should not embark upon trial of all issues as findings on those issues would be without jurisdiction as the court had no jurisdiction to entertain the suit, in the absence of statutory notice".
Regarding rejection of plaint as non-compliance of statutory notice, u/order 7 Rule 11(d) of CPC, to this present case on hand, it does not come to the aid of the defendants. Hence, the defence that, for non compliance of Sec. 482 of KMC Act, as the plaintiff has not issued statutory notice prior to filing of the suit and the suit is bad in law etc., does not sustain. Accordingly, this issue No.3 is answered in the 'Negative'.
8. Issue Nos.1,2,4 & 5:- Issue No.5 is the relief oriented issue which is based on the consideration of other issues, as they are 9 O.S.8356/2013 based on similar oral and documentary evidence. Hence, they have taken for common consideration, to avoid repetition. This court has duly considered the arguments of Learned counsel for plaintiff and defendants and also written arguments of Learned counsel for plaintiff.
9. Reiterating the plaint averments the plaintiff has deposed as P.W1 in connection with the peaceful undertaking of Telephone booth in the suit property the business premises in the ground floor of the property measuring 5'x5' situated at 1st Cross, II conservancy, S.C.Road, Ward No.27 bounded by East- Krishna Murthy Building, West- Conservancy, North- Conservancy and South by Road under lease agreement that was entered into between himself and the defendant corporation and cause of action made out is that the strangers demanding money to be paid unofficially without issuing receipts etc., and placed the relevant documents at Ex.P1 to P45. Ex.P.1 is the lease agreement dated 30.09.2005; Ex.P.2 is the certificate of Form No.4; Exs.P.3 & P.4 are cash paid receipts; Exs.P.5 to P.10 are the photos; Ex.P.11 is the cash paid receipt; Exs.P.12 & P.13 are the certified copy of proceedings of Standing committee; 10 O.S.8356/2013 Ex.P.14 is the license and lease deed dated 04.12.1997; Ex.P.15 is the endorsement; Exs.P.16 & P.17 are the certified copy of proceedings of Standing Committee; Ex.P.18 is the endorsement; Ex.P.19 is the lease renewal agreement; Exs.P.20 & P.21 are the certified copy of proceedings of Developmental Standing committee; Ex.P.22 is the advance deposit for 3 months; Exs.P.23 & P.24 are the bills for requirement of electricity; Ex.P.25 is the requisition bill of BSNL; Ex.P.26 is the documents relating to educational qualification; Exs.P.27 to P.42 are the receipts; Ex.P.43 is the copy of order dated 14.12.2000 in W.P.No.37642/2000; Ex.P.44 is the copy of interim order in W.P.No.41393/2003 and Ex.P.45 is the copy of order sheet in O.S.No.6998/2000.
10. Coming to the version of P.W1 and the said documents no doubt there is no dispute pertaining to the possession of the plaintiff over the suit property as on the date of filing of the suit. Apart from this, it is revealed that the plaintiff is occupying the suit property to run the telephone booth taking on lease from the defendant commencing from 10-9-1997, under self-employment scheme on a monthly rent of Rs.500/- as he had moved an 11 O.S.8356/2013 application to Chief Minister and limits put up by Special officer of Chief Minister on 15-5-1996, to the standing Committee of BBMP town planning and finance and thus, he was in possession of the suit property. Thereafter, he has executed a lease agreement in favour of BBMP on 4-12-1997 and Rs.2,000/- was paid as advance. Thereafter, it was extended further three years and agreement was executed on 4-2-2002 as per order of the defendant (Asst. Revenue Officer), Gandhinagar Division, BBMP, Dr. TCM Rayon, Bangalore on monthly rent of Rs.800/- and Rs.2,400/- was paid as advance of three months rent. Thereafter, two years lease was executed in favour of BBMP on 30-9-2005, as per order of the said authority on a rental of Rs.800/- per month; for renewal he made an application on 9-9-2007, after expiry of lease agreement for a period of 5 years and it was approved for a period of 5 years on 23-10-2007. But no agreement was entered into between the plaintiff and the defendant.
11. The plaintiff was assessed under Professional Tax and as tenant carrying his employment i.e., STD PCO booth in pursuance of the order passed by the defendant, BBMP. For his possession and enjoyment of the said premises he has referred the electricity bills 12 O.S.8356/2013 etc. The plaintiff's possession of the telephone booth is admitted by the defendant. But specifically stated in the written statement, that the said licence was not renewed from time to time. The defendant has not renewed the licence of the plaintiff from 19-9-2007. It is further contention of defendants that it was leased to plaintiff, to continue occupation of the premises, but the plaintiff is misusing the license / permission and he has used it for other illegal activities, for which he had no due permission, obtained from the defendant, BBMP, so as to do other trade or business activities. It is denied by the defendants that, "no officials of defendant have visited the suit premises and no payment was also made unusually, the permission should be made through DD. Mere applying for renewal of the licence for a period of 5 years plaintiff does not get any right to the suit schedule premises; But, the plaintiff illegally attempted to squat on the premises" etc. Thus contending so the very cause of action to file the suit, itself is denied.
12. It is pertinent to note that the cause of action made out by the plaintiff specifically at para No.10 of the plaint that, "some strangers are coming near the place of business of the plaintiff and 13 O.S.8356/2013 were demanding money to be paid unofficially without issuing any receipts for their demand and the plaintiff does not want to encourage such illegal and unlawful demand of the strangers". Thus, it is not the allegation against the defendant or its agents, officials or any other persons acting under the defendant BBMP. Who are those strangers and demanding the money unofficially etc., has been specifically pleaded. No materials are forthcoming in this regard. Nor plaintiff has proved it with cogent evidence about the alleged strangers and how they are related to the defendant Corporation? Thus, since it is not against the Corporation, the very cause of action pleaded referring to the alleged strangers, is not amounting to the alleged interference of the defendant as contended by the plaintiff in the prayer column seeking permanent injunction against the defendant, their henchmen or persons claiming through them who are interfering with plaintiff's peaceful possession and enjoyment of premises. Thus, from pleadings in the plaint itself disclosed that there is no any allegation pertaining to the defendants' alleged interference. But it refers to the strangers; the alleged strangers are not before the court; the particulars are not forthcoming; the plaintiff 14 O.S.8356/2013 has not impleaded them. Thus, who are the persons against whom the cause of action made out are not brought on record. Thus, at the out set it is nothing to do with the prayer made and the cause of action pleaded against the defendant. There is no clarity for specific pleading about the manner in which the defendants are interfering with plaintiff's peaceful possession and undertaking of running of telephone booth.
13. From the entire evidence it has revealed that the defendant is not taking into account about his application for renewal of lease and not accepting the rent amount. It is the exclusive jurisdiction of the defendant BBMP to consider the grant or refusal of lease in respect of suit premises. But, the Civil Court cannot interfere with the exercising of such powers and also discharging of duty in accordance with the provisions of KMC Act, as the properties coming within the jurisdiction of BBMP and governed by KMC Act. The grievance is against the strangers and the strangers are not party to the suit; plaintiff has not sought for any relief against the alleged stranger. Thus, at the outset, there is no cause of action made out by the plaintiff.
15 O.S.8356/2013
14. It is also relevant to refer the manner in which the answer given by the plaintiff during his cross-examination; rather he has admitted the defence taken by the defendant. No doubt the plaintiff deposed and placed reliance on the said documents to show his possession over the suit property and running his business. But, what was the cause of action made out is important to be considered, whether such relief can be granted. The Learned counsel for defendants argued that, when the plaint does not disclose a cause of action and this suit has to be dismissed and plaintiff is not entitle for the alleged relief. Statutory authority governed by KMC Act. In the written statement it has not disputed the plaintiff's possession and running of telephone booth for the purpose for which the premises was leased out to plaintiff. No doubt during cross- examination P.W1 admits that the suit property is of corporation. As on the date of filing of the suit there was no lease agreement. But he has admitted the things to be considered that, -
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16 O.S.8356/2013
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15. The plaintiff has admitted that the suit premises is belonging to the corporation and at the time of filing of the suit there was no lease agreement and that the lease agreement period was lapsed. But, he says that he had applied for renewal. But no material in that regard placed in this suit to justify that he made due and legal efforts in that regard. He has further admitted that from 1-9-2007, the defendant corporation has not renewed his lease agreement and he never paid any rent due from 2007, till the date of 17 O.S.8356/2013 his evidence, to the corporation. It is his explanation that the corporation authorities have not accepted the amount towards rent whenever he offered it. But, he has neither issued any notices in this case, nor he has sent any cheque or DD with reference to the arrears of rent, in the name of defendant Corporation, though the plaintiff had no any hurdle or impediment in that regard and that amount has to be paid by cheque or DD. Thus from his evidence, it reveals that his lease agreement had not been renewed from the year 2007; nor he paid the rent. He has not paid any amount in order to pay the arrears of rent, to the corporation. Thus, at the out set his possession cannot be considered as in continuation of the lease agreement which was lapsed and it has not been renewed. He has not paid any arrears of rent; Nor he made any attempts to get it renewed with due process of law.
16. However, the defendant referring the written statement has stated that since the telephone booth being at the foot path is creating hurdle for the public, but the plaintiff has denied the same. However, it is within the jurisdiction of BBMP to consider these aspects exclusively by exercising the power with discharging the duty 18 O.S.8356/2013 with due process of law and in that regard this civil court cannot interfere, in connection with the arrears of rent and renewal of lease agreement. It is left to the powers and authority of defendant, BBMP under KMC Act to be exercised.
17. It is also suggested to P.W1 that he is using the premises other than the purpose for which it was leased out i.e., for public telephone booth; but he is selling beedi, cigarettes, Gutka etc. However, it is his denial in this regard about illegal user of the said telephone booth and it was without getting due permission to do such business etc. However, it is also the special power and discretion of BBMP i.e., specifically the Commissioner or authorized person, to consider these aspects and proceed against the plaintiff in accordance with law. However, the plaintiff has to place representation / application, with reference to his alleged grievance and proceed as per law. It is also tried to bring on record by the defendant that the plaintiff is undertaking business which has not been permitted i.e., sale of mobile accessories, as revealed under Ex.P2, P5 and P6. While asking the question that such accessories are not allowed to sell since no permission was granted in that 19 O.S.8356/2013 regard. But the plaintiff states that the permission under lease includes accessories to be sold in the premises.
18. Thus from such evidence, it reveals that he is not disputing the defense that he has undertaken the sale of mobile accessories. Therefore, these aspects have to be considered that the plaintiff has not put forth the real matter in controversy so as to seek relief pertaining to injunction against the defendants, their servants and others, who are acting on their behalf from interfering with the peaceful possession and enjoyment of the plaintiff over the suit premises. It is apparent that the defendant has not renewed the license. The case regarding the alleged interference demanding of illegal money is against the stranger, but not against the defendants. Under such circumstances, the evidence of P.W1 does not support his case that, the defendants 1 to 3 are interfering with peaceful possession and enjoyment of suit property. But, he himself has not given the evidence and come to the court without due compliance as required under law i.e., Special statute, in connection with the renewal of license and payment of rent amount which is due from 2007. He himself is not justified about his alleged business to 20 O.S.8356/2013 be undertaken in the premises, as per the terms and conditions of the lease. However, the lease agreement period itself is lapsed and his possession is considered to be the settled possession. However, there is no prayer made by the plaintiff that the defendants are tried to dispossess him from the suit schedule property. Even during the cross-examination at para-6, he has specifically stated about the cause of action that, when he went to pay the rent the defendants refused to receive it. But he himself has not made any justifiable efforts to seek the relief of injunction. Apart from that, this court cannot pass any permanent injunction against the defendant as they are governed by K.M.C. Act and considered to be the Statutory-Body- Representatives. They have to discharge their duties and exercise the discretionary power confirmed under KMC Act and that it should be with due procedure, to be followed. But, in this connection there is no allegation made that the defendants, without due procedure, are trying to interfere with the peaceful possession and enjoyment of the suit premises. "Non- receiving the arrears of rent", when the plaintiff himself is not a person getting the lease renewed, it cannot be the alleged interference of the defendants.
21 O.S.8356/2013
19. Under such circumstances, the plaintiff has failed to prove the alleged interference so as to seek the permanent injunction as prayed for. He has not proved the subsistence of lease after laps of lease period under agreement in respect of the suit schedule property, on the date of filing of the suit. Though he has proved about the renewal of lease from time to time up to 2007, but he has not got it renewed from the year 2007. Thereby, no doubt the plaintiff has no right to continue his occupation of suit premises. However, the defendant has to follow due procedure against the plaintiff and also consider the application of plaintiff as required under law in connection with the continuation of his occupation and renewal of license. Thus efficacious remedy is available for the plaintiff to get the lease renewed, from the competent authority i.e., the defendant Corporation. Competent authority, by granting relief of injunction by this court, it cannot restrain permanently from proceeding against plaintiff to take necessary steps or action in connection with the plaintiff's possession under lease or otherwise. Hence, the plaintiff is not entitled for the relief of permanent injunction. Hence, Issue Nos.1 to 3 & 5 are answered in the 22 O.S.8356/2013 'Negative' and Issue No.4 is answered 'partly in the Affirmative' and 'partly in the Negative'. The defendants, BBMP has to decide whether the plaintiff can continue his occupation of the suit premises.
19. Issue No.6:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R Suit of the plaintiff is hereby dismissed as he has failed to make out the cause of action to file the suit and availability of efficacious remedy to the plaintiff for getting lease renewed/modified under changed circumstances, with due process of law.
However, the defendants shall not interfere with the plaintiff's peaceful possession and enjoyment of the suit property to run the telephone booth, without due process of law, for a period of 45 days from the date of this order. Defendants have to consider the application/explanation of the plaintiff and hear the grievance and to consider the same in accordance with law.
Parties to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the open court on this the 18th day of April, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.23 O.S.8356/2013
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 Chandrashekar B Jamkhandi List of the documents marked for the plaintiff:
Ex.P.1 : Lease Agreement dated 30.09.2005.
Ex.P.2 : Certificate of Form No.4.
Ex.P.3 &4 : Cash paid receipts.
Ex.P.5 to 10 : Photos.
Ex.P.11 : Cash paid receipt.
Ex.P.12&13 : Certified copy of proceedings of Standing
Committee.
Ex.P.14 : Licence and Lease deed dt.4-12-1997.
Ex.P.15 : Endorsement.
Ex.P.16 &17 : Certified copy of proceedings of Standing
Committee.
Ex.P.18 : Endorsement.
Ex.P.19 : Lease renewal agreement.
Ex.P.20 &21 : Certified copy of proceedings of Developmental
Standing Committee.
Ex.P.22 : Advance deposit for three months.
Ex.P.23 &24 : Bills for requirement of Electricity.
Ex.P.25 : Requisition bill of BSNL.
Ex.P.26 : Documents relating to educational qualification.
Ex.P.27 to 42 : Receipts.
Ex.P43 : Copy of order dated 14-12-2000 in WP 37642/2000.
Ex.P44 : Copy of interim order in WP 41393/2003.
Ex.P45 : Copy of order sheet in O.S.6998/2000.
24 O.S.8356/2013
List of the witnesses examined for the defendants:
- NIL -
List of the documents marked for the defendants:
- NIL -
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.25 O.S.8356/2013
Judgment pronounced in the open Court (vide separately).
ORDER Suit of the plaintiff is hereby dismissed as he has failed to make out the cause of action to file the suit and availability of efficacious remedy to the plaintiff for getting lease renewed/modified under changed circumstances, with due process of law.
However, the defendants shall not interfere with the plaintiff's peaceful possession and enjoyment of the suit property to run the telephone booth, without due process of law, for a period of 45 days from the date of this order. Defendants have to consider the application/explanation of the plaintiff and hear the grievance and to consider the same in accordance with law.
Parties to bear their own costs.
Draw decree accordingly.
LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.