Bangalore District Court
M Varaprasad Reddy vs The Commissioner, Bbmp on 19 December, 2024
1 OS No.25566/2020
KABC0A0014162020
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE, AT MAYO HALL, BENGALURU (CCH.20)
P r e s e n t:
Smt.Sujata.M.Sambrani, B.Com. LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 19th day of December, 2024
O.S.No.25566/2020
Plaintiff:- Sri. M Varaprasad Reddy,
S/o Sri. Hanuma Reddy,
Aged about 44 years,
R/at No.102, Gangotri Enclave,
22nd Main Road, Raghavendra Layout,
Padmanabhanagara,
Bengaluru-560 070.
[By Sri. M. Ramakrishnareddy-Adv]
Vs.
Defendant:- The Commissioner,
Bhurhath Bangalore Mahanagara
Palike, (BBMP), Hudson Circle,
Bangalore-560 002.
[By NS - Adv]
2 OS No.25566/2020
Date of Institution of suit: 27.05.2020
Nature of the Suit (Suit for Permanent Injunction
Pronote, Suit for Declaration and
Possession, Suit for Injunction,
etc.):
Date of Commencement of 19.07.2022
recording of evidence:
Date on which the Judgment was 19.12.2024
pronounced:
Total Duration:
Years Months Days
04 06 22
(Sujata.M.Sambrani)
XXVI Addl. City Civil Judge, Mayo Hall,
Bangaluru.
J U D G M E N T
The plaintiff has filed this suit seeking for granting perpetual injunction, restraining the defendant, his agents, men or anybody under or through it from demolishing of the suit property or in any way interfering with the plaintiff's lawful possession of the suit schedule property. 3 OS No.25566/2020
2. Brief facts of the plaint are as under:-
That the plaintiff is the developer by profession and he entered into a Joint Development Agreement and GPA dtd.11.09.2015 to develop the immovable property bearing number eastern portion of the property No.23, (Old Sy No.24, katha No.4/23), situated at Kadirenahalli Village, Uttarahalli Hobli, Bangalore South taluk presently comes within the limits of BBMP Padmanabhanagara Ward No.55, measuring East to West (100+128)2 feet and North to South (75+85)2 feet in all measuring 9120 sq.ft., and bounded on the East by Road, West by Property No.6 and passage (or Western portion of the same property), North by Property of G. Chandru and South by Property of Lakkappa.
It is further submitted that, even before the Execution of the JDA & GPA the owner by name Sri. D Sabhapathy purchased the property under a Registered Sale Deed dtd.07.02.1980. After the purchase, the katha has been 4 OS No.25566/2020 transferred in their name. After execution of the registered JDA & GPA, the plaintiff obtained the sanctioned plan in the name of the owner to construct residential building consisting of Basement, Ground, First, Second, Third floors including the terrace floor and the plaintiff has constructed the building, as per the plan issued by the defendant authority. After completion of the building, the plaintiff is in peaceful possession of the suit property. Very strangely the officials of the defendant authority abruptly appeared near the suit property during the first week of March 2020 and made vehement threats to demolish portions of the schedule building and the plaintiff prevented the defendant authority from causing any damage to building without issuing prior notice to the plaintiffs under per Sec.321 of the KMC Act, 1976. the plaintiff in all prudence caused a legal notice to the defendant authority on 09.03.2020 as per Sec.482(1) of the KMC Act, 1976. The defendant authority 5 OS No.25566/2020 after receipt of the legal notice, kept quiet for some time, but unfortunately without send any reply to the same, the defendant authority again sent its officials near the suit schedule property early morning on 16.05.2020 to damage the suit building. The cause of action arose on 09.03.2020, when the plaintiff caused a notice the defendant authority as per Sec.482(1) of KMC Act, 1976. Hence the plaintiff filed this present suit.
3. In response to the suit summons the defendant appeared though its counsel and filed detailed written statement. In the written statement the defendant states that, the suit is not maintainable according to law. On 18.02.2020 the officials of the defendant inspected the construction on the schedule property and found the construction of the building by violating the sanctioned plan. Immediately the notice under Sec.308 of KMC Act 6 OS No.25566/2020 dtd.18.02.2020 issued to the owner directing him to produce the sanctioned plan and other documents. Since the owner failed to produce the documents, the officials of the defendant passed provisional order under Sec.321(1) KMC Act on 03.03.2020 with the notice under Sec.321(2) of KMC Act personally to the owner of the property. After issuance of notice, the plaintiff failed to demolish the violated portions and failed to give reply to the notice. The officials of the defendant passed confirmation order under Sec.321(3) of KMC Act on 11.03.2020 by confirming the provisional order and the same was sent to the owner Sabhapathi through RPAD on 16.03.2020, the same was returned. Even after the confirmation order dtd.11.03.2020 the plaintiff failed to demolish the unauthorized violated portions of the construction on the schedule property. The defendant passed order under Sec.462 of KMC Act, authorizing the Assistant Executive Engineer to take action 7 OS No.25566/2020 to demolish the violated portions of the constructions. Further submitted that, the defendant authority have every right to take action against the violation of the provisions of KMC Act by following the procedure of the provisions of KMC Act. On going through the plaint averments, the plaintiff is the GPA holder of the owner of the schedule property one Sabhapathi, but as per the cause title the plaintiff filed this suit independently not as a GPA of Sabhapathi. The plaintiff filed this suit by suppressing the true facts with false allegations of the defendant officials that threatening to damage the property without prior notice under Sec.321 of KMC. Hence prayed to dismiss the suit with costs.
4. In support of the plaintiff's case, the GPA holder of the plaintiff by name Sri. B Shekar got examined himself as P.W.1 and got marked 14 documents as Exs.P.1 to Ex.P.14.
8 OS No.25566/2020
The Assistant Executive Engineer of the defendant, got himself examined as DW1 and got marked 30 documents, as Ex.D1 to Ex.D30.
5. Heard and perused.
6. In view of the above following Issues arise for my consideration:-
1. Whether the plaintiff has put up construction in the suit property as per the sanctioned plan?
2. Whether the plaintiff proves cause of action for the suit?
3. Whether the suit is not maintainable for the reasons mentioned in para No.5 of the written statement and also under the provisions of the Karnataka Municipal Corporations Act?
4. Whether the plaintiff has complied with Sec.482 of the Karnataka Municipal Corporations Act?9 OS No.25566/2020
5. Whether the plaintiff is entitled to the reliefs sought for?
6. What order of decree?
7. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:-
Issue No.1: In the Negative Issue No.2: In the Negative Issue No.3: In the Affirmative Issue No.4: In the Negative Issue No.5: In the Negative Issue No.6: As per final order for the following R E A S O N S
8. Issue No.4:- The defendant being the statutory authority i.e., the Commissioner, BBMP, Bengaluru has contended that, the plaintiff has not complied the mandatory provisions of Sec.482(1) of KMC Act. Hence sought for dismissal of sui. The plaintiff specifically contended that, on 09.03.2020 as per Sec.482(1) of the KMC Act, 1976 has issued notice to the defendant. The 10 OS No.25566/2020 said notice is received by the defendant authority on 10.03.2020 and they have produced the copy of the notice and postal receipts and acknowledgment before the court.
But on perusal of the entire records, it appears that, list of documents filed by the plaintiff on 21.05.2020 in Sl.No.8, it is mentioned that, the copy of the legal notice sent to the defendant under Sec.482(1) of the KMC Act alongwith its acknowledgment is produced. But on perusal of the list of documents produced on 21.05.2020 the copy of the legal notice dtd.09.03.2020 is produced before the court, but there is no postal receipt and the postal acknowledgment as alleged by the plaintiff is not placed before the court to show that, it has been issued to the defendant prior to filing of the suit. In the absence of said postal receipts and postal acknowledgment, it cannot be accepted that, the said statutory notice has been issued and served upon the defendant prior to filing of the suit. Hence, it cannot be 11 OS No.25566/2020 accept that the plaintiff not complied with the mandatory provisions of Sec.482(1) of the KMC Act, 1976, prior to the filing of the suit. Accordingly, Issue No.4 is answered in the Negative.
9. Issue No.1:- According to plaintiff, he is developer by profession and entered into JDA on 11.09.2015 through GPA holder and taken up the suit schedule property for construction, which is owned by the Sri. D Sabhapathy. The Sri. D Sabhapathy purchased the suit schedule property under the Registered Sale Deed dtd.07.02.1980 and thereafter he has obtained the sanctioned plan for constructing the residential building consisting of Basement, Ground, First, Second, Third floors including the terrace floor in LP No.Ad.Com/SUT/0757/15-16 dtd.14.01.2016 and the plaintiff being the developer has constructed the building as per sanctioned plan issued by the defendant authority. After completion of the building, 12 OS No.25566/2020 the plaintiff is in possession of the property and some of the flats are already sold by the plaintiff to the prospective purchasers. Thereby the plaintiff has contended that, he has constructed the building as per the sanctioned plan, issued by the defendant authority.
10. Insupport of the contentions, the GPA holder of the plaintiff is examined as PW1, who has filed an affidavit in the form of chief examination. In support of his chief examination, he has produced 14 documents, which are marked as Ex.P1 to Ex.P14.
11. The defendant authority admitted that, the owner of the suit schedule property obtained the sanctioned plan to construct the residential building consisting of Basement, Ground, First, Second, Third floors including the terrace floor in LP No.Ad.Com/SUT/0757/15-16 dtd.14.01.2016. But the plaintiff has constructed the building by violating 13 OS No.25566/2020 the sanctioned plan. The defendant has issued mandatory notice under Sec.321(1 to (3) of the KMC Act directing the plaintiff to demolish the unauthorized construction. In this regard, the plaintiff has produced sanctioned plan, which is marked as Ex.P7. As per Ex.P7, the plaintiff is permitted to construct Basement, Ground, First, Second and Third floors including the terrace floor. During the course of cross examination, the PW1 has clearly admitted that, "It is true to suggest that, in the plaint we had stated that we had obtained for stilt, ground floor, first to third floor. We started constructing the building in January 2016. The building was constructed completely in the year 2019."
"It is false to suggest that though we had no permission to construct fourth floor, we had constructed the fourth floor as shown in Ex.P8 to Ex.P11. It is true to suggest that the fourth floor is constructed as shown in Ex.P8 to Ex.P11."
12. This version of PW1 clearly reveals that, the plaintiff has constructed fourth floor on the suit schedule property by violating the sanctioned plan. Thereby it is 14 OS No.25566/2020 held that, the plaintiff has put up construction in the suit schedule property by violating the sanctioned plan by constructing the fourth floor. Accordingly, Issue No.1 is answered in the Negative.
13. Issue Nos.2, 3 and 5:- The plaintiff has specifically contended that, the plaintiff is the developer by profession and he has entered into JDA and GPA with the owner of the suit schedule property by name Sri. D Sabhapathy dtd.11.09.2015. The owner of the suit schedule property Sri. D Sabhapathy has obtained sanctioned plan from the defendant authority for construction of residential building consisting of Basement, Ground, First, Second, Third floors including the terrace floor in LP No.Ad.Com/SUT/0757/15- 16 dtd.14.01.2016, the plaintiff has constructed the building as per plan issued by the defendant authority. After completion of construction of building, the plaintiff is in 15 OS No.25566/2020 possession and enjoyment of the suit schedule property. In the first week of March 2020, the defendant authority abruptly threatened to demolish the portion of the suit schedule property without any prior notice to the plaintiff as required under Sec.321 of the KMC Act. Hence the plaintiff has issued notice to the defendant authority on 09.03.2020 as per Sec.482(1) of the KMC Act, 1976 which was received by the defendant authority on 10.03.2020. Thereby the plaintiff has contended that, the defendant authority has not issued prior notice to the plaintiff before threatening to demolish of portion of the suit schedule property.
14. On the other hand, the defendant authority, who filed the written statement has specifically contended that, On 18.02.2020 the officials of the defendant inspected the construction on the schedule property and found the construction of the building by violating the sanctioned 16 OS No.25566/2020 plan. Immediately the notice under Sec.308 of KMC Act dtd.18.02.2020 issued to the owner directing him to produce the sanctioned plan and other documents. Since the owner failed to produce the documents, the officials of the defendant passed provisional order under Sec.321(1) KMC Act on 03.03.2020 and the notice under Sec.321(2) of KMC Act personally to the owner of the property. After issuance of notice, the plaintiff failed to demolish the violated portions and failed to give reply to the notice. The officials of the defendant passed confirmation order under Sec.321(3) of KMC Act on 11.03.2020 by confirming the provisional order and the same was sent to the owner Sabhapathi through RPAD on 16.03.2020, the same was returned. Even after the confirmation order dtd.11.03.2020 the plaintiff failed to demolish the unauthorized portions of the construction on the schedule property. 17 OS No.25566/2020
15. Thereafter, the defendant passed order under Sec.462 of KMC Act, authorizing the Assistant Executive Engineer to take action to demolish the violated portions of the constructions. The defendant authority have every right to take action against the violation of the provisions of KMC Act by following the procedure of the provisions of KMC Act and as such the officials have taken action against the construction constructed by violating the sanction plan as per the provisions of KMC Act. Thereby the defendant authority has contended that, the officials of the defendant authority have taken legal action against the plaintiff for violating of provision of KMC Act by the plaintiff, who has constructed the building by violating the sanctioned plan.
16. In this regard, the defendant has produced copy of the notice issued to owner of the suit schedule property by name Sri. D Sabhapathi under Sec.321(1) of the KMC 18 OS No.25566/2020 Act, in which it was intimated to the owner of the property who showcause about the violation of byelaws while constructing the building in the suit schedule property. The copy of the notice dtd.03.03.2020, under Sec.321(1) of KMC Act issued to Mr. D Sabhapathi is also produced along with copy of the notice dtd.03.03.2020 under Sec.321(2) of the KMC Act. The defendant authority has also produced the copy of confirmation order dtd.11.03.2020 issued under Sec.321(3) of KMC Act to the owner of the suit schedule property. These documents reveals that, the defendant authority has issued notices to the owner of the property as per Secs.321(1) to (3) of the KMC Act. Thereby the contentions of the plaintiff with regard to non-issuance of statutory notices under Sec.321 of the KMC Act cannot be accepted.
19 OS No.25566/2020
17. Further, the provision of Sec. 248 of BBMP Act, 2020 reads about demolition or alternation of buildings or well work unlawfully commenced, carried on or completed. Therefore the Defendant/ BBMP authority are empowered to demolish or alter the unauthorized construction or deviations made by the citizen coming within the jurisdiction of BBMP. Accordingly the BBMP has issued notice to the plaintiff calling upon them to set right the deviations of unauthorized constructions. But the plaintiff has not complied with the said notices and filed this suit, seeking the relief of injunction.
18. The plaintiff is the developer and Sri. D Sabhapathi is the owner of the suit schedule property. It is also not in dispute that the BBMP has changed the katha in the name of the Sri. D Sabhapathi, the owner in respect of the suit schedule property. The only controversy is with regard to non-compliance of the statutory provisions of 20 OS No.25566/2020 Sec.321 of the KMC Act, by the defendant, when the plaintiff has put up construction in the suit schedule property. Sec.321 of the KMC Act is incumbent upon the BBMP to issue and comply with the requirements prescribed under the said provisions and notice has to be served upon the owners of the building.
19. In this regard, the learned counsel for the plaintiff specifically argued that, as per Sec.321(2) of the KMC, the Commissioner shall serve a copy of the provisional order on the owner or builder of the building of the suit schedule property. But the said notices not served on the plaintiff.
20. In this regard, it is relied upon the decisions, in the judgment of the Hon'ble High Court of Karnataka in paras-7 and 8 has held as under:-
"7. Sub-Section (2) of Sec. 321 of KMC Act reads thus:
"321(2): The Commissioner shall serve a copy of the provisional order made under sub-section (1) on 21 OS No.25566/2020 the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed". A plain reading of sub-section (2) of Section-321 mandates the service on the petitioner, a copy of the provisional order passed under sub-section(1) together with a notice requiring him to show cause within a reasonable time to be named in such notice as to why order should not be confirmed. The method of serving of notice under the Act, is set out in Section 455 which reads thus: -
(a) By giving or tendering the said document to such person; or
(b) If such person is not found, by leaving such document at his last known place of abode or business or by giving or tendering the same to his agent, clerk or servant or some adult member of his family; or
(c) If such person does not reside in the city and his address elsewhere is known to the Commissioner, by sending the same to him by registered post; or
(d) If none of the means aforesaid be available, by affixing the same in some conspicuous part of such place of abode or business.
Sec. 455 contemplates different methods of service of notice and if none of the means 22 OS No.25566/2020 under clause (a) to (c) are available, subsection (1)(d) comes into play, by which the notice is to be affixed in some conspicuous part of such place of abode of business.
8. In the instant case, the respondent BMP admittedly did not exhaust the methods of (a) to (c) of Sec.445 of the Act to serve the notice on the petitioner, but straight away mailed a copy of the notice by 'certificate of post' and thereafter affixed a copy of the notice on the building and draw up a mahazar. Though the method adopted was the main ground of challenge in the appeal memorandum, filed before the Karnataka Appellate Tribunal, the BMP did not place material in opposition nor did the KAT advert to the method of service of notice under Sec.455 of the Act"
Therefore, the Hon'ble High Court has specifically mentioned about the modes of service of notice upon the plaintiff.
21. In another case of the Hon'ble High Court of Karnataka in RFA No.234/2015 (INJ), in the matter of The Commissioner of Corporation of the City of Bengaluru Vs. 23 OS No.25566/2020 Kiran.S.Gole and another, DD 29.11.2019, has held as under:-
"12. It is not in dispute that the plaintiffs are the absolute owners and they are in lawful possession and enjoyment of the suit schedule property. It is also not in dispute that the defendant/Corporation (BBMP) has changed the khatha in the name of plaintiffs. The controversy is only with regard to non-compliance of the statutory provisions of the KMC Act i.e., issuance of notice under Section 321 (1) and confirmation Order under Section 321 (3) of the KMC Act.
13. It is the specific case of the plaintiffs that they are the absolute owners and they are in lawful possession of the suit schedule property and that the action taken by the defendant/Corporation is unsustainable and is contrary to the provisions of the KMC Act.
14. To consider the controversy, it is important to extract the relevant portion of Sec. 321 of the KMC Act.
"321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed. (1) If the Commissioner is satisfied, (I) That the construction or re-construction of any building or hut or well,
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in 24 OS No.25566/2020 contravention of any order passed by the standing committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
(ii) that any alteration required by any notice issued under section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is 25 OS No.25566/2020 complied with the owner or builder shall refrain from proceeding with the building or well or hut.
2. The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
3. If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
4. If the construction or reconstruction of any building or hut is commenced contrary to the provisions of section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons 26 OS No.25566/2020 concerned shall be deemed, to have been duly informed of the matters stated therein.
15. As could be seen from the above Section, it is incumbent on the part of the defendant/Corporation to issue notice and comply with the requirements as prescribed under Sec.321 of the KMC Act and that the notice has to be served to all owners of the building.
22. In this regard, the learned counsel for the defendant has produced the copy of the notice issued to the plaintiff as per Ex.D5. The postal receipt is also affixed on this notice. The address mentioned in this notice is similar one to the address shown in the cause title of the plaint. The learned counsel for the defendant also produced another office copy of the notice dtd.18.02.2020 issued to the plaintiff, which was duly received by the plaintiff, in which the BBMP authority has recalled upon the plaintiff to produce all the documents pertaining to the suit schedule property alongwith the sanctioned plan. The Ex.D17 and 18 are the postal receipts, Ex.D20 to 22 are the 27 OS No.25566/2020 photographs and Ex.D23 is the mahazar drawn on 15.04.2020, when the notice was affixed on the building, which was issued under Sec.321(1) to (3) of the KMC Act. The Ex.D21 to Ex.D23 reveals that, the notice was duly affixed on the suit schedule property, which can be held as due service of notice.
23. During the course of arguments, the learned counsel for the plaintiff vehemently argued that, the defendant authority without following procedure directly taken steps to affix the notice on the building. But the evidence of PW1, in this regard place an important role. During the course of cross examination, the PW1 has clearly admitted that, "It is true to suggest that D. Sabapathi is residing in the address now shown to me in the notice dated 03.03.2020 that is D. Sabapathi, property No.4/23(24) Sunnadagooducompound, Gowdana Palya, Padmanabanagar, Bengaluru. The said document is marked as Ex.D1. It is true to suggest that D. Sabapathi is residing in the address 28 OS No.25566/2020 now shown tome in the notice dated 11.03.2020 that is D. Sabapathi,property No.4/23(24) Sunnadagoodu compound, Gowdana Palya, Padmanabanagar, Bengaluru. The said document is marked as Ex.D2."
24. This version of PW1 reveals that, the notice issued by the defendant under Sec.321 (1) to (3) of the KMC Act were issued to the correct address of the owner of the suit schedule property. As per Sec.27 of the General Clauses Act, if the notice is issued to the correct postal address of the parties, then it is held as deemed service. When the notices have been issued to the owner of the suit schedule property to the correct postal address, then the plaintiff cannot contend that the notice was not served upon him.
25. In this regard, the learned counsel for the defendant has relied upon the decision held by the Hon'ble High Court of Karnataka in MFA No.8409 of 2019 C/w WP No.19048/2019 held in between Sri. M Gadde Gowda V/s 29 OS No.25566/2020 Sri. Sudhakar Shastry and Ors., wherein it is held as follows:-
"5. Insofar as the grant of injunction by the impugned order by the civil Court, the learned counsel for the respondent No.1 submits that the respondent No.1 is constrained to file the suit because there was a threat of demolition, but no formal action was initiated and in such circumstances, in the light of the decision by the Hon'ble Supreme Court referred to by the Civil Court, the suit would be maintainable. The learned counsel further submits that the respondent No.1 has not been served with the preliminary order under Sec.321(3) of the KMC Act or the subsequent orders. It is only during pendency of the present proceedings that he has been informed that the different orders have been passed. The learned counsel for the respondent No.1 further submits that, though the respondent No.1 could avail alternative remedy under Sec.443(A) of the KMC Act, a suit under Sec.9 of CPC would not be barred and as such, not only is the suit maintainable, but the grant of interim order is also justified in the facts and circumstances of the case.
6. However, it would suffice for the disposal of the writ petition and the appeal, for this Court to observe that once it is to the knowledge of the respondent No.1, the appropriate recourse would be to avail statutory remedy under the KMC Act, and every ground urged against the orders issued can be gone in 30 OS No.25566/2020 such proceedings. If the interim order granted by the civil Court were to prevail, even after the proceedings are initiated under the KMC Act, the effect of such orders stultified rendering the statutory mechanism ineffective."
26. Based on this decision, it can be held that, once it is brought to the knowledge of the plaintiff about the notice, it is appropriate recourse to plaintiff would be to avail statutory remedy under the KMC Act. In this case the defendant authority has issued notice to the owner of the suit schedule property as per Sec.321(1) to (3) to his correct address. Also served the notice through affixture. Hence, it is held that, it is deemed that, the statutory notice is served. Hence the contention of the plaintiff in this regard not sustainable.
27. In the recent decision of the Hon'ble High Court of Karnataka in the matter of Smt. Kavitha Jain and another Vs. the Commissioner, BBMP and ors., WP 31 OS No.25566/2020 No.9934/2023(LB-BMP) DD 17.08.2023, the Hon'ble High Court has held as under:-
"One other aspect which has come to light in the above the matter is as regards the suit which had been filed by the petitioner against the corporation, when proceedings were to be initiated by the Corporation under the BBMP Act. This matter relating to a statutory performance of obligation by the Corporation, no court including the Civil Court would have jurisdiction to entertain or pass any order in such proceedings. As such, general instructions would also have to be issued in this regard".
28. The suit schedule property comes under the BBMP, in which the BBMP has initiated proceedings u/s.248 of the BBMP Act, 2020. Therefore, this matter also highlighted the statutory performance of obligation by the Corporation. Hence this Court being the Civil Court has no jurisdiction to entertain a suit or to pass any order. Therefore the arguments of the learned counsel for the 32 OS No.25566/2020 plaintiff in this case is not tenable. Accordingly, Issue Nos.2 and 5 are answered in the Negative & Issue No.3 is answered in the Affirmative.
29. Issue No.6:- In view of the reasoning given above, I proceed to pass the following:-
O R D E R The suit of the plaintiff is dismissed with cost.
Draw decree accordingly.
--
(Dictated to the Stenographer directly on the computer, typed and then corrected and pronounced by me on this the 19th day of December 2024)
-
(Sujata.M.Sambrani) XXVI Addl. City Civil Judge, Mayo Hall, Bangaluru.
A N N E X U R E
1. List of witnesses examined for the plaintiff:
P.W.1 B. Shekar 33 OS No.25566/2020
2. List of witnesses examined for defendants:
D.W.1 Muralidhar
3. List of documents exhibited for the plaintiffs:
Ex.P.1 Certified copy of the Joint Development Agreement dtd.11.09.2015 Ex.P.2 GPA dtd.11.09.2015 Ex.P.3 Certified copy of the Sale Deed dtd.07.02.1980.
Ex.P4 Katha certificate.
Ex.P5 Katha Extract.
Ex.P6 Tax paid receipts
Ex.P7 Sanction Plan.
Ex.P8 to 11 Four photographs.
Ex.12 CD
Ex.P13 Office copy of the Legal Notice
dtd.09.03.2020.
Ex.P14 Postal Acknowledgment.
34 OS No.25566/2020
4. List of documents exhibited for defendants:-
Ex.D.1 Copy of Notice dtd.03.03.2020. Ex.D2 Copy of Notice dtd.11.03.2020. Ex.D3 Original Authorization Letter. Ex.D4 Office copy of the Notice under KMC Act.
Ex.D5 Postal Receipt.
Ex.D6 to 10 5 photographs.
Ex.D11 Original Complaint dtd.30.01.2020. Ex.D12 to 16 5 photographs.
Ex.D17 & 18 Two postal receipts.
Ex.D19 to 22 Vijaya Karnataka Newspaper dtd.15.04.2020 with three photographs.
Ex.D23 Spot Mahazar dtd.15.04.2020 Ex.D24 & 25 Two Returned Postal Covers. Ex.D26 to 29 4 photographs.
Ex.D30 CD.
(Sujata.M.Sambrani)
XXVI Addl. City Civil Judge, Mayo Hall, Bangaluru.