Bangalore District Court
(1) Dr. D.A. Satish S/O. Late D.A. ... vs The Commissioner on 16 December, 2016
Govt. of Karnataka
C.R.P.67]
TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
Form No.9 MAYOHALL UNIT, BANGALORE
(Civil)
Title sheet for
Judgment in Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
suits (R.P.91)
(Name of the Presiding Judge)
OS NO. 25046 / 2013
(CCH-22)
Plaintiff:-
(1) Dr. D.A. Satish S/o. Late D.A. Achutha Rao, aged abut 57 years,
(2) Smt. Dr. P. Lakshmi W/o. Dr. D.A. Satish, aged about 51 years,
Both R/o. 510, 5th main, Vijaya Bank Layout, Bilekahalli, Bangalore 76.
(By M/s. NMR Associates)
V/s.
Defendants:-
The Commissioner, Corporation of City of Bengaluru, Bangalore City
Corporation, BBMP, Bengaluru
(By Sri K.N. Srikanta Dutta, Advocate)
Date of Institution of the suit 9.1.2013
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Injunction
Date of the commencement of recording of the
6.9.2016
Evidence.
Date on which the Judgment was pronounced. 16.12.2016
Year/s Month/s Day/s
Total duration 3 11 07
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
2 O.S.No. 25046 / 2013
JUDGMENT
Plaintiffs have filed this suit against the defendant seeking relief of perpetual injunction restraining the defendant, its agents, henchmen, etc., from demolishing any portion of the suit schedule building or in any way interfering with the possession of the suit schedule property by plaintiffs.
2. Brief facts of plaintiffs' case are that:
Plaintiffs have purchased suit schedule property under two registered sale deeds dated 24.3.2008. Thereafter the defendant authority have passed order for clubbing the khatha and plaintiffs have paid tax to defendant authority. Plaintiffs obtained sanctioned plan from the defendant authority and constructed a clinic and residential building in accordance with the sanctioned plan. During last week of October 2012 officials of the defendant authority came near the suit schedule property and threatened to demolish portions of the schedule building, without any prior notice. Plaintiffs caused legal notice to defendant authority on 3 O.S.No. 25046 / 2013 31.10.2012 as per section 482(1) of KMC Act, 1976.
Inspite of receipt of legal notice, defendant again sent its officials near the suit schedule property on 5.1.2013 and made vehement threats of damage to the suit building. Hence this suit.
3. After registration of this suit, suit summons were issued to the defendant. In-response to the summons, the defendant appeared before this court through its counsel and filed written-statement denying all the material averments made in the plaint and further contended that the suit is not maintainable either in law or on facts. The plaintiff has put up construction on the suit schedule property, in violation of the sanctioned plan and as such notice under section 321 of the KMC Act was issued on 1.6.2009, wherein details of the deviation is clearly mentioned. The defendant officials visited the spot for verification and found deviation. Even after issuance of notice, plaintiffs have not taken proper action and obtained an order of stay in the suit by suppressing the material facts. 4 O.S.No. 25046 / 2013 The defendant authority has already initiated action under section 321 of the KMC Act, 1976 for removal of deviations. Instead of responding to the show cause notice and provisional order, plaintiffs have filed false case only to harass the defendant. In view of stay order operating in the suit, confirmation order under section 321(3) of the KMC Act is not issued. For all these reasons, the defendant prays to dismiss the suit of the plaintiff.
4. On the basis of the above Pleadings, following Issues have been framed:-
(1) Whether plaintiffs prove that they have put up and constructed suit schedule property in accordance with the approved plan issued by the defendant and therefore plaintiffs are in lawful possession and enjoyment of the suit schedule property?
(2) Whether plaintiffs prove that the defendant is trying to demolish the suit schedule property without due process of law U/s. 321 of KMC Act and 5 O.S.No. 25046 / 2013 thereby causing interference into plaintiff's possession?
(3) Whether plaintiffs are entitled for decree of Permanent Injunction as sought in the plaint?
(4) What decree or order?
5. Plaintiffs in order to prove their case, got filed affidavit of 1st plaintiff by way of examination-in-chief. The same was taken as PW1 and got marked documents Ex.P1 to 9 and closed their side. The defendant inspite of grant of sufficient time and opportunity have not led any evidence. Hence defendant evidence is taken as closed.
6. I have heard the arguments of both sides and written arguments on behalf of both the parties were filed.
7. My findings to the above Issues are as follows:
Issue No.1) ........In the negative Issue No.2) ........In the negative Issue No.3) ........In the negative Issue No.4) ........As per the final orders, for the following:6 O.S.No. 25046 / 2013
REASONS
8. Issue Nos. 1 to 3:- Since these issues are inter linked with each other they are taken up together for common discussion in order to avoid repetition of facts. PW1 in his affidavit evidence has reiterated and re-affirmed the contents of the plaint averments and got marked documents at Ex.P1 to P9. Pw-1 in his cross examination by the learned counsel for the defendant has stated that he has obtained sanctioned plan to construct building. He denied the suggestion that he has violated the sanctioned plan and put up construction in violation of sanctioned plan. He further denied the suggestion that in view of deviation in the construction the defendant had issued notice u/s.321 of KMC Act. He has stated that the defendant authority came near the suit schedule property and told him that the building has been constructed in violation of sanctioned plan and threatened that they are going to demolish the portion of building. He admits the suggestion that he has not given any letter in writing to defendants other than the legal notice stating that he has not violated the building plan. He denied 7 O.S.No. 25046 / 2013 the suggestion that inspite of receipt of notice u/s. 321 of KMC Act, he has suppressed the material facts and filed a false suit.
9. It is the case of plaintiffs that they are owners of the suit schedule property and after obtaining sanctioned plan from the concerned authority/ Defendant authority they have constructed building on the suit property without any deviation in accordance with the sanctioned plan. But the defendant authority in the last week of October, 2012 appeared near the suit schedule property and threatened to demolish portion of the suit schedule property/ building without issuing prior notice u/s.321(1) of the K.M.C. Act. Hence he has come up with the present suit seeking the relief of permanent injunction restraining the defendant from demolishing any portion of the suit schedule property or in any way interfering with plaintiffs lawful possession and enjoyment of the suit schedule property.
10. On the other hand it is the specific case of the defendant that plaintiffs have made construction in violation 8 O.S.No. 25046 / 2013 of the sanctioned plan and as such notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009 was issued to plaintiffs. The plaintiffs knowing fully well about the deviation seen in the construction of the building have suppressed the fact of issuance of notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009. The officials of the defendant visited the spot for verification and found the deviation and they have followed the rules and regulations and issued notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009 and initiated action against plaintiffs u/s.321 of KMC Act, for removal of the deviations and confirmation order u/s. 321(3) of KMC Act was ready, but not issued as the stay is operating. Though plaintiffs by producing Ex.P6 sanctioned plan have contended that they have constructed building in accordance with the sanctioned plan, and not constructed the building in violation of the sanctioned plan, merely because of production of Ex.P6 sanctioned plan it does not mean that the building constructed by plaintiffs in the suit schedule property was in accordance with the sanctioned plan. It is for the authority concerned i.e., the defendant to show as to 9 O.S.No. 25046 / 2013 whether the building constructed on the suit schedule property is in accordance with sanctioned plan or in violation of the sanctioned plan. Accordingly, as contended by the defendant in the written statement, the officials of the defendant authority visited the spot for verification and found deviation. As such notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009 was issued to plaintiffs. But plaintiffs have not taken any proper action in clearing the deviation. Therefore, provisional order u/s.321 of KMC Act for removal of deviation was initiated against plaintiffs and confirmation order u/s. 321(3) of the KMC Act was also ready, but not issued, since there is a stay. From the contention of the defendant it is crystal clear that a notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009 was issued to plaintiffs. After confirmation of deviation made in the construction of the building by the plaintiff on the suit schedule property, the Defendant authority have initiated action u/s. 321 of the KMC Act against plaintiffs for removal of the deviation. But plaintiffs have not taken any action/ steps for removal of the deviation. Therefore, 10 O.S.No. 25046 / 2013 defendant authority have kept ready the confirmation orders u/s 321(3) of the KMC Act, but not issued the same since the stay is operating. When such being the clear contention of the defendant, prima-facie it appears that there is a deviation made by the plaintiff in construction of the building over the suit schedule property. Therefore, the defendants have initiated proceedings u/s.321(1)&(2) of KMC Act, against plaintiffs. Therefore, prima-facie it appears that plaintiffs have not put up construction on the suit schedule property in accordance with the approved plan issued by the defendant. In view of the deviation in the building constructed by the plaintiff on the suit schedule property the possession of the plaintiff in respect of the deviated portion of the building cannot be held as lawful possession by the plaintiff. Hence, I am of the view that plaintiffs have failed to prove that they have put up construction on the suit schedule property in accordance with the approved plan and they are in lawful possession and enjoyment of the suit schedule property. 11 O.S.No. 25046 / 2013
11. The Plaintiffs have contended that they have put up construction of building in the suit schedule property in accordance with the sanctioned plan. But even then the defendants are trying to demolish the suit schedule property without due process of law u/s. 321 of KMC Act and thereby causing interference into their possession. As I have already stated above, defendants after noticing the deviation in the building constructed on the suit schedule property by the plaintiff have issued notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009 to plaintiffs and initiated action U/s. 321 of KMC Act for removal of the deviation after inspection of the suit schedule property and also they kept ready the confirmation orders u/s.321(3) of the KMC Act, but it was not issued since stay is operating.
12. As admitted by the defendant they have visited the spot and found the deviation. When the defendant officials visited the suit schedule property for verification to ascertain as to whether deviation if any in the building constructed by plaintiffs on the suit schedule property and 12 O.S.No. 25046 / 2013 after verification of the spot the defendant authority came to know that there is deviation in the building constructed by plaintiffs. In view of the defendant officials visited the spot for verification to ascertain deviation if any, it does not mean that defendants are trying to demolish the suit schedule property without due process of law u/s. 321 of KMC Act. In fact as contended by the defendant they had issued notice u/s.321(1)&(2) of KMC Act, dated:1.6.2009 and initiated action u/s. 321 of KMC Act for removal of deviation. Therefore, it is crystal clear that the defendant have not tried to demolish the suit schedule property without due process of law u/s. 321 of KMC Act, but they have visited the spot to find out deviation, if any, in the building constructed by plaintiffs in the suit schedule property. Hence I am of the considered view that plaintiffs have failed to prove that the defendant is trying to demolish the suit schedule property without due process of law u/s. 321 of KMC Act and thereby causing interference into plaintiff's possession.
13 O.S.No. 25046 / 2013
13. The Plaintiffs have filed this suit for permanent injunction restraining the defendant from demolishing any portion of the suit schedule property or in any way interfering with the possession of the plaintiff in the suit schedule property. I have already come to the conclusion and answered issue No.1 and 2 holding that plaintiffs have failed to prove that they have put up construction on the suit schedule property in accordance with the approved plan issued by the defendant and therefore plaintiffs are in lawful possession and enjoyment of the suit schedule property and also plaintiffs have failed to prove that defendants are trying to demolish the suit schedule property without due process of law u/s. 321 of KMC Act. As I have already stated above, while discussing issue NO.1 and 2, defendants have initiated proceedings against plaintiffs u/s.321 of KMC Act as the plaintiffs have violated the sanctioned plan and constructed the building thereon in violation of the sanctioned plan as such the Defendant authority kept ready the confirmation order u/s.321(3) of KMC Act. Under such circumstances, the remedy available for the plaintiff is not 14 O.S.No. 25046 / 2013 before this court, but before the K.A.T. The plaintiff without approaching Hon'ble Karnataka Appellate Tribunal, has approached this court. In view of defendants initiated proceedings u/s. 321 of KMC Act against plaintiffs and kept ready the confirmation order u/s. 321(3) of the KMC Act, the suit of the plaintiff is not maintainable. Therefore, I am of the considered view that plaintiffs are not entitled for decree of permanent injunction as sought in the plaint and hence, I answer issue No.1 to 3 in the negative.
14. ISSUE NO. 4 :- In-view of the reasons stated on Issue Nos.1 to 3, above, I proceed to pass the following:
ORDER The suit of plaintiffs is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this the 16th day of December 2016).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
15 O.S.No. 25046 / 2013SCHEDULE Clinic and Residential Building on property bearing New No.40 (Old No.742/C), 37th F cross road, 4th T block, Jayanagar, Ward No.168, (Old Ward No.58, Jayanagar), BBMP, Pattabhiramanagar, Bengaluru, measuring East to West 40 feet and North to South 52.6 feet and bounded on the;
East by 18th Main Road
West by House No.741
North by 37th F Cross Road
South by House No.721
(B.NARAYANAPPA)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE 16 O.S.No. 25046 / 2013 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 Dr. D.A. Satish 6.9.2016 LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1&2 Cc of two absolute sale deeds Ex.P3 Khatha certificate Ex.P4 Khatha extract Ex.P5 Tax paid receipt Ex.P6 True copy of approved plan Ex.P7 Copy of legal notice Ex.P8 Postal receipt Ex.P9 Postal acknowledgement LIST OF WITNESSES EXAMINED FOR THE DEFENDANT/S:
NIL LIST OF DOCUMENTS MARKED FOR THE DEFENDANT/S:
NIL (B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.17 O.S.No. 25046 / 2013
16.12.2016 Pltff: by Sri NRB Judgement pronounced in the open court Defendant:by Sri KNB (Vide separate detailed Judgement) Judgment The suit of plaintiffs is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(B.NARAYANAPPA)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE