Bangalore District Court
Ohio-Manipal School Of vs Karnataka Housing Board on 30 April, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 30th day of April 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.25864/2007
Plaintiff: Ohio-Manipal School of
Business, Manipal educational
school, Allasandra, Near
Dominion Club, Yelhanka,
Bengaluru.
Rep. by its Executive Director
Sri.K.Preman and Shenoy, aged
about 68 yrs.
(By Sri.A.P.Natesh, Advocate)
V/S
Defendant: Karnataka Housing Board,
Kaveri Bhavan, Kempegowda
Road, Bengaluru-560009.
Rep. by its Chairman.
(By Sri.H.G.Vasantha Kumar, Advocate)
2 O.S. No.25864/2007
Date of institution of the suit 18.04.2007
Nature of the suit (Suit for Pro-note, Suit for Permanent
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.)
Date of commencement of recording 07.06.2010
of the evidence
Date on which the Judgment was 30.04.2016
pronounced
Total duration Year/s Month/s Day/s
09 00 12
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for permanent injunction to restrain the defendant from interfering with the possession and smooth running of the institution property of plaintiff and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
All that piece and parcel of property bearing No. being Khata No.208/63/63 and forming part of Sy.No.63 and 64/1, situated at Allalsandra Village, Yelahanka Hobli, Bengaluru North Taluk, Bengaluru, therein, measuring 43,565 square feet, bounded on:
East by: Private property;
West by: Road;
North by: Road; and on
3 O.S. No.25864/2007
South by: Property belonging to Dominion Club.
3. Case of the plaintiff, in brief, is as below: -
The plaintiff is the absolute owner of schedule property having purchased the same from Sri.Shiva Prasad and Dayanand Pai under sale deed dated 16.06.2000. The plaintiff in pursuance of the sanctioned plan has put up school in the schedule property and he is paying the taxes to the concerned department regularly. Plaintiff has built beautiful structures by investing huge sums of money. It is running course in MBA. A number of students both Indian and students from abroad are studying in this institution. The plaintiff has a tie up with the Ohio University of USA. From the said plaintiff's school successful candidates have come out. The school has earned a good reputation. Ever since the construction of the school, the plaintiff has been running the institution without any hindrance. Defendant who has no manner of right, title or interest has been trying to interfere with the peaceful possession and smooth running of the school of the plaintiff and also trying to dispossess the plaintiff and also to lay a 4 O.S. No.25864/2007 claim on the ground that it is intended for acquisition. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon it, the defendant appeared through its advocate Sri.H.G.Vasantha Kumar; thereafter the defendant has filed its WS.
5. Case of the defendant, in brief, is as below:-
This defendant contended in its WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that the suit of the plaintiff is not based on bonafide grounds and the defendant is purely a service oriented statutory body. It is contended that the total extent of land owned by the original owners of the schedule property in respect of the land bearing Sy.No.63 and 64/1 at Allasandra Village is 5 acres 15 guntas and two acres 13 guntas respectively and the defendant has issued a preliminary notification No.KHB&LAQ1/89-90, dated 06.04.1989 and the original owners of schedule property filed their objections before the SLAO and the final notification under 6 (1) of the Land Acquisition Act has been declared by the State Government on 25.03.1991. It is further 5 O.S. No.25864/2007 contended that the land owners have challenged the acquisition proceedings; i.e., 4(1) and 6(1) notifications before the Hon'ble High Court of Karnataka in WP No.22990-92/91 and the said WP came to be allowed on 19.06.1998 and the defendant challenged the said order in WA No.579-81/1999(L.A-K.H.B) before the Hon'ble High Court of Karnataka and the same has been allowed on 01.08.2001. Further it is contended that after culmination of the said proceedings the SLAO passed an award on 10.06.2002 and thereafter award notice dated 31.07.2002 was issued to the land owners under Section 12 (2) of the Act intimating the award passed by the defendant and to collect the compensation amount by producing the relevant documents and the same was served; but the concerned parties have not come forward and complied. Further it is contended that the property purchased by the plaintiff is situated in Sy.No.63 only; but it is not part of Sy.No.64/1; however taking advantage of the demise of Y.V.Ramaiah the kartha of the family of the original owner of the schedule property Smt.Basamma and their sons got filed a suit before this court in O.S.No.5734/2002 for permanent injunction against the defendant, and the same was 6 O.S. No.25864/2007 dismissed for non-prosecution on 22.11.2006 and the Misc.Petn.No.988/2006 filed by the parties therein is pending before CCH-9. It is contended that the subsequent to the 4(1) and 6(1) Notification the original owners appears to have sold a portion of the property in Sy.No.63 to one S.Shivaprasad who claims to be their power of attorney holder; though said Shivaprasad was fully aware of the acquisition proceedings has sold an extent of one acre of land in Sy.No.63 in favour of plaintiff under sale deed dated 16.06.2000. Further it is contended that in view of the conclusion of the acquisition proceedings in accordance with law after the passing of the award the KHB is the lawful owner of the properties acquired under the notification. It is contended that the plaintiff has not approached this court with clean hands and there is no cause of action. Thus, the defendant prays to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff is in lawful possession of the suit schedule property as on the date of the suit?7 O.S. No.25864/2007
2. Whether the plaintiff proves the alleged interference?
3. What order or decree?
7. On behalf of the plaintiff, affidavit evidence of program associate of the plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.39 documents have been got marked.
8. On the other hand, on behalf of the defendant also, affidavit evidence of Assistant Executive Engineer of defendant, has been filed and he has been examined as DW.1 and Exs.D.1 to D.19 documents have been got marked.
9. Ex.P.1 is the authorization letter, Ex.P.2 is the sale deed dated 16.06.2000 executed by Shivaprasad, Ex.P.3 to P.5 are the tax receipts, Ex.P.6 is the receipt issued by BBMP, Ex.P.7 and P.8 are the tax receipts, Ex.P.9 is the revision of BBC amount issued by KPTCL, Ex.P.10 to P.15 the electricity bills, Ex.P.16 is the bank challan, Ex.P.17 is the site plan, Ex.P.18 and P.19 are the copies of the letters written to BBMP, Ex.P.20 is the magazine of plaintiff school, Ex.P.21 to P.26 are the photographs, Ex.P.27 is the CD of the photographs, Ex.P.28 to P.34 are the telephone bills, Ex.P.35 is the certified copy of Order in WP No.9593/2007, 8 O.S. No.25864/2007 Ex.P.36 is the certified copy of Judgment in WA No.3469/2012, Ex.P.37 is the certified copy of Judgment in WA No.3464/2012, Ex.P.38 is the order of the Hon'ble Supreme Court of India, and Ex.P.39 is the photos.
10. Ex.D.1 is the authorization letter, Ex.D.2 is the copy of notification, Ex.D.3 is the copy of final notification, Ex.D.4 is the copy of letter of notification, Ex.D.5 is the copy of letter of notification, Ex.D.6 is the copy of objection statement, Ex.D.7 is the copy of notice, Ex.D.8 is the copy of award notice, Ex.D.9 is the copy of notice, Ex.D.10 is the copy of objection statement, Ex.D.11 is the copy of notice, Ex.D.12 is the copy of notice, Ex.D.13 is the copy of order sheet, Ex.D.14 is the copy of award notice, Ex.D.15 is the award copy, Ex.D.16 is the copy of possession letter, Ex.D.17 is the copy of possession certificate, Ex.D.18 is the certified copy of order sheet of Sy.No.63 and Ex.D.19 is the certified copy of order sheet of Sy.No.64/1.
11. Heard the arguments.
12. After considering the evidence on record, my findings on the above issues are as follows:-9 O.S. No.25864/2007
Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, Issue No.3: As per final order, for the following:-
REASONS.
13. ISSUE No.1 & 2: Both these issues are interlinked each other; hence, for avoiding repetition I have taken up both these issues for discussion at one stretch. In order to prove the case of plaintiff, program associate of the plaintiff has got examined as a P.W.1 and he reiterated the plaint averments in his chief-
examination stated that he is a program associate of plaintiff institution. One Sri.Premananda Shenoy who verified the plaint is no more. Their company is registered one, having its principal office at Upendranagara, and Manipal. The plaintiff is the absolute owner of the suit schedule property bearing khata No.208/63/63 which is formed as a part of Sy. No.63 and 64/1 of Allalasandra Village. It is purchased from one Sri.Shiva Prasad and Dayanand Pai under registered sale deed dated 16.06.2000. The suit schedule property is measuring 43565 sq. ft. After the purchase the 10 O.S. No.25864/2007 permission is obtained from the CMC for running the school; it was approved also, in pursuance of the same the plaintiff has put up a school in the suit schedule property and tax of the property is also regularly paying, therein MBA and other courses are running. The said institution is a world class institution and tie up with the Ohio University of USA. The school ensures top of classes international exposure along with the American faculty and business techniques, in which the Indian and Foreign students are studying. But the defendant who has no manner of right, title, interest over the suit schedule property trying to interfere with the peaceful possession and smooth running of the school. The very act of defendant is a violation of the right of plaintiff and it amounts a trespass. The defendant cannot take law into their own hand for dispossessing the plaintiff from the suit schedule property.
14. It is stated by the P.W.1 that the defendant is trying to dispossess the plaintiff forcibly by stating that the said land is intended for acquisition. P.W.1 stated about the above said interference of the defendant that on 02.03.2007 the defendant came with the persons and tried to demolish the structure; but the 11 O.S. No.25864/2007 plaintiff with a great difficulty prevented the same. When the matter was gone to the police station they were advised to approach the civil court for get set-right the matter. It is also stated that the acquisition proceedings not completed about the suit schedule property and also the possession of the suit schedule property has not been taken by the defendant. Plaintiff is in possession of the suit schedule property. In fact the defendant admitted the same in his WS para No.21 of the written statement. Thus, the possession of the plaintiff is a settled possession which cannot be disturbed and also cannot be dispossessed by the defendant except by the due course of law.
15. On the other hand, the Krishna.C., S/o.M.V.Channarayappa, AEE, Yelahanka Project Office, KHB, Bengaluru, is got examined as a D.W.1 and he stated in his affidavit evidence that he obtained the authorization to give evidence on behalf of the defendant authority. According to the office records maintained in their office, the acquisition proceedings of the land in Sy.No.63 and 64/1 Allalasandra Village was initiated, the suit schedule property is a portion of Sy.63 of 12 O.S. No.25864/2007 Allalasandra Village acquired by the defendant for housing project. This defendant is a statutory body had issued a notice under Section 4 (1) of the Land Acquisition Act dated 6.4.1989, total 106 acres land was acquired for housing project at Allalasandra Village. After issuance of the notice to the original owners, in the revenue records reflected as the owners are the lands in acquisition and among the said properties the suit schedule property is a portion of Sy.No.63 and 64/1 of Allalasandra Village is measuring 5 acres 15 guntas and 2 acres 13 guntas and notified for the acquisition. It was published in the official gazette also and in Samyukta Karnataka daily newspaper also dated 9.3.90 and in Prajavani dated 14.3.90 and the same was notified in the notice boards by bringing to the notice of the Deputy Commissioner, Tahsildar, Assistant Commissioner and BDO. It is also D.W.1 stated that it is case of the defendant the said lands are acquired by the defendant and issued a notice to the original owners of the land calling upon to them to take the compensation by producing the necessary documents. It is further stated that after preliminary notification on 25.9.90 enquiry was made by the SLAO under the Section 5 (A) of 13 O.S. No.25864/2007 the Land Acquisition Act. The owners were filed the objections by opposing the same. Even the notification proceedings was notified in the Village Panchayath Office also. After issuance of the notice under Section 9 and 10 of the Land Acquisition Act, and awarded the compensation to the land owners. In turn plaintiff did not show the interest to take the award amount for the land acquired by the defendant. In this regard the Writ Petition No.22990/92-91 was filed before the Hon'ble High Court of Karnataka. The owners writ petition was allowed and it was questioned in WA by the defendant No.579-81/1999 before the High Court of Karnataka. But, the owners are not come forward to take the compensation and leave the same to them. It is also D.W.1 stated that plaintiff has filed a suit for permanent injunction on the basis of the registered sale deed alleged to have been executed by the original owners in favour of one Shiva Prasad, who has set up title from the original owners, whereas the very original owners have also set up their title and possession of the entire extent of land in Sy.No.63 and 64/1 and the acquisition proceedings is pending for consideration. In turn the suit schedule property was purchased by the plaintiff 14 O.S. No.25864/2007 from the Shiva Prasad. When the defendant has issued a preliminary notification to acquire the suit land, the sale transaction of suit land taken place in between plaintiff and Shivaprasad does not help to plaintiff to claim the suit schedule property and the plaintiff is not a khathedar of the said lands, he is a trespasser and his possession is unauthorized and unlawful. Therefore, the plaintiff is not entitled for any permanent injunction against the defendant, who are the lawful owner of the suit schedule property.
16. Upon perusal of the cross-examination of P.W.1 stated that their plaintiff company has obtained a permission from DC under Land Reforms Act and after obtaining the conversion order of agricultural land into non-agricultural the plaintiff company constructed a school of Manipal. The plaintiff company purchased the suit schedule property from one Shiva Prasad. It is also answered in the cross-examination of P.W.1 that plaintiff company obtained a sanctioned plan after purchasing the suit schedule property in the year 2000 and plaintiff has not received any notice from BBMP for payment of tax. He admitted that he has not produced any document to show that the suit schedule property 15 O.S. No.25864/2007 owned by Shiva Prasad and Dayanand Pai and not produced any GPA executed by them in favour of one Suresh Jain. P.W.1 it is also answered that he does not know whether the suit schedule property was acquired by KHB much prior to purchasing the suit schedule property and it is also answered that he does not know if the Sy.No.63 and 64/1 acquisition proceedings was challenged in WP and other connected cases of 1991. The said writ petition was allowed against the defendant, which is a challenged in a writ appeal, the same was also dismissed. In total through the cross- examination of the plaintiff witness P.W.1 it is appearing that the plaintiff is claiming possession and ownership over the suit schedule property by producing above said plaintiff side documents. P.W.1 has nowhere given a admissions in favour of the defendant by stating that the possession of the suit schedule property is not with the plaintiff. But, it is stated that though the preliminary and final notifications issued for the acquisition of the suit schedule property and regarding making payment of compensation to the land owners also categorically stated; but it is admitted that though the acquisition proceedings is taken place, the 16 O.S. No.25864/2007 possession is not handed over to the defendant. Regarding this proceedings the writ petition and writ appeal were filed before the Hon'ble High Court of Karnataka. In the said writ petition and writ appeal it is held the acquisition proceeding is taken against the owners of the land is not proper and the said acquisition is quashed; but, the acquisition proceedings of the Land Acquisition Officer did not established the possession was handed over by the owners of the agricultural land to the defendant. Therefore, it is necessary to consider the cross-examination of D.W.1 and also orders passed in writ petition and writ appeals for proper adjudication of the matter in hand on merit.
17. In the cross-examination of the D.W.1 in page No.15 answered that number of the persons of Allalasandra Village had filed a cases against the acquisition of their lands by the Housing Board and it is admitted that WP No.9593/2007 (LAKHB) and other writ petitions from WP No.8799/2007 (LAKHB) till 34667/11 (LAKHB) were filed before the Hon'ble High Court of Karnataka on 29.5.2012 there is passed a common order by the Hon'ble High Court of Karnataka and allowed the all writ petitions 17 O.S. No.25864/2007 filed by the owners of the land and acquisition proceedings of the above said Allalasandra Village was ordered to be quashed. The said order certified copy of the Hon'ble High Court of Karnataka Ex.P.35 is produced by the plaintiff advocate in cross-examination by confronting to the D.W.1 and admitted the contents and findings given by the Hon'ble High Court of Karnataka in the said writ petitions. It is also admitted that against the writ petitions order Writ Appeal No.3469/2012 (LAKHB) and other writ appeals No.3455 to till 3470/2012 were filed by the defendant KHB. All the said appeals were dismissed as appearing in Ex.P.36. It is also admitted that another WA No.3464/2012 (LAKHB) is also dismissed by the Hon'ble High Court of Karnataka allowing the IA-I/14 filed in the said appeal. The said order is confronted to the D.W.1 and got marked as Ex.P.37. D.W.1 further admitted in his cross-examination that the above said orders of the dismissal of the writ appeals were challenged in SLP before the Supreme Court by the defendant, it was also dismissed in admission stage only. The contents of the computerized orders of the Supreme Court was shown to the D.W.1 by way of confrontation he admitted the 18 O.S. No.25864/2007 contents, which is marked at Ex.P.38. In Further cross- examination of the D.W.1 he admitted that the defendant has not came in possession of the suit land of the plaintiff including the other lands acquired in Land Acquisition Proceedings initiated by them from the date of initiation of proceedings till today. It is also admitted that the plaintiff has purchased the suit schedule property in which got constructed the school building by getting a sanction and approval from the BBMP. Further he stated that the plaintiff has got constructed the college building, when the land acquisition notification was issued. The photographs of the building are produced in this case by got confronting with D.W.1 in which D.W.1 admitted that the building appearing in the photographs are school and college building of the plaintiff. Through the above said documentary evidence of the plaintiff; i.e., Ex.P.35 to 39, which are got marked in the cross-examination of the D.W.1, he admitted that the plaintiff is in possession and enjoyment of the suit schedule property by got constructing the college and running the schools and college unit and he admitted that after the acquisition the defendant never came in possession of the same. It is also 19 O.S. No.25864/2007 pertinent to note that in the above said judgments of the Ex.P.35 and 36 the acquisition of the proceedings including the land of plaintiff was quashed by the Hon'ble High Court of Karnataka in the writ petitions. The said orders were confirmed in the writ appeal before the Hon'ble High Court of Karnataka and also Supreme Court of India. Therefore, it is clear that the plaintiff is in lawful possession of the suit schedule property as a lawful purchaser from the original owners Shiva Prasad and another, in which established the college and running the same by get admitting the admissions of Indian and Foreign students for MBA and other courses. To support the case of plaintiff produced the attested copy of registered sale deed dated 16.06.2000 executed by Shiva Prasad and Dayanand Pai in favour of the plaintiff is produced and produced the property extract and tax payment receipts, approved sanctioned plan, building completion report and khatha certificate and BSNL telephone bills Ex.P.2 to P.28 are produced. The said documents also are fully supporting the oral evidence of the P.W.1 for establishing the possession and enjoyment of the plaintiff over the suit schedule property, which is 20 O.S. No.25864/2007 admitted by the D.W.1 in his cross-examination by admitting the contents of Ex.P.36 to 39. For all the above discussed reasons I came to conclusion that the plaintiff has successfully proved the lawful possession and enjoyment over the suit schedule property as on the date of suit including this day.
18. In the oral evidence of the P.W.1 categorically stated that the defendant has questioned the possession of the plaintiff and also tried for demolishing the college constructed in suit schedule property, which was prevented by the plaintiff institution with the help of somebody. Ultimately this suit was filed against the defendant for seeking permanent injunction to restrain the defendant interference over the peaceful possession and enjoyment of plaintiff's suit schedule property. It is only denied by the defendant; but which cannot be accepted the contention of the defendant, because the very acquisition proceedings which was challenged by the owners of the land and the original owners of the plaintiff land were seriously contested against the findings of the writ petition of Hon'ble High Court of Karnataka by filing a writ appeal which were also dismissed by the Hon'ble High Court of 21 O.S. No.25864/2007 Karnataka and SLP was also filed by the defendant against the order of the writ appeal it was also dismissed by the Hon'ble Supreme Court India. The very above legal proceedings of the defendant authority itself show that the defendant authority has caused a interference to the plaintiff's peaceful possession and enjoyment (for running the college) over the suit schedule property. Thus, in this case the plaintiff has successfully proved the point No.1 and 2, with the above said documentary evidence and oral evidence of the P.W.1. Hence, I answered to issue No.1 and 2 in favour of the plaintiff as a Affirmative.
19. ISSUE No.3: For the reasons discussed in Issue No.1 & 2, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is decreed with costs. Defendant, their servants, agents, assignees or any other person acting or claiming on their behalf are hereby restrained permanently from causing interference with the peaceful possession and smooth running of the institution in suit schedule property.22 O.S. No.25864/2007
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 30th day of April, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.M.Shanmugam.
List of documents exhibited for the plaintiff:
Ex.P.1 - Authorization letter
Ex.P.2 - Sale deed dated 16.06.2000 executed by
Shivaprasad
Ex.P.3 to 5 - Tax receipts
Ex.P.6 - Receipt issued by BBMP
Ex.P.7 & 8 - Tax receipts
Ex.P.9 - Revision of BBC amount issued by
KPTCL
Ex.P.10 to 15 - Electricity bills
Ex.P.16 - Bank challan
Ex.P.17 - Site plan
Ex.P.18 & 19 - Copies of the letters written to BBMP
Ex.P.20 - Magazine of plaintiff school
Ex.P.21 to 26 - Photographs
Ex.P.27 - CD of the photographs
Ex.P.28 to 34 - Telephone bills
Ex.P.35 - C/C of Order in WP No.9593/2007
23 O.S. No.25864/2007
Ex.P.36 - C/C of Judgment in WA No.3469/2012
Ex.P.37 - C/C of Judgment in WA No.3464/2012
Ex.P.38 - Order of the Hon'ble Supreme Court of
India
Ex.P.39 - Photos
List of witness examined for the defendant:
D.W.1 - Sri.Krishna.C.
List of documents exhibited for the defendant:
Ex.D.1 - Authorization letter
Ex.D.2 - Copy of notification
Ex.D.3 - Copy of final notification
Ex.D.4 - Copy of letter of notification
Ex.D.5 - Copy of letter of notification
Ex.D.6 - Copy of objection statement
Ex.D.7 - Copy of notice
Ex.D.8 - Copy of award notice
Ex.D.9 - Copy of notice
Ex.D.10 - Copy of objection statement
Ex.D.11 - Copy of notice
Ex.D.12 - Copy of notice
Ex.D.13 - Copy of order sheet
Ex.D.14 - Copy of award notice
Ex.D.15 - Award copy
Ex.D.16 - Copy of possession letter
Ex.D.17 - Copy of possession certificate
Ex.D.18 - C/C of order sheet of Sy.No.63
Ex.D.19 - C/C of order sheet of Sy.No.64/1
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
24 O.S. No.25864/2007