Karnataka High Court
Bruhat Bangalore Mahanagara Palike vs Stella Maris Convent on 7 April, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF APRIL, 2015
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1767 OF 2013
BETWEEN:
Bruhat Bangalore Mahanagara Palike,
Represented by its Commissioner,
Corporation Circle,
Bangalore - 560 002.
... APPELLANT
(By Shri. Vijay N.V., Advocate )
AND:
Stella Maris Convent,
Represented by its Mother Superior Sister,
Vinaya D'Souza,
Aged about 72 years,
Daughter of Alphonisus D'Souza,
Gayathri Devi Park Extension,
Bangalore - 560 003.
....RESPONDENT
(By Shri. Sampat Anand Shetty, Advocate [absent] )
*****
2
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
1.8.2013 passed in O.S.No.4339/2011 on the file of XXVII -
Additional City Civil Judge, Bengaluru, decreeing the suit for
permanent injunction.
This appeal coming on for Admission this day, the Court
delivered the following:
JUDGMENT
The appellant is the Bruhat Bangalore Mahanagara Palike (hereinafter referred to as 'the BBMP', for brevity) and was the defendant in the suit filed by the respondent seeking permanent injunction.
2. It was the case of the plaintiff that it was a School which had a gate opening to the Pipeline Road and that the respondent - BBMP, was claiming that the gate installed by the plaintiff was in violation of the law, as it enabled the plaintiff to occupy what was admittedly a portion of a Pipeline Road, over which the plaintiff could not exercise any right and by virtue of erection of the gate, it had enclosed a portion of the public property. This was the controversy which was addressed by the Trial Court and ultimately, 3 has found that the plaintiff was in lawful possession of the suit schedule property, which is defined as follows:
"Item No.2:
Civic amenity site No. 'B', Gayathri Park Extension, Bangalore, bounded by:
East by : 80' Vyalikaval Road West by : Site No. 'C' and Site No. 'A' North by : Pipe Line Road South by : 40' Road
Measuring 220' x 68' + 184' and in all 27,720 sq. ft." 2
Thus, the Trial Court has granted a judgment and decree of permanent injunction in favour of the plaintiff. It is that which is sought to be challenged in the present appeal.
3. The learned counsel for the appellant - BBMP would point out that the judgment and decree has been granted in respect of property which was clearly a public property and which was earmarked for widening the Sankey Road. In the result, the service 4 road also known as the Pipeline Road, would have been utilized in such widening. It is this area of the Pipeline Road which has now been enclosed by the plaintiff in erecting a gate and this aspect of the matter has been glossed over in merely finding that the plaintiff was in possession of the property, as there was a gate installed unlawfully, by the plaintiff. Therefore, the possession could not have been held to be lawful possession as it was clearly an illegal act on the part of the plaintiff which has been condoned as if it were and hence, seeks that the appeal be admitted and considered on merits.
4. However, it is to be kept in view that the appellant is a statutory body armed with the power provided under the provisions of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as 'the KMC Act', for brevity) to take such measures as are permitted therein to recover public property, which may have been encroached upon by any person. Therefore, if it is the contention of the appellant - BBMP that the suit property was indeed a public property, the appellant has ample power to invoke 5 the provisions of the KMC Act to take steps in accordance with law and seek recovery of possession of the property. When that remedy is available, the appeal is not warranted. Therefore, notwithstanding the judgment and decree in favour of the plaintiff in the suit for permanent injunction, the appellant is not precluded from invoking the provisions of the KMC Act in seeking to recover possession of the property, if it is so inclined.
With that observation, the appeal stands disposed of without prejudice to the power and the right of the BBMP to act, in accordance with law.
Sd/-
JUDGE KS