Bangalore District Court
R.Perumal vs The Bangalore Development Authority on 19 September, 2015
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 19th day of September 2015.
O.S.No.9297/2006
PLAINTIFF : 1. R.Perumal
Aged about 54 years
S/o.Late Ramaswamy
R/a.No.2187
III Cross, B.M.Kaval layout
HAL III Stage
Bangalore-560 075.
2. Smt.A.V.Vimala
Aged about 58 years
W/o.Sri A.B.Venkatesh
R/a.No.2171
II Cross, B.M.Kaval layout
HAL III Stage
Bangalore-560 075.
3. Patrick Taur
Aged about 53 years
S/o.Late Lawrence Taur
R/a.No.2148
I Cross, B.M.Kaval Layout
HAL III Stage
Bangalore-560 075.
4. A.M.Nanjundappa (Since Dead by his
LRs)
4(a) Smt.H.J.Kempamma
Aged about 56 years
W/o.Late A.M.Nanjundappa
4(b) Smt.N.Vinutha
2 OS No.9297/2006
Aged about 35 years
D/o.Late A.M.Nanjundappa
Both are r/a.No.2157, II Cross, B.M.Kaval
Layout, HAL III Stage,
BANGALORE-560 075.
5. K.K.Govindan
Aged about 56 years
S/o.Late M.Narayana Nair
R/a.No.2199/A
IV Cross, B.M.Kaval Layout
HAL III Stage,
Bangalore-560 075.
(By Sri.B.C.C., Advocate)
V/s.
DEFENDANTS : The Bangalore Development Authority,
Kumara Park West, Bangalore-560 020.
Rep. by its Commissioner
(By Sri.R.R., Advocate)
JUDGMENT
The plaintiff has filed this suit for permanent injunction restraining the defendants, its officials, representatives, workmen or any body claiming for and on its behalf from closing the suit schedule road and also to award costs of the suit.
2. The suit schedule road is described in the plaint as under:-
Michal Palya IV Cross Road, HAL III Stage Layout of Bangalore City measuring 10 feet in width and 30 feet in length, 3 OS No.9297/2006 shown at points "AD & CB" in the plant sketch, connecting Indiranagar 80 feet road on the West and V Cross of B.M.Kaval Layout on the East.
3. The plaint averments in brief are as under:
The plaintiffs are the owners and residing in the houses at B.M.kaval Layout, HAL III Stage, Bangalore. The plaintiffs together seeking for a common relief of their own right and filed the suit, apprehending the illegal act of the defendant to close suit schedule road at Eastern end, although the act complained of is injurious to some other persons, having the same right and in these circumstances, question of invoking order 1, Rule 8 Code of Civil Procedure by them do not arise and the plaintiffs are seeking the relief in their own right.
The defendant Bangalore Development Authority is statutory body, constituted under the provisions of the Bangalore Development Authority Act 1976. The Bangalore Development Authority came to be constituted for an orderly development of the Bangalore City and the area adjacent thereto.
The defendant formed a layout called B.M.Kaval layout, consisting of about 70 residential sites. The said layout was formed 4 OS No.9297/2006 by the defendant during the year 1980-81. The intermediary sites were allotted during the year 1983 to 1986 and the corner sites were auctioned to general public during the year 1987 to 1990. By the year 1990, entire B.M.Kaval Layout was fully developed.
The plaintiffs are the permanent residents of B.M. Kaval Layout, having acquired their respective properties, by allotment of sites by the defendant by purchasing the sites in auction conducted by the defendant.
The 1st plaintiff purchased site no.2187, III Cross, B.M. Kaval layout in the Public auction conducted by the defendant and constructed the residential house during the year 1991 by obtaining a license and sanctioned plan on 25.7.90 and building was assessed to building tax on 20.4.91 and since then, he has been residing in his residential house with his family members.
The 2nd plaintiff was allotted site no.2171, II Cross, B.M.Kaval Layout and he constructed a residential house during the year 1987 by obtaining a licence and sanctioned plan on 23.10.1986 and the building was assessed to building tax during the year 1993 and since then, he has been residing in his residential house with his family.5 OS No.9297/2006
The 3rd plaintiff was allotted site no.2148, I Cross, B.M.Kaval Layout and he constructed a residential house during the year 1984 by obtaining a licence and sanctioned plan on 28.12.1983 and the building was assessed to building tax during the year 1986 and since then, he has been residing in his residential house with his family.
The 4th plaintiff purchased a residential house bearing no.2157, II Cross, B.M.Kaval Layout, as per the registered sale deed dt.30.9.1993 for valuable consideration. The said residential house was constructed by the Vendor of the 4th plaintiff during the year 1986 by obtaining license and sanctioned plan during the year 1987 and the building was assessed to building tax during the year 1987 itself and since then he has been residing in his residential house with his family.
The 5th plaintiff purchased site bearing no.2199/A, IV Cross, B.M.Kaval Layout in the Public auction conducted by the defendant and constructed a residential house during the year 1990 by obtaining a licence and sanctioned plan on 20.3.1990 and the building was assessed to building tax during the year 1991 and since then, he has been residing in his residential house with his family. The B.M.Kaval Layout has been handed over to the 6 OS No.9297/2006 Bangalore Mahanagara Palike and the Bangalore Mahanagara Palike has registered the khatas of the properties to the names of the respective plaintiffs and they have been paying building taxes to the Bangalore Mahanagara Palike regularly.
The B.M. Kaval Layout is bounded by the Suranjan Dass Road on the East and Michel Palya Gramatana Village Extn., on the West. Towards the West of the said Michel Palya, Gramatana Village Extn., there is an 80 feet road of Indiranagar. There are several commercial establishments on the said Indiranagara 80 feet rod. There are no commercial activities of any kind in the suranjan Dass road and the said road connects Old Madras road and Airport road. The plaintiffs for their daily needs have to go to Indiranagar 80 feet road only.
There is schedule road i.e. IV Cross road in the Michal Palya Gramatana which connects V cross, B.M. Kaval road on the East and Indirangar 80 feet road on the West. The schedule road measures about 10 feet in width. On either side of the schedule road many residential and commercial buildings have come up. This schedule road is a public road, which is being maintained by the Bangalore Mahanagara Palike.
7 OS No.9297/2006
The nearest bus stop, educational institution, medical stores, auto rickshaw stand, milk booth, nursing homes, hospital, provision stores, vegetable shops are available only at Indiranagar 80 feet road. This Indiranagar road is only a distance of 100 meters from the plaintiffs house B.M.Kaval Layout. The plaintiffs to cater their needs and to go to Indiranagara 80 feet road have to use schedule road as their only access, since Michal Palya 5th cross road is open for one-way traffic. The schedule road is a public road and the plaintiffs have been using the schedule road to reach Indiranagar 80 feet road from the dates of construction of their respective houses. In fact the Bangalore Mahanagara Palike has named the schedule road as Michal Palya, IV Cross Road and the name board of the IV Cross road has also been displayed by the Bangalore Mahanagara Palike on the North-East corner. The schedule road, Indiranagar 80 feet road and B.M.Kaval Layout are delineated in the plaint sketch.
While the facts stood thus, on 19.10.2006 the officials of the defendant appeared at the North-East corner of the schedule road with a lorry load of size stones with a malafide intention of closing schedule road at points "AD & BC" in the annexed plaint sketch. After noticing the said illegal act of the defendant, the plaintiffs who 8 OS No.9297/2006 are nearby residents gathered near the road and resisted the illegal acts of the defendant in closure of the road at the point AD & BC of the plaint sketch. On enquires, the officials of the defendant informed the plaintiffs that, they are going to close the road to form a C.A. site, abutting V Cross road of B.M.Kaval Layout. About 20 years ago, the layout was being formed and if really C.A. site was formed by the defendant in B.M.Kaval it would have been allotted. Therefore, no C.A. site is formed at B.M.Kaval Layout. The officials of the defendant with a malafide intention are attempting to block the road on eastern edge of the schedule road, though the defendant has no kind of any right of interest in the said road, since the schedule road is a public road and being used by the plaintiffs, since last 20 years, without there being interference or obstructions by anybody, muchless the defendant.
If the defendant is allowed to close the schedule road then the plaintiffs and their children will be forced to walk 2 kilometers to reach Indiranagar 80 feet road to reach the bus stop to go to schools/colleges. In case of medical emergency, the plaintiffs have to travel about 2½ Kilometers, through the Old Madras Road, to reach the Indirangar 80 feet road, where all the commercial establishments, schools, hospitals are located which will take 9 OS No.9297/2006 considerable length of time to reach the Indiranagar 80 feet road. In the event the plaintiffs and their family would be put to inconvenience and great hardship. In these circumstances, it is absolutely necessary to prevent the defendant from closing the schedule road. So, prays to decree the suit.
4. Upon service of summons, the defendant appeared through its counsel and filed its written statement contending that the plaintiffs have not issued a statutory notice to the defendant before filing the above suit as required under Section 64 of the Bangalore Development Authority Act. The defendant authority while forming the sites in the acquired lands, some prominent sites such as C.A. sites will be kept open without allotting to anybody. The Bangalore Development Authority defines C.A. sites as those not used for commercial purposes. C.A. sites exclusively falls for the purpose of police stations, liberarians, Fuel Stations, Schools, Hospitals, Banks and community centres.
The Bangalore Development Authority authorities while forming the sites in B.M.Kaval, a C.A. site shown in the sketch was retained. The said C.A. site was vacant from a long period. The public have started using suit schedule road through this C.A. site. The suit schedule road measures only 2.50 mt. The residents of 10 OS No.9297/2006 Michel Palya have constructed their houses with no compound or set back and have their main entrance to their houses facing either side to the suit schedule road without footpath. Therefore, the Michel Palya residents have given their representation requesting the Bangalore Development Authority authorities to close the unauthorized road existing in the C.A. site so that the vehicular traffic can be prevented in suit schedule road.
The work for providing and laying chain link fencing to C.A. site in B.M.Kaval, HAL III Stage is approved by Bangalore Development Authority on the request of residents of B.M.Kaval dt.15.1.2006. Work order for the above is issued by E.E. dt.3.10.06. Accordingly construction of chain-link fencing work around the C.A. sites at B.M.Kaval was taken up by the Bangalore Development Authority authorities and the work was about to complete. At that stage the plaintiffs have filed the above suit and obtained an order of status-quo from the Court by suppressing the real facts. Due to which, the defendant authority has stopped further construction of compound to the C.A. site at B.M.Kaval.
The buildings at suit schedule road are right up to road. There is no footpath. The width of the schedule road of Micheal Palya is only 2.50 mts i.e. 10 feet width and is not suitable for 11 OS No.9297/2006 vehicular movement. The moment of the children and the residents of suit schedule road comes out of their houses, it could result in accidents. The residents of Micheal Palya have given their representation to the Commissioner, Bangalore Development Authority requesting to close the suit schedule road as there is an alternate road, 5th cross road which is 15 feet width.
Even much earlier, the then City police commissioner, Bangalore in his order dt.26.4.02 has issued direction for closer of suit schedule road for traffic. Further the Chief Engineer, Bangalore Mahanagara Palike in his letter dt.15.4.06 has opined for closure of traffic in suit schedule road. Meanwhile some of the persons have approached the Bangalore Development Authority authorities and requested them to auction the C.A. site of B.M.kaval as they wanted to construct a Nursing Home in the said site. Therefore, the defendant authority is putting up a chainlink fencing around the C.A. site of B.M.Kaval in order to auction the said site for the purpose of constructing a nursing home, for the benefit of public at large.
It is admitted that the B.M.Kaval layout is bounded by the Suranjan Das Road. On the East, Michel Palya Gramatana village extension on the west, towards the west of the said Michealpalya, 12 OS No.9297/2006 Gramatana village extension. There is an 80 feet road of Indiranagara. It is admitted that there are several commercial establishment on the said Indirangara 80 feet road. It is admitted that Suranjan Das road connects Old Madras road and Airport Road.
Infact in between suit schedule road and 5th cross of B.M.Kaval road there is a C.A. site which absolutely belongs to the defendant. Since, the C.A. site is vacant site, the residents of B.M.Kaval layout are using as a way to reach 80 feet road, Indiranagar through suit schedule road. The suit schedule road is not suitable for vehicular traffic, since the schedule road of Michelpalya measures only 2.50 metres, approximately 10 feet width.
The rough sketch produced by the plaintiffs themselves shows that there is a C.A. site in between the suit schedule road and 5th Cross of B.M. Kaval and the residents of B.M. Kaval using the C.A. site as a way to reach 80 feet road since the C.A. site is a vacant site. Now the defendant authorities are putting up chainlink fencing around the C.A. site in order to auction the same for the construction of Nursing Home for the benefit of Public at large. At 13 OS No.9297/2006 no point of time there is a road connecting to 5th cross road of B.M.Kaval to suit schedule road.
The plaintiffs have filed the above suit against the defendant with a malafide intention to obstruct the work of fencing around the C.A. site by the defendant authority which is very clearly show that the plaintiffs have not approached this Court with clean hands. Hence, prays to dismiss the suit.
5. The Advocate for the plaintiff has field I.A. under Section 151 of Code of Civil Procedure to direct the defendant to open the suit schedule road, which is temporarily closed by the defendant, failing which the plaintiffs may kindly be permitted to open the road.
6. It is stated in the annexed affidavit filed by the 5th plaintiff that he is swearing to the affidavit on behalf of plaintiffs No.1, 2, 3 and the legal representatives of deceased plaintiff No.4. They are all residing in the layout known as B.M.Kaval layout, HAL III Stage, Bangalore. They have constructed that residential houses on the sites which were allotted/auctioned by the defendant in favour of them and other allottees and approximately 70 residential houses are situated in the said layout. B.M.Kaval Layout is bounded by Suranjan Das road the East, Michelpalya village extension on the 14 OS No.9297/2006 West. Towards west of the Michelpalya village, there exists 80 feet width main road of Indiranagar. There are several commercial establishments/shops on either side of the said 80 feet road. There are no commercial activities of any kind in the Suranjan Das road and the said Road connects Old Madras Road and Old Airport Road. Him self, plaintiffs No.1, 2, 3 and the LRs of the plaintiff No.4 for their daily needs and requirements they have to go only to Indiranagar 80 feet road. There is a suit schedule road in the Michelpalya Grama Tana, which connects 5th Cross, B.M.kaval on the East and 80 feet main road, referred above on the west. For all their practical purposes and for other daily needs we have to go to Indiranagar 80 feet road only through suit schedule road. The suit schedule road is a public road and road is named by the Bruhath Bangalore Mahanagara Palike and to the said effect the Bruhath Bangalore Mahanagara Palike has laid name Board, showing the name of road is shown as 4th cross road. During the month of October 2006, when the officials of the defendant with the active collusion of some persons, attempted to close the schedule property which compelled us to file a suit on 26.10.2006. In the suit I.A. No.2 is filed for an interim order of injunction to restrain the Bangalore Development Authority from closing the suit schedule 15 OS No.9297/2006 road. During the month of April 2014 in utter violation of the interim order passed by the court, the officials of the defendant have temporarily closed the suit schedule road. Therefore, it has become very difficult for us and other residents to use the schedule road to reach Indiranagar 80 feet main road. When interim order is operating against the defendant they have no legal right to meddle with the suit schedule road. They have reserved their right to take action for dis-obedience of the interim order against the defendant. Hence, prays to allow the I.A.
7. The defendant filed objections to the application stating that the application itself is not maintainable either in law or on facts. The plaintiff from the day one have adopted a means and methods to harass and humiliate the defendant and now he is filing this frivolus and vexatious application for the same reason to avoid to adduce his evidence, since has no merits in his case. The plaintiff deserves no consideration either to extend any relief much less to entertain the application and to grant the prayer as prayed for therein. The plaintiff without leading his evidence to substantiate his claim, has filed this frivolous application only to harass the defendant and to confuse the whole issue involved in the above case. The Bangalore Development Authority authorities 16 OS No.9297/2006 while forming the sites in B.M. Kaval, C.A. site shown in the sketch was retained. The said C.A. site was vacant from a long period. In fact the C.A. site has handed over to Bruhath Bangalore Mahanagara Palike to fencing at all around with chain link fence has also spent amount of Rs.10.00 lakhs and developed the C.A. site as a children's park with concrete paved walk path with general public. The children's are thoroughly enjoying the park facility with grass. The buildings at suit schedule road are right up to road. There is no footpath. The width of the suit schedule road is only 2.50 metre i.e. 10 feet width and is not suitable for vehicular movement. The movement of the children and the residents of schedule road comes out of their houses, it could result in accidents. The residents of Micheal Palya have given their representation to the Commissioner, Bangalore Development Authority requesting to close the suit schedule road as there is an alternate road, 5th cross road which is 15 feet width. The plaintiff has sworn to the false affidavit by making concocting statement which is not permissible in law and to escape from the clutches of the law, the plaintiff is filing the frivolous application by swearing to the false and concocted statements. Among other grounds, the defendant prays to reject the application.
17 OS No.9297/2006
8. Heard arguments and also perused the written arguments filed by the learned counsel for the plaintiff.
9. On the basis of the above pleadings of both the parties, the following issues are framed:-
1. Whether the plaintiffs proves that they are entitled for the relief of permanent injunction relating to the suit property?
2. Whether the suit is maintainable?
3. To what decree or order?
10. On the basis of the above application filed by the plaintiff under Section 151 of Code of Civil Procedure the following points arise for my consideration:-
1. Whether the plaintiffs made out a case to direct the defendant to open schedule road which is temporarily closed by it and if failed to do so they may be permitted to open the road?
2. What order?
11. The plaintiff's in order to prove their case examined plaintiff No.1 as PW-1 and got marked 14 documents at Ex.P.1 to Ex.P.14. The defendant has examined its Junior Engineer as DW-1 and got marked 7 documents at Ex.D.1 to Ex.D.7.
12. My findings to the above issues are as under:
Issues No.1 : In the Affirmative,
Issues No.2 : In the Affirmative,
18 OS No.9297/2006
Issues No.3 : As per the final
order, for the
following:
13. My findings on the above points are as under:-
Point No.1 : In the Affirmative,
Point No.2 : As per the final
order, for the
following:
REASONS
14. ISSUE No.1 & 2:- Since these issues are interconnected with each other hence they are taken up together for discussion in order to avoid repetition of facts and evidence.
15. It is the case of the plaintiff's that they are the residents of B.M.Kaval Layout, HAL 3rd stage, Bangalore. The defendant formed layout in the year 1981 called as B.M.Kaval Layout consisting of about 70 residential houses and the said layout is bounded by Suranjandas road on the East, Michelpalya gramathana Extension on the west and towards the western side of Michelpalya, grama thana extension and there is a 80 feet road of Indirangara wherein several commercial establishment situated which measures about 10 feet in width which is the schedule road. The plaintiffs' used to go to Indiranagar 80 feet road through the suit schedule road as it is only the access and 5th cross road is 19 OS No.9297/2006 open for one way traffic. The plaintiffs' have been using the said road to reach Indirnagara 80 feet. On 19.10.2006 the officials of the defendant appeared at North - East corner of the suit schedule road with a lorry load of size stones with a malafide intention of closing the same at the points shown as 'AD and BC' in the annexed plaint sketch and then the plaintiffs' resisted the illegal acts of the defendant. If the suit schedule road is closed, then the plaintiffs' and their children have been forced to walk two kilometers to reach Indirnagara 80 feet road to reach the bus stop to go to schools, colleges, hospitals and commercial establishments.
16. It is the case of the defendant that it admits that the plaintiffs are the residents of B.M.Kaval Layout, HAL 3rd Stage, Bangalore and contended that the defendant authorities while forming the sites in B.M.Kaval the C.A. site shown in the sketch was retained and the said C.A. site was vacant from a long period. The pubic have started using the 4th Cross road of Michelpalya through this C.A. site which measures only 250 meters length and 10 feet width. The residents of Michelpalya have constructed their house with no compound or set back and for their main entrance to their houses facing either side to the 4th cross road of Michelpalya 20 OS No.9297/2006 without footpath. Hence, the residents have given representation requesting the defendant authorities to close the unauthorized road existing in the C.A. site and so that the traffic can be prevented in the 4th cross road. Hence the defendant took the work of construction of chain link fencing around the C.A. site and the residents of Michelpalya have got alternative road which is the 5th cross road which is 15 feet in width. Before that the then City Police Commissioner issued direction by an order dated 26.4.2002 to close the 4th cross road. Meanwhile, some of the persons have approached the defendant authorities and requested them to auction the C.A. site of M.B.Kaval as they wanted to construct Nursing Home in the said site. Hence, the defendant authority is putting up chain link fencing around the C.A. site of B.M.Kaval inorder to auction the said site for the purpose of construction of Nursing Home for the benefit of public at large.
17. Inorder to prove the case of the plaintiffs' the plaintiff No.1 examined himself as PW-1 wherein he has reiterated the averments made in the plaint. During the course of the cross- examination he denied that the suit site is a property having all the Civic Amenities and he voluntarily deposed that it was a road. He has denied that the B.M.Kaval area is a commercially operated 21 OS No.9297/2006 area. He further deposed that they will be purchasing the daily articles from the 80 feet road Indiranagara. He further denied that the suit property is a C.A. site. He pleaded ignorance that the Bangalore Development Authority has allotted the suit site to the Corporation. He denied that the suit schedule property now belongs to the Bruhath Bangalore Mahanagara Palike and he voluntarily deposed that it is the road. He deposed that since there was emergency, he has not issued any notice to Bangalore Development Authority before the filing of the suit. He further denied that the suit schedule property is still a park and it is very congested property and no park can be done in it. He denied that he is deposing falsely that to purchase the daily articles they will go to 80 feet road Indiranagar.
18. The plaintiffs' inorder to prove their case produced Ex.P.1 to Ex.P.12. The Ex.P.1 and Ex.P.2 are the photographs. The Ex.P.1(a) is the rough sketch. The Ex.P.3 is the license and Ex.P.4 is the sanction plan of constructed house pertaining to plaintiff no.1. Ex.P.5 and 6 are the tax paid receipts shows that the plaintiff No1. has paid tax with respect to his house. Ex.P.7 is the certificate issued by Revenue Officer, Bangalore Development Authority stating that the site No.2171 in HAL 3rd Stage belongs to plaintiff 22 OS No.9297/2006 No.2. Ex.P.8 is the sanction plan pertaining to the house of plaintiff No.2. Ex.P.9 is the tax paid receipt which shows that the plaintiff No.2 paid tax with respect to his house. Ex.P.10 is the sanction plan pertaining to the house of plaintiff No.3. The Ex.P.11 is the intimation of property tax due pertaining to the house of plaintiff No.3. Ex.P.12 is the khatha extract pertaining to the house of plaintiff No.4. Ex.P.13 is the khatha extract pertaining to the house of plaintiff No.5. Ex.P.14 is the tax paid receipt which shows that the plaintiff has paid tax with respect to his house.
19. The Junior Engineer of the defendant filed his affidavit in lieu of examination-in-chief as DW-1 wherein he has reiterated the averments made in the written statement. During the course of cross-examination he has deposed that he is working in Bangalore Development Authority since August 2014 and he is in charge of B.M.Kaval Layout from the date of joining and he has seen the B.M.Kaval Layout and Michelpalya village and the B.M.Kaval is formed by Bangalore Development Authority and Michelpalya is a village and it is not formed by the Bangalore Development Authority and it may be true that Michelpalya village may be existing from the time of immemorial and now B.M.Kaval Layout and Michelpalya village comes within the jurisidiction of Bruhath Bangalore 23 OS No.9297/2006 Mahanagara Palike and the road will be assigned by the numbers by Bruhath Bangalore Mahanagara Palike. In further cross- examination he pleads ignorance whether the 4th cross Michelpalya village is a village road and he is not aware that the residents of B.M.Kaval Layout used the schedule road to reach 80 feet road Indiranagar. He further deposed in the cross-examiantion that before forming the Layout the Bangalore Development Authority will prepare the layout plan and in the layout plan the residential sites, commercial sites and corner sites will be shown. He admits that the B.M.kaval layout and Michelpalya village are parts of Indirangar and the Ex.P.1 pertaining to the suit schedule property.
20. The defendant produced Ex.D.1 to 7 photographs of park.
21. So, it is admitted fact the plaintiffs are residents of B.M.Kaval Layout, HAL 3rd Stage, Bangalore and the suit schedule road is situated in Michelpalya which shows the road called as Michelpalya 4th cross. During the course of the cross examination the DW-1 admitted the Ex.P1 & 2 photographs which shows the name board of the road Michelpalya 4th cross. The DW-1 admitted that Ex.P1(a) is the rough sketch which shows that the house of the plaintiff No.1 to 5 are situated in 1 to 4th cross of B.M.Kaval 24 OS No.9297/2006 and there is a 4th Cross in Michelpalya Layout and towards the Western side of 4th cross of Michelpalya, 80 feet Indirangara road is situated. As admitted by DW-1 during the course of cross- examination, the B.M.Kaval layout is formed by the Bangalore Development Authority and Michelpalya villages comes within the jurisdiction of Bruhath Bangalore Mahanagara Palike and before forming the layout Bangalore Development Authority will prepare the layout plan showing the residential sites, commercial sites and corner sites. The defendant has not produced the layout plan. If the defendant have produced the layout plan then it would be known that whether the C.A. site is situated in between the 4th cross and 5th cross of Michelpalya village. In the absence of layout plan it cannot be said that there is a C.A. site and the publics have started using the schedule road of Michelpalya through the C.A. site. It is pertinent to note that there cannot be any C.A site in between the two cross roads. The DW-1 admits the Ex.P.1 which is the photograph. The Ex.P.2 is also the similar photographs. The Ex.P.1 andEx.P.2 shows the existence of road and the same is called as Michalepalya 4th cross. The contention of the defendant is that the public have started using the schedule road through the C.A. site. So, it is very clear that there is schedule road in Michelpalya. The 25 OS No.9297/2006 DW-1 has not denied that the residents of B.M.Kaval layout used the suit schedule road to reach 80 feet road Indiranagar road. So, this goes to show that the residents of B.M.Kaval Layout used the suit schedule road to reach 80 feet road Indiranagar. The defendant admitted that the near by bus stand, education institution, hospitals, provision stores, nursing homes are available at Indiranagar 80 feet road. This makes it very clear that the plaintiffs for their daily needs have to come to Indiranagar 80 feet road. So, from this it is very clear that there is a suit road in HAL III Stage layout measuring 10 feet in width and 30 feet in length shown at points AD and CB in the plaint sketch and the plaintiffs are using the schedule road to go to Indiranagar 80 feet road.
22. The contention of the defendant is that the residential houses constructed in Michelpalya village without set back or compound, hence they are putting a chain link fencing work around the C.A. site. Though it is contended the public of Michelpalya layout given the representation to close the schedule road but the same is not produced. So, also the defendant has not stated whether before taking any decision to close the schedule road objections are called from the public of Michelpalya. The defendant has not followed the principles of natural justice. This 26 OS No.9297/2006 shows that the defendant interfered in the use of the schedule road by the plaintiffs. So, it is clear that the defendants are trying to interfere in the use and enjoyment of the suit schedule road.
23. The defendant has taken contention in para No.14 of the written statement that the alleged cause of action shown in the plaint is imaginary one and hence the suit is not maintainable. As stated above, I came to the conclusion that the officials of the defendant interfered in the peaceful enjoyment of the suit schedule road. Hence, there is cause of action for the suit and the suit is maintainable. Thus from the discussion made above, I am f the opinion that the plaintiffs are using the schedule road to reach the 80 feet Indiranagar and the defendant interfered with the plaintiffs use of the road and there is a cause of action for the suit and hence the plaintiffs are entitled for the relief sought. Hence, issue No.1 and 2 are answered in the affirmative.
24. PONT NO.1:- It is pertinent to note that the plaintiff filed I.A. under section 151 of CPC on 18.6.2014 for issuance of interim mandatory injunction against the defendant to open the schedule road which is closed by the defendant temporarily during the month of April 2014. On this I.A. my learned predecessor in office passed the order stating that this I.A. will be considered along with 27 OS No.9297/2006 the main suit on 30.9.2014. Hence, now this I.A. is taken for consideration.
It is stated in the annexed affidavit of the application that during the month of April 2014 in violation of the Interim Application the officials of the defendant have temporarily closed the suit schedule road and it is very difficult for them and other residents to use the schedule road to reach the Indiranagar 80 feet main road. Along with this application, the plaintiff has also filed the affidavit of one Narendranath, S/o.B.Rudraiah who is the resident of Michelpalya Layout wherein he has stated that the Bangalore Development Authority has closed the schedule road of Michelpalya. The defendant filed objections to the applications wherein the temporary closure of the suit schedule road is not denied and on the other hand only contended that the schedule road is not suitable for vehicular movement and the movement of the children and the resident of 4th cross road comes out of their houses which could result in accidents. Hence, it has to be held that the defendant have temporarily closed the suit schedule road. So, I answer Point No.1 in the affirmative.
25. ISSUE No.3 AND POINT NO.2:- In view of my finding on Issue No.1 and 2 in the Affirmative, I hold that the suit is fit to 28 OS No.9297/2006 be decreed and inview of my finding on Point No.1 in the affirmative, the I.A. has to be allowed. In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is decreed.
The defendant, its officials, representatives, workmen or any body claiming for and on its behalf from closing is restrained from closing the schedule road.
This order will not come in the way of the defendant to take any action with regard to the suit schedule road as per law.
Under the circumstances of the case, no order as to costs. Draw decree accordingly.
I.A. under Section 151 of Code of Civil Procedure is allowed. The defendant is directed to open the suit schedule road within two months from today. If the defendant failed to do so, then the plaintiffs are at liberty to open the schedule road as per law. No costs.
(Dictated to the stenographer directly on the computer, thereafter corrected and then pronounced by me in the open court, on this the 19th day of September 2015).
( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.
29 OS No.9297/2006
ANNEXURE
I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Sri R.Perumal
b) Defendant's side:
D.W.1 Sri Henjarappa
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 & 2 Photographs Negatives Ex.P.1(a), 2(a) Ex.P.1(b) Sketch Ex.P.1(abcd) Schedule property Ex.P.3 Sanctioned sketch Ex.P.4 Proposed blue sketch Ex.P.5 & 6 Acknowledgements Ex.P.7 Bangalore Development Authority certificate Ex.P.8 Blue sketch Ex.P.9 Acknowledgement Ex.P.10 Proposed blue sketch Ex.P.11 Notice regarding tax due Ex.P.12 & 13 Answer paper Ex.P.14 Acknowledgement
b) defendants side :
Ex.D.1 to 7 Photographs
Ex.D1(a) to 7(a) Compact Disk
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
30 OS No.9297/2006
31 OS No.9297/2006
19.09.2015
P-BCC
D-RR
Judgment pronounced in the open
court vide separate order.
ORDER
The suit of the plaintiff is decreed.
The defendant, its officials, representatives, workmen or any body claiming for and on its 32 OS No.9297/2006 behalf from closing is restrained from closing the schedule road.
This order will not come in the way of the defendant to take any action with regard to the suit schedule road as per law.
Under the circumstances of the case, no order as to costs.
Draw decree accordingly.
I.A. under Section 151 of Code of Civil Procedure is allowed.
The defendant is directed to open the suit schedule road within two months from today. If the defendant failed to do so, then the plaintiffs are at liberty to open the schedule road as per law. No costs.
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 33 OS No.9297/2006