Karnataka High Court
The Bruhat Bengaluru Mahanagara Palike vs Mrs. K Preetha Nair on 9 July, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA Nos.8632/2022 C/W 8426/2022,
8427/2022 & 8428/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL No.8632 OF 2022 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL No.8426 OF 2022 (CPC),
MISCELLANEOUS FIRST APPEAL No.8427 OF 2022 (CPC)
AND
MISCELLANEOUS FIRST APPEAL No.8428 OF 2022 (CPC),
IN MFA NO.8632/2022:
BETWEEN:
THE BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU-560 002,
REP. BY ITS COMMISSIONER.
...APPELLANT
[BY SRI JAGADEESWARA N.R., ADVOCATE (PH)]
AND:
1. SRI GANESH V. BHAT,
S/O V.G. BHAT,
AGED 53 YEARS, VILLA NO.29,
ADARSHA VISTA, BASAVANAPURA MAIN ROAD,
BASAVANAGARA,
BENGALURU-560 037.
2. PRASHANTHI V BHAT,
W/O GANESH V BHAT,
AGED 47 YEARS, VILLA NO.29,
ADARSHA VISTA, BASAVANAPURA MAIN ROAD,
BASAVANAGARA,
BENGALURU-560 037.
...RESPONDENTS
[BY SRI T.N.VISWANATHA, ADVOCATE FOR (PH )]
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MFA Nos.8632/2022 C/W 8426/2022,
8427/2022 & 8428/2022
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER
DATED 21.09.2022 PASSED ON I.A.NO. II IN OS.NO. 4507/2022 ON
THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CCH.NO.27, BENGALURU, ALLOWING THE I.A.NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
IN MFA NO.8426/2022:
BETWEEN:
THE BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU-560 002,
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI JAGADEESWARA N.R., ADVOCATE)
AND:
SMT. GEETHA,
W/O BALASUBRAMANIAM,
AGED 48 YEARS, NO.30,
ADARSHA VISTA
VIBHUTHIPURA
BASAVANAPURA MAIN ROAD,
BENGALURU 560 037.
...RESPONDENT
[BY SRI T.N.VISWANATHA, ADVOCATE (PH)]
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER
DATED 21.09.2022 PASSED ON I.A.NO. II IN OS.NO. 4505/2022 ON
THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CCH.NO.27, BENGALURU, ALLOWING THE I.A.NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
IN MFA NO.8427/2022:
BETWEEN:
THE BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE, BENGALURU-560 002,
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI JAGADEESWARA N.R., ADVOCATE)
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MFA Nos.8632/2022 C/W 8426/2022,
8427/2022 & 8428/2022
AND:
1.
MRS. K. PREETHA NAIR,
W/O SURESH KUMAR S.K.,
AGED 56 YEARS, VILLA NO.163,
'ADARSHA VISTA', VIBHUTIPURA,
BASAVANAPURA MAIN ROAD,
MARATHAHALLI, BENGALURU 560 037.
...RESPONDENT
[BY SRI T.N.VISWANATHA, ADVOCATE (PH)]
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER
DATED 21.09.2022 PASSED ON I.A.NO.II IN OS.NO. 4504/2022 ON
THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CCH.NO.27, BENGALURU, ALLOWING THE I.A.NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
IN MFA NO.8428/2022:
BETWEEN:
THE BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BENGALURU-560 002,
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI JAGADEESWARA N.R., ADVOCATE)
AND:
SRI N. KANNAN,
S/O N. NATESAN,
AGED ABOUT 49 YEARS,
VILLA NO.162,
'ADARSHA VISTA' VIBHUTHIPURA,
BASAVANAPURA MAIN ROAD,
MARATHAHALLI,
BENGALURU -560 037.
...RESPONDENT
[BY SRI T.N. VISWANATHA, ADVOCATE (PH)]
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MFA Nos.8632/2022 C/W 8426/2022,
8427/2022 & 8428/2022
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER
DATED 21.09.2022 PASSED ON I.A.NO. II IN OS.NO. 4506/2022 ON
THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CCH.NO.27, BENGALURU, ALLOWING THE I.A.NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.06.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
Challenging common orders dated 21.09.2022 passed by XII Addl. City Civil Judge, Bangalore City, in O.S.no.4504/2022, O.S.no.4505/2022, O.S.no.4506/2022, and O.S no.4507/2022 on I.As.no.2 respectively, filed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 ('CPC' for short), these appeals are filed.
2. Since, facts involved and grounds urged are similar/common, for sake of convenience, reference would be made to only one appeal i.e. MFA no.8427/2022.
3. Sri N.R. Jagadeeswara, learned counsel for appellant submitted, appellant was defendant (BBMP) in suit filed by Smt.K Preetha Nair for permanent injunction restraining BBMP, its employees etc. from interfering with plaintiff's peaceful possession and enjoyment of schedule property i.e. plot no.163, 'Adarsh Vista' carved out of Sy.no.160/1 of Vibuthipura village, KR Puram Hobli, Bengaluru -5- MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 East Taluk. Plaintiff was owner of plot in 'Adarsh Vista'. Similar suits were filed by three others owning different plots.
4. In said suit, plaintiff had filed I.A.no.2 seeking for order of temporary injunction restraining defendant from interfering with their possession and enjoyment of suit property, during pendency of suit. It was submitted, trial Court clubbed all suits, heard and disposed of I.As. in all suits by allowing applications by common order on wholly untenable grounds. Challenging same BBMP had filed appeals.
5. At outset, it was submitted, plaintiffs were guilty of suppression of material facts disentitling them from grant of discretionary relief. It was submitted, plaintiffs had totally denied flow of 'Raja Kaluve' ('SWD' for short) in suit property. It was submitted, 'Adarsh Vista Projects, was a residential villa project formed in lands bearing Sy.nos.160/1 and 160/2 of Vibhutipura village. It was submitted, much prior to suit, Adarsh Developers had approached Commissioner, BBMP, by filing representation dated 20.02.2019 for permission to construct Nala and covering it with RCC slabs. Thereafter, under separate representation dated 08.07.2019, plaintiffs herein had sought permission for diversion of 'nala' for construction of walking strip. In reply, dated 31.07.2019, -6- MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 Commissioner, BBMP had stated that permission for diversion of SWD was beyond his powers, and had notified them to clear encroachment. Same would indicate admission by plaintiffs about flow of SWD in suit property.
6. It was submitted, plaintiffs/developers failed to reply said notice. It was further submitted, implementation of project was without obtaining building plan, permissions etc. from authorities, and hence it was unauthorised. For said reason, they were not issued 'A' khata certificates and in fact, khata certificates relied upon by plaintiffs were 'B' khata. Mere assertion by plaintiffs that prior to purchase of plots in suit property, they had verified revenue records would not suffice. As there was encroachment upon SWD, BBMP was under
statutory duty to remove encroachment.
7. It was submitted, plaintiffs' claim that Executive Engineer, BBMP, Mahadevapura Zone, had issued notice to them on 08.07.2021, to which they had submitted reply on 26.08.2021 were denied as false. Based on same, it was contended that plaintiffs were guilty of suggestio falsi.
8. It was submitted, plaintiffs had thereafter approached Deputy Commissioner, Bengaluru Urban District, by -7- MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 submitting representation dated 14.09.2020 seeking permission for diversion of SWD. On same, direction was issued to BBMP to consider representation. Since, it was beyond its powers, BBMP had taken initiated steps for removal of encroachment. It was submitted, as per Section 210 of Bruhat Bengaluru, Mahanagara Palike Act, 2020 ('BBMP Act' for short) all sewers, drains, culverts etc., whether public or private would vest in BBMP. Therefore, it was under duty to protect them from encroachment/diversion. It was submitted, Division Bench of this Court, in W.P.no.31394/2009 D.D. on 04.08.2011 had issued directions to comply with its undertaking for removal of all encroachments over SWD. Therefore, injunction granted would not only come in way of action by BBMP in complying with Court directions, but also stifled statutory functions of BBMP. Hence, called for interference.
9. It was submitted, trial Court drew adverse inference against defendant-BBMP for not producing sketch showing existence of SWD on suit property. It was submitted, when it was plaintiffs' who had approached Court for relief, and law required them to establish their case, passing orders based on adverse inferences would be contrary to law and as such untenable. It was submitted, when BBMP, a statutory local -8- MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 authority had stated that it was taking action for removal of encroachment on SWD based on survey by ADLR, etc. burden ought to have been placed on plaintiffs. On other hand, trial Court, virtually accepted contention about non-existence of SWD in suit property based on plaintiffs' claim to have verified from revenue records.
10. It was submitted, trial Court lost sight of fact that plaintiffs contended there was violation of principles of natural justice insofar as determination about SWDs running in suit property. While, said contention remained unsubstantiated, in their alleged reply to notice dated 08.07.2021, plaintiffs have specifically admitted to survey of suit property having being conducted. Hence, drawing adverse inference was totally illegal rendering impugned order untenable.
11. It was submitted, in pursuance of directions issued by Lokayukta, ADLR, had surveyed suit property and identified areas where there was encroachment of SWDs. It was submitted, this Court in its order dated 27.07.2023 passed in W.P.no.22550/2022, had held course of SWD was identified, BBMP authorities were bound to take action for removal of encroachment in consonance with revenue authorities. -9-
MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022
12. It was submitted, even where notices issued by BBMP for voluntary removal of encroachment on SWDs, were challenged on ground of pre-determination, this Court in W.P.19563/2022 (D.D. 16.02.2023) had only directed conduct of fresh survey by ADLR providing fair opportunity to petitioners at time of survey for identification of course of SWD. However, grant of injunction by trial Court had virtually stopped BBMP from taking action under any circumstances. On above grounds, sought for allowing appeal.
13. On other hand, Sri T.N.Viswanatha, learned counsel for plaintiffs sought to oppose appeal. It was at outset, submitted, neither title nor plaintiffs' possession of suit property were in dispute. It was submitted, in their letters developer and plaintiffs had only stated, in case SWD existed, then permission be granted for altering its course. It was submitted, this Court in W.P.no.3728/2022® and connected cases, disposed of on 23.11.2023, where there was challenge of notices issued by BBMP alleging encroachment on SWDs, had observed where master plan did not reflect existence of SWDs and record of rights did not show 'B' kharab, it was for BBMP to conduct detailed hydrological survey apart from survey of all
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 SWDs and thereafter examine whether there is any blockage by petitioner. It was held, where BBMP intended to form fresh SWDs based on hydrological survey, it was insisted to acquire land required for same and thereafter construct SWDs.
14. Reference was also made to earlier decisions, in W.P.no.44277/2011 and connected cases disposed of on 10.02.2012, W.A.no.3803/2016 disposed of on 13.07.2020 and W.P.no.17197/2023 disposed of on 28.11.2023. Relying on same, learned counsel submitted, neither revised master plan nor record of rights showed existence of SWD in suit property. It was submitted, despite BBMP claiming existence of SWD in suit property, no records were produced, leading to drawing of adverse inference. Same would be justified even as matter of noting conduct of defendant.
15. It was further submitted, when alleged survey by ADLR was without opportunity to plaintiffs, ratio in above decisions would avail to plaintiffs.
16. It was submitted, as per Section 67 of Karnataka Land Revenue Act, 1964, all public roads, streets ..... rivers, streams, nalas ..... and all canals and water courses etc. which were not property of others, belonged to government. On other
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 hand, properties of BBMP as enumerated under Section 129 of BBMP Act, only included public parks, play grounds, and open spaces reserved for ventilation and public lamps, lamp posts etc. It was therefore submitted, SWDs did not belong to BBMP and it had no jurisdiction to take any action in relation to SWDs. It was also submitted, BBMP had failed to produce any material to substantiate that State Government had made over SWDs to BBMP. On both counts, proposed action by BBMP against plaintiffs would be without authority of law, thereby justifying grant of injunction.
17. It was submitted, in instant case suit properties were got converted for non-agricultural purpose in year 2003. Absence of condition in order of conversion about SWDs, would corroborate plaintiffs' claim that there was no existence of SWDs. It was submitted, developers had constructed Villas after obtaining permission from local authorities, shortly thereafter. After purchase in year 2006, plaintiffs were residing therein and paying property tax etc. to BBMP in respect of suit property. In any case, proposed action by BBMP would be after fifteen years and BBMP would be guilty of acquiescence. Relying upon decisions of this Court in MFA no.8921/2013 disposed of on 09.09.2015, and Hon'ble Supreme Court in
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 Chhedi Lal & Ors. v. Hari Kishore Yadav reported in (2018) 12 SCC 527, it was submitted, failure to take action within reasonable time was held to justify grant of injunction.
18. Relying on decision in W.P.no.1678/2015 disposed of on 15.12.2023, it was submitted, if land earmarked for specific purpose in Revised Master Plan ('RMP' for short) is not acquired within five years of publication of RMP, such designation would lapse in view of Section 69 (2) of Karnataka Town and Country Planning Act. Further, relying on decision in P Bhimachar v. State of Mysore, reported in 1966 (2) Mys.LJ.184, it was submitted, every 'phoot kharab', would not belong to Government. On other hand, it would only be excluded from assessment.
19. Further, reference was also made to decision in Anathula Sudhakar v. P.Buchi Reddy, reported in AIR 2008 SC 2033, about principles for grant of injunction. It was submitted, trial Court had rightly applied said principles while granting injunction and contended that trial Court was justified in allowing application and sought dismissal of appeal.
20. In reply, learned counsel for BBMP submitted that BBMP had in fact produced copy of survey report by ADLR
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 before trial Court. Since same was not noted or considered, impugned order was untenable. It was further submitted decision in W.P.no.44277/2011 and connected matters etc. would not apply as very existence of SWDs in property belonging to petitioners was disputed, whereas developer as well as plaintiffs had virtually admitted existence of SWDs in suit property while submitting representations to BBMP.
21. It was submitted, Section 288 (A) of Karnataka Municipal Corporations Act, 1976, predecessor to BBMP Act, stipulated that no person would be entitled to put up any construction that would or likely to cause obstruction to or encroach upon any public well, open channel etc. without written permission of Commissioner. Since existence of SWD and its diversion by encroaching upon SWD area were admitted in pre-suit correspondence/representation and there was failure to produce any written permission granted by Commissioner, construction/obstruction of SWD would invite action and same would disentitle plaintiffs from grant of discretionary relief.
22. It was alternatively submitted, in case, survey report and sketch by ADLR sought to be relied upon by defendants were to be observed as without adequate
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 opportunity to plaintiffs, BBMP would consent for re-survey in presence of plaintiffs before taking further action.
23. Heard learned counsel and perused impugned order.
24. From above, it is seen that challenge is both on ground of failure to consider material on record as well as on ground of perversity of conclusions. Hence, following points would arise for consideration:
"1. Whether trial Court erred in not considering material on record?
2. Whether impugned order suffers from perversity or untenability and calls for interference?"
25. This is an appeal against discretionary order passed by trial Court under Order XXXIX Rules 1 and 2 of CPC on I.A.no.1. As per decision in Mohd. Mehtab Ibrahim Khan v. Khushnuma Ibrahim Khan, reported in 2013 (9) SCC 221, scope for interference in appeal against discretionary order would be limited, unless it were untenable or suffered from perversity etc. It is also clarified therein that in case view taken by trial Court on available material were to be one of possible views, there could be no interference.
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022
26. Perusal of impugned order, reveals that trial Court has referred to pleadings and documents produced by both sides, framed necessary points for consideration and passed impugned order by assigning reasons.
27. Appellant had firstly contended that there is failure to consider material on record. Attention of this Court is drawn to paragraph no.10 of plaintiffs' reply dated 26.08.2021 allegedly in reply to notice dated 08.07.2021 issued by Executive Engineer, BBMP, plaintiffs have stated that survey conducted was without reference to moola tippani, kharab uthar and RTC extracts etc. This would prima facie substantiate assertion by BBMP about existence of SWD in suit property. Since it was plaintiffs, who were challenging legality of said report, burden would be on them to establish said fact. Calling upon defendants to substantiate its stand and drawing adverse inference for failure would be illegal. Even in case of doubt, trial Court could not have presumed plaintiffs' assertion about non-existence of SWDs in suit property.
28. Insofar as reasons assigned, it is seen trial Court firstly took note of fact that plaintiffs' houses were in existence for more than twenty years and layout was formed after getting
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 land converted. It also observes that constructions were assessed for property tax and plaintiffs were paying them regularly and even khata were standing in their names. It thereafter, refers to plaintiffs' assertion that revenue records, village sketch etc. did not indicate existence of SWD or un- assessed 'B' kharab land in suit property. Thereafter, it takes note of Section 67 of Karnataka Land Revenue Act ('KLR Act' for short) empowering Deputy Commissioner to take action against any encroachment on SWD etc., rather than BBMP. It also takes note of contention of BBMP about plaintiffs being encroacher not approaching Court with clean hands.
29. Reasons assigned for granting injunction are belated action, failure to produce record to show flow of SWD in suit property and plaintiffs being in settled possession. It also observes in case, order of temporary injunction is not granted, suit would be rendered infructuous.
30. Even as per plaintiffs, suit property was got converted for non-agricultural-residential purposes on 18.06.2003. Without providing particulars, it is stated in plaint that developer formed layout and plaintiffs purchased portion of suit property on 10.03.2006. Though, as on date of suit i.e.
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 10.07.2022, twenty years had not lapsed, it would however appear that BBMP had not taken action against encroachment over SWDs for sometime. In fact, neither plaintiffs nor BBMP have stated about duration of encroachment. Admittedly, no layout plan or building permission/licence are produced. Suit property would now fall within BBMP area. But, khata certificates issued by it are not produced. Though, delay in taking action and plaintiffs possession would be amongst considerations, they cannot override public interest sought to be protected by BBMP which is a public authority, in performance of its statutory duties.
31. It is seen, W.P.no.3728/2022, W.P.no.44277/2011, W.P.no.17197/2023 and W.P.no.1678/2015, were cases involving dispute about existence of SWDs in land belonging to petitioners therein. Whereas in instant case, representation of plaintiffs and developers offering to construct SWDs in suit property at their own cost, would be prima facie admission about existence of SWDs in suit property. Plaintiffs' claim otherwise would be matter for trial. Though Section 67 of KLR Act, vests SWD with Government, Section 210 (1) (b) of BBMP Act, specifically vests with BBMP, all drains, nalas and culverts etc. whether constructed from funds of BBMP or otherwise and
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 existing in Government or private lands. Fact that present suit is for bare injunction, without relief of declaration against authority of BBMP to take action requires to be taken note of.
32. When, BBMP has issued notice calling upon plaintiffs to remove encroachment on SWDs, in its communication dated 31.07.2019, temporary injunction granted would stall enquiry by BBMP about encroachment of SWD by plaintiff, which cannot be justified. Further, issuance of notice is first step in compliance of principles of natural justice. Therefore, observation of trial Court that action of BBMP was sudden, and without establishing existence of SWD in suit property would be untenable. Hence, point for consideration is answered in affirmative.
33. Consequently, appeal is allowed, impugned common order dated 21.09.2022 passed by XII Addl. City Civil Judge, Bangalore City, in OS.no.4504/2022, OS No.4505/2022, OS.no.4506/2022, and OS.no.4507/2022 on I.As.no.2 respectively, filed under Order XXXIX Rules 1 and 2 of CPC is set aside. I.As.no.2 filed by plaintiffs under Order XXXIX Rules 1 and 2 of CPC in each suit stands rejected.
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MFA Nos.8632/2022 C/W 8426/2022, 8427/2022 & 8428/2022 It is however, clarified that observations made herein would be confined to interim stage and would not bind trial Court at time of passing final judgment, which shall be on basis of evidence led.
Sd/-
JUDGE psg/GRD