Bangalore District Court
P. Shrinivasa Rao vs The Commissioner on 27 January, 2021
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 27th day of January, 2021.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.NO.8167/2016
PLAINTIFF: P. Shrinivasa Rao
S/o Late Ramanna Rao
Aged about 50 years, r/at
No.178, 24th cross,
6th Block, Jayanagar,
Bangalore.
(By Sri.G.S.Ravishankar,
Advocate.)
AND:
DEFENDANT: The Commissioner,
Corporation of City of Bangalore,
BCC, (BBMP),
Bangalore.
(By Sri.H.Devendrappa,Adv.)
i) Date of Institution of 30-11-2016
the suit.
ii) Nature of the suit. Injunction Suit.
iii) Date of the
2 O.S.No.8167/2016
commencement of 03-01-2018
recording of evidence.
iv) Date on which the
judgment was 27-01-2021
pronounced.
v) Total Duration Year/s Month/ Days
s
04 01 28
****
JUDGMENT
This is suit for Perpetual Injunction.
2. The plaintiff filed the present suit seeking the relief of perpetual injunction restraining defendant, its agents, men or anybody under or through it from demolishing any portion and interfering with plaintiff's construction of the building on schedule property. "Residential building bearing Site No.46/2, Model House, 1st Street, Basavanagudi, PID NO.51-72-46/2, Ward No.154, (Old Ward No.51), 3 O.S.No.8167/2016 Basavanagudi, BBMP, Bangalore, measuring East to West 40 feet and North to South 10 feet and bounded on the East by Road, West by Private property, North by Private property (Schedule A and B property) and South by Conservancy road" is treated as schedule property for the sake of convenience.
It is pleaded that plaintiff purchased schedule property through registered sale deed dated 10/03/2016 and khatha has been made in his name and is paying necessary tax to defendant authority. It is averred that in order to construct residential building on the schedule property, he obtained sanction plan from defendant authority in L.P.No.LP/20/16-17 dated 15/06/2016 to construct residential building consisting of ground, first and second floor. It is averred that plaintiff has been constructing super structure of the residential building in accordance with sanction plan without 4 O.S.No.8167/2016 any deviation. Thus being the factum of situation, strangely the officials of defendant authority abruptly appeared near the schedule property during the 3rd week of September, 2016 and made illegal threat to demolish the building and to prevent plaintiff from proceeding with construction work. Though the plaintiff prevented the officials of the defendant from causing damage/interference to the schedule building by apprising that building is built in accordance with sanction plan without any deviation, but considering the abrupt threat of damage/interference to the schedule property posed by defendant authority, that too without any prior notice, therefore plaintiff caused legal notice on 20/09/2016 under Section 482(1) of Karnataka Municipal Corporation Act. The notice has been served on defendant on 21/09/2016. After service of notice, defendant kept quiet for sometime and without sending any reply, again sent its officials 5 O.S.No.8167/2016 near schedule property on 29/11/2016 and made threat of damage to suit building. The plaintiff prevented the officials of defendant authority from causing any damage to suit building. On considering the repeated threat/interference to schedule building by the defendant authority, plaintiff constrained to file the present suit seeking the relief. The cause of action accrues to plaintiff on 20/09/2016 when plaintiff caused notice to defendant authority and on 29/11/2016 when officials of the defendant authority made threat of damage/interference to the schedule building.
3. In pursuance of summons, defendant put appearance and submitted written statement contending that suit of the plaintiff is not maintainable in law or on facts. The defendant called upon the plaintiff to prove that he is the owner of the schedule property and khatha of the schedule property in his name. It is averred that 6 O.S.No.8167/2016 plaintiff filed the present suit by suppressing the actual facts visible on the schedule property and put up construction of building in violation of the Building Bye-Laws with 100% building deviations. The sanction plan does not disclose the facts pertaining to measurement of the building. However, A.E.E of Bruhath Bengaluru Mahanagara Palike, Basavanagudi Sub-Division visited the place of construction at initial stage in the presence of plaintiff and advised to remove the deviated portions in order to avoid legal action. The plaintiff by ignoring the instructions, continued further construction by retaining the deviated portion and thereby violated the sanction plan and licence. Therefore, the defendant issued notice under Section 308 of Karnataka Municipal Corporation Act to furnish documents. The defendant denied the averments made out in para 5 of the plaint as false, frivolous and vexatious. It is averred that 7 O.S.No.8167/2016 alleged threat by defendant authority abruptly appearing near the schedule property during 3rd week of September, 2016 and same is created conveniently. It is pleaded that AEE of Basavanagudi Sub-Division has inspected the place of construction in presence of plaintiff and took measurement of construction so as to ascertain the percentage of deviation and initiated proceedings under Section 321 of Karnataka Municipal Corporation Act and by passing a Provisional Order on 23/11/2016 under Section 321(1) for removal of deviations and served in person alongwith show cause notice issued under Section 321(2) of Karnataka Municipal Corporation Act. The defendant pleaded that plaintiff has put up construction on residential building with 100% setback deviations at Front side, Back side and Right side apart from encroachment of 0.75 Mts X 12.10 Mts towards conservancy. There is a 8 O.S.No.8167/2016 deviation of building coverage at 98.13%. The plaintiff did not take steps to remove such deviation and on the contrary continued further construction inspite of direction to stop further construction till removal of deviations through notice. Therefore, A.E.E, Basavanagudi Sub- Division proceeded to pass the Confirmation Order on 03/12/2016 and sent to plaintiff through registered post, which returned unserved as 'unclaimed'. The defendant averred that plaintiff has not issued statutory notice to defendant prior to institution of the suit. Therefore, the question of sending reply does not arise. No cause of action accrues to the plaintiff to file the suit. The alleged cause of action are created conveniently to suit the claim by suppressing the material facts regarding initiation of action under Section 321 of Karnataka Municipal Corporation Act. Therefore, suit filed by the plaintiff is barred by jurisdiction. It 9 O.S.No.8167/2016 is averred that AEE has written letter to BWSSB and BESCOM not to grant permission for electricity and water supply to schedule building as construction undertaken by the plaintiff is full of deviations. The defendant pleaded that it is empowered to stop unauthorized construction and also initiate proceedings for removal and demolition of deviations and unauthorized constructions on the building. The plaintiff has not approached the Court with clean hands. The relief claimed by the plaintiff is discretionary one. As the plaintiff suppressed the true facts in order to protect illegal and unauthorized construction with deviations, as such he is not entitled to any of the relief. The suit is not maintainable and is liable to be rejected as when Confirmation Order is passed, the Civil Courts have no jurisdiction to entertain the suit. The remedy lies as per Section 443-A of Karnataka 10 O.S.No.8167/2016 Municipal Corporation Act. On these grounds and substance, prayed for dismissing the suit.
4. On the basis of pleadings, the following issues are framed:
1. Whether plaintiff proves that he had undertaken construction over schedule property as per approved plan ?
2. Whether plaintiff proves that defendant is trying to demolish constructed building on suit property illegally ?
3. Whether plaintiff is entitled for relief sought ?
4. What Order or Decree ?
5. To prove and substantiate respective contentions, plaintiff examined himself as PW.1 and got marked in all 9 documents at Exs.P.1 to 9. The AEE of Basavanagudi Sub-Division of Bruhath Bengaluru Mahanagara Palike examined as DW-1 and got marked 6 documents at Ex.D.1 to Ex.D.6. 11 O.S.No.8167/2016
6. Heard the arguments.
7. The counsel for the plaintiff in support of the case relied on the case law reported in ILR 1991 KAR 1887 in case of Corporation of the City of Bangalore v/s Yeshodamma.
Karnataka Municipal Corporation Act, 1976 (Karnataka Act No.14 of 1977)-
Sections 444 and 482-Object & Intent-
Order final, but no exclusion of jurisdiction of Civil Court- Section 482 available to institute injunction suit against Corporation.
Judgment passed in R.F.A No.1922/2010 in the case of Narayana Murthy V/s The Commissioner, Corporation of City of Bangalore dated 07/12/2010, Judgment passed in R.F.A No.1944/2011 in case of Prabha Ravishankar v/s The Commissioner, Corporation of City Bangalore dated 27/03/2013, order passed in W.P.No.2882/2017 12 O.S.No.8167/2016 (GM-CPC) in case of The Commissioner, Corporation of City of Bangalore V/s D.Govinda Reddy dated 09/11/2017, LAWS (KAR)-2017-8-24 in case of Kavita Podwal V/s The BBMP and Others, order passed in W.P. No.4906/2006 in case of S.Umashankar V/s State of Karnataka & others dated 14/12/2006, judgment passed by Hon'ble Supreme Court in Civil Appeal No.2531/1993 in case of Shiv Kumar Chadha V/s Municipal Corporation of Delhi and others.
On going through the case laws relied by the counsel for the plaintiff, this Court finds that there is no dispute regarding the principles laid down by their Lordships in the above mentioned case laws. The point to be considered is how far the principles of the case law are applicable to the present set of facts and circumstances of the case.
13 O.S.No.8167/2016
8. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
9. ISSUE Nos.1 & 2 : These two issues are inter connected and depending on each other, therefore, to avoid repetition of discussion on each issue, they are taken up jointly for consideration and discussion.
It is the case of the plaintiff that he is the owner of schedule property having purchased it through registered sale deed dated 10/03/2016 and khatha has been made in his name and is paying taxes to defendant authority. It is contended that he obtained sanction plan to construct residential building consisting of ground, first and second floor and started constructing building as per sanction plan without any deviation. Thus being the case, the officials of defendant authority during the 3 rd 14 O.S.No.8167/2016 week of September, 2016 and made threat to demolish the residential building and also prevented plaintiff from proceeding further with construction work. Though the plaintiff prevented the officials of the defendant from causing damage/interference to the schedule building by apprising that building is built in accordance with sanction plan without any deviation, however, on considering the threat of defendant officials, plaintiff got issued legal notice on 20/9/2016 under Section 482(1) of Karnataka Municipal Corporation Act and the same has been received by defendant. The defendant instead of replying to the said notice, kept quiet for sometime and on 29/11/2016 again the officials of the defendant made threat of damage/interference to suit building.
10. On the otherhand, the defendant has contended that plaintiff has put up construction of the building in violation of building bye-laws in 15 O.S.No.8167/2016 100% deviation. The AEE of Bruhath Bengaluru Mahanagara Palike, Basavanagudi Sub-Division visited the place of construction at initial stage in the presence of plaintiff and advised to remove the deviated portions in order to avoid legal action. Inspite of it, plaintiff continued construction work. During 3rd week of September, 2016 A.E.E of Basavanagudi Sub-Division has inspected the place of construction in presence of plaintiff and took measurement of construction so as to ascertain the percentage of deviation and initiated proceedings under Section 321 of Karnataka Municipal Corporation Act and by passing a Provisional Order on 23/11/2016 under Section 321(1) of Karnataka Municipal Corporation Act and issued show cause notice issued under Section 321(2) of Karnataka Municipal Corporation Act on 23/11/2016. The plaintiff has put up construction on residential building with 100% setback deviations at Front 16 O.S.No.8167/2016 side, Back side and Right side apart from encroachment of 0.75 Mts X 12.10 Mts towards conservancy. There is a deviation of building coverage at 98.13%. Therefore, AEE, Basavanagudi Sub-Division passed the Confirmation Order on 03/12/2016 and same was sent to plaintiff through registered post, but returned unserved as 'unclaimed'. To substantiate the respective contentions, plaintiff examined himself as PW-1 and produced documents. The AEE of Bruhath Bengaluru Mahanagara Palike examined as DW-1 and produced documents.
11. PW-1 filed affidavit in lieu of chief examination by reiterating the plaint averments. In the cross-examination, PW-1 states that he has purchased the schedule property with a small dilapidated room. He further states that he obtained approved plan for construction of new building. As per the sanction plan, he is permitted 17 O.S.No.8167/2016 to put ground, first and second floor. He states that he has constructed ground and first floor in the schedule property. PW-1 denied the suggestion that at the time of putting construction, he violated and deviated the sanctioned plan. PW-1 further denies that as he violated and deviated the sanction plan, Bruhath Bengaluru Mahanagara Palike issued notice under Section 321(1) of Karnataka Municipal Corporation Act. PW-1 asserts that no notice has been served on him. PW-1 further denied the suggestion that he fails to stop further construction without complying the notice, Bruhath Bengaluru Mahanagara Palike issued final notice under Section 321(2) of Karnataka Municipal Corporation Act. PW-1 asserts that no notice has been served on him. PW-1 denied the suggestion that he refused to receive the notice issued by Bruhath Bengaluru Mahanagara Palike, as such Bruhath Bengaluru Mahanagara Palike affixed copy 18 O.S.No.8167/2016 of notice to the building in the schedule property and drawn mahazar. PW-1 states that during the 3rd week of September, 2016 the officials of Bruhath Bengaluru Mahanagara Palike came near the schedule property and asked him to stop further construction.
12. PW-1 produced Khatha Certificate (Ex.P.1), Khatha Extract (Ex.P.2), Approved Plan (Ex.P.3), Home Loan Agreement (Ex.P.4), Copy of Notice, Postal receipts and acknowledgements (Ex.P.5 to Ex.P.7).
13. The Assistant Executive Engineer, Basavanagudi Sub-Division of Bruhath Bengaluru Mahanagara Palike filed affidavit in lieu of chief examination by reiterating the contention taken in the written statement. In support of the contention, produced Authorization letter (Ex.D.1), Copy of Provisional order (Ex.D.2,3), Confirmation 19 O.S.No.8167/2016 order (Ex.D.4), Rough sketch (Ex.D.5), Mahazar (Ex.D.6). In the cross-examination, he states that when officials of Bruhath Bengaluru Mahanagara Palike gone near schedule property for service of order copy, the signature of person present there has been obtained. He admits that order copy has to be served on owner of the property. DW-1 states that Bruhath Bengaluru Mahanagara Palike has sent provisional order passed under Section 321(1), and 321(2) of Karnataka Municipal Corporation Act to plaintiff by RPAD and also by personal service through officials. DW-1 states that acknowledgement card is not produced to show that order copy sent to plaintiff through RPAD served. However, DW-1 denied the suggestion that Bruhath Bengaluru Mahanagara Palike has not served copy of provisional order personally on plaintiff. DW-1 admits that they have not served final order under Section 321(3) of Karnataka 20 O.S.No.8167/2016 Municipal Corporation Act personally on plaintiff. However, he asserts that they have sent it by RPAD. Further, DW-1 states that when the officials of the Bruhath Bengaluru Mahanagara Palike gone to schedule property for service of copy of final order, plaintiff refused to take the copy. DW-1 denied the suggestion that plaintiff undertaken the construction of the building on the schedule property as per sanction plan and without deviation. DW-1 denied that Bruhath Bengaluru Mahanagara Palike without following procedure enumerated in Karnataka Municipal Corporation Act made an attempt to demolish the building illegally.
14. On appreciation of the pleadings, evidence of oral and documents, it demonstrates the fact that PW-1 claims to be owner of schedule property. The Khatha Certificate and Khatha Extract goes to show that schedule property stands in the name of plaintiff. The plan sanctioned by Bruhath Bengaluru 21 O.S.No.8167/2016 Mahanagara Palike for construction of building on schedule property is in the name of the plaintiff. Even the defendant in his pleadings called upon the plaintiff to prove this fact, but has not seriously disputed the ownership of the plaintiff in respect of the schedule property. The oral evidence coupled with documents produced establishes the fact that plaintiff is owner of the suit schedule property. It is contended by the plaintiff that in order to put up construction on the schedule property, he obtained sanction plan from the defendant authority and started putting up construction. The defendant authority permitted him to put up a residential building consisting of ground, first and second floor. Further, he contended that he has undertaken construction of the building in accordance with sanction plan. He has not deviated from the plan or violated any building bye-laws. On the otherhand, the defendant contended that when the 22 O.S.No.8167/2016 officials of the defendant visited the schedule property, found deviation and unauthorized construction undertaken by the plaintiff. Further, the officials advised the plaintiff to remove deviated portion. Inspite of it, plaintiff continued construction work retaining the deviated portion and thereby violated the sanction plan. In this regard, they passed provisional order under Section 321(1) of Karnataka Municipal Corporation Act giving details of deviation and asked to remove the same. Inspite of receipt of notice, plaintiff did not comply the order. Therefore, Bruhath Bengaluru Mahanagara Palike passed provisional order under Section 321(2) of Karnataka Municipal Corporation Act. Inspite of service of provisional order, plaintiff did not comply the same, as such, the Corporation passed Confirmation Order under Section 321(3) of Karnataka Municipal Corporation Act. When the officials of defendant proceeded to schedule 23 O.S.No.8167/2016 property to serve the final order on plaintiff, plaintiff refused to receive the copy order, as such order has been affixed to the building on the schedule property by drawing mahazar and also sent copy of the order by registered post.
15. The plaintiff denied the service of copy of order passed under Section 321(1), 321(2) and 321(3) of Karnataka Municipal Corporation Act. The defendant claims that provisional and final order has been served on the plaintiff. Now the point to be considered is whether order passed by Bruhath Bengaluru Mahanagara Palike served on plaintiff or not. Section 321 prescribes for demolition or alteration of buildings or well-work unlawfully commenced, carried on or completed and Section 455 of Karnataka Municipal Corporation Act prescribes method of serving the documents. For appreciation of material on record, it is necessary to reproduce the provision here :
24 O.S.No.8167/2016
321. Demolition or alteration of buildings or well-work unlawfully commenced, carried on or completed:- (1) If the Commissioner is satisfied:-
(i) that the construction or reconstruction of any building or hut or well.-
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the Standing Committee, in contravention of any order passed by the Standing Committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules of bye-laws; or
(ii) that any alterations required by any notice issued under Section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any 25 O.S.No.8167/2016 building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alternations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.26 O.S.No.8167/2016
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then notwithstanding anything contained in this Act, a notice to be given under sub-section(2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed to have been duly informed of the matters stated therein.
455. Method of serving documents:- (1) When any notice or other document is required by this Act or by any rule, bye-laws, regulation or order made under it to be served on or 27 O.S.No.8167/2016 sent to any person, the service or sending thereof may be effected:-
(a) by giving or tendering the said document to such person; or
(b) if such person is not found, by leaving such document at his last known place of abode or business or by giving or tendering the same to his agent, clerk or servant or some adult member of this family; or
(c) if such person does not reside in the city and his address elsewhere is known to the Commissioner, by sending the same to him by registered post; or
(d) if none of the means aforesaid be available, by affixing the same in some conspicuous part of such place or abode or business.
(2) When the person is an owner or occupier of any (building or vacant land) it shall not be necessary to name the owner or occupier in the document, and in the case of joint owners and occupiers it shall be sufficient to serve it on, or send it to, one of such owners or occupiers.
(3) Whenever in any bill, notice, from or other document served or sent under this 28 O.S.No.8167/2016 Act, a period is fixed within which any tax or other sum is to be paid or any work executed or anything provided, such period shall, in the absence of any express provision to the contrary in this Act, be calculated from the date of such service or sending by registered post.
16. On going through the provisions of Section 321 and 455, it makes it clear where the construction or reconstruction of any building or hut or well has been commenced without obtaining permission or has been completed otherwise than in accordance with the plans or in breach of any of the provisions of this Act, the Commissioner may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed. The Commissioner shall serve a copy of the provisional order on the owner or builder of the building together with a notice 29 O.S.No.8167/2016 requiring him to show cause within a reasonable time why the order should not be confirmed. Further, if the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit, which shall then be binding on the owner. The order passed by the Commissioner under the provisions of Section 321 of Karnataka Municipal Corporation Act is to be served on or sent to any person by giving or tendering the notice/order to such person, if such person is not found, by leaving such order/notice at his last known place of abode or business or by giving or tendering the same to his agent, clerk or servant or some adult member of the family, if such person does not reside in the city and his address elsewhere, by sending the same to him by registered post. Lastly, if none of the means aforesaid be available, by affixing the same in 30 O.S.No.8167/2016 some conspicuous part of such place or abode or business.
17. In the case in hand, the plaintiff pleaded and contended that he has undertaken construction of the building on the schedule property in accordance with sanction plan, without making any deviation or violation of building bye-laws. The defendant denied the contention of the plaintiff contending that plaintiff has deviated from sanction plan and violated building bye-laws. The defendant produced Exs.D.2 to 6, which are provisional order passed under Sections 321(1), 321(2) and confirmation order under Section 321(3) of Karnataka Municipal Corporation Act, sketch and mahazar. In the provisional order (Ex.D.2), defendant has shown the construction undertaken by plaintiff on the schedule property is deviated from sanction plan. Further, in order under Section 321(2), asked the plaintiff to remove the deviation 31 O.S.No.8167/2016 and retain the constructed building in terms of the sanction plan within 7 days from the date of receipt of the notice. The notice (Exs.D.1,2) has been received by some person on 24/11/2016 by putting signature. Further, notice and order has been sent by registered post to the residential address and address of the schedule property. The service of Exs.D.1 and 2 is in conformity with Section 455(1)
(b) and (c) of Karnataka Municipal Corporation Act. The plaintiff in his evidence contended that notice sent is not served on him personally. It is not the case of the plaintiff that person, who received Exs.D.1 and 2 by signing it is not his agent, clerk or servant. The defendant produced postal receipts for sending Exs.D.1,2 to the address of the plaintiff to both residential and schedule property. However, has not produced acknowledgement card for having served on the addressee. When it is sent to the correct address of the addressee by the 32 O.S.No.8167/2016 registered post, it is to be inferred that same has been reached to the person to whom it is addressed unless contrary is established.
18. The defendant contended that inspite of notice under Section 321(1)(2) of Karnataka Municipal Corporation Act, plaintiff fails to comply it within time, as such confirmation order under Section 321(3) of Karnataka Municipal Corporation Act has been passed. The confirmation order has been sent to the address of the plaintiff both to the residential and schedule property by registered post. Apart from this, the defendant took final order for service personally to the address of the schedule property. At that time, it is stated that plaintiff refused to take it, as such have drawn mahazar by affixing the confirmation order to the wall of the building of the schedule property by taking photographs. On perusal of Exs.D.3 to 6, it makes it clear that defendant passed confirmation 33 O.S.No.8167/2016 order as plaintiff fails to comply the provisional order passed under Section 321(2) of Karnataka Municipal Corporation Act and has sent by registered post to the address of the plaintiff and also for service in person to the schedule property where plaintiff refused to receive the order, as such have been affixed it. The act of the defendant in serving the confirmation order is in conformity with Section 455(1)(d) of the Act. In this case, the defendant though produced xerox copies of photographs to show affixing the confirmation order to the gate of the building, but have not produced photographs and CD. It is not the case of the plaintiff that building appearing in the xerox copy of the photos not pertains to him. On going through the decisions of W.P.No.4906/2006 dated 14/12/2006 in case of S.Umashankar V/s State of Karnataka and others, this Court finds that the facts and circumstances of the case decided and 34 O.S.No.8167/2016 the case in hand though similar to the effect of service of copy of order passed under provision of Karnataka Municipal Corporation Act, is not the same. In case decided, service of copy of the order was not in accordance with Section 455 of Karnataka Municipal Corporation Act.
19. On going through the available materials on record, this Court finds that plaintiff by obtaining sanction plan from defendant authority started constructing the building. During the course of construction of building, plaintiff deviated from sanction plan and by violating building bye-laws, put up construction. On noticing the deviation and violation of building bye-laws, the defendant authority caused notice under Section 321(1) of Karnataka Municipal Corporation Act and passed provisional order directing the plaintiff to remove the deviation and unauthorized construction within the stipulated time. The notice of observation 35 O.S.No.8167/2016 made during local inspection of schedule property and provisional order has been served in accordance with Section 455 of Karnataka Municipal Corporation Act. As the plaintiff fails to comply the order passed under Section 321(2) of Karnataka Municipal Corporation Act, the defendant authority passed confirmation order under Section 321(3) of Karnataka Municipal Corporation Act and same has been sent by registered post to the address of the plaintiff and also affixed copy of the order on the gate of building when plaintiff refused to receive it. On considering Ex.D.2 i.e., order passed under Section 321(1) of Karnataka Municipal Corporation Act, it clearly establishes the fact that plaintiff has put up building on the schedule property contrary to the sanction plan and also deviated from the plan. The defendant authority being competent to restrain the owner or builder of the property from putting up of any 36 O.S.No.8167/2016 unauthorized or illegal construction, therefore the act of defendant in issuing notice passing provisional and confirmation order under Sections 321(1), 321(2), 321(3) of Karnataka Municipal Corporation Act cannot be construed as illegal attempt to demolish the constructed building of the plaintiff. Therefore, for these reasons, this Court answers Issue Nos.1 and 2 in the Negative.
20. ISSUES NO.3:- For the reasons, findings given in the above made discussion, this Court comes to conclusion that plaintiff is the owner of the schedule property and obtained sanctioned plan for putting up of the residential building consisting of ground, first and second floor from defendant authority. The plaintiff during the course of constructing the building has deviated from sanction plan and violated building bye-laws. The plaintiff during course of constructing the building has deviated from sanction plan and violated 37 O.S.No.8167/2016 building bye-laws. The defendant authority when visited the spot of schedule property and noticed deviation and unauthorized construction undertaken by the plaintiff on the schedule property, caused notice under Section 321 of Karnataka Municipal Corporation Act directing to remove the deviation as specified in the notice and passed provisional order under Section 321(2) of Karnataka Municipal Corporation Act. The defendant authority served the copy of the order/notice to the plaintiff as required under Section 455 of Karnataka Municipal Corporation Act. Inspite of it, the plaintiff continued the construction work, as such the confirmation order under Section 321(3) of Karnataka Municipal Corporation Act has been passed and same has been sent by registered post and also affixed on the copy of the building of schedule property when plaintiff refused to receive it. As per Section 443-A 38 O.S.No.8167/2016 or 444 of Karnataka Municipal Corporation Act, the aggrieved person by any notice issued, action taken or proposed to be taken under Sections 308, 309 and 321(3) may appeal to Karnataka Appellate Tribunal or District Court or appeal by any notice or any other action taken or proposed to be taken under Sections 138, 247, 248, 249, 252, 322(1), 323(1), 328(1), 329, 330, 337, 345, 347, 354, 355 and 358 of Karnataka Municipal Corporation Act to Standing Committee. Any order passed by Karnataka Appellate Tribunal or Standing Committee shall be final.
21. The plaintiff filed the suit seeking Permanent Injunction against defendant alleging attempt to demolish constructed building on the schedule property illegally by defendant authority. On going through the case laws reported in ILR 1991 Kar 1887, judgment passed in R.F.A No.1922/2010, R.F.A No.1944/2011, W.P.No. 2882/2017, 39 O.S.No.8167/2016 W.P.No.4906/2006, this Court finds that absolutely there is no dispute regarding the principles laid down by their Lordships. In ILR 1991 Kar 1887 it is held that though the order passed under Section 444 of Karnataka Municipal Corporation Act is final, but jurisdiction of Civil Court for entertaining the suit for injunction is available under Section 482 of Karnataka Municipal Corporation Act. In RFA No.1922/2010, an order on IA filed under Order VII Rule 11(a) to (d) of Code of Civil Procedure has been challenged wherein it is held that suit filed not questioning the show cause notice under Sections 321(1), 321(2) and 321(3) of Karnataka Municipal Corporation Act, but sought for injunction restraining Corporation from dispossessing the plaintiff. In the present case, the plaintiff filed the suit for injunction contending that he has constructed building in accordance with sanction plan without deviation or violating building bye- 40 O.S.No.8167/2016 laws, but the defendant contended that there is a deviation from sanction plan and building has been constructed violating the building bye-laws. In this regard, they have issued and passed notice, provisional and confirmation order under provisions of Sections 321(1), (2), (3) of Karnataka Municipal Corporation Act. In the present case, the question arises for consideration is whether order passed under the provisions of Karnataka Municipal Corporation Act has been served on plaintiff or not. In view of the earlier discussion, this Court held that notice/order passed under Sections 321(1),(2) (3) of Karnataka Municipal Corporation Act has been duly served. Therefore, the principles of the decisions is not applicable to the present case. Another judgment passed in RFA No.1944/2011 has been relied by the plaintiff. In the said decision, plaintiff challenged the order passed on Issue No.3 i.e., maintainability of the suit. It is observed that 41 O.S.No.8167/2016 defendant Corporation filed written statement contending about issuance of notice passing order under Sections 321(1)and 321(3) of Karnataka Municipal Corporation Act, but trial of the case was not yet commenced and the Corporation has not produced documents such as notice, provisional and confirmation order passed against the plaintiff. Therefore, it is held that without producing any document with regard to issuance of the notice, confirmation order, trial Court cannot proceed to pass the order dismissing the suit as not maintainable and set aside the order of the trial Court. The facts and circumstances of the case decided and facts and circumstances of this case are entirely different. In this case, the defendant produced the documents regarding issuance of the notice, passing of provisional and confirmation oder under Sections 321(1),(2),(3) of Karnataka Municipal Corporation Act. Further, the trial has 42 O.S.No.8167/2016 been completed. Therefore, the case law will not help the plaintiff in any way. The plaintiff also relied on order passed in W.P.No.2882/2017. On going through the order, it reveals that Corporation challenged the order passed on I.A filed under Order VII Rules 11(a) and (d) of Code of Civil Procedure. The Hon'ble High Court considered the maintainability of the suit in view of Sections 443-A and 482(1) of Karnataka Municipal Corporation Act. The facts and circumstances of the case decided are different from the case in hand. Therefore, the principles of the case law will not effect the present case. The case law reported in S.C.C 1993(3) 161, the Hon'ble Supreme Court considered jurisdiction of Civil Court with reference to Delhi Municipal Corporation Act and it is held that Act does not create any right or liability, but purports to regulate common law the right of citizens to erect or construct buildings of their choice. Under 43 O.S.No.8167/2016 certain special circumstances in respect of jurisdictional errors such as basic procedural requirements not being followed, Civil Court can entertain the suit despite the statutory bar. In this case also, the plaintiff alleged that without service of notice/order passed under Sections 321(1)(2)(3) of Karnataka Municipal Corporation Act, the defendant illegally made attempt to demolish the building. Further, the plaintiff has not challenged the legality of the order passed by the defendant under Karnataka Municipal Corporation Act, but plaintiff filed suit for injunction restraining from demolition of the building. The suit filed by the plaintiff for injunction is maintainable, but entitlement of the relief is subject to establishment of the case by the plaintiff. As earlier discussed, the defendant has established the fact that plaintiff by violating sanction plan, put up construction on the schedule property. The plaintiff deviated from 44 O.S.No.8167/2016 the plan and bye-laws. Further, the defendant established that notice under Section 321(1) has been issued directing the plaintiff to remove the deviated portion. When plaintiff fails to comply the notice, provisional order under Section 321(2) and confirmation order under Section 321(3) of Karnataka Municipal Corporation Act has been passed. Further, defendant also established that notice/order passed under Section 321(1) and 321(3) of Karnataka Municipal Corporation Act has been served in accordance with Section 455 of Karnataka Municipal Corporation Act. The plaintiff fails to prove that notice/order passed by the defendant Corporation served on him. Therefore, plaintiff cannot restrain the defendant authority from proceeding in accordance with provisions of Karnataka Municipal Corporation Act for removal of unauthorized construction or construction of the building by making deviation or violating building 45 O.S.No.8167/2016 bye-laws. Therefore, for these reasons, this Court answers Issue No.3 in the Negative.
22. ISSUE NO.4: In the result, this Court proceeds to pass the following:
ORDER Suit dismissed. No costs. Draw decree accordingly. (Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court on this the 27th day of January, 2021.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
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ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF:
PW.1 - P. Shrinivasa Rao
46 O.S.No.8167/2016
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFF:
Ex.P.1 Khata Certificate
Ex.P.2 Khata Extract
Ex.P.3 Approved plan
Ex.P.4 Home loan agreement
Ex.P.5 Copy of notice
Ex.P.6 Postal receipt
Ex.P.7 Postal acknowledgement
Ex.P.8 Letter issued by HDFC Bank
Ex.P.9 Sale deed dated 10/03/2016
WITNESSES EXAMINED ON BEHALF OF
DEFENDANT:
DW.1 - Hemanth Kumar
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANT:
Ex.D.1 Authorization letter
Ex.D.2 Copy of provisional order U/s.321(1) of
KMC Act
Ex.D.3 Provisional order U/s.321(2) of KMC Act
Ex.D.4 Copy of confirmation order U/s.321(3)
of KMC Act
Ex.D.5 Rough sketch
Ex.D.6 Mahazar
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions Judge, Bengaluru.
**** 47 O.S.No.8167/2016