Bangalore District Court
Ramesh vs The Commissioner on 26 July, 2016
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 26th day of July 2016.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.3483/2007
PLAINTIFFS : 1. RAMESH,
Aged about 45 years,
S/o. Mr. M.Nanjunda Setty.
2. DWARAKANATH,
Aged about 43 years,
S/o. Mr. M.Nanjunda Setty.
3. SATISH,
Aged about 41 years,,
S/o. Mr. M.Nanjunda Setty.
4. M.N.SURESH,
Aged about 47 years,
S/o. Mr. M.Nanjunda Setty.
All are residing at No.51, 30th Cross, 7th
Block, Jayanagar, Bengaluru-560 081.
Plaintiffs- 1 to 3 are represented by their
General Power of Attorney Holder-
Shri. M.N.Suresh (plaintiff No.4.)
(By Smt.P.Kusuma, Advocate.)
AND:
DEFENDANTS: 1. THE COMMISSIONER,
Bengaluru Mahanagara Palike,
2 O.S.3483/2007
Corporation Building,
Rani Chennamma Circle,
Bengaluru.
2. THE ASSISTANT EXECUTIVE
ENGINEER,
Jayanagar Sub-Division, Ward No.60,
Bengaluru Mahanagara Palike,
Bengaluru.
(By Sri.S.V.Angadi, Advocate.)
*****
i) Date of Institution of the
suit. 04.05.2007
ii) Nature of the suit. Declaration & Permanent
Injunction.
iii) Date of the
commencement of recording 08.02.2011
of evidence.
iv) Date on which the
judgment was pronounced. 26.07.2016
v) Total Duration Year/s Month/s Days
09 02 22
***
JUDGMENT
The plaintiffs have filed this suit against the defendants for declaration to declare the notices issued by the 2nd defendant i.e., the Provisional Order and the Confirmation Order bearing No. AEE/J N/CO/40/W- 60/2006-2007 and No.AEE/J N/CO/40/W-60/2006-2007 DATED 14.02.2007 AND 22.01.2007 passed by the 2nd 3 O.S.3483/2007 respondent U/S.321(1) and (2) of KMC Act, 1976 as null and void as they are not issued as contemplated under law, for Permanent Injunction restraining the defendants, their officers, workmen, labourers, representatives, henchmen or anybody claiming under or through them from in any way demolishing or causing any damage to the suit schedule property- All that piece and parcel of immovable property being site with building bearing Municipal No.242/29, 9th Main Road, Jayanagar III Block, Bengaluru, measuring East to West 60 feet (18.288 Mtrs) and North to South 40 feet (12.192 Mtrs), in all 2400 Square feet or 223 Square Meters, bounded on East by:
Property bearing No.247, West by: 9th Main Road, North by: Property bearing No.241 and South by: Property bearing No.243, and costs, etc. .2. The averments of the plaint in brief are that:
The plaintiffs are the absolute owners of the schedule property having purchased under a registered Sale Deed dated 22.07.1991. The Khata of the schedule 4 O.S.3483/2007 property transferred in the name of the plaintiffs and they are in possession and enjoyment of the schedule property and paying taxes.
The plaintiffs' vendor had obtained sanctioned plan and put up construction on the schedule property strictly in accordance with the sanctioned plan. After the purchase of the schedule property, the plaintiffs have demolished the existing building and to construct a commercial building over the same, obtained sanctioned plan to construct the proposed basement, ground, first and second floor building from the defendants vide LP No.561/93-94, dated 09.09.1995. The plaintiffs have constructed the building strictly in compliance with the sanctioned plan and within the parameters of the Building Byelaws. All of a sudden, the officials of the defendants came near the suit schedule property on 09.02.2007 and 13.02.2007 and threatened to demolish the schedule property illegally alleging that there is a deviation in construction, though there is no any deviation, as such, the plaintiffs have been able to stop the 5 O.S.3483/2007 illegal action of the officials of the defendant and they are trying to demolish the building illegally making baseless allegations without giving any opportunity.
The defendant No.2 has issued Provisional Order and Confirmation Order bearing No. AEE/ J N/CO/40/W- 60/2006-2007 and No.AEE/J N/CO/40/W-60/2006-2007 DATED 14.02.2007 AND 22.01.2007 passed by the 2nd defendant U/S.321(1) and (2) of KMC Act. The 2nd defendant has not issued notices as contemplated under the KMC Act. The act of the defendants, trying to demolish the schedule property is illegal, arbitrary and highhanded with an intention to harass the plaintiffs and cause damage to the building. The defendants have no right to demolish or cause any damage to the schedule property and have violated all the mandatory rules of the KMC Act and principles of natural justice. The 2nd defendant has issued notice U/S.321(1) and (2) stating that Williams Pen is at basement floor, but the said shop is at ground floor. Hence, the said notices are contrary to the factual and 6 O.S.3483/2007 does not survive as same are issued is far from truth. The plaintiffs have invested huge amount towards construction of building. The defendants have no right to demolish the schedule property when it is within the parameters of the byelaws and constructed strictly in compliance of the sanctioned plan. The defendants being a statutory body, represented by its officials now and then threatening to demolish the suit schedule property and making hectic efforts to demolish the same illegally. The threat held by the defendants is imminent. Hence, the plaintiffs have filed the present suit.
.3. In pursuance of suit summons, the defendants appeared through counsel and filed written statement denying the plaintiffs' title over the schedule property. Further contended that the plaintiff has obtained sanctioned plan and though bound has deviated from the plan. Accordingly, PO has been issued, which has been duly acknowledged to which there is no reply or cause being shown, this aspect of the matter has been 7 O.S.3483/2007 deliberately suppressed. The plaintiff having approached the Court with unclean hands is not entitled for any indulgence. The plaintiff has altered the flat, which is under his possession. The defendant has issued statutory notice as contemplated U/S.321 (2) of KMC Act calling upon the plaintiff to remove the deviations and bring back the construction in accordance with the sanctioned plan. The defendant authority is empowered to stop further construction, which is being against and contrary to the Building Byelaws. The plaintiff instead of removing the unauthorized construction, approached the Court with sole object of preventing the defendant authority from exercising the powers under the provisions of KMC Act, 1976. The suit for permanent injunction is barred by jurisdiction. There is no cause of action and the alleged one is false and created for the purpose of filing the suit and prays to dismiss the suit with costs.
.4. On the basis of above pleadings, the following issues framed:
8 O.S.3483/2007
1. Whether the plaintiffs prove that they have put up construction in the suit property as per the sanctioned plan without any deviation as alleged?
2. Whether the plaintiffs further prove that the Provisional Order and Confirmation Order dated 22.01.2007 and 14.02.2007 respectively issued by the 2nd defendant are null and void as alleged?
3. Whether the plaintiffs further prove that defendants have illegally attempted to demolish the structure in the suit property as alleged?
4. Whether the defendants prove that plaintiffs have put up illegal construction in violation of sanctioned plan in the suit property as alleged?
5. Whether the defendants further prove that by virtue of issuance of Provisional Order and Confirmation Order U/Sec.321 of KMC Act, this Court has no jurisdiction to try the suit as alleged?
6. Whether the plaintiffs re entitled to the relief of declaration and permanent injunction against the defendants, as prayed?
7. To what relief, if any, the partiers are entitled?
.5. In support of the case, the 4th plaintiff is examined as PW.1, plaintiff No.1 examined as PW.2, got marked documents at Ex.P.1 to Ex.P.13 and closed the side. The defendants have not adduced evidence on their behalf. 9 O.S.3483/2007 .6. Heard arguments.
.7. My answers to the above Issues are:
Issue No.1 - in the affirmative. Issue No.2 - in the affirmative. Issue No.3 - in the affirmative. Issue No.4 - in the negative.
Issue No.5 - in the negative.
Issue No.6 - in the affirmative. Issue No.7 - As per final order for the following:
REASONS .8. ISSUE Nos.1 to 4: As these Issues are connected to each other, I have taken all together for discussion for the sake of convenience and to avoid repetition.
The plaintiffs contended that they have put up construction in the suit schedule property as per the sanctioned plan without any deviation, Provisional and Confirmation Orders dated 22.01.2007 and 14.02.2007 respectively issued by the 2nd defendant are null and void and they have illegally attempted to demolish the building, 10 O.S.3483/2007 etc., Per contra, the defendants contended that the plaintiffs have constructed the building against and contrary to the Building Byelaws, alter the flat and put up the building deviating from the plan, etc. .9. To substantiate respective contentions of the parties, the plaintiff No.4 and plaintiff No.1 are examined as PW.1 and PW.2 respectively, who in their affidavit evidence stated regarding their peaceful possession and enjoyment of the schedule property, paying tax, construction of the building as per sanctioned plan vide LP.No.561/93-94, dated 09.09.1995 within the parameters of the Building Byelaws, issuance of Provisional and Confirmation Orders by the 2nd defendant without following the mandatory provisions and against the principles of natural justice and illegal interference of threatening to demolish the building, etc., by reiterating the averments of the plaint and got marked documents at Ex.P.1 to Ex.P.13. The defendants have not adduced rebuttal evidence to substantiate their contention.11 O.S.3483/2007
.10. It is not in dispute that the plaintiffs have obtained sanctioned plan from the defendant authority. The plaintiffs contended that they have constructed the building by obtaining sanctioned plan strictly in compliance with the terms and conditions of the sanctioned plan within the parameters of Building Byelaws, etc. The plaintiffs have produced sanctioned plan at Ex.P.5, which shows obtaining sanctioned plan for construction of the building consists of basement, ground, first and second floors. Further, the plaintiffs have produced Confirmation Order at Ex.P.8 and Provisional Order at Ex.P.9, which shows 2nd defendant passing the said orders stating the deviations, such as conversion of parking place for commercial purpose and not making provision for parking of vehicles. From the said orders goes to show that there is no allegations of construction the building by violating the setbacks. The plaintiffs have produced Photograph at Ex.P.11, which shows situation of Williams Pen Shop and it is not in basement as alleged by the defendants. Further, Ex.P.8 and Ex.P.9 do not bear the signatures of the 12 O.S.3483/2007 plaintiffs and it appears that the 2nd defendant has not followed the provisions to serve of notice as contemplated under KMC Act and it appears that issuance of Confirmation Order and Provisional Order are arbitrary. On the other hand, the defendants have not adduced evidence supporting their contention regarding the plaintiffs violating the Building Byelaws and sanctioned plan and passing Provisional and Confirmation Order in accordance with the provisions of KMC Act. The defendants being a statutory authority cannot demolish the building without due process of law. Hence, their mere contention in the written statement is not sufficient to prove the same without leading evidence. From the evidence and materials on record go to show that the plaintiffs have put up construction in the suit schedule property as per the sanctioned plan without any deviation, Provisional and Confirmation Orders issued by the 2nd defendant are null and void and they have illegally attempted to demolish the structure in the suit schedule property. On the other hand, the defendants have failed to prove that the plaintiffs have 13 O.S.3483/2007 put up illegal construction in the schedule property in violation of the sanctioned plan. Hence, I answered Issues No.1 to 3 in the affirmative and Issue No.4 in the negative.
.11. ISSUE NO.5: The defendants contended that by virtue of issuance of Provisional and Confirmation Orders U/S.321(2) & (3) of the KMC Act, this Court has no jurisdiction to try this suit. Though they have contended the same, but have not adduced satisfactory evidence in support of the said contention. The learned counsel for the plaintiffs during the course of arguments submitted that the plaintiffs have constructed the building as per the sanctioned plan without any deviation, the 2nd defendant has passed Provisional and Confirmation Order contrary to the factual situation stating the deviation of conversion of parking place for commercial purpose and not making provision for parking of vehicles, but actually, Williams Pen Shop was situated in ground floor and such act of passing the orders is without following mandatory provisions of the 14 O.S.3483/2007 KMC Act and also against the principles of natural justice, even they have not followed the mandatory provisions in taking action U/S.321 of KMC Act, there is no express or implied bar under the KMC Act excluding the jurisdiction of the Civil Court, Civil Court has jurisdiction to entertain the suit, etc., and also relied upon the decision reported in ILR 1991 Karnataka 1887, wherein their Lordships held that:
"KARNATAKA MUNICIPAL CORPORATION ACT, 1976 (Karnataka Act No.14 of 1977) - Sections 444 & 482 - Object & intent - Order final; but no exclusion of jurisdiction of Civil Court -
Section 482 available to institute injunction suit against Corporation - Procedure to be adopted. HELD:
(i) The object of Section 444(3) of the Act is that there should be a further appeal against an order passed by an Appellate Authority. The Legislature thought it proper that there shall be no more appeals before the Authorities of the Corporation. Hence, order under Section 444(3) is no doubt final. But it never excluded either by implication or in explicit terms that jurisdiction of the Civil Court is excluded.....15 O.S.3483/2007
Apart from this one more thing has to be taken into consideration, namely availability of Section 482 of the Act to a citizen to institute a suit against Corporation for injunction against Corporation."
In the instant case, the plaintiffs have filed this suit against the defendants who are the officials of corporation for declaration to declare the notices issued by the 2nd defendant i.e., the Provisional Order and the Confirmation Order bearing No. AEE/ J N/CO/40/W-60/2006-2007 and No.AEE/J N/CO/40/W-60/2006-2007 dated 14.02.2007 and 22.01.2007 passed by the 2nd respondent U/S.321(1) and (2) of KMC Act, 1976 as null and void as they are not issued as contemplated under law, for Permanent Injunction restraining the defendants, their officers, workmen, labourers, representatives, henchmen or anybody claiming under or through them from in any way demolishing or causing any damage to the suit schedule property and costs, etc. The plaintiffs contended that they have constructed the building as per the sanctioned plan 16 O.S.3483/2007 and within the parameters of the byelaws, the defendant are illegally trying to demolish the building without following the mandatory provisions of KMC Act, etc. The defendants have not adduced any evidence in support of their contention and have failed to prove the Court has no jurisdiction to try the suit as alleged by them and accordingly, I answered Issue No.5 in the negative. .12. ISSUE NO.6: the plaintiffs have filed this suit against the defendants for declaration to declare the notices issued by the 2nd defendant i.e., the Provisional Order and the Confirmation Order bearing No. AEE/ J N/CO/40/W- 60/2006-2007 and No.AEE/J N/CO/40/W-60/2006-2007 dated 14.02.2007 and 22.01.2007 passed by the 2nd respondent U/S.321(1) and (2) of KMC Act, 1976 as null and void as they are not issued as contemplated under law, for Permanent Injunction restraining the defendants, their officers, workmen, labourers, representatives, henchmen or anybody claiming under or through them from in any way demolishing or causing any damage to the 17 O.S.3483/2007 suit schedule property and costs, etc. The plaintiffs having proved that they have constructed the building in accordance with sanctioned plan, Provisional and Confirmation Orders passed by the 2nd defendant are null and void and illegal interference by the defendants are entitled for the relief of declaration and permanent injunction. Hence, the plaintiffs are entitled for the reliefs of declaration and permanent injunction against the defendants, accordingly, I answered Issue No.6 in the affirmative.
.13. ISSUE NO.7: In view of the reasons and discussion on the above Issue Nos.1 to 6, I proceed to pass the following:
ORDER Suit of the plaintiffs is hereby decreed as under:
The Provisional and Confirmation
Orders bearing No.AEE/J N/CO/40/W-
60/2006-2007 and No.AEE/J N/CO/40/W-18 O.S.3483/2007
60/2006-2007 dated 14.02.2007 AND 22.01.2007 passed by the 2nd defendant U/S.321(1) and (2) of KMC Act, 1976 are declared as null and void.
The defendants, their officers,
workmen, labourers, representatives,
henchmen or anybody claiming under or
through them are hereby restrained from demolishing or causing damage to the suit schedule property without due process of law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 26th day of July 2016).
(JINARALAKAR B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 -M.N.Suresh S/o. Mr.M.Nanjunda Setty.19 O.S.3483/2007
PW.2 - M.N.Ramesh S/o. M.Nanjund Setty.
DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF:
Ex.P.1 to Power of Attorneys executed by the Ex.P.3 plaintiffs in favour of PW.1.
Ex.P.4 Registered Sale Deed dated 22.07.1991.
Ex.P.5 Sanction Plan.
Ex.P.6 Khata Certificate.
Ex.P.7 Tax Paid Receipt.
Ex.P.8 Confirmation Order dated 14.02.2007.
Ex.P.9 Provisional Order and show cause notice
issued U/S.321(1) & (2) of KMC Act.
Ex.P.10 Certified copy of Release Deed dated
26.06.2011.
Ex.P.11 & Photographs of suit schedule property. Ex.P.12.
Ex.P.13 CD.
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
-NIL-
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
-NIL-
(JINARALAKAR. B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.
20 O.S.3483/2007