Bangalore District Court
) Smt. Shabana Azam vs ) The Commissioner on 12 February, 2015
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O.S.No.7887/2011
IN THE COURT OF THE XXVII ADDL.CITY CIVIL JUDGE,
Form No.9 BANGALORE
(Civil)
Title sheet
for Dated this the 27th day of March 2013
Judgment
in Suits
R.P.91) Present:- Sri Ramachandra.D.Huddar, B.Com,LL.M.,
XXVII Addl.City Civil Judge, Bangalore
O.S.No. 7887/2011
Plaintiffs 1) Smt. Shabana Azam,
Aged about 47 years,
Wife of Syed Azan,
Residing at No.7,
Karnataka Layout,
II stage, Kurabharahally,
Bangalore -560 079.
By Sri.N.Raghubabu, Advocate
/Vs/
Defendant 1) The Commissioner,
Corporation of city of Bangalore ,
Bangalore City Corporation, Bruhat
Bengaluru Mahanagara Palike,
Bangalore .
By Sri. K.N.M.Advocate.
Date of Institution of the suit 5/11/2011
Nature of the suit Perpetual
injunction
Date of commencement of
Recording of the evidence 18-02-2013
Date on which the judgement
Was pronounced 27-03-2013
Total duration Day/s Month/ Year/s
s
22 04 01
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O.S.No.7887/2011
(Ramachandra D.Huddar),
XXVII Addl.City Civil Judge,
Bangalore
JUDGMENT
Plaintiff Smt. Shabana Azam has filed this suit against the defendant seeking the relief of perpetual injunction restraining the defendant, its agents, men or anybody under or through it from demolishing any portion of the schedule building and or in any interfering with the plaintiff's peaceful possession of the suit schedule property.
2. Plaintiff ha described the suit schedule property as under:
residential building at property bearing Northern portion of property No.67/1/13/1 Earlier site No.28, in No. 67/1, 2nd cross, Umar bhag layout, Jaraganahally village, Uttarahally Hobli, Bangalore South Taluk, now comes within the limits of Bruhat Bengaluru Mahanagara Palike, ward No. 56 measuring East to West 50 feet, North to South 30 feet and bounded on:
East by Property No. 67/1
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O.S.No.7887/2011
West by Property No.29
North by Road and
South by Remaining portion of same
site No.28
Hereinafter referred to as suit schedule property for the purpose of brevity and convenience.
3. The brief and relevant facts of the case of the plaintiff are as follows:-
Plaintiff has purchased the suit schedule property under registered sale deed dated:15-7-2005 bearing Northern portion of property No.67/1/13/1 earlier site No.28 in No.67/1, 2nd Cross, Umar Bhag Layout, Jaraganahally village, Uttarahally Hobli, Bangalore South Taluk, now comes within the limits of Bruhat Bengaluru Mahanagara Palike, ward No. 56, which is the suit schedule property.
It is further case of the plaintiff that, defendant has confirmed khatha in respect of the suit schedule property in the name of plaintiff. She has paid tax in respect of the same.4
O.S.No.7887/2011 It is further alleged by the plaintiff that, to put up multi dwelling residential apartment building in the suit schedule property, she obtained necessary sanctioned plan dated:
14-7-2006 from the defendant. Building of the plaintiff consists of stilt, ground, first and second floor including terrace floor. Thus, plaintiff has constructed multi dwelling residential apartment building in accordance with sanctioned plan without any deviation.
It is further alleged that by the plaintiff that, though the plaintiff has put up construction in accordance with sanctioned plan, officials of defendant in the 3rd week of June 2011 came to the suit schedule properties and gave vehement threat of demolition of suit schedule property. Though plaintiff apprehends that, her building is in accordance with sanctioned plan, but, they gave threat to demolish the building. Even they have not issued any notice as required under section 321(1) of Karnataka Municipal Corporation Act 1976. 5
O.S.No.7887/2011 It is further alleged by the plaintiff that, before filing the suit, she has also issued notice dated: 18-6-2011 as contemplated under the provisions of Karnataka Municipal Corporation Act 1976. It is further alleged that, on 4-11-2011, once again came to the suit schedule property and gave a threat to demolish the suit schedule property. Therefore, the present suit is filed seeking aforesaid reliefs. Hence, it is prayed to decree the suit.
4) In response to the suit summons, defendant appeared before the court, opposed the suit of the plaintiff by filing detailed written statement. It is contended that, defendant is not having any knowledge that plaintiff has purchased the suit schedule property. It is denied that, construction of the plaintiff is in accordance with sanctioned plan without any deviations. So also, it is denied that, in the 3rd week of June-2011, threat have been given by the officials of defendant to demolish the building. 6
O.S.No.7887/2011 It is specifically contended that, after observing gross violation of the sanctioned plan, the defendant authority has taken action as per K.M.C. Act and issued notice. It is duly served upon. Plaintiff suppressing the said fact, has filed the present suit. This suit is filed before passing of confirmation order. Therefore, it is pre-mature. Hence, it is prayed to dismiss the suit.
5) On the basis of rival pleadings of both parties, in all 4 issues have been framed. They read as under:
(1) whether the plaintiff proves that, the building so constructed the suit schedule property is in accordance with sanctioned plan and without any deviations as alleged in the plaint? (2) Whether plaintiff further proves that, the attempt of demolition of portion of suit schedule property and interference by the defendant into her possession and enjoyment of the suit schedule property as alleged in the plaint?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
(4) What order or decree?7
O.S.No.7887/2011
6) To substantiate the assertions so made in the plaint, plaintiff herself entered the Witness-box as PW.1, got marked Ex.P1 to Ex.P11. In the cross-examination, Ex.D1 being confronted to PW.1 and is marked in evidence. The defendant has not lead any evidence.
7) Heard the arguments of both parties. Meticulously perused the records.
8) My findings to the above issues are as under:-
Issue No. 1) ............ In the Negative Issue No. 2) ............ In the Negative Issue No. 3) ............ In the Negative Issue No. 4) ............ As per final Orders for the following:
REASONS 8 O.S.No.7887/2011
9) Issues No.1 to 3:- These issues require common discussion.. Therefore, I would like to discuss them together so as to avoid repetition and confusion.
10) PW.1 being plaintiff , has reiterated the plaint averments in her evidence on oath. So far as ownership over the suit schedule property is concerned, defendant, though pleaded ignorance, but, admits that, plaintiff is the owner in possession of the suit schedule property.
11) In support of plaintiff's evidence, plaintiff has produced certain documents. Amongst them, Ex.P1 is sale deed in favour of plaintiff for having purchased the suit schedule property on 15-7-2005. The suit schedule property so described in the plaint as well as in the schedule tallies with each other. Plaintiff has paid tax in respect of the suit schedule property and it is as per Ex.P6. Ex.P7 and 8 are separate receipts produced by the plaintiff to show that, she is paying tax. Ex.P4 is the certificate issued by the Bruhat Bengaluru Mahanagara Palike standing in the name of plaintiff. Ex.P3 is the property extract of the suit 9 O.S.No.7887/2011 schedule property. These documents do demonstrate that, plaintiff is the owner in possession of the suit schedule property.
12) Ex.P2 is registration of khatha in the name of plaintiff.
This document is also not disputed by the defendant. Ex.P11 is the sanctioned plan issued by defendant itself permitting the plaintiff to construct stilt, ground floor, first floor and second floor including terrace floor. According to the plaintiff, her construction is in accordance with sanctioned plan. Defendant has specifically alleged that, the construction is not in accordance with sanctioned plan. Plaintiff has issued legal notice before filing this suit. It is also not in dispute.
13) In the course of cross-examination, it is elicited that, one Mr. Akram Shariff is the Supervisor of construction. He is her relative. Provisional order served upon the said Akram Shariff. It is confronted to PW.1 and marked as Ex.D1. So, this Ex.D1 so produced by the plaintiff shows that, firstly provisional order has been passed on 10-10-2011 notifying the builder or owner of the property about the construction of building in 10 O.S.No.7887/2011 accordance with the sanctioned plan. This PW.1 has identified the signature of Akram Shariff. This suit is filed on 5-11-2011 ie., after service of said provisional order. But, plaintiff has not at all stated with regard to the service of this provisional order on her representative, but, identified his signature on Ex.D1. She further states that, she has not issued any reply to Ex.D1. She further admits that, in the said provisional order , it is stated that, she has not left the required setback while constructing the building in the suit schedule property. But, further admits that, she left the required setback at the time of construction of building in the suit schedule property. She also further states that, no notice have been issued by the plaintiff before filing this suit. She denied other suggestions.
14) Though representative of plaintiff has received provisional order as per Ex.D1, this fact of service of provisional order is not stated by PW.1. So also, there is no pleading in the plaint with regard to service of provisional order served on representative of plaintiff. But, plaintiff states that, no such 11 O.S.No.7887/2011 notice have been issued to the plaintiff by defendant-authority. But, Ex.D1 is admitted by PW.1. So, there is suppression of material fact by plaintiff in seeking injunction in this case as per the submission of counsel for defendant. Whereas it is stated by defendant that, the construction of building by the plaintiff is full of deviations as noticed in Ex.D1 without issuing any reply to the said provisions order, present suit is filed by the plaintiff by suppressing the fact of issuance of provisional order. There is no pleading that, such a provisional order so passed by defendant is duly served on the representative of plaintiff, plaintiff is dare enough to plead and say that, no notice or provisional order have been served upon her. It is contrary to the admissions of PW.1 given in the examination in chief.
15) Under the provisions of Specific Relief Act, when plaintiff is claiming perpetual injunction against the defendant, she must approach the court with clean hands. She must disclose all the material facts before the Court. But, in this case, there is suppression of material facts in seeking injunction 12 O.S.No.7887/2011 against defendant. More so, no reply is issued by the plaintiff to defendant . If really the construction of building is in accordance with sanctioned plan, nothing prevented the plaintiff to issue reply to said Ex.D1. So also, she would have complied the directions of defendant. But, suppressing the said fact, she has filed this present suit.
16) Injunctive relief is equitable relief. A person who seeks equity, must do equity. Merely by saying that, her construction is in accordance with sanctioned plan, that does not mean that, her construction is in accordance with sanctioned plan. The fact that, officials of defendant visited the suit schedule property and noticed the deviations and same is marked in Ex.D1 also. So, when there is deviation in putting the construction by the plaintiff, now plaintiff cannot seek injunction against defendant stating that, her construction is in accordance with sanctioned plan. If her construction is in accordance with sanctioned plan, she would have replied to the Ex.D1. So, this Ex.D1 is just like a show-cause notice and it is not complied by the plaintiff. So, in 13 O.S.No.7887/2011 the considered view of this court, plaintiff has not at all made out grounds to believe that, no notice or provisional order have been served upon her before filing of this suit. So also, alleged deviations so stated in Ex.D1 have not been denied by the plaintiff in material particulars. She has suppressed the fact of service of provisional order. Therefore, plaintiff is not entitled for any equitable relief of injunction.
17) However, defendant being functionary under the provisions of Karnataka Municipal Corporation Act 1976 have to take necessary action in accordance with Karnataka Municipal Corporation Act 1976 by issuing show-cause notice or by passing provisional order and if the reply given by the builder or owner of the property is not satisfied, then pass confirmation order. That confirmation order is appealable before Karnataka Appellate Tribunal. So also, defendant has to serve notice, provisional order and confirmation order in accordance with provisions of section 455 of Karnataka Municipal Corporation Act 1976. Defendant has to follow the provisions of Karnataka Municipal 14 O.S.No.7887/2011 Corporation Act 1976 in removing the deviations. In view of my foregoing discussion on above issues, it can be said that, plaintiff is unable to prove the aforesaid issues affirmatively with legal evidence. Hence, I answer the above Issues in the Negative.
2) In view of my foregoing discussions and the reasons stated thereon, the suit of the plaintiff fails and liable to be dismissed. Accordingly, I pass the following:-
ORDER The suit of the plaintiff is dismissed with no order as to costs.
However defendant is at liberty to take appropriate action in accordance with provisions of Karnataka Municipal Corporation Act 1976.
(Dictated to the Judgment-Writer, transcript thereof, is corrected and then pronounced by me in the open court on this the 27th day of March 2013) [Ramachandra D.Huddar], XXVII Addl. City Civil Judge, Bangalore 15 O.S.No.7887/2011 ANNEXURE List of the witnesses examined for the plaintiff P.W.1 Shabana Azam List of the documents marked for the plaintiff Ex.P 1 Registered sale deed dated: 15-7-2005 Ex.P 2 Khatha registration Ex.P 3 Tax demand extract Ex.P 4 Certificate issued by Bruhat Bengaluru Mahanagara Palike Ex.P5 To 5 tax paid receipts Ex.P9 Ex.P10 Permission letter issued by Bruhat Bengaluru Mahanagara Palike Ex.P11 Sanctioned plan.
List of the witnesses examined for the defendants:
D.W.1 NIL List of the documents marked for the defendants:
Ex.D 1 NIL
[Ramachandra D.Huddar],
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O.S.No.7887/2011
XXVII Addl. City Civil Judge,
Bangalore
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O.S.No.7887/2011
Judgment pronounced in the open court
(Vide separate detailed judgment)
The suit of the plaintiff is dismissed with no order as to costs.
However defendant is at liberty to take appropriate action in accordance with provisions of Karnataka Municipal Corporation Act 1976.
(Ramachandra D.Huddar), XXVII Addl.City Civil Judge, Bangalore 18 O.S.No.7887/2011 "80 Notice - [(1)] [Save as otherwise provided in sub-section (2), no suit shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;] [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government any other officer authorities by that Government in this behalf;]
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him; or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
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O.S.No.7887/2011 Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(5) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice -
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]