Bangalore District Court
Sri.M.A.Gunashekar vs The Commissioner on 31 January, 2022
IN THE COURT OF LXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BANGALURU.
(CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 31st day of January, 2022.
O.S. No.27051/2012
Plaintiff: Sri.M.A.Gunashekar,
S/o.Late.Sri.Annamalai,
aged about 52 yrs,
No.1/1, Kempanna Garden,
P.S.K. Naidu Road, Doddigunta,
Cox Town, Bangaluru-560005.
(By Sri.B.N.Krishnappa - Adv.)
V/S
Defendants: 1. The Commissioner,
Corporation of City of
Bangaluru (BBMP),
N.R.Road, Bangaluru-02.
2. The Assistant Executive
Engineer, BBMP,
Ward No.79, Sarvagna Nagar,
Bangaluru-560043.
(By Sri.N.Sudha - Adv.)
2
O.S. No.27051/2012
Date of Institution of the suit 19.10.2012
Nature of the (Suit or pro-note,
suit for declaration and
INJUNCTION SUIT
possession, suit for injunction,
etc.)
Date of the commencement of
24.10.2019
recording of the Evidence.
Date on which the Judgment was
31.01.2022
pronounced.
Year/s Month/s Day/s
Total duration 09 03 12
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bangaluru. (CCH-74)
JUDGMENT
The plaintiff has filed this suit for perpetual injunction against the defendants restraining them and their officials from demolishing any portion of the suit building and from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. Brief facts of the plaintiff's case:
It is specific case of the plaintiff that, one A.Ramadasappa was full and absolute owner of the 3 O.S. No.27051/2012 property bearing No.1, situated at Kempanna Garden, PSK Naidu Road, Doddigunta Cox Town, Bangaluru and katha stands in the name of said A.Ramadasappa.
Subsequently, said Ramadasappa has sold a portion of vacant site measuring 33 ft. X 33 ft., with common passage to one Sri.A.Shankar through registered sale deed dated 19.7.2004 and thereafter said Mr.A.Shankar has put up a small structure over the said property to an extent of 500 sq. ft., of ACC sheet house, after completion of the said house, the number was assigned by the BBMP as New No.1/2, of Kempanna Garden, PSK Naidu Road, Doddigunta, Bangaluru. Further said A.Shankar was under need of funds for his family necessities and sold the above said property to the plaintiff herein by executing registered sale deed dated 3.3.2010.
Subsequently, after purchase, the plaintiff is in possession and enjoyment of the said property and katha in respect of said property stands transferred in the name 4 O.S. No.27051/2012 of plaintiff and katha has been issued by the BBMP on 27.2.2012, accordingly plaintiff is paying tax to the BBMP in respect of above said property. Thus, the plaintiff is in possession and enjoyment of the property shown in registered sale deed dated 3.3.2010. In order to put up a new structure over the existing house, the plaintiff has obtained sanction plan and license from the defendant. After obtaining sanction plan from the defendant, the plaintiff has erecting the building as per sanction plan and license by following bye laws of the defendants. Even 2 nd defendant was visiting and noting the progress of the building work.
Thus, the plaintiff has complied all requirements and constructed building in accordance with sanction plan issued by the defendants. Such being the facts, the defendant No.2 has issued notice u/S 308 of KMC Act on 11.10.2012 calling upon the plaintiff to produce the document in respect of the title of the plaintiff. In 5 O.S. No.27051/2012 pursuance of said notice, plaintiff has complied the demands under the said notice. Further plaintiff contended that even though he has constructed in accordance with sanction plan the defendants have threatened the plaintiff for demolition of the building, hence the plaintiff constrained to file this suit for the reliefs sought in the plaint.
3. In pursuance of the suit summons, the defendants appeared through counsel and filed written statement. The defendants contended that, the suit filed by the plaintiff is frivolous and not maintainable either in law or on facts and same is liable to be dismissed. Further the defendants contended that the plaintiff has not complied with the provisions of Section 482 (1) of KMC Act and the defendants have denied para-7 and 8 as false and contended that the plaintiff has constructed building by deviating the sanction plan. Further the defendants have issued notice u/S 308 of KMC Act, after receiving 6 O.S. No.27051/2012 complaints with regard to deviation in construction of the building over the suit schedule property, calling upon the plaintiff to produce the sanction plan and the defendants have inspected the property with reference to sanction plan and found that the plaintiff has constructed the building deviating the sanction plan and without leaving set backs in the ground floor in the front to the extent of 100% on behind side to the extent of 100% on left and right sides to an extent of 100%. It is noticed that the plaintiff has deviated the sanction plan while construction and same was recorded by the defendants and provisional order u/S 321 (1) and (2) of KMC Act was passed on 30.10.2012 and directed the plaintiff to review the deviation and further issued show cause as to why the provisional order passed by the defendants shall not be confirmed. Thus, the suit filed by the plaintiff is not maintainable before this court as the plaintiff has filed this suit after initiation of action u/S 7 O.S. No.27051/2012 321 of KMC Act by issuing notice u/S 308 of KMC Act. With this, the defendants prayed for dismissal of the suit.
4. Initially this suit is filed before the CCH-29, in view of the Notification No.ADM-I(A)413/2018, dated 31.7.2018, this case has been transferred to this court as per order dated 07.09.2018 from CCH-29. And suit was called out in this court for the first time on 26.09.2018.
5. On basis of the pleadings of the parties, my learned Predecessor has framed the following:-
ISSUES
1. Whether the plaintiff proves that he has constructed building as per sanction plan & he was in lawful possession and enjoyment of the suit schedule property as on the date of the suit ?
2. Whether the plaintiff proves that, defendants are trying to interfere with the plaintiff's possession of the suit schedule property, without following the procedure as contemplated under Sec.321 of KMC Act?8
O.S. No.27051/2012
3. Whether the suit is not maintainable for non complaining of section 482 of KMC Act?
4. Whether the plaintiff is entitled for relief of Permanent Injunction?
5. What decree or order?
6. In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.11 and P.W.1 was cross-examined by the learned counsel for the defendants. After giving sufficient opportunity to the defendants for their evidence, the evidence of defendants side taken as Nil and posted for argument.
7. Heard argument on both side.
8. I have appreciated oral and documentary evidence led by the plaintiff and material placed before the court and considered the argument of the learned counsel for the parties.
9
O.S. No.27051/2012
09. My answer to the above issues are as follows:-
Issue No.1: Partly in the Affirmative & Partly in the Negative, Issue No.2: In the Negative, Issue No.3: Does not survived for consideration, Issue No.4: In the Negative, Issue No.5: As per the final order, for the following:-
REASONS
10. ISSUE No.1: In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to Ex.P.11. The P.W.1 is examined by filing affidavit in lieu of examination in chief, reiterating the averments of the plaint. P.W.1 deposed before the court that, one A.Ramadasappa was full and absolute owner of the property bearing No.1, situated at Kempanna Garden, PSK Naidu Road, Doddigunta Cox Town, Bangaluru and katha stands in the name of said A.Ramadasappa. Subsequently, said Ramadasappa has sold a portion of 10 O.S. No.27051/2012 vacant site measuring 33 ft. X 33 ft., with common passage to one Sri.A.Shankar through registered sale deed dated 19.7.2004 and thereafter said Mr.A.Shankar has put up a small structure over the said property to an extent of 500 sq. ft., of ACC sheet house, after completion of the said house, the number was assigned by the BBMP as New No.1/2, of Kempanna Garden, PSK Naidu Road, Doddigunta, Bangaluru. Further said A.Shankar was under need of funds for his family necessities and sold the above said property to the plaintiff herein by executing registered sale deed dated 3.3.2010.
11. P.W.1 further deposed before the court that, after purchase, the plaintiff is in possession and enjoyment of the said property and katha in respect of said property stands transferred in the name of plaintiff and katha has been issued by the BBMP on 27.2.2012, accordingly plaintiff is paying tax to the BBMP in respect of above said property. Thus, the plaintiff is in possession and 11 O.S. No.27051/2012 enjoyment of the property shown in registered sale deed dated 3.3.2010. In order to put up a new structure over the existing house, the plaintiff has obtained sanction plan from the defendant and license. After obtaining sanction plan from the defendant, the plaintiff has erecting the building as per sanction plan and license by following bye laws of the defendants. Even 2nd defendant was visiting and noting the progress of the building work.
12. P.W.1 further deposed before the court that, the plaintiff has complied all requirements and constructed building in accordance with sanction plan issued by the defendants. Such being the facts, the defendant No.2 has issued notice u/S 308 of KMC Act on 11.10.2012 calling upon the plaintiff to produce the document in respect of the title of the plaintiff. In pursuance of said notice, plaintiff has complied the demands under the said notice. Further plaintiff contended that even though he has constructed in accordance with sanction plan the 12 O.S. No.27051/2012 defendants have threatened the plaintiff for demolition of the building, hence the plaintiff constrained to file this suit for the reliefs sought in the plaint.
13. In support of oral evidence, the plaintiff has produced as many as 11 documents, which have been marked at Ex.P.1 to P.11. Ex.P.1 is the certified copy of registered sale deed dated 19.7.2004 executed by A.Ramadasappa, S/o.Annayappa in favour of A.Shankar, S/o.Annamallaiah, Ex.P.2 is the special notice dated 27.10.2004, Ex.P.3 is the certified copy of sale deed dated 3.3.2010 executed by A.Shankar, S/o.Annamallaiah, in favour of A.Gunashankar; i.e., plaintiff herein in respect of suit schedule property, Ex.P.4 is the certified copy of receipt, Ex.P.5 is the certified copy of katha certificate stands in the name of plaintiff, Ex.P.6 is the tax-paid receipt for the year 2012-13 by the plaintiff, Ex.P.7 is the certified copy of khatha extract stands in the name of plaintiff, Ex.P.8 is the license issued by the BBMP to the 13 O.S. No.27051/2012 plaintiff, Ex.P.9 and P.10 are the sanction plans issued by the defendants to the plaintiff and Ex.P.11 is the reply notice of the plaintiff to the notice issued by the defendants u/S 308 of KMC Act.
14. I have perused Ex.P.1 to P.8 Certified Copies of Title Deeds and Revenue Records stands in the name of the plaintiff, which clearly establishes that the plaintiff is in possession of the suit schedule property, it is also clear from the material placed before the court that being owner and in possession of the suit schedule property the plaintiff has obtained sanction plan and license from the defendant authority for construction over the suit schedule property and constructed the building over the suit schedule property.
15. The plaintiff also produced Ex.P.11, which is reply notice issued by the plaintiff to the notice issued by the defendant u/S 308 of KMC Act. It is clear from the pleadings and oral and documentary evidence led by the 14 O.S. No.27051/2012 plaintiff that the defendants authority have issued u/S 308 of KMC Act, calling upon the plaintiff to produce the sanction plan, commencement certificate and other relevant documents of the building for verification of set back FAR, coverage, within 7 days from the date of receipt of the notice failing which building will be considered as unauthorised and further action will be initiated as per the provisions of KMC Act. This notice issued by the defendants authority was served on plaintiff and plaintiff has replied the same. Thus, it is clear that before filing of the suit the defendants authority has issued notice u/S 308 of KMC Act.
16. It is specific case of the plaintiff that the plaintiff has constructed building in accordance with the sanction plan. I have gone through Ex.P.10 Sanction Plan issued by the defendants authority to the plaintiff for construction. It is clear that before commencement of construction the plaintiff has to obtain commencement certificate from the 15 O.S. No.27051/2012 defendants authority. This condition is condition precedent to commence the construction as per the sanction plan.
17. Ofcourse, the plaintiff has obtained sanction plan and license as per Ex.P.8 to P.10, but plaintiff has not complied with the conditions under sanction plan issued by the defendant, because, the plaintiff did not obtained commencement certificate from the defendants authority before commencement of construction over the suit schedule property. Ofcourse, the defendants authority did not choose to lead evidence to prove its defence taken in the written statement, but the defendants authority has demonstrated its defence by cross-examination of P.W.1 and on the basis of documents produced by the plaintiff. Now it is relevant to extract the cross-examination of P.W.1, dated 30.3.2021, at 1st para, which reads thus:
"I have obtained sanction plan in the year 2012 from defendant for construction of building over the 16 O.S. No.27051/2012 suit schedule property. I have started construction in the year 2012 itself. I have not taken commencement certificate before starting construction."
18. Now it is clear from the evidence of plaintiff that plaintiff did not obtained commencement certificate from the defendants authority before commencement of construction. Now it is relevant to appreciate Ex.P.10 Sanction Plan issued by the defendants. I have perused sanction plan, it is clear that plaintiff has to obtain "commencement certificate" before commencement of the construction. The relevant conditions found in Ex.P.10 reads thus:
ಸೂಚನೆ "ಈ ಸ್ವತ್ತಿನ ಮಾಲೀಕತ್ವದ ಬಗ್ಗೆ ಬೆಂಗಳೂರು ಅಭಿವೃದ್ಧಿ ಪ್ರಾಧಿಕಾರ ಅಥವಾ ಬೇರೆ ಯಾರಿಂದಲಾದರು ತಕರಾರು ಬಂದಲ್ಲಿ ಈ ಮಂಜೂರಾತಿ ನಕ್ಷೆಯನ್ನು ರದ್ದುಪಡಿಸಲಾಗುವುದು.17
O.S. No.27051/2012
1. ನಕ್ಷೆ ಮಂಜೂರಾತಿ ಪಡೆಯಲು ಸುಳ್ಳು ಮಾಹಿತಿ ದಾಖಲಾತಿಗಳನ್ನು ನೀಡಿರುವುದು ಕಂಡುಬಂದಲ್ಲಿ ನೀಡಿಲಾಗಿರುವ ಮಂಜೂರಾತಿಯನ್ನು ಯಾವ ಮುನ್ಸೂಚನೆಯಿಲ್ಲದೆ ರದ್ದುಪಡಿಸಲಾಗುವುದು.
2. ನಕ್ಷೆಯಲ್ಲಿ ತೋರಿಸಿರುವಂತೆ ಕಡ್ಡಾಯವಾಗಿ ಸ್ವತ್ತಿನಲ್ಲಿ ಮಳೆನೀರು ಸಂರಕ್ಷಣೆ ಅಗತ್ಯ ವ್ಯವಸ್ಧೆ ಕಲ್ಪಿಸುವುದು.
ಆಯುಕ್ತರ ಆದೇಶದ ಸಂಖ್ಯೆಉ ಆ (ಪಿ. ಎಸ್.ಆರ್ (2)1412/03-04 ದಿನಾಂಕ 14.11.03 ಯಂತೆ B.W.S.S.B. ಯ ಕುಡಿಯುವ ನೀರನ್ನು ಕಟ್ಟಡ ಕಟ್ಟಲು ಉಪಯೋಗಿಸಬಾರದು.
Note:- Laying of foundation concrete & columns should commence only after obtaining "commencement certificate"
from the Bangaluru Mahanagara Palike. After inspection from the AEE.
If, any litigation arise
sanctioned plan will be
withdrawn without notice."
19. It is not in dispute that the defendants authority has visited and inspected the spot and issued notice u/S 18 O.S. No.27051/2012 308 of KMC Act on 11.10.2012, calling upon the plaintiff to produce the documents for inspection and plaintiff also replied the same.
20. On careful perusal of the cross-examination of P.W.1 extracted supra, it is clear that plaintiff has not constructed the building over the suit schedule property as per sanction plan as admitted by the plaintiff and plaintiff has not produced commencement certificate before the court. Ofcourse, the plaintiff has obtained sanction plan and license, but the condition precedents incorporated in sanction plan is that the plaintiff must obtain commencement certificate before commencement of construction. Thus, the plaintiff has failed to prove that he has constructed a building as per sanction plan. Thus, the suit filed by the plaintiff is a frivolous suit. In support of my finding I relied on the Judgment reported in 1993 SCR (3) Page 522 Shiv Kumar Chadha Etc. Etc. Vs Municipal Corporation of Delhi and others -
19
O.S. No.27051/2012 1-7, The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition by the Commissioner, in terms of section 343 (1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act.
Order of demolition and stoppage of buildings and works in certain cases and appeal ..........(2) Any person aggrieved by an order of the Commissioner made under sub-
section (1) may prefer an appeal against the order to the Appellate Tribunal within the 20 O.S. No.27051/2012 period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under sub-section(2) against an order of demolition, the Appellate Tribunal may, subject of the provisions of sub-
section (3) of section 347C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:
Further I relied on decision reported in 1977 AIR 2421 - Arivandandam Vs T.V. Satyapal and another -
HELD; (1) If on a meaningful
nor formal reading of the
plaint it is manifestly
vexatious, and meritless, in
the sense of not disclosing a
clear right to sue, he (Munsif)
should exercise his power
21
O.S. No.27051/2012
under Order VII rule 11, CPC
taking care to see that the
ground mentioned therein
fulfilled, And, if clever drafting has created the illusion of a cause of action, it should be ........but at the first hearing by examining the party searchingly under Chapter X, CPC, An activist Judge is the answer to irresponsible law suits, the Trial Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot-down at the earliest stage."
21. On perusal of the pleadings of the parties, it is not in dispute between the parties that the plaintiff is in possession and enjoyment of the suit schedule property. On perusal of the oral and documentary evidence led by the plaintiff, it is clear that plaintiff has constructed 22 O.S. No.27051/2012 building over the suit schedule property deviating the sanction plan. With this observation and reasons assigned and relying on the decisions referred supra, I answer issue No.1 Partly in the Affirmative and Partly in the Negative.
22. ISSUE No.2 & 3: Both these issues are interconnected to each other, in order to avoid repetition, I proposed to answer both these issues commonly. It is specific case of the plaintiff that he has obtained sanction plan and license from the defendants for construction over the suit schedule property and constructed over the suit schedule property in accordance with law. It is also contended in the plaint that the defendants used to visit the spot and investigate the construction work and issued notice u/S 308 of KMC Act. This admission itself sufficient to hold that the defendants have done their statutory duty under provisions of Section 308 and 321 of KMC Act and the defendants also visited the spot for inspection in terms 23 O.S. No.27051/2012 of sanction plan as per Ex.P.10 extracted supra. Now it is relevant to extract the cross-examination of P.W.1 dated 30.3.2021 at last para after 3 lines from top, which reads thus:
"It is true that, defendant has issued notice to me u/S 308 of KMC Act, calling upon me to produce title deeds and sanction plan prior to filing of this suit. I did not replied to the notice issued by the BBMP. BBMP has not obstructed my possession except issuing notice in accordance with law."
23. The evidence of plaintiff extracted supra clearly established that defendants have done their duty in accordance with the provisions of Section 321 of KMC Act and as per Ex.P.10 Sanction Plan issued by the defendants. Further it is clear from the evidence of the plaintiff extracted supra that BBMP has not obstructed 24 O.S. No.27051/2012 possession of the plaintiff over the suit schedule property except issuing notice in accordance with law. Thus, it is clear from the evidence of plaintiff that the defendants have not violated any provisions of KMC Act while discharging their duty in accordance with law.
24. Further the defendants have taken defence that the plaintiff has not complied with the provisions of Section 482 of KMC Act and in this regard, the issue has been framed about the maintainability of the suit. But, on perusal of the order sheet, it is seen that my learned Predecessor has allowed the application filed by the plaintiff for dispensing the notice as required u/S 482 of KMC Act and permitted the plaintiff to file the suit without notice as it could be seen from the order sheet dated 20.10.2012. Hence, issue No.3 is not survived for consideration due to order passed by this court on 20.10.2012.
25
O.S. No.27051/2012
25. On careful perusal of the oral and documentary evidence and material placed before the court, it is clear that plaintiff failed to prove that the defendants have interfered in peaceful possession of the suit schedule property without following the procedure as contemplated under the KMC Act. Hence, I answer issue No.2 in the Negative and issue No.3 is not survived for consideration.
26. ISSUE No.4: As already discussed on issue Nos.1 and 2 and hold that plaintiff has not constructed building over the suit schedule property in accordance with sanction plan issued by the defendants and defendants as per the provisions of KMC Act have initiated action u/S 321 of KMC Act by issuing notice u/S 308 of the KMC Act. Except statutory duty in accordance with law the defendants have not done any illegal interference with the plaintiff's peaceful possession and enjoyment of the suit schedule property. This fact is also admitted by the 26 O.S. No.27051/2012 plaintiff himself in the cross-examination as extracted supra that BBMP has not obstructed the peaceful possession of the plaintiff except issuing notice in accordance with law. Under such circumstances, it can be safely held that plaintiff is not entitled for equitable relief of injunction against the defendants authority. Hence, I answer issue No.4 in the Negative.
27. ISSUE No.5: In view of the discussion made on Issue Nos.1 to 4, I proceed to pass the following:-
ORDER The suit filed by the plaintiff is hereby dismissed with cost of Rs.2,000/-.
Costs shall be paid by the plaintiff to the defendants.27
O.S. No.27051/2012 Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 31st day of January, 2022).
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) SUIT SCHEDULE PROPERTY All that piece and parcel of Residential Immovable Property bearing Old No.1, Newly bifurcated BBMP No.1/2, situated at Kempanna Garden, Doddigunta, Cox Town, PID No.85-50-1/12, Bangalore, measuring East to West 33 ft and North to South 33 ft, and bounded on:
East by: Appajappa Garden; West by: Private Property;
North by: Private Property and common passage South by: Kothandappa Garden.
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 28 O.S. No.27051/2012 ANNEXURES List of witness examined for the plaintiff's side:
P.W.1 - Sri.M.A.Gunashekar S/o.Late.Annamalai List of documents exhibited for the plaintiff's side:
Ex.P.1 - Certified copy of sale deed dated:
19.07.2004 Ex.P.2 - Special notice dated: 27.10.2004 Ex.P.3 - Certified copy of sale deed dated:
03.03.2010 Ex.P.4 - Certified copy of receipt for transfer of khatha Ex.P.5 - Certified copy of khatha certificate Ex.P.6 - Certified copy of tax paid receipt for the year 2012-13 Ex.P.7 - Certified copy of katha extract Ex.P.8 - Certified copy of licence dated: 24.09.2012 issued by BBMP Ex.P.9 - Certified copy of details of sanction plan Ex.P.10 - Certified copy of sanction plan Ex.P.11 - Office copy of reply notice date:
16.10.2012 List of witness examined for the defendants' side:
-N I L -29
O.S. No.27051/2012 List of documents exhibited for the defendants' side:
-N I L -
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 30 O.S. No.27051/2012 31 O.S. No.27051/2012 32 O.S. No.27051/2012 33 O.S. No.27051/2012 34 O.S. No.27051/2012