Karnataka High Court
Prakash Jain vs M S Amarnath on 23 November, 2021
M.F.A. NO. 3232/2021 C/W
W.P. NO. 12378/2021,
W.P. NO. 14579/2021
1
M
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.3232/2021 (CPC)
C/W
WRIT PETITION NO.12378/2021 (LB-BMP)
WRIT PETITION NO.14579/2021 (LB-BMP)
M.F.A.NO.3232/2021
BETWEEN:
PRAKASH JAIN
S/O LATE MEGHARAJ
AGED ABOUT 50 YEARS
R/AT NO.50-4-76
KAVI LAKSHMISHA ROAD
VISHWESHWARAPURAM
BENGALURU - 560004 ...APPELLANT
(BY SRI.GOPAL SINGH, ADVOCATE)
AND:
1. M.S.AMARNATH
S/O M.N.SANGAMESHWARA
AGED ABOUT 47 YEARS
R/AT NO.73/24
"ESHWAR", 23RD CROSS
JAYANAGAR 6TH BLOCK
BENGALURU - 560070
2. REKHA JAIN
W/O PRAKASH JAIN
AGED ABOUT 42 YEARS
R/AT NO.50-4-76
KAVI LAKSHMISHA ROAD
VISHWESHWARAPURAM
BENGALURU - 560004
M.F.A. NO. 3232/2021 C/W
W.P. NO. 12378/2021,
W.P. NO. 14579/2021
2
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3. DINESH JAIN
S/O LATE MEGHARAJ
AGED ABOUT 42 YEARS
R/AT NO.50-4-76
KAVI LAKSHMISHA ROAD
VISHWESHWARAPURAM
BENGALURU - 560004
4. ANJU DEVI
W/O DINESH JAIN
AGED ABOUT 39 YEARS
R/AT NO.50-4-76
KAVI LAKSHMISHA ROAD
VISHWESHWARAPURAM
BENGALURU - 560004
5. KAILASH
S/O LATE MEGHARAJ
AGED ABOUT 46 YEARS
R/AT NO.50-4-76
KAVI LAKSHMISHA ROAD
VISHWESHWARAPURAM
BENGALURU - 560004 ...RESPONDENTS
(BY SRI.S.VISWESWARAIAH , ADVOCATE FOR R1;
NOTICE TO R2 TO R5 ARE DISPENSED WITH
VIDE ORDER DATED: 23.09.2021)
THIS MFA IS FILED UNDER ORDER 43 RULE 1 (R)
READ WITH SECTION 104 OF CPC, AGAINST THE ORDER
DATED 08.02.2021 PASSED ON I.A.NO.2 IN
O.S.NO.6594/2020 ON THE FILE OF THE LXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-
64), DISMISSING I.A.NO.2 FILED UNDER ORDER 39 RULE 1
AND 2 READ WITH SECTION 151 OF CPC.
W.P.NO.12378/2021
BETWEEN:
PRAKASH JAIN
S/O LATE MEGHARAJ
AGED ABOUT 50 YEARS
R/AT NO.76, KAVI LAKSHMISHA ROAD
M.F.A. NO. 3232/2021 C/W
W.P. NO. 12378/2021,
W.P. NO. 14579/2021
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VISHWESHWARAPURAM
BENGALURU - 560004 ...PETITIONER
(BY SRI.GOPAL SINGH, ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
N.R.SQUARE, BANGALORE - 560 002
2. THE DIRECTOR
DIRECTORATE OF TOWN PLANNING
NO.4, M.S. BUILDING, 4TH FLOOR
6TH BLOCK, NEAR VIDHANA SOUDHA
AMBEDKAR VEEDHI, BANGALORE - 560 001
3. THE ASSISTANT DIRECTOR
TOWN PLANNING (SOUTH)
BBMP COMPLEX, 9TH CROSS,
9TH MAIN ROAD, JAYANAGAR 2ND BLOCK
BENGALURU - 560 011
4. M.S.AMARNATH
S/O M.N.SANGAMESHWARA
AGED ABOUT 47 YEARS
R/AT NO.73/24, "ESHWAR"
23RD CROSS, JAYANAGAR 6TH BLOCK
BENGALURU - 560 070 ...RESPONDENTS
(BY SRI.AMIT DESHPANDE, ADVOCATE FOR R1 TO R3;
SRI.S.VISWESWARAIAH , ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA OF PRAYING TO
QUASHING THE PLAN SANCTIONED BY THE RESPONDENT
NO.3 DATED 24.11.2020, VIDE REFERENCE
NO.BBMP/AD.COM/SUT/0568/20-21 AS PER ANNEXURE -G.
W.P. NO. 14579/2021:
BETWEEN:
M.S.AMARNATH
S/O M.N.SANGAMESHWARA
M.F.A. NO. 3232/2021 C/W
W.P. NO. 12378/2021,
W.P. NO. 14579/2021
4
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AGED ABOUT 47 YEARS
R/AT NO.73/24
"ESHWARA", 23RD CROSS
6TH BLOCK, BSK II STAGE
BENGALURU - 560 070 ...PETITIONER
(SRI.S.VISWESWARAIAH , ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 009
2. THE ASSISTANT DIRECTOR TOWN PLANNING
BBMP MAHANAGARA PALIKE COMMERCIAL COMPLEX,
2ND CROSS, JAYANAGAR, 9TH MAIN,
9TH CROSS, BENGALURU - 560 011
3. THE ZONAL COMMISSIONER (SOUTH)
MAHANAGARA PALIKE COMMERCIAL COMPLEX,
2ND CROSS, JAYANAGAR, 9TH MAIN,
9TH CROSS, BENGALURU - 560 011
4. MR.PRAKASH JAIN
S/O MEGHARAJ
AGED ABOUT 46 YEARS
5. MRS.REKHA JAIN
W/O MR.PRAKASH JAIN
AGED ABOUT 42 YEARS
6. MR.DINESH JAIN
S/O MEGHARAJ
AGED ABOUT 42 YEARS
7. MRS.ANJU DEVI
W/O MR.DINESH JAIN
AGED ABOUT 39 YEARS
8. MR.KAILASH
S/O MEGHARAJ
R4 TO R8 R/AT NO.50-4-76
KAVI LAKSHMISHA ROAD
M.F.A. NO. 3232/2021 C/W
W.P. NO. 12378/2021,
W.P. NO. 14579/2021
5
M
VISHWESHWARAPURAM
BENGALURU - 560004 ...RESPONDENTS
(BY SRI.AMIT DESHPANDE, ADVOCATE FOR R1 TO R3;
SRI.GOPAL SINGH, ADVOCATE FOR R4;
R5 AND R7 ARE SERVED
NOTICE TO R6 AND R8 HELD SUFFICIENT
VIDE ORDER DATED: 08.11.2021)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF CONSTITUTION OF INDIA OF PRAYING TO PRAYING TO
QUASH THE NOTICE DATED 23.07.2021 ISSUED BY THE
RESPONDENT NO.2 AND NOTICE DATED 30.07.2021 ISSUED
BY THE RESPONDENT NO.3 PRODUCED AT ANNEXURE -A
AND B RESPECTIVELY TO THE WRIT PETITION.
MFA AND WRIT PETITIONS COMING ON FOR FURTHER
DICTATION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Since the above cases involve common questions of law and facts, they are taken up together for disposal by this common order.
2. Since all the parties in these proceedings are common, W.P.No.14579/2021 will be taken up for consideration and the parties will be referred to according to their ranks in the said matter.
3. One Muniramaiah acquired the property bearing old No.41 and new No.117 situated at Vasavi Temple Street, Vishweswarapuram, Bengaluru-04 M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 6 M measuring East to West 42'3½" + 53'1"/2 and North to South 25'6" +25'6"/2 ft. under family partition dated 17.03.1971 along with other properties. At the time of partition, some structures situated on the said property. In course of time, admittedly number of the property was changed as Corporation No.41, street name was also changed.
4. On 05.08.1974, out of property No.41 Muniramaiah and his family members sold East to West 110 ft. and North to South 25.6 ft. to one C.G.Jambavathi under registered sale deed.
5. Muniramaiah and his family members sold the other portion of the property under two different sale deeds dated 02.11.1991 to one O.K.Bharathamma and D.M.Geethalakshmi. In the sale deed of Bharathamma, property is shown as old No.101 and new No.117, presently bearing Corporation No.41 in Corporation Division 47, Vasavi Temple Street measuring East to West 42.3½ ft., North to South 10 ft 11 inches and East to West 10.9½ ft. and North to M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 7 M South 25.8 ft. in all approximately 740 sq.ft. along with 4 sq. structure of Madras roofing and 1 sq, with Tile roofing mud walls. The structure is shown as about 75 years old. A sketch was annexed as part of the sale deed.
6. Schedule of the property sold to D.M.Geethalakshmi is shown as under:
Portion of property bearing old No.101 and new No.117, now bearing Corporation No.41 in Corporation Division No.47, Vasavi Temple Street, V.V.Puram, Bengaluru measuring North to South 14.7 inches, East to West 42.3½ ft. in all measuring about 601 sq.ft. with structures and mud walls.
7. D.M.Geethalakshmi sold the property purchased by her to one Rajappa. He in turn sold that property to S.Venkatesh and Dr.V.Lakshmi. The petitioner M.S.Amarnath purchased the said two portions of the property from Venkatesh & Dr.V.Lakshmi and Bharathamma, under registered sale deeds dated 07.03.2020 and 11.06.2020 respectively.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 8 M
8. On the request of the petitioner, BBMP amalgamated both the portions under order dated 18.08.2020 and allotted common khatha No.41 to both of them. In the demand register extract, name of petitioner was entered accordingly.
9. Heirs of C.G.Jambavathi sold property purchased by her from Muniramiah to respondent Nos.4 to 8 viz., Prakash Jain, Rekha Jain, Dinesh Jain, Anju Devi and Kailash under the registered sale deed dated 19.10.2012. In that sale deed the property is shown as follows:
The property bearing No.76 (Old Municipal No.96) situated at Kavi Lakshmisha Road, V.V.Puram, Bengaluru measuring East to West 110 ft., North to South 25.6 ft. with building of about 1800 sq.ft thereon.
10. Admittedly, site No.76 purchased by respondent Nos.4 to 8 situate at Western side of site No.41 which belongs to the petitioner. Petitioner applied to the first respondent for building license with M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 9 M draft building plan. On 18.09.2020 respondent No.4 submitted objections before respondent No.2 alleging that petitioner is trying to construct building encroaching upon conservancy lane which lies on the eastern side of the property showing that as Vasavi Temple Road, therefore, he shall not be given building licence.
11. For that respondent No.2 has given reply dated 06.10.2020 stating that spot investigation was conducted and description of the property in the documents produced by the petitioner matched with the factual position. Therefore he called upon respondent No.4 to submit documents to substantiate his complaint within five days.
12. On 12.10.2020, respondent No.4 submitted his sale deed khatha certificate, Local Area Map and P.T. Sheet and requested for rejection of the application of the petitioner for building license and sanctioned plan.
He submitted another complaint to the Director of Town Planning on 23.10.2020 with the same allegations.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 10 M Respondent Nos.1 and 2 issued the building licence and sanctioned plan to the petitioner as per Annexures-G and H dated 24.11.2020.
13. Respondent No.4 filed W.P.No.12378/2021 for quashing of the sanctioned plan dated 24.11.2020 alternatively for cancellation of the said plan. On 21.12.2020, petitioner filed O.S.No.6594/2020 before LXIII Additional City Civil and Sessions Judge, (CCH 64) at Bengaluru against respondent Nos.4 to 8 for permanent injunction to restrain them from interfering with his peaceful possession, enjoyment and development of the suit schedule property. In the suit, he alleged that the said respondents/defendants without any right on unfounded allegations are trying to obstruct his construction of the building and sought injunction. In that suit, petitioner filed IA. No.1 seeking temporary injunction and ex-parte temporary injunction was granted.
14. On appearance respondent Nos.4 to 8 contested the suit by filing written statement and M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 11 M statement of objections to I.A.No.1. They also filed I.A.No.2 seeking temporary injunction against the petitioner from putting up any construction on suit schedule A, B and C properties.
15. The trial Court on hearing both the parties, by order dated 08.02.2021 allowed the application of the petitioner and rejected the application of respondent Nos.4 to 8. The trial Court restrained respondent Nos.4 to 8 from interfering in petitioner's peaceful possession and enjoyment of the plaint schedule A to C properties.
16. Challenging the orders on I.A.No.2, respondent No.4 has filed M.F.A.No.3232/2021. During the operation of the order dated 08.02.2021 passed in O.S.No.6594/2020 against respondent Nos.4 to 8, on the basis of the application of respondent No.4, the Assistant Executive Engineer of BBMP passed provisional order as per Annexure-K dated 16.03.2021 purportedly under Section 321(1) of the Karnataka Municipal Corporations Act, 1976 ('the KMC Act' for short).
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 12 M
17. Under Annexure-K notice he alleged that the petitioner has constructed the building deviating from approved plan and building byelaws and the petitioner shall show-cause within 7 days from the date of receipt of the said order failing which the order will be confirmed. For that, the petitioner submitted his reply as per Annexure-L dated 23.03.2021. Acknowledgement of the said documents shows that, the reply was received on the same day.
18. The Assistant Executing Engineer on the very next day without hearing the petitioner in the matter passed order as per Annexure-M dated 24.03.2021 purportedly under section 321(3) of the K.M.C.Act. In the said notice he has stated that, the petitioner has not given any reply to the provisional order to justify the construction, therefore, the building was ordered to be demolished.
19. The petitioner challenged Annexure-M the order dated 24.03.2021 before the Karnataka Appellate Tribunal (for short 'KAT') in Appeal No.219/2021.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 13 M The KAT by order dated 22.04.2021 admitted the appeal and granted the interim stay of the order Annexure-M dated 24.03.2021.
20. Such being the facts, the second respondent issued another show cause notice as per Annexure-A dated 23.07.2021. In the said notice, it is stated that respondent No.4 has filed complaint for cancellation of building plan and license claiming that such construction covers conservancy lane situated on the Eastern side of the properties. Annexure-A further states that the concerned Assistant Executive Engineer has submitted report confirming the existence of conservancy lane and recommended for cancellation of the plan. Therefore, the petitioner shall show cause within seven days why the plan shall not be cancelled.
21. For the notice Annexure-A the petitioner herein issued reply as per the Annexure-P dated 29.07.2021 denying the allegations and informing respondent No.2 about interim injunction granted in O.S.No.6594/2020 and the interim stay granted by the M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 14 M KAT in appeal No.219/2021. On the very next day namely 30.07.2021 the third respondent issued another notice as per Annexure-B again claiming that the local people have made complaint against the construction on the same ground, therefore, the petitioner shall not proceed with the construction, otherwise action will be taken to demolish the construction. That was received by the petitioner on 31.07.2021.
22. Despite receipt of the said reply and on intimation of the interim orders of the Civil Court and KAT, the second respondent passed order as per Annexure-R dated 10.08.2021 withdrawing building plan with immediate effect on the ground that the petitioner in his sale deed has suppressed the fact of existence of conservancy lane on the Eastern side of the site. Though the order Annexure-R is dated 10.08.2021 but the same is signed by the second respondent on 09.08.2021.
23. WP No.14579/2021 was filed initially seeking quashing of Annexures-A and B. In view of M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 15 M subsequent development in issuing Annexure-R, the petitioner amended the Writ Petition to seek the relief for quashing Annexure-R also. The petitioner seeks quashing of Annexures-A, B and R on the ground that such orders are contrary to the order of Civil Court and KAT and suffer the vice of arbitrariness, malafides and issued at the behest of private respondent No.4.
24. Learned counsel for the petitioner reiterating the grounds of petitions seeks quashing of impugned orders and to justify the order of trial Court in O.S.No.6594/2020.
25. Sri Gopal Singh, learned counsel for private respondents and Sri Amit Deshpande, learned standing counsel for respondent Nos.1 to 3 justify the notices Annexures-A and B and order at Annexure-R on the following grounds:
a) The petitioner had suppressed the fact of existence of conservancy lane on the Eastern side and therefore the impugned notices Annexures-A and B and order Annexure-R were passed in accordance with law.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 16 M
b) Against the order Annexure-R an appeal is provided under section 253 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 ('the BBMP Act' for short), therefore the Writ Petition is not maintainable.
c) The interim order passed by the KAT is against the Assistant Executive Engineer and not against the second respondent and he was not precluded from issuing notices. Therefore, respondent Nos.2 and 3 have issued notices Annexures-A, B and order Annexure-R.
d) License can be revoked if there is any false representation or breach of license condition.
26. First of all Annexure-A,B and R do not say under which provision of law or authority such notices/order were passed. Learned counsel for respondent Nos.1 to 3 tried to submit that such notices/order were passed exercising powers under Sections 461 and 462 of KMC Act. When the building license was issued, BBMP Act was not in force and was not applicable for the parties. Admittedly, BBMP Act M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 17 M came into force on 11.01.2021. Therefore by the time Annexures-A, B and R were passed and issued KMC Act was no more in operation.
27. Even assuming that by virtue of transitory provision under section 375 of BBMP Act, Sections 461 and 462 of KMC Act are invoked, then also there should be compliance of Sections 461 and 462 of the KMC Act. Section 461(a) requires the Commissioner or any officer duly authorized by him to issue show cause notice and on considering the reply to the show cause notice proceed to take action.
28. Reading of Sections 461 and 462 which lies in Chapter XXI of the KMC Act show that exercising of power under sections 461 and 462 of KMC Act is in continuation of the power contemplated under section 321(1) and 321(3) of KMC Act.
29. Caption of Section 461 of KMC Act speaks of consequences of failure to obtain license etc., or breach of the same. Whereas the body of Section M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 18 M 461(1) of KMC Act deals with only doing an act without the license or permission. Even assuming that Section 461 of KMC Act refers to carrying a work without license or breach of the terms of license, in case breach of terms of license, Section 321 of KMC Act applies and respondent commenced the proceedings under section 321(1) of KMC Act initially.
30. In all fairness respondent No.1 to 3 should have spelt out under which statutory power they have issued Annexures-A, B and R. If it is said that Annexures-A, B and R were issued for breach of license, then final order issued under section 321(3) of KMC Act was stayed by the KAT and by the time Annexure-R was passed, that was within the knowledge of the respondents.
31. It is contended that in the proceedings before the KAT only the Assistant Executive Engineer was a party therefore the second and third respondent were not precluded from passing Annexures-A, B and R. Under the BBMP Act, respondent Nos.2 and 3 have no M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 19 M right or power to pass orders under Sections 461 and 462 of the K.M.C Act. Learned counsel for respondent Nos.1 to 3 submits that they have exercised such power on the basis of delegation made by the Commissioner i.e., first respondent as per the section 461(1)(b) of the KMC Act.
32. If that is the case the Commissioner/ respondent No.1 was a party to the proceeding. In that event respondent Nos.2 and 3 being the delegates only act as agents of respondent No.1. Respondent No.1 is the principal officer to respondent Nos.2 and 3. The order passed against the principal deemed to be within their knowledge and binds them also. Therefore there is no merit in the contention that respondent Nos.2 and 3 were not precluded by issuing Annexures-A, B and R.
33. The other contention raised was that the petitioner had commenced the proceedings without the Commencement Certificate as required under Byelaw No.5.2 of Bengaluru Mahanagara Palike Building Byelaw, 2003. First of all that was not the ground for issuing M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 20 M notices Annexures-A and B or the order Annexure-R under Sections 321(1), 321(2) of KMC Act. Secondly Annexure-H shows that permission is granted to commence the construction as per the plan. What is contemplated under byelaw No.5.2(1) is only the intimation to start the work and not the commencement certificate.
34. Relying on Section 300 of KMC Act, it was contended that the work shall not be commenced unless and until the Commissioner has granted the permission. Section 300 falls in Chapter XV of the KMC Act which deals with Regulation of Buildings and General Powers. Section 299 of the KMC Act speaks of application to the Commissioner for permission to execute the work with the site plain.
35. Reading of Sections 299, 300 and 301 of KMC Act together shows that what is contemplated under those provisions are the building licence and the sanctioned plan and not the Commencement Certificate. Therefore the said arguments do not carry any merit.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 21 M
36. The next contention is that the petitioner made a false representation regarding the eastern boundary of the property as Vasavi Kalyana Mantapa road though that is a conservancy lane. The whole composite property had devolved on Muniramaiah in 1971 under a partition deed. Relying on the eastern boundary shown in the partition deed as conservancy lane, it was contended that the petitioner suppressed the said fact and made false representation.
37. After 1971 several conveyances were effected between 1991-2020. In 1991 sale deeds of the petitioner's vendor's vendor, the eastern boundary was shown as Vasavi Temple Road. The perusal of the registered sale deeds right from 1974 show that there were several revisions and modifications in property numbers, road names etc. In 1971 partition deed the property said to be existed at Mir Hamza Road, Vishweshpura, Bengaluru.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 22 M
38. It is contended that Muniramaiah sold part of the property acquired by him under 1971 partition deed to one C.G.Jambavathi and from her respondents No.4 to 8 purchased that under the sale deed dated 19.10.2012. The sale deed of the year 1974 is not produced. However, even in the sale deed in favour of respondents No.4 to 8, the property is said to have been situated in Vishweshpura. It shows that the name of the area was also changed. Any way all those questions are the subject matter of the suit in O.S.No.6594/2020 and required to be decided on trial. Having regard to the pendency of such suit respondents No.1 to 3 were not justified in jumping to the conclusion that there is conservancy road on the eastern side and the said fact was suppressed.
39. The proceedings of respondent Nos.1 to 3 regarding the building licence and sanctioned plan of the petitioner is placed before this Court. The note at paragraphs 6 to 8 of the said proceedings state that the Assistant Engineer/architect conducted the spot M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 23 M inspection along with the documents with reference to the documents produced by the petitioner and found them in order. Even the recommendations to grant the licence was placed before the second respondent for approval. His endorsement at paragraph 9 states that the spot was inspected and approval was granted. It was tried to contend that reference to spot inspection is not by the second respondent but by the subordinate Officer. But there is no such recital in that. Therefore the said contention cannot be countenanced.
40. It was contended that, even the measurement shown in paragraph Nos.7 and 8 of note are in excess of the measurement shown in the sale deeds. In the copy of the sale deed dated 02.11.1991 though the property sold is shown as 601 sqft, the boundaries mentioned in the first sale deed and the area are shown as 'approximately'. In any event all those questions are the subject matter of O.S.No.6594/2020.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 24 M
41. The above facts and circumstances clearly show that during the operation of interim order of stay granted by KAT, the notices and order at Annexures-A, B and R were issued in derogation of the interim stay granted by the KAT. Moreover the parties can agitate all those question before KAT. Apparently, the acts suffer malafides.
42. Other contention is that the petitioner in his affidavit filed along with application for building licence has authorized for cancellation in case of false statement, therefore Sections 461 and 462 of KMC Act is applicable. Respondent Nos.2 and 3 exercised Commissioner's power under delegation. Orders do not speak of delegated power or refer to Sections 461 and 462 of KMC Act or affidavit undertaking. That shows respondent Nos.2 and 3, Assistant Executive Engineer went on exercising power to overreach the order of KAT and Civil Court and harass the petitioner at the behest of respondent No.4. Therefore, the impugned orders M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 25 M Annexures-A, B and R in WP No.14579/2021 are arbitrary and violative of principles of natural justice.
43. The other contention was that under Section 253 of BBMP Act, an appeal is provided to the Commissioner. Therefore, the writ petition is not maintainable. In the judgment in Assistant Commissioner of State Tax and others vs. M/s Commercial Steel Ltd.,1 relied on by the learned counsel for the BBMP, the question, whether existence of alternative remedy is an absolute bar to maintainability of a writ petition, had fallen for consideration of the Hon'ble Supreme Court. In para 11 of the said judgment the Hon'ble Supreme Court held as follows:
"11. The respondent had a statutory remedy under Section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
i) a breach of fundamental rights;
ii) a violation of the principles of natural justice;
1
(2021)93 GSTR 1 (SC)
M.F.A. NO. 3232/2021 C/W
W.P. NO. 12378/2021,
W.P. NO. 14579/2021
26
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iii) an excess of jurisdiction; or
iv) a challenge to the vires of the statute or
delegated legislation.
(Emphasis supplied)
44. The perusal of the above paragraph of the judgment itself shows that the existence of an alternate remedy is not an absolute bar to the maintainability of the writ petition under article 226 of the Constitution of India. It was further held that a writ petition can be entertained where there is an excess of jurisdiction and violation of principles of natural justice. It is already observed that in issuing Annexures-A, B and R respondent No.2 and 3 tried to overreach the interim order passed by the KAT and the Civil Court. They had also not afforded an opportunity of hearing to the petitioner. Therefore, the said judgment in no way advances the contention that the writ petition is barred in view of Section 253 of BBMP Act.
45. Further mere availability of alternative remedy will not bar the writ petition. But there should be an effective alternative remedy. Reading of Section M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 27 M 253 shows that there is no provision authorizing the Chief Commissioner, the appellate authority to grant stay against the order of the Zonal commissioner. Therefore that cannot be said to be an effective alternate remedy.
Regarding W.P.NO.12378/2021
46. This petition is filed by respondent No.4 in W.P.No.14579/2021 against the Commissioner of BBMP, The Director of Town Planning and Assistant Director of Town Planning and M.S Amarnath who is the petitioner in W.P.No.14579/2021. The said respondent No.4 seeks quashing of the plan sanctioned by Assistant Director of Town planning on 24.11.2020 and cancellation of Annexure-G and mandamus against those statutory bodies to act on his representation for cancellation of the sanctioned plan and cancel the plan Annexure-G. In pursuance of his representation the said plan was cancelled by Annexure-R in W.P.No.14759/2021. Further this Court considering the merits of order Annexure-R and provisional order Annexures-A and B in M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 28 M W.P.No.14759/2021 has held that those orders are illegal and fit for quashing. Therefore this petition has become infructuous.
47. In this writ petition, it was contended that the proposed construction of Amarnath is encroaching upon the property of the petitioner and that aspect has to be considered. In the representations Annexure-C dated 18.09.2020 and Annexure-E dated 12.10.2020 there was no allegation of encroachment of Prakash Jain's (petitioner in W.P.No.12378/2021) property but the allegation was that Amarnath is trying to construct on the conservancy lane falsely showing that as Vasavi Temple Road. Thereafter from stage to stage, he went on improving his case.
48. This Court has already observed that the BBMP authorities and Town planning authorities initially conducted the spot inspection and found that the proposal was in accordance with law. Further in OS No.6594/2020 the application of the said Prakash Jain for injunction is rejected which is under challenge before M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 29 M this Court which will be discussed in the later part of this judgment. In that suit neither he had made any counter claim nor filed any independent suit alleging title to the said property which is being encroached by the said Amarnath. Mr.Amarnath has disputed that he is constructing by encroaching upon the property of Prakash Jain and others and that is a disputed question of fact which cannot be decided in the writ petition. That has to be decided in a Civil Suit.
49. Apart from that, on the complaint of the said Prakash Jain the orders were passed under Section 321(1) and 321(3) of KMC Act which are the subject matter of Appeal No.219/2021. It is open to him to appear in that appeal and urge these points also. Interim Stay is already granted in the said appeal which is operating. On that count also, the prayers in W.P.No.12378/2021 cannot be granted and that is liable to be dismissed.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 30 M Regarding MFA No.3232/2021
50. The suit in O.S.No.6594/2020 was filed by respondent No.1 alleging obstruction in his possession and enjoyment. In the suit he alleged that defendants therein without any rights on unfounded allegation are trying to obstruct his building and sought injunction. He also filed IA No.1 seeking temporary injunction against the defendants therein and exparte temporary injunction was granted. The defendants on their appearance filed IA No.2 seeking temporary injunction restraining the plaintiff therein from putting up any construction in the plaint schedule A to C properties.
51. The trial Court on hearing both parties by order dated 08.02.2021 allowed the application of the plaintiff-Amarnath and rejected the application of defendant No.1/Prakash Jain. He challenged that order in the above appeal. The ground for defendant seeking such injunction is narrated in para No.1 of the affidavit supporting IA No.2. It is stated that plaintiff's property is only 1020 sq.ft but he is claiming 1332.79 sq.ft M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 31 M unjustifiably. He has further alleged that manipulation of records have taken place by the predecessors and the present holder of suit schedule A, B and C properties.
52. As already discussed, the properties of plaintiff and defendants abut each other and originally together they belonged to one Muniramaiah. The property sold by Muniramaiah on 05.08.1974 to C.G Jambavathi was purchased by Prakash Jain i.e., respondents No.4 to 8 on 19.10.2012. Whereas, Muniramaiah sold the other portion of the property to Bharthamma and D.M.Geethalakshmi on 02.11.1991. Based on the dimensions given in those sale deeds, the said Geethalakshmi sold the property to one Rajappa and he sold to S.Venkatesh and Dr.V.Lakshmi. Petitioner has purchased those two portions from Bharthamma, Venkatesh and Dr.V.Lakshmi based on the dimensions given in the sale deed dated 02.11.1991.
53. It is contented that the plaint schedule A, B and C measured 1020 sqft and that is being wrongly M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 32 M claimed as 1332.79 sq ft. As already observed in the sale deed dated 02.11.1991 executed in favour of Bharathamma the area of the property is mentioned approximately as 740 sqft and boundaries are mentioned. Even in the sale deed of Geethalakshmi the area of the building is shown as about 4 squares. That indicates that the exact dimensions or area of the property were not given and property was more fully described by the boundaries.
54. Respondent No.4 in his affidavit claimed that manipulation took place in the records by the predecessor of the petitioner from 1991. Those sale deeds were not questioned. BBMP authorities and Town planning authorities inspecting the site with reference documents produced by the petitioners, at the first instance, recorded that they match with the factual position. Though they turned hostile, the subsequent orders have already been held illegal.
55. The order of temporary injunction is a discretionary order. Unless it is shown that, that order M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 33 M suffers perversity, arbitrariness and capriciousness, the appellate authority cannot interfere with the same. The petitioner raised an objection with regard to maintainability of such application relying on the judgment Division Bench of this Court in Smt.Shakunthalamma and others vs. Smt.Kanthamma and others2. In the said judgment it is held that the defendants can seek injunction only if his case falls under Order XXXIX Rule 1(a) of CPC. Order XXXIX Rule 1(a) of CPC which authorizes either of the parties to seek injunction speaks of a condition that deals with property in dispute, in a suit being in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of the decree.
56. Learned counsel for respondent No.4 contends that his application comes under Order XXXIX Rule 1(a), but the affidavit states that the plaintiff is trying to encroach upon. In para 1 of the affidavit, he has contended that the demolition of structures in A, B 2 ILR 2014 KAR 6025 M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 34 M and C properties had taken place in the month of August 2020 and at that point in time plaintiff had interfered with the peaceful possession of the defendants' property. In para 3 of the affidavit it is stated that the plaintiff is constructing encroaching upon their property. Therefore, the relief claimed falls under Order XXXIX Rule 1(c) and not 1(a) of CPC.
57. Respondent No.4 had not filed any counter claim. Such being the fact, such application is barred in view of the Full Bench judgment of this Court in Shakuntalamma's case referred to supra and not maintainable. Considering the fact that the local authority had granted building license and plan to the petitioner on spot inspection and respondent Nos. 4 to 8 have not produced their approved plan or license, the trial Court rejected the application of respondent No.4 for temporary injunction. This Court does not find any perversity or illegality in such order. Therefore, the order impugned in MFA No.3232/2021 does not call for interference.
M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 35 M
58. For the aforesaid reasons, MFA No.3232/2021 and W.P.No.12378/2021 are hereby dismissed. W.P.No.14579/2021 is hereby allowed. Annexures-A B and R in W.P.No.14579/2021 are hereby quashed. All contentions of the parties are left open to be urged in Appeal No.219/2021 pending before the KAT and Civil Suit in O.S.No.6594/2020.
59. It is made clear that the construction, if any made by the petitioner in W.P.No.14579/2021 is subject to result of the suit and the proceedings before the KAT and he is not entitled to claim any equity later.
60. At this stage, learned counsel for the BBMP submits that since the petitioner is proceeding with the construction, the trial Court may be directed to expedite the matter.
61. In the light of the facts and circumstances of the case, the trial Court is requested to dispose of O.S.No.6594/2020 as expeditiously as possible at any rate within one year from the date of receipt of copy of M.F.A. NO. 3232/2021 C/W W.P. NO. 12378/2021, W.P. NO. 14579/2021 36 M this order. Both parties shall cooperate for disposal of the suit in O.S.No.6594/2020.
Sd/-
JUDGE akc