Bangalore District Court
T.N. Panish vs The Commissioner on 20 April, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 20th day of April, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: O.S. NO. 5079/2005:
PLAINTIFF : T.N. Panish,
S/o. Nageshwara,
Aged about 28 years,
Residing at No.48,
'Anugraha', 1st Road,
Defence Layout, Vidyaranyapura,
Bangalore - 560 097.
(By Sri. BNSB, Advocate)
-V/S-
DEFENDANTS : 1. The Commissioner,
City Municipal Corporation,
Nagarasabha,
Byatarayanapura,
Bangalore - 560 092.
2. Smt. Rajalakshmi,
W/o. K.C.Shankar,
Aged about 55 years,
Residing at No.327, 10th Main,
Gokul 1st Stage, 2nd Phase,
Bangalore - 560 054.
2 O.S.No.5079/2005
(By Sri. DN, Advocate, for defendant
No.1)
(By Sri. GNR, Advocate, for
defendant No.2)
Date of institution of the suit: 07.07.2005
Nature of the suit:
Mandatory Injunction &
Permanent Injunction
Date of commencement of 23.01.2012
recording of evidence:
20.04.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
13 09 09
: JUDGMENT :
This suit is filed by the plaintiff against the defendants for mandatory injunction to demolish the structure abutting the compound wall of the plaintiff's schedule property and permanent injunction against the defendant No.2 restraining from putting any construction abutting the plaintiff's schedule property, affecting the passage of sunlight and air to the property of plaintiff and such other reliefs with costs.
3 O.S.No.5079/2005(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the plaintiff is the owner of House No.48, 'Anugraha', 1st Road, Defence Layout, Vidyaranyapura, Bangalore. He has purchased it under a registered sale deed dated 12.12.2001 and his name is entered in the katha and he is paying the tax to the CMC. He has constructed a house in the year 2002 and obtained a plan from the defendant No.1. The defendant No.2 being the owner of Northern side property bearing No.72, 2nd Road, Defence Layout, Jubilee Air Force Officers' Enclave, Vidyaranyapura, Bangalore, has started to construct a house in violation of sanction plan and bye-laws and started to put up the pillars abutting the compound wall of the plaintiff, thereby preventing the passage of free flow of air and light. The plaintiff objected the same and the defendant No.2 did not heed to the objection of the plaintiff. Even the defendant No.1 has not taken any steps, even after complaining the same, on 23.04.2005 and she has continued the construction work illegally. If the defendant No.2 4 O.S.No.5079/2005 completes the construction work, the plaintiff's wall would affect due to rain water drain, which would fall in the plaintiff's property and thereby there is no hardship. Even the defendant No.2 is planning to put up the windows facing towards the plaintiff's property, encroaching into the plaintiff's property and it is illegal construction and she cannot obstruct the free flow of air and light to her house and the nuisance from the rain water. The defendant No.2 has to leave setback as per the building bye-laws and sanction plan. She has violated it and undertook the illegal construction. The defendant No.1 has allowed to construct the building without taking any action. The plaintiff has filed W.P.No.14949/2005 before the Hon'ble High Court of Karnataka, wherein it is issued direction to file the suit, hence there arose cause of action in the month of April 2005. Hence, the plaintiff has constrained to file the suit and prayed to decree it as sought for.
3. On issuance of suit summons to the defendants after registering the case, they appeared through their counsels and filed the written statement.
5 O.S.No.5079/2005
(a) The defendant No.1 in its written statement, has denied the material contents of plaint averments, while admitting that the suit property coming within the limits of defendant Corporation. The defendant No.2 started to construct the dwelling house in property No.72 and it has been brought to its notice by the plaintiff. On 23.04.2005 regarding unauthorized construction in violation of building bye-laws and that considering the same, with due process of law, and visiting the disputed properties and enquiry, the defendant issued a notice on 01.10.2005, in connection with the violation of building bye-laws against the defendant No.2 calling upon her to submit the relevant documents giving 3 days time, otherwise legal action will be taken against her as per section 187 of KMC Act, 1964. The defendant No.2 neither replied to the said notice nor got it rectified the building violation. Hence, the allegation that the defendant No.1 has not taken any steps etc., specifically denied. On 01.10.2005, the defendant No.1 inspected the property and gave oral instructions to the defendant No.2 not to put up further construction and to demolish the construction made 6 O.S.No.5079/2005 in violation of approved plan. On 17.11.2005, the defendant No.1 on inspection found that the defendant No.2 has violated 4' 6" X 5' towards plaintiff's side and it is reported in the inspection report.
The defendant will initiate the action against the defendant No.2 putting any construction abutting the plaintiff's schedule property affecting the passage of sunlight and air and it is prayed to direct the defendant No.2 to demolish the illegal construction and accordingly it is prayed to dismiss the suit against this defendant.
(b) The defendant No.2 in her written statement, has denied the material allegations of the plaint and stated that the suit of the plaintiff is not maintainable either in law or on facts and the plaintiff has suppressed the material facts with malafide intention. However, it is admitted about the plaintiff's ownership over the property comprised in Sy.No.6, Byatarayanapura CMC Katha No.75/75/48 of Chikkabettahalli Village, Yelahanka, and denied the alleged illegal construction and violation of bye-laws and building permission and also blocking the free flow of air and light to the property of plaintiff and stated that the construction is neither in 7 O.S.No.5079/2005 violation of sanctioned plan nor bye-laws. The construction is in accordance with the building permission for its construction. It is also denied regarding the submission made by the plaintiff on 23.04.2005 to the defendant No.1 complaining the violation of building bye-laws and non-taking of action and also denied the encroachment over the alleged property and putting up the windows facing towards the plaintiff's property and plaintiff resisted in that regard etc., and accordingly, it is prayed to dismiss the suit against this defendant.
4. On the basis of the pleadings of the parties, the learned IX Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 14.07.2009.
(1) Whether the plaintiff proves that 2nd defendant has put construction in violation of sanctioned plan and building bye-laws?
(2) Whether the plaintiff is entitled to the permanent injunction sought for?
(3) Whether the plaintiff is entitled to the mandatory injunction sought for?
(4) To what decree or order?
8 O.S.No.5079/2005
5. To prove the case, the plaintiff deposed as PW.1 and relied upon the documents at Exs.P.1 to P.9. On the other hand, the power of attorney holder of defendant No.2 deposed as DW.1 and relied upon the documents at Exs.D.1 to D.7.
6. Heard the arguments of the learned counsels for the plaintiff and defendants.
7. Perused the pleadings of the parties, evidence and record on hand.
8. My findings on the above issues are as under:
(1) Issue No.1 .. In the Affirmative.
(2) Issue No.2 .. In the Negative.
(3) Issue No.3 .. In the Negative.
(4) Issue No.4 .. As per final order for the
following:
R E A S O N S
9. Issue Nos.1 to 3:- These issues are interlinked with each other and it needs common consideration and discussion. Hence to avoid repetition of facts and circumstances of the case, they are taken for common consideration. The plaintiff has filed the suit 9 O.S.No.5079/2005 for mandatory injunction against the defendant No.1 - The Commissioner, BBMP and defendant No.2 the neighbouring owner of the schedule property. The schedule property described as plaintiff's owned property bearing Site No.48, Byatarayanapura CMC Katha No.75/75/48 in Sy.No.6, measuring East-West 40 feet and North- South 60 feet of Chikkabettahalli Village, Yelahanka Hobli, layout formed by M/s. Defence / Government Officials Site Owner's Association, 'Anugraha', 1st Road, Defence Layout, Vidyaranyapura, Bangalore, and describing the boundaries and abutting to it i.e., to the North : Site No.72 belonging to 2nd defendant and the plaintiff stated that he has purchased his property under a registered sale deed dated 12.12.2001 and with due permission and building plan in the year 2002, he has constructed the house and is paying the tax to the CMC and is enjoying it as owner and is having possession thereupon. But the allegation against the defendant No.2 is that, she has undertaken the construction in her property No.72 in violation of building bye-laws and sanction plan and started to put up the pillars abutting the compound wall of the plaintiff and in this connection, 10 O.S.No.5079/2005 the plaintiff has resisted it and also submitted the objections in that regard to the defendant No.1 on 23.12.2005 and no action was taken by the defendant No.1. About the inconvenience and discomforts to lead comfortable life in his property, the plaintiff has asserted his right of receiving from free flow of air and light from the side of defendant's property will be affected and also the construction if completes by the defendant No.2, then there will be discharge of rainwater into the property of plaintiff and thereby it will flow into the plaintiff's property causing damages and that the windows if fixed in the wall (since defendant No.2 is planning for it), facing towards plaintiff's property, then the plaintiff's right of privacy will be affected and hence he approached the defendant No.1, with representation, but no action was taken.
10. In this connection reiterating the plaint averments, the plaintiff deposed as P.W.1 and placed reliance on the documents at Exs.P.1 to P.9. Ex.P.1 is the certified copy of sale deed dated 12.12.2001 executed in favour of plaintiff. Ex.P.2 is the tax paid receipt for the year 2005-2006. Ex.P.3 is the Self-assessment Form 11 O.S.No.5079/2005 No.III. Exs.P.4 to P.9 are the photographs. Exs.P.4(a) to P.9(a) are the negatives.
11. The defendant No.2 has adduced evidence of her husband as D.W.1. Though the competency of D.W.1 is disputed, but D.W.1 has specifically stated that his wife defendant No.2 executed power of attorney in his favour and it was produced in another suit; she is healthier than D.W.1 as he had amputation of left leg and using artificial leg. According to him, she has age related ailments. However, he being husband of defendant No.2 is considered to be one of the competent person to speak about the suit property belonging to his wife and its relevant aspects. So, the evidence of D.W.1 cannot be discarded, in the absence of evidence of plaintiff. D.W.1 denying the alleged encroachment and stated by placing reliance on the documents produced by defendant No.2. They have got Ex.D.1 the building plan and Ex.D.2 the photo of plaintiff's property got them marked during cross-examination of P.W.1. Other documents are Exs.D.3 is the certified copy of sale deed and Ex.D.4 katha certificate, Ex.D.5 assessment register 12 O.S.No.5079/2005 extract; Ex.D.6 building sanction plan, etc., in respect of site No.72 of defendant No.2. They further referred Ex.D.7 the reply of Asst. Executive Engineer, Vidyaranyapura Sub-Division, BBMP, Bangalore.
12. The ownership and enjoyment of the properties of plaintiff and defendant No.2 abutting to each other are not in dispute, except the boundaries. Plaintiff's burden is to prove the encroachment of defendant No.2 on the setback area by putting construction with deviation of building permission / sanction plan in her property. It has been brought on record by placing the said photographs, Exs.P.4 to P.9. D.W.1 has admitted that they have undertaken construction work abutting to plaintiff's property. But disputed the boundaries of their respective properties. The material discrepancies are revealed in their sale deeds specifically the boundaries. It reveals that, I. Sale deed of plaintiff. II. Sale deed of defendant No.2.
(12.12.2001) Ex.P.1 (site No.48) (20.12.1991) Ex.D.3 (site No72) East : Site No.47 East : Road West : Site No.49 West : Site No.48 (plaintiff's site)
North : Site No.72 (defendant No.2) North : Site No.71 South : Road South : Site No.73 13 O.S.No.5079/2005
13. Both the plaintiff and defendant No.2 have admitted their respective building plans Exs.D.1 & D.6f. P.W.1 during his cross-examination admitted plan for 1st on existing ground floor at Site No.48 as per Ex.D.1. D.W.1 has referred the approved plan as "plan of proposed residence on Site No.72" of the property of defendant No.2 i.e., Site No.72 at Ex.d.6. The boundaries in these plans are quite different from that of Ex.P.1 and Ex.D.3. The boundaries shown as per Ex.D.1 & Ex.D.6 are that, I. Plaintiff's site No.48 II. Defendant No.2's Site No.72 (06.12.2003) Ex.D.1 (05.11.2004) Ex.D.6 East : Site No.47 East : Site No.73 West : Site No.49 West : Site No.71 North : Site No.72 North : Road South : Road South : Site No.48 Note:- Plaintiff to leave setback Note:- Defendant No.2 to leave of 5 feet in width on East, West setback of 10 feet to the extent and North in his property and of some portion to the East and towards South about 10 feet to 5 feet to the West, some portion 15 feet as shown in the sketch. of 10 feet and some portion 18 feet to the North and some portion of 5 feet to the South and East-South corner no setback area shown.
Thus on perusal of these undisputed documents, the boundaries as per sale deeds they are disputed and apparent material discrepancy 14 O.S.No.5079/2005 is revealed. However, the special Law is relating to Municipal Corporation in the State of Karnataka i.e., Karnataka Municipal Corporation Act (hereinafter called as KMC Act). The general Law provides that earlier sale deed (Ex.D.3) shall prevent over the subsequent sale deed (Ex.P.1). The defendant No.2's property as per Ex.D.6 is to the North of plaintiff's property, but as per sale deed it is to the East of the plaintiff's property. No doubt as per sale deed, it is to the East of Site No.48. Thus, the boundaries as shown in permission (Ex.D.6) sought for construction is not tallying with the sale deed. But supporting the plaintiff's case about the boundary pertaining to their adjoining properties i.e., to the North of plaintiff's site No.48, it is shown the location of defendant No.2's site No.72. So, it is material defect and need rectification only. It is look out of the defendant No.1 while granting such permission. He has to follow the due procedure while granting permission for construction. What was that due procedure followed has not been pleaded by the defendant No.1 except pleading in his written statement that the 15 O.S.No.5079/2005 defendant No.2 has violated the building bye-law and sanction plan in Para-3 of his written statement, which reads thus:
"This defendant issued a notice on 01.10.2005 and inspection was conducted on many occasions and oral instruction was given to the 2nd defendant not to construct further. And to demolish the construction made in violation of the approved plan. Finally, on 17.11.2005, the officers of this defendant visited the schedule property and found that the 2nd defendant violated 4 feet 6 inches X 5 feet towards plaintiff side the same is reported in the section report."
But though this defendant No.1 took said defence, has not effectively contested the suit. He has not produced any materials and got them marked; nor stepped into witness box to substantiate the alleged due procedure that was followed. If this defendant No.1 issued notice, what steps to set it right the deviated plan and action Ex.D.2 etc., are duly taken, are not pleaded and proved. However, it is within the jurisdiction as contemplated under KMC Act. This court cannot interfere in the exercise of power and discharging of duties of BBMP.
14. It is therefore material to consider the material defect and absence of materials on record with regard to the plaintiff's case 16 O.S.No.5079/2005 is concern. He has not pleaded and claimed what is the exact extent of area alleged to be encroached by the defendant No.2 by deviating the plan, so that such encroachment can be ordered to be removed / demolished, and what is that projection over plaintiff's property that creates nuisance by way of flowing of rainwater on the compound or inside compound i.e., in the plaintiff site No.48; And about leaving of windows and doors etc., those affect the plaintiff's alleged right of privacy etc. So, without stating exact measurement, location, and distance at the necessary material particulars about nuisance and privacy, it is nothing but a vague pleading.
15. No doubt D.W.1 has given certain admission during his cross-examination. The relevant paras are referred below.
ªÁ¢AiÀÄgÀ PÁA¥ËAqï ªÁ¯ïUÉ ºÉÇA¢PÉÆ AqÀÄ PÀnÖzÀÉÝà £É ¤d, F zÁªÉUÀ¼À £ÀÄß ºÉÇ gÀvÀÄ¥Àr¹ ¥üÀuÉÃ±ï ªÀÄvÀÄÛ £ÀªÀÄä ªÀÄzsÀå AiÀiÁªÀÅzÉà ªÉʪÀÄ£À¸ÀÄì E®èªÁzÀgÀÆ ªÀÈwÛ ªÀiÁvÀìgÀå EgÀ¨ÉÃPÀÄ, £Á£ÀÄ ºÁdgÀÄ¥Àr¹gÀĪÀ ¤±Á£É r-6gÀ C£ÀĪÉÆ Ã¢vÀ £ÀPÉëAiÀÄ°è GvÀÛgÀ ¢QÌUÉ gÀ¸ÉÛ vÉÆ Ãj¹zÁÝgÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ EzÀgÀ°è 17 O.S.No.5079/2005 vÀ¥ÁàV vÉÆ Ãj¹zÀÄÝ ªÁ¸ÀÛ«PÀªÁV gÀ¸ÉÛAiÀÄÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀǪÀð¢QÌ£À°z è É, MAzÀÄ ¸Áj C£ÀĪÉÆ Ê¢vÀ ¥Áè£ï£À°è ¢PÀÄÌ vÀ¥ÁàV vÉÆ Ãj¹zÁUÀ C£ÀĪÉÆ Ã¢¹zÀ PÀlÖqÀzÀ £ÀPÉëAiÀÄ ¸ÀégÀÆ¥ÀªÉà §zÀ¯ÁªÀuÉAiÀiÁUÀÄvÀÛzÉ JA§ÄzÀ£ÀÄß M¥ÀÅàvÉÛà £É. ¸ÁQëAiÀÄÄ ¸ÀéAiÀÄA £ÀÄrAiÀÄÄvÁÛ £À£Àß C£ÀĪÉÆ Ã¢vÀ £ÀPÉëAiÀÄ°è GvÀÛgÀ JAzÀÄ vÉÆ Ãj¹gÀĪÀÅzÀÄ mÉÊ¥üÉÆ ÃUÀæ¦sPÀ¯ï JgÀgï ªÀiÁvÀæ, ¤±Á£É r-6gÀ £ÀPÉëAiÀÄ°è GvÀÛgÀ ¢PÀÌ£ÀÄß DzsÁgÀªÁVlÄÖPÉÆ AqÀÄ PÀlÖqÀzÀ ¸Émï ¨ÁåPï ¤UÀ¢ü¥Àr¹zÁÝgÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. ¤ÃªÀÅ ºÉý zÀ mÉÊ¥üÉÆ ÊUÀæ¦sPÀ¯ï JgÀgï PÀÄjvÁV CzÀ£ÀÄß ¸Àj¥Àr¹PÉÆ ¼Àî®Ä §zÀ¯ÁzÀ C£ÀĪÉÆ Ã¢vÀ £ÀPÉë ¥ÀqÉAiÀÄ®Ä ¥ÀæAiÀÄwß¹¢ÝÃgÁ JA§ ¥Àæ±ÉßUÉ F ¸ÀAUÀw FUÀ¯Éà UÉÆ vÁÛ¬ÄvÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ.,,,,,,,,,£Á£ÀÄ ªÁ¢AiÀÄ UÉÆ ÃqÉAiÀÄ ªÉÄà ¯É UÉÆ ÃqÉ PÀnÖzÉÝà £É JA§ÄzÀÄ ¸ÀjAiÀÄ®è.
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16. From this what revealed is that the defendant No.2 constructed bedroom as per permission. Whereas it was to be constructed the passage as per Ex.D.6; and he has not left the passage of 10 feet; and there is deviation in the area of bedroom and thus it is in violation of Ex.D.6; He put up the construction abutting to the compound wall of the plaintiff revealed in Exs.P.4 & P.5 photos; Even D.W.1 has disputed and denied the contents of Ex.D.6, as the boundary shown to the North of Site No.72 there is road, but the road in fact, it is to the East of the Site No.72; and he refers to in fact it is typographical error. But being a prevalent 19 O.S.No.5079/2005 persons defendant No.2 and D.W.1 did not even have tried to get it rectified or otherwise to have identifiable boundaries. D.W.1 says that it need not be done. With reference to the flow of rainwater, he admits that it flows into the compound of the plaintiff's property. He admits that the plaintiff had objected the construction of defendant No.2, while it was at the initial stage as revealed in Exs.P.6 to P.9. Thus from his evidence also, it revealed that all is not well while undertaking of construction, but defendant No.2 has deviated from the plan approved for construction in Site No.72. She has not pleaded or placed any material to show that the deviations have been got it rectified in the office of BBMP as required under law. The defendant No.1, though it is without material, has stated the deviation while undertaking of construction by defendant No.2.
17. But the plaintiff has to prove his case independently on his own documents and oral evidence. He has not proved what the exact extent of encroachment and projected as the case may be, affecting the plaintiff's right and it is vague. First of all plaintiff has not produced the material document approved plan. The defendant 20 O.S.No.5079/2005 No.2 placed it as per Ex.D.1. Plaintiff has at certain point admitted that he too also deviated from his approved plan. He has not produced the copy of the complaint alleged to be submitted to the defendant No.1. No doubt defendant No.1 in the written statement stated about this fact. But he too also failed to produce the concerned document, to assist the court. Anyhow, the matter is before him to consider the dispute about allege violation of building bye-laws and building plan approved and to proceed in accordance with Law and to take appropriate step specifically under KMC Act, as the defendant No.1 has exclusive jurisdiction over such matters and take action if there is any deviation and unauthorized construction.
18. Now coming to the evidence of P.W.1 as he has stated during cross-examination that -
"MAzÀÄ UÉÆ ÃqÉUÉ ªÀÄvÉÆ ÛAzÀÄ UÉÆ ÃqÉAiÀÄ£ÀÄß CAn¹ PÀnÖzÀgÉ D UÉÆ ÃqÉ ²y®ªÁUÀĪÀÅ¢®è JA§ÄzÀÄ ¸ÀjAiÀÄ®è. £ÁªÀÅ PÀnÖgÀĪÀ GvÀÛgÀ ¥À²ÑªÀÄ ¨sÁUÀzÀ°gè ÀĪÀ PÀlÖqÀ £ÀªÀÄUÉ ªÀÄAdÆgÁzÀ ¤±Á£É r-1 ¥Áè£ï£À°è E®è, ¸ÀzÀj GvÀÛgÀªÀ£ÀÄß ¸ÁQë CªÀjUÉ vÉÆÃj¹zÀ ¥üÉÆ ÃmÉÆ £ÉÆ ÃrzÀ £ÀAvÀgÀ ºÉüÀÄvÁÛgÉ, D ¥üÉÆ ÃmÉÆ ªÀ£ÀÄß ¤±Á£É r-2 JAzÀÄ 21 O.S.No.5079/2005 UÀÄwð¸À¯Á¬ÄvÀÄ. ¤±Á£É r-1 ¥Áè£ï ¥ÀæPÁgÀ £ÀªÀÄä CqÀÄUÉPÉÆ ÃuÉ £ÀªÀÄä eÁUÀzÀ GvÀÛgÀ ¥À²ÑªÀÄzÀ ¨sÁUÀzÀ°è EgÀ¨ÉÃPÀÄ JA§ÄzÀÄ ¸Àp, ,,,,,,,,,,,,¥Áè£ïUÉ «gÉÆ ÃzÀªÁV JµÀÄÖ C¼ÀvÉAiÀÄ ¨sÁUÀªÀ£ÀÄß 2£Éà ¥ÀæwªÁ¢ PÀnÖzÁÝgÉ JA§ §UÉÎ £À£Àß ªÀÄÄRå«ZÁgÀuÉ ¥ÀæªÀiÁt¥ÀvÀæzÀ°è ºÉý®è. £ÀªÀÄä PÁA¥ËAqïUÉ ºÉÇ A¢PÉÆ AqÀAvÉ PÀlÖqÀ PÀlÖ®Ä 2£Éà ¥ÀæwªÁ¢UÉ ¥Áè£ï ªÀÄAdÆgÁVzÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. 2£Éà ¥ÀæwªÁ¢ PÀlÖqÀ¢AzÀ £ÀªÀÄUÉ AiÀiÁªÀÅzÉà vÉÆ AzÀgÉ DV®è JA§ÄzÀÄ ¸ÀjAiÀÄ®è."
Thus, he has admitted that his construction at North-Western portion of his property is not in accordance with his approved plan Ex.D.1. He has referred Ex.D.2 the photo. Thus, there is some deviation. Further he has stated that he has not pleaded what is the extent of area the defendant No.2 put up construction and denied that there is sanction from the BBMP to construct the building abutting the compound of plaintiff, etc. Even during the course of cross- examination of D.W.1, it is suggested that if the construction of staircase (the alleged encroachment asserted by defendant No.2) is removed by plaintiff, would the defendant No.2 removes the alleged 22 O.S.No.5079/2005 encroachment made in violation of approved plan? He did not agree to remove the alleged unauthorized construction. Thus, the deviation by the plaintiff is also substantiated by defendant No.2.
19. Apart from this on perusal of Ex.D.7, it is revealed that defendant No.2's husband filed an application under Right to Information Act, the deviation made by the plaintiff, it is pertaining to the Site No.48. It is stated in Ex.D.7 that building was constructed in the year 2003, intimated about the setback area with annexed sketch for having specified and found the violation of building plan and about staircase. It is further stated that, no approved map produced; so, it is unable for defendant No.1 to say extent of construction of the staircase and that, defendant No.1 has directed the plaintiff to produce the necessary documents pertaining to the said property. Thus, it is disclosed that defendant No.1 has already issued notice to the plaintiff calling upon to produce concerned reports specifically the approved map. From this it reveals not only certain deviation made by plaintiff but also violated the building permission, while putting construction and hence he has not produced the said documents. 23 O.S.No.5079/2005 The defendant No.1 has also stated, thereby that, due procedure is being followed to take necessary steps. Thus, plaintiff has not come to the court with clean hands. He who come to the court shall have his justifiable claim. But suppressed about his construction deviating from the approved plan. Whether it has rectified or not, is not clarified. Nor producing any modified approved plan also. He has not disputed so seriously the contents of sketch annexed to Ex.D.7 report of defendant No.1, which reveals the material deviations of construction and not as per approved map and it was found during the year 2008 i.e., after filing of this suit. It reveals that, the plaintiff too also constructed not as per building plan. Thus, it is the dispute raised by defendant No.2 also through her husband about alleged illegal construction in Site No.48. The Law governing the construction of structures on the landed property applicable to the suit properties, specifically is the KMC Act, and it need to get the plan approved either it may be of fresh or modified or renewal.
20. The Learned counsel for the defendant No.2 has pressed upon the defect in the plaint, and his (P.W.1) own admission about 24 O.S.No.5079/2005 deviation from the approved plan (Ex.D.1) and also referred Ex.D.7 the report of the concerned authority of BBMP about the violation of building bye-law and sanction plan. Plaintiff has not produced his sanction plan. It is therefore, Ex.D.1 has been referred by the defendant No.2. To suit his case, the plaintiff has not produced his building plan to show that he was justified while putting his construction and that he has constructed it as per building plan sanctioned by BBMP. But taken shelter of weakness of the defendant No.2. Of course the defendant No.2's acts are not free from any claim of unauthorized construction. P.W.1 gave certain admissions that there was employment disappointments between the plaintiff's father and husband of defendant No.2 (D.W.1), as plaintiff's father was working in Military Engineering services and D.W.1 was also working in Military Engineering. There was difference of opinion between them in connection with the departmental enquiry etc. Thus from this, it discloses that there was no cordial relation between them during their employment tenure. However, they are nothing but neighbours. Of course senior citizens, now, at least they shall 25 O.S.No.5079/2005 respect the neighbourhood and to lead peaceable and comfortable life by getting their detective and deviated constructions corrected with due process of law rectifying, modifying their plan and to get removed of it is in violation of sanctioned plan, if needed, subject to the order of defendant No.1 i.e., Commissioner of BBMP, who will exercise his powers and discharge the duties in accordance with the Law, specifically KMC Act and with due procedure. They both (plaintiff and defendant No.2) certainly can get the appropriate remedy regarding the modification of building plan and getting the boundaries fixed after getting their boundaries rectified, with due process of law before the competent authority by placing all the relevant records specifically to defendant No.1 i.e., title records, revenue records and sanctioned plans of their respective Site Nos.48 & 72.
21. Now, it is relevant to consider the Law of Municipal Corporation in the State of Karnataka concerning to the buildings specifically Chapter - XV of KMC Act which contemplates "Regulation 26 O.S.No.5079/2005 of Buildings - General Powers etc., from sections 295 to 321, 321-A & B:
Section 295. Building bye-laws. - xx xx xx xx Section 296. Power of Corporation to regulate future construction of certain classes of buildings in particular streets or localities. - xx xx xx xx Section 297. Building at corner of streets. - xx xx xx xx Section 298. Prohibition against use of inflammable materials for buildings, etc., without permission. - xx xx xx xx Section 299. Application to construct or reconstruct building. - xx xx xx xx Section 320. Application of provisions to alterations and additions. - xx xx xx xx
321. Demolition or alteration of buildings or well-work unlawfully commenced, carried on or completed. - (1) If the Commissioner is satisfied.-
(i) that the construction or reconstruction of any building or hut or well.-
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the Standing Committee, in contravention of any order passed by the Standing Committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or 27 O.S.No.5079/2005
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-
law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
(ii) that any alterations required by any notice issued under Section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
28 O.S.No.5079/2005
321-A. Regularisation of certain unlawful buildings.
- (1) Notwithstanding anything contained in this Act, when construction of any building is completed in contravention of the Sections 300 and 321 and building bye-laws made under Section 423, the Commissioner may regularize building constructed prior to the date of commencement of the Karnataka Town and Country Planning and Certain Other Laws (Amendment) Act, 2004 subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2), namely.-
(a) Where the building is built abutting the neighbouring property or where the set back provided is less than the limit prescribed in bye-laws, violated upon twenty-five per cent in case of non-residential buildings and fifty per cent in case of residential buildings shall be regularized;
(b) No development made in the basement or usage in contravention of bye-law shall be regularized;
(c) The construction of building shall not be regularized if it violates the building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line and the road or footpath or margin will be given up free of cost at any time when required for the purpose of widening the road in question;
(d) The provisions of sub-sections (2) to (14) of Section 76- FF of the Karnataka Town and Country Planning Act, 1961, shall apply mutatis mutandis for regularization of building under this section and application for regularization being made to the Commissioner. (2) Regularisation of any construction under this section shall be subject to payment of the prescribed amount which may be different for different types of contravention of building bye-laws: 29 O.S.No.5079/2005
Provided that the amount so prescribed shall not be less than.
-
(i) ten per cent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ration does not exceed twenty-five per cent;
(ii) twenty-five per cent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twenty-five per cent but does not exceed fifty percent;
Provided further that where the portion of the building is built in violation of the provisions referred to above is being used or meant for non-residential purpose and amount payable for regularization of such portion shall be. -
(a) twenty-five per cent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twelve and a half per cent;
(b) forty per cent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor 30 O.S.No.5079/2005 area ratio exceeds twelve and a half per cent but does not exceed twenty-five per cent.
(3) No person shall be liable to pay fine or fee for regularization under any other law if he has paid regularization fee under this Act for the same violations.
(4) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned local / planning authority called the urban areas infrastructure development fund which shall be utilized in such manner, for the development of infrastructure, civic amenities, lighting, parks, drinking water, drainage system and for any other infrastructure, as may be prescribed.
321-B. Penalty against jurisdictional officer failing to prevent unauthorized deviations or constructions. - The jurisdictional officer who is proved to have failed to prevent unauthorized deviation or construction that have taken place in his jurisdiction shall be liable for such punishment as may be prescribed. Thus, these are having in built mechanism such as Law, procedure, discretionary power to be exercised, duty to be duly discharged by the authority established under this (special) Statute. They shall be strictly followed, adhered to, by these competent authorities and also the owner of the building of being constructed, to be proposed for the same. With reference to the present case on hand, the applicable provision sections 320, 321, 321-A & 321-B, are therefore referred above. So in view of the above discussion though both 31 O.S.No.5079/2005 plaintiff and defendant No.2 are having defective construction, this Civil Court cannot exercise the jurisdictional powers of the defendant No.1. Because the plaintiff and defendant No.2 bound to get their boundaries rectified. So also the construction of building in contravention of building bye-laws; etc, of their respective properties to be either modified, regularized or rectified with due process of law, which shall be subject to building bye-laws and approved plan, and if ordered to demolishes the unauthorized construction if, it affects right of the plaintiff to enjoy the property peaceably, by the reason of flow of rainwater into the compound of plaintiff, and by fixing of windows, affecting right of privacy, and construction without leaving setback as required, etc., affecting the free flow of air and light to the plaintiff's house. It shall be considered by the defendant No.1, while taking up the proceedings against these plaintiff and defendant No.2 in connection with their grievances and representations about reciprocal claim of unauthorized construction, which are now under consideration as per plea at Para-3 of the written statement of defendant No.1 and under Ex.D.7. Hence, the plaintiff and defendant 32 O.S.No.5079/2005 No.2 shall proceed with before the defendant No.1, with due process of law. Otherwise the defendant No.1 is at liberty to take steps against the unauthorized construction of plaintiff and defendant No.2 as contemplated under sections 320, 321, 321-A & 321-B. So, though the plaintiff has proved the construction of defendant No.2 in her Site No.72, is in violation of approved plan, but he is not entitle to the injunctory relief as prayed for, seeking direction to demolish the unauthorized construction and a permanent injunction against the defendant No.2, restraining her from putting up construction abutting to his property, etc. Because the plaintiff has not come to the court with clean hand. Apart from this efficacious remedy is available to the plaintiff to agitate the unauthorized construction and also about his construction alleged to be in violation of building bye- laws and his approved plan. Defendant No.1 is the competent authority to consider their grievances and if under Law, and if plaintiff and defendant No.2 being neighbours, mutual agreeable terms and subject to building bye-laws (sections 320, 321, 321-A, 321-B) can get redressed. The defendant No.1 competent to 33 O.S.No.5079/2005 approve the modified plan, in accordance with law. So, the suit is hit by section 41(k)(h) of Specific Relief Act. Plaintiff cannot get any relief, in view of his unauthorized construction as discussed above. Plaintiff and defendant No.2 being responsible persons, shall have to obey the orders of defendant No.1, they cannot get their illegal construction by seeking such reliefs in the hands of this Civil Court, without having recourse to law before defendant No.1 approach of plaintiff seeking injunction against defendant No.1 BBMP and defendant No.2, the neighbour before this Civil Court does not sustain. Accordingly, Issue No.1 is answered in the 'Affirmative' and Issue Nos.2 & 3 are answered in the 'Negative'.
22. Issue No.4:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby dismissed.
However, the plaintiff and defendant No.2 are at liberty to proceed before defendant No.1 (BBMP, Bangalore) to avail the appropriate remedy in connection with their respective 34 O.S.No.5079/2005 construction with boundaries of their properties, with due process of Law, under KMC Act. So, also the defendant No.1 (BBMP, Bangalore) has to take steps as against the unauthorized construction if found, of plaintiff and defendant No.2, by following due procedure, exercising the powers and by discharging the duties as contemplated under sections 320, 321, 321-A & 321-B of KMC Act, whichever is applicable, under given set of facts placed for consideration and it shall be with due process of Law, in order to either grant of approval for modified plan or to demolish the structure which cannot be adhered to, to the violation of building bye- laws or otherwise, in accordance with law.
Parties are directed to bear their own costs.
Draw up the decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then signed and pronounced by me in the open court on this the 20th day of April 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 T.N. Panish 35 O.S.No.5079/2005 List of the documents marked for the plaintiff:
Ex.P.1 Certified copy of sale deed dated 12.12.2001.
Ex.P.2 Tax paid receipt. Ex.P.3 Self-assessment Form No.III. Exs.P.4toP.9 Photographs. Exs.P.4(a) Negatives. to P.9(a)
List of the witnesses examined for the defendants:
DW.1 K.C. Shankar List of the documents marked for the defendants:
Ex.D.1 Copy of plan.
Ex.D.2 Photograph.
Ex.D.3 Certified copy of sale deed dated 20.12.1991.
Ex.D.4 Katha certificate.
Ex.D.5 Assessment register extract.
Ex.D.6 Certified copy of plan.
Ex.D.7 Reply.
(Yadav Vanamala Anandrao)
LII Addl. City Civil & Sessions Judge,
(CCH-53), Bengaluru.
36 O.S.No.5079/2005
Judgment pronounced in the
open Court (vide separately)
ORDER
Suit of the plaintiff, is hereby
dismissed.
However, the plaintiff and
defendant No.2 are at liberty to
proceed before defendant No.1
(BBMP, Bangalore) to avail the
appropriate remedy in
connection with their respective
construction with boundaries of
their properties, with due
process of Law, under KMC Act.
So, also the defendant No.1
(BBMP, Bangalore) has to take
steps as against the
unauthorized construction if
found, of plaintiff and defendant
No.2, by following due
procedure, exercising the
powers and by discharging the
duties as contemplated under
sections 320, 321, 321-A & 321-
B of KMC Act, whichever is
applicable, under given set of
facts placed for consideration
and it shall be with due process
of Law, in order to either grant
of approval for modified plan or
to demolish the structure which
cannot be adhered to, to the
violation of building bye-laws or
37 O.S.No.5079/2005
otherwise, in accordance with
law.
Parties are directed to bear their
own costs.
Draw up the decree accordingly.
(Yadav Vanamala Anandrao)
LII Addl. City Civil & Sessions Judge,
(CCH-53), Bengaluru.
38 O.S.No.5079/2005
39 O.S.No.5079/2005
40 O.S.No.5079/2005