IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL No.234 of 2015 (INJ) BETWEEN:
THE COMMISSIONER CORPORATION OF THE CITY BANGALORE BANGALORE. (BCC) (NOW BBMP) ... APPELLANT (BY SRI.S.J.PURANIK, ADVOCATE) AND:
1. KIRAN.S.GOLE S/O.SRINIVAS.M.GOLE AGED ABOUT 42 YEARS (AGE CALCULATED AS PER PLAINT) RESIDING AT NO.FLAT F 4 PADMAVATHI HOMES, 7TH MAIN PUTTENAHALLI, J.P.NAGAR BANGALORE – 560 078.
2. SUGANDHA.K.GOLE W/O.KIRAN.S.GOLE AGED ABOUT 36 YEARS (AGE CALCULATED AS PER PLAINT) RESIDING AT NO.FLAT F 4 PADMAVATHI HOMES, 7TH MAIN PUTTENAHALLI, J.P.NAGAR BANGALORE – 560 078. ... RESPONDENTS (BY SRI.K.B.VIJAYALAKSHMI FOR SRI.SANATH KUMAR SHETTY, ADVOCATE FOR R-1 & R-2) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE PASSED IN O.S.NO.26431/2013 DATED 05.11.2014 PASSED BY THE COURT OF XIII ADDL. CITY CIVIL JUDGE, (CCH-22) BANGALORE AND ETC., THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant – defendant has preferred this appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC), being aggrieved by the judgment and decree dated 05.11.2014 passed by the Court of the XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore in O.S.No.26431/2013.
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court.
4. The brief facts of the case are as under:-
Plaintiffs purchased the suit schedule property under a registered sale deed dated 11.02.2008. Immediately, after the purchase of the property, the defendant – Bruhath Bangalore Mahanagara Palike (BBMP) affected Khatha in the name of the plaintiffs and that the plaintiffs obtained necessary sanction plan and started constructing the building i.e., ground floor, first floor and second floor including the terrace floor. At this juncture, the Officials of the defendant came near the suit schedule property and tried to interfere with the peaceful possession and enjoyment of the property and threatened to demolish portion of the suit schedule building, without issuing notice under Section 321 (1) of the Karnataka Municipal Corporations Act, 1976 (for short ‘the Act). Therefore, the plaintiffs caused notice under Section 482 of the Act, for which the defendant did not reply. Therefore, the plaintiffs were constrained to file the suit seeking decree of permanent injunction.
5. The defendant filed the written statement inter alia contending that the suit of the plaintiffs is misconceived. It was contended that the plaintiffs have constructed the building in contravention of the sanctioned plan. The concerned Engineer of the BBMP inspected the suit schedule property and found certain deviations. Therefore, the defendant issued notice under Section 321 of the Act. The plaintiffs replied to the notice. Thereafter, defendant – BBMP issued the confirmation order under Section 321(3) of the Act. It is further contended by the defendant that they have not interfered with the plaintiff’s peaceful possession and enjoyment of the property and also contended that the plaintiffs’ are not entitled for the reliefs claimed. Thus, they prayed for dismissal of the suit. The defendant also resisted the suit on the ground of maintainability in view of the alternative remedy.
6. The trial Court was pleased to formulate the following points for its consideration:
i. Whether plaintiffs prove that, they have constructed building as per the plan and thereby they were in lawful possession and enjoyment of the suit schedule property, as on the date of the suit?
ii. Whether suit is not maintainable for non- compliance of Sec.482 of KMC Act?
iii. Whether plaintiffs prove that, the defendant is trying to raze the suit schedule building without following the procedure as contemplated under Sec.321 of KMC Act?
iv. Whether plaintiffs are entitled for relief of permanent injunction?
v. What order or decree?
7. In order to substantiate the case, first plaintiff got examined himself as PW-1 and marked seven documents as Exs.P1 to P7. In support of defendant’s case, one Sri.N.A.Khan got examined himself as DW-1 and got marked 17 documents which were marked as Exs.D1 to D17. The Court below answered Issue Nos.1, 3 and 4 in the affirmative and Issue No.2 in the negative. The Court below decreed the suit. Being aggrieved by the judgment and decree, the defendant appellant has preferred this appeal.
8. Heard the learned counsel for appellant and learned counsel for respondent Nos.1 and 2.
9. Learned counsel for the appellant contended that at no point of time the officials of BBMP tried to interfere with the plaintiff’s lawful and peaceful possession and enjoyment of the suit schedule property, but he contended that when the corporation came to know that plaintiffs started constructing the building in violation of the original sanctioned plan they issued a notice. Since plaintiffs did not reply and that they issued a confirmation order under Section 321 (3) of the KMC Act. He contends that the trial Court has erred in granting decree of permanent injunction restraining the defendant, its agents, men or anybody, under or through it from demolishing any portion of the schedule building and or in any way interfering with the plaintiffs’ lawful possession of the schedule property. The same is contrary to the facts and law and that the judgment and decree of the Court below would virtually amount to non-exercise of power by the Corporation, which they are otherwise empowered by the KMC Act. He further submits that there is an alternative remedy for the plaintiffs to assail the order before the appropriate forum i.e., KAT and therefore, the suit was not maintainable. Lastly, the learned counsel for the appellant submitted that liberty may be reserved to the defendant /BBMP to take action in accordance with law. Accordingly, prayed for allowing the appeal by setting aside the judgment and decree of the Court below.
10. Per contra, learned counsel for the respondents – plaintiffs while justifying the judgement and decree of the Court below contended that the plaintiffs have not received any notice which is alleged to have been issued by the BBMP. She would further contend that in order to substantiate the defence, defendants ought to have produced the postal acknowledgement. But nothing has been produced to substantiate their case. Therefore, the Court below after taking into consideration the material evidence on record has rightly decreed the suit, thereby, restraining the defendants from demolishing any portion of the suit schedule building. She further, submitted that the Court below is justified in decreeing the suit by protecting plaintiff’s lawful possession and enjoyment of the suit property and that the defendant/appellant has not made out any grounds to interfere with the judgment and decree of the Court below and prayed for the dismissal of the appeal.
11. Having heard the learned counsel for parties and after perusal of the material evidence on record and the impugned judgment and decree of the Court below, the following points would arise for consideration:-
1. Whether the judgment and decree passed by the Court below would call for any interference by this court?
2. What order POINT NO 1:
12. It is not in dispute that the plaintiffs are the absolute owners and they are in lawful possession and enjoyment of the suit schedule property. It is also not in dispute that the defendant / Corporation (BBMP) has changed the khatha in the name of plaintiffs. The controversy is only with regard to non-compliance of the statutory provisions of the KMC Act i.e., issuance of notice under Section 321 (1) and confirmation Order under Section 321 (3) of the KMC Act.
13. It is the specific case of the plaintiffs that they are the absolute owners and they are in lawful possession of the suit schedule property and that the action taken by the defendant / Corporation is unsustainable and is contrary to the provisions of the KMC Act.
14. To consider the controversy, it is important to extract the relevant portion of Section 321 of the KMC Act.
“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 re-construction 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 (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 alteration 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.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein.”
15. As could be seen from the above Section, it is incumbent on the part of the defendant / Corporation to issue notice and comply with the requirements as prescribed under Section 321 of the KMC Act and that the notice has to be served to all owners of the building. But the material on record would reveal that the defendants have not placed any material on record to show that they have issued notice and the same was served upon all the owners of the building and that the plaintiffs have also received the notice.
16. Therefore, the Court below is justified in holding that there is non-compliance of the requirement of statutory provisions of the KMC Act and decreed the suit by restraining the defendant / Corporation from interfering with the plaintiff’s lawful possession of the suit schedule property. Therefore, it is held that plaintiffs are in lawful possession and enjoyment of the property in question and that the defendants are restrained from interfering with plaintiff’s lawful possession of the suit schedule property.
17. However, by virtue of the judgment and decree, the Court below has permanently restrained the defendant / Corporation from taking any action which they are otherwise entitled to initiate under the provisions of the KMC Act. The judgment and decree of the Court below virtually prevents and has prevented the defendant / Corporation to take action in accordance with law. Therefore, I am of the opinion that the Court below is not justified in granting a permanent injunction preventing the defendant / Corporation from exercising the statutory powers conferred upon them under the KMC Act and to take action in accordance with law. The Court cannot grant an order of permanent injunction restraining the public authority to exercise the statutory powers. Therefore, it is hereby clarified that if the plaintiffs have constructed the building in violation of the original sanctioned plan, then the defendants are at liberty to take action in accordance with law.
18. It is also made clear that plaintiffs should be given an opportunity to put forth and substantiate their claim. Accordingly, the judgment and decree is hereby modified as under.
19. It is hereby ordered and decreed that the defendant / Corporation is at liberty to take action in accordance with law after according an opportunity for the plaintiffs to substantiate their claim in the matter.
20. In view of the above findings, the judgment and decree of the Court below is hereby substituted with the decree to be drawn in this appeal.
21. Appeal stands disposed of accordingly with a direction to the appellant to take action in accordance with law.
22. Registry is hereby directed to draw the decree in accordance with the above terms.
Sd/- JUDGE VMB