IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO REGULAR FIRST APPEAL NO.1278/2006 (INJ) BETWEEN:
SMT P S ARUNA W/O C MAHENDRA, AGED 38 YEARS, R/AT NO.88, 1ST MAIN ROAD, AMARJYOTHINAGAR BANGALORE 40.
...APPELLANT (BY SRI. HARISH T.S., ADVOCATE) AND 1 . THE COMMISSIONER BANGALORE MAHANAGARA PALIKE BANGALORE 560 040 2 . THE ASSISTANT EXECUTIVE ENGINEER BANGALORE MAHANAGARA PALIKE GOVINDARAJANAGAR RANGE, BANGALORE 560 040.
…RESPONDENTS (BY SRI I.G.GACHCHINAMATH, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.04.2006 PASSED IN O.S.NO.2000/1998 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BENGALURU DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is directed against the judgment and decree dated 15.04.2006 passed in O.S.No.2000/1998 by the learned XXVII Additional City Civil Judge, Bengaluru dismissing the suit of the plaintiff. Being aggrieved by the impugned judgment and decree, the plaintiff has come up in appeal.
2. In order to avoid confusion and overlapping, the parties are referred to in accordance with their ranks before the trial Court.
3. The facts leading to the filing of the case are that:
Site bearing No.88 of Kempapura Agrahara, Bengaluru North Taluk was allotted to the plaintiff by Amarajyothi House Building Cooperative Society Ltd. A sale deed came to be executed in her favour by the said society to the site measuring 10.2 + 23/2 X 23 feet. Subsequently, the plaintiff requested the said Society to allot the entire site. Agreeing for the same, the Society issued provisional allotment letter dated 23.03.1996 and requested the plaintiff to go ahead with the construction after obtaining plan for the property measuring 26 ft X 43 ft. As per the sanctioned plan measurement of the site is 26ft X 48 ft. While the process of construction was going on, the defendants visited the property and issued notice under Section 321 of the Karnataka Municipal Corporations Act (hereinafter referred to as ‘the Act’ for short) alleging that the required set backs were not left. An appeal was preferred by the plaintiff before the Standing Committee which did not consider the appeal. Thereafter plaintiff filed a suit in O.S.No.6794/ 1997 seeking injunction to restrain the defendants from interfering with her possession or demolish the existing structure. In the said suit, schedule was mentioned as 10ft + 23/2 ft X 23 ft. However, an order was passed to maintain status- quo by the said Court. Again the officials of the second defendant visited the schedule property on 06.03.1998 and threatened to demolish the front portion of the property. When the plaintiff brought to the notice of the officials about the status-quo order passed in O.S.No.6794/1997, she was told that the said order was only in respect of 10 + 23/2ft X 23 ft and that the order will not come in the way of demolishing the front portion of the building. Apprehending demolition, the plaintiff filed the instant suit in O.S.No.2000/1998 seeking relief of permanent injunction in respect of entire site No.88 measuring 26 ft X 43 ft carved out of Sy.No.418/1 and 2 of Kempapura Agrahara village, bounded on the east by road, west by private property, north by property No.89 and south by CA site.
4. Defendants contested the matter and contended that the suit is liable to be dismissed for want of statutory notice under Section 481 of the Act. They have admitted the allotment of the site by the Society and the execution of the sale deed in faovur of the plaintiff for the measurement of 10 + 23/2 ft X 23 ft. It is further contended that the plaintiff has constructed the building by encroaching a portion of the land reserved for civic amenity.
5. At this stage, the point that would arise for consideration is that whether the learned trial Judge was justified in dismissing the suit ?
6. Sri Harish, learned counsel for the appellant would submit that the plaintiff is entitled to the constructed portion of the schedule property. Though the Corporation officials were satisfied with the construction, they have unnecessarily issued the notice.
7. It is necessary to place on record Sections 320 and 321 of the Karnataka Municipal Corporations Act, 1976 which reads as hereunder:
“320. Application of provisions to alterations and additions.- (1) The provisions of this chapter and of any rules or bye-laws made under this Act relating to construction and reconstruction of the buildings or huts shall also be applicable to any alteration thereof or addition thereto: Provided that works of necessary repair which do not affect the position or dimensions of a building or hut or any room in a building therein shall not be deemed an alteration or addition for the purpose of this section.
(2) If any question arises as to whether any addition or alteration is a necessary repair not affecting the position or dimensions of a building or hut or room in a building therein, such question shall be referred to the Standing Committee, whose decision shall be final.
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 or 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 any rule of 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) XXXXX iii) XXXXX 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 alternations as may, in the opinion of the Commissioner, be necessary to bring the work to conformity with the Act, rules byelaws, 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.”
8. Defendant Nos.1 and 2 are the statutory bodies entrusted with the duties of maintaining the rules and regulations for construction whether residential or otherwise. In the circumstances, the case of the plaintiff is that earlier he had filed a suit in O.S.No.6794/1997 for the relief of permanent injunction to protect her possession. In the said suit, the schedule was mentioned as 10 + 23/2 ft X 23ft.
9. It is pertinent to note that once the jurisdictional competent authority takes action for which it is entitled, there appears to be breach or excesses. Therefore, the Courts cannot restrain them from performing the same. In this connection, the provision of law for the designated authorities are provided under the Karnataka Municipal Corporations Act. If there are any violations in the construction, it is for the plaintiff to agitate her right, if any before the competent authority and not by filing original suit. Further, learned counsel for the appellant submits that the suit in O.S.6794/997 was dismissed as withdrawn. However, it is necessary to mention that without establishing the title, the plaintiff or similarly placed persons cannot get exemption from the proceedings under the Act.
10. Therefore, I find that the learned Trial Judge has assigned sound reasons and there is no infirmity or illegality to interfere with the judgment and decree dated 15.04.2006 passed by the trial Court. Accordingly, the appeal is rejected. No costs.
Sd/- JUDGE akc/