Anil John vs Jagan M. Sheshadri and Others

B.S. Patil, J—Application filed by the plaintiff - appellant herein seeking an order of temporary injunction to restrain defendants 1 & 2/respondents 1 & 2 herein from putting up any further construction in suit B schedule property having been dismissed by the Court below, the present appeal is filed.

Appellant has filed the suit O.S. No. 4950/2014 seeking relief of permanent injunction against defendants 1 & 2 from putting up any further construction in schedule B property, on the eastern boundary of schedule A property, in violation of the sanctioned plan and for mandatory injunction against defendants 1 to 3 to remove the columns/construction put up casting the fourth floor slab in schedule B property in violation of sanctioned plan.

Along with the plaint, an application was filed under Order XXXIX Rules 1 & 2 CPC seeking temporary injunction. It is stated in the affidavit filed in support of the application that plaintiff is the owner of Site No. 5C/911 situated at 5th Cross, Hennur Road Banaswadi Road extension, HRBR Layout, Kalyan Nagar, Bengaluru; that towards eastern boundary of plaintiff''s ''A'' schedule property, the 1st defendant''s property bearing residential site No. 5C/913 is situated. Construction was started by defendant No. 1 in schedule B property without leaving sufficient set back and in violation of BBMP building bye-laws. Plaintiff made representations to the officials of the BBMP to stop the illegal construction, but the officials did not take any action against defendants 1 & 2; plaintiff obtained under the Right to Information Act, certified copy of the building plan sanctioned by the 3rd defendant for putting up construction in schedule B property and found that as per the sanctioned plan, defendants 1 & 2 were required to put up construction leaving 2.2 meters setback towards western side of B schedule property abutting suit schedule A property, etc. The sanctioned plan was for stilt floor parking, ground and two upper floors comprising of 9 units for residential use; however, in violation of the sanctioned plan and the building bye-laws, defendants 1 & 2 were putting up construction of additional floors resulting in serious nuisance to the plaintiff and also to others. He also contended that the construction, if permitted, would result in lack of air and light and also invade his privacy apart from resulting in nuisance from the occupants of the flat under construction in schedule B property.

Suit and the application were resisted by defendants 1 & 2 by filing objections and written statement. The 3rd defendant - BBMP did not file any objections. Defendants 1 & 2 contended that they were putting up construction strictly in accordance with the terms of sanctioned plan maintaining required setback as well as floor area ratio. They urged that so far they had constructed stilt floor parking, ground floor, first and second floor. They also contended that over the second floor of the building, they have put up head room of the lift, water tank, stair case head room, which was in pursuance to the plan sanctioned. They alleged that indeed plaintiff himself had constructed residential building by violating the sanctioned plan and because of the illegal act of the plaintiff, defendants'' rights were jeopardized. Defendants 1 & 2 also took up the contention that even if there was any violation, it was less than 5% which could be compounded legally by the Corporation. They also pointed out that the order passed by the Competent Authority under Section 321(3) of the Karnataka Municipal Corporation Act has been challenged in Appeal No. 781/2014 before the Karnataka Appellate Tribunal (for short, the Tribunal'') where the said appeal is pending. Therefore, they sought for rejection of the application.

The Trial Court, on consideration of the pleadings, documents and materials on record has come to the conclusion that in view of the action initiated by the Corporation and the order passed under Section 321(3) of the Karnataka Municipal Corporation Act which had been challenged in Appeal No. 781/2014 before the Tribunal, the matter regarding alleged construction by violating building bye-laws was seized by the Tribunal; there was no satisfactory material placed before the Court to show that height of the building would be dangerous and would affect the safety and hence, no prima facie case was made out and the balance of convenience was not in favour of the plaintiff for grant of temporary injunction. Thus, the Trial Court has rejected the application.

Learned counsel for the appellant contends that defendants 1 & 2 have been putting up construction of fourth floor without any licence or sanction for the fourth floor. According to him, when such construction by a neighbour is resorted to illegally in violation of the building bye-laws and the sanctioned plan, the right of the neighbour would be affected, particularly when the building to be constructed is a multistoried building to house many occupants therein. He urges that it will be a source of nuisance to the neighbour and would also affect the health and hygiene apart from flow of fresh air and light, etc. In such circumstances, it is urged that the neighbour has a right to maintain an action to prevent such illegal construction. In support of his contention, he has placed reliance on the judgment of a Division Bench of this Court in the case of S.K. Sharma Vs. Corporaion of the City of Bangalore, (1986) ILR (Kar) 2536 . Reliance is also placed on the judgment of the Kerala High Court in the case of Unnikrishnan Vs. Ponnu Ammal and Others, AIR 1999 Ker 405 : (1999) 2 ILR (Ker) 299 to contend that a suit for injunction filed to protect easementary right by prescription or to prevent interference with easementary right by prescription cannot be said to be not maintainable, unless there is also a prayer for declaration of such right.

Per contra, learned counsel for the respondents strongly submits that the respondents have not violated any building bye-laws. Matter is seized by the Karnataka Appellate Tribunal. In case, there is any violation of the sanctioned plan, respondents would be bound by the directions to be issued by the Tribunal. He further points out that the main grievance of the plaintiff being that his easementary right for light and air was affected, unless relief of declaration of such easementary right has been sought, a suit for bare injunction cannot be maintained. He has placed reliance on the judgment of this Court in the case of D. Ramanatha Gupta Vs. S. Razaack, AIR 1982 Kar 314 : (1982) ILR (Kar) 579 : (1982) 1 KarLJ 394 . He has also placed reliance on the judgment of the Apex Court in the case of Rajatha Enterprises Vs. S.K. Sharma and Others, AIR 1989 SC 860 : (1989) 1 JT 211 : (1989) 1 SCALE 277 : (1989) 2 SCC 495 : (1989) 1 SCR 457 : (1989) 1 UJ 604 to contend that when the construction does not exceed the total permissible floor/area, there was absolutely no justification, as found by the Apex Court, to demolish the so called unauthorized construction even if there was violation of the building plan. Reliance is also placed on the judgment of this Court in the case of K.L. Narayan Murthy and another Vs. Rajini and another, AIR 2001 Kar 168 : (2001) 3 KarLJ 84 : (2001) 1 KCCR 386 in support of the contention that stoppage of construction would normally result in monetary loss and that in addition to possible difficulties to the neighbour, there must be positive pleadings and positive materials available on record warranting injunction and the same cannot be granted based on presumption and assumption.

Upon hearing the learned counsel for both parties, I find from the pleadings, particularly the averments made in the plaint and the application filed, that the grievance made by the plaintiff is regarding the alleged violation of the building bye-laws and the sanction plan in putting up construction in violation of the permissible floors and the license granted. Violation of easementary right of the plaintiff regarding flow of light and air is incidentally pleaded. Therefore, it cannot be said that the suit is not maintainable when the neighbour complaints against the so called illegal construction by putting up extra floors over and above what has been sanctioned and permitted either under the sanctioned plan or as per the building bye-laws in any particular locality. It cannot be lost sight that if a person puts up construction of multistoried building violating the number of floors for which sanction is granted to put up construction, it will certainly affect the interest of not only the immediate neighbours, but also the residents in that locality. The need of the hour is to ensure strict compliance with the Rules regulating the construction and the buildings bye-laws. Any indiscriminate construction of multistoried building in an unauthorized way cannot be permitted by turning away the bona fide litigants who institute the suit complaining irregularities in the matter of violation of sanctioned plan and the resultant nuisance to them. It is one thing to say that such litigation, if encouraged, would result in opening the flood gate and every construction whatever may be the nature of the deviation had to be examined by the Court in the suits to be filed, which of course may not be justified. But, in cases where glaring violations are there and where the neighbour complaints about putting up unauthorized multistoried construction without sanctioned plan or putting up construction of multistoried building consisting of several floors, while the construction is permitted only a ground and two floors, then the Court cannot turn away the bona fide litigant who comes with clean hands to protect his right. To say that he should only approach the Corporation authorities and his remedy was only to seek relief under the provisions of Karnataka Municipal Corporations Act and not to approach the Civil Court would result in jeopardizing his rights.

In the judgment of this Court in the case of D. Ramanatha Gupta Vs. S. Razaack, AIR 1982 Kar 314 : (1982) ILR (Kar) 579 : (1982) 1 KarLJ 394 , there was no allegation of violation of any building plan or construction of high rise building illegally affecting the interest of the neighbour. It was a case of pure and simple grievance regarding deprivation of easementary right of air and light through the windows as enjoyed by the plaintiff allegedly for 50 years and more, due to blockage of the same by putting up construction by neighbour. In such circumstances, this Court held that in such suit which is based on a prescriptive right of easement, plaintiff should seek for a declaration that he had so acquired the prescriptive right of easement. As the plaintiff had not sought for such declaration, the Court found that the suit for bare injunction was not maintainable. Similarly, in the judgment in the case of K.L. Narayan Murthy and another Vs. Rajini and another, AIR 2001 Kar 168 : (2001) 3 KarLJ 84 : (2001) 1 KCCR 386 , this Court has held that there must be positive pleadings and positive material available on record warranting grant of injunction and balance of convenience and irreparable injury has to be established before an injunction restraining a neighbour from putting up further construction is granted. This Court was not called upon to examine the fact situations where allegations of the plaintiff was that the construction was in violation of sanctioned plan and indeed extra floors had been put up than what had been permitted. Therefore, these two cases have no application to the fact of the present case.

The proposition of law laid down in the judgment of the Apex Court in the case of Rajatha Enterprises Vs. S.K. Sharma and Others, AIR 1989 SC 860 : (1989) 1 JT 211 : (1989) 1 SCALE 277 : (1989) 2 SCC 495 : (1989) 1 SCR 457 : (1989) 1 UJ 604 also has no application to the present case because we are not yet concerned with the nature of violation as to whether the total permissible floor area has been impinged in the instant case.

The Trial Court has simply brushed aside the allegations and assertions made by the plaintiff on the sole ground that the appeal filed by defendants 1 & 2 before the Tribunal was pending, wherein the question regarding nature of violations and the resultant need for demolition of any portion of the constructed premises was under consideration. Mere fact that the matter is seized by the Tribunal cannot be taken as a ground to reject the application filed by the plaintiff. The Court below has to independently examine the documents produced, pleadings of the parties and record a finding as to whether a prima facie case has been made out regarding the alleged gross violation of the building bye-laws and the sanctioned plan by defendants 1 & 2 and whether they were indeed trying to put up extra floors than what had been permitted thereby causing nuisance and hardship and prejudice to the neighbours including the plaintiff. Such an exercise has not been done in the present case. Therefore, the order under challenge deserves to be set aside.

Hence, this appeal is allowed. Impugned order is set aside. The Court below is directed to reconsider the matter and pass appropriate orders keeping in mind the observations made above. The Court below shall hear both parties and pass orders within four weeks from the date of receipt of a copy of this order.