K.H. Shaik Hyder Ali vs Mohini N. Ajagarni

Aravind Kumar, J.—This is first defendant''s appeal questioning correctness and legality of the order passed by XLI Addl. City Civil Judge, Bangalore in O.S. No. 3788/2014 whereunder I.As. 3 & 4 filed by the plaintiff under Order 39 Rules 1 & 2 has been allowed restraining first defendant, his agents, henchmen, legal representative, assignees, workers, labourers, attorneys, executors or anybody claiming through him from putting up any construction in ''B'' schedule property.

I have heard Sri Y.R. Sadashiva Reddy, learned Sr. Counsel appearing on behalf of Sri Deepak J. for appellant, Sri Ian Lewis, learned Advocate appearing for respondent No. 1 - plaintiff and Sri Sandeep Patil, learned panel Advocate appearing for respondent No. 2. Perused the order under challenge as also respective pleadings.

Plaintiff has filed a suit for perpetual injunction and mandatory injunction against first defendant to restrain him from encroaching upon schedule ''A'' property and to demolish the structure put up on northern side of schedule ''B'' property by first defendant. Sum and substance as pleaded by plaintiff in the suit is that she is the owner of ''A'' schedule property and first defendant being the owner of schedule ''B'' property being the owner of property is putting up construction and their respective properties measures 18.28 mtrs. East to West and 12.19 mtrs. North to South, in all, 222.83 mtrs. and first defendant while putting up construction in schedule ''B'' property is not only attempting to encroach upon schedule ''A'' property belong to plaintiff but also putting up a multi storeyed building in schedule ''B'' property contrary to the building Bye-laws and regulations governing building construction and contrary to sanctioned plan.

Per contra, defendant after having appeared on issuance of suit summons and filing of written statement contended that there is no violation of building bye-laws and contended he has been putting up construction in his property in accordance with sanctioned plan.

This Court, by consent of learned Advocates appearing for parties, had appointed a Court Commissioner to inspect both the properties and make report as to the existing factual aspect. Accordingly, Court Commissioner had inspected the suit properties and has reported as under:

"6. Measurement was carried out from two different points along the northern side of the Schedule ''A'' property. As seen in the sketch the first measurement of set back left by Defendant on the northern side of the Schedule ''B'' property at ''Point No. 1'' which is closer to the road measures at 0.83 meters. At ''Point No. 2'' the area of set back measures at 0.84 meters.

On consideration of the above measurements the following observation is made;

(i) The extent of area left as set back on the northern side of the Schedule ''B'' property from the existing wall constructed by the defendant till the compound wall of the plaintiff is less than 1 meter.

(ii) The set back left on the northern side is therefore inadequate in terms of the sanctioned plan and is therefore not in conformity with the same.

(iii) The deficiency in area of set back as observed hereinabove would cause an infringement of the right of the plaintiff/Respondent No. 1 to natural and free passage of light and air."

The sketch appended to the report would indicate that at point No. 1, set back on the northern side of defendant''s property is 0.83 mtrs. i.e., from Wall to Wall (inner wall) and at point No. 2, which is also on the northern side set back according to the Commissioner, left by defendant is 1.06 mtrs. (inner wall). Photographs have also been produced by appellant along with the appeal which would indicate that set back that has been left by defendant on the northern side of his property are on southern side of plaintiff''s property.

That apart, panel counsel for respondent No. 2-(BBMP) who had been directed to take notice and make submission before the'' Court, has appeared and submitted that as per the Zoning Regulations, 2007 as approved by the Government vide G.O. No. UDD 540 BEM AA SE 2004 dated 25.06.2007, set back for a building having height upto 11.5 mtrs. and plot size upto 4000 sq. mtrs. which is required to be left on the front side would be 12% of the depth of site and on the rear side, it would be 8% of depth of site. He would also contend that left and right side of property, 8% of the width of site has to be left as set back. A copy of the Zoning regulations is made available and same is perused by me. Said regulation has been applied and building plan has been sanctioned to first defendant to put up construction in Schedule ''B'' property.

Keeping this in mind, if measurements of the property of first defendant and plaintiff are perused, as found from the pleadings, it would indicate that first defendant''s property measures 18.28 mtrs. on East to West and 12.9 mtrs. on North to South, in all, 222.83 sq. mtrs., which is also the measurement of plaintiff''s property. Thus, as per Zoning Regulations, requisite set back on the front and rear side which has to be left would be 2.19 mtrs. and 1.46 mtrs. respectively. On either side, as per Zoning Regulations, set back which will have to be left would be 0.7 mtrs. As per the building sanctioned plan, on the basis of which first defendant is putting up construction in schedule ''B'' property, set back that has been directed to be reserved is 2.23 mtrs. and 1.47 mtrs. on the front and rear side and one mtr. on other side. Said Zoning Regulations along with the photographs produced as also Commissioner''s report available on record, when considered it would indicate from the outer wall of first defendant''s property as well as plaintiff''s property set back as reflected in the Commissioner''s report has been provided by the defendant while putting up construction. Hence, it cannot be held that defendant has violated either Zoning regulations or construction that is being put up by him is not in accordance with sanctioned plan. Perusal of order of trial Court would indicate that it has proceeded to consider the prayer of plaintiff in the background of Table-IV of Bangalore Mahanagara Palike Building Bye-laws, 2003 which stipulates set back of 3.5 mtrs. which according to learned Advocate appearing for BBMP was not in vogue as on date of sanction of building plan issued to first defendant and it is the Zoning Regulations of 2007 which was and is in vogue and according to which, building plans are being sanctioned by jurisdictional authorities. Hence, this Court is of the considered view that there is no merit in the contention raised by Ian Lewis, learned Advocate appearing for plaintiff and same is hereby rejected.

In that view of the matter, I am of the considered view that order passed by the trial Court cannot be sustained. Hence, I proceed to pass the following:

JUDGMENT

(1) Appeal is hereby allowed.

(2) Order passed on I.As. 3 and 4 by XLI Addl. City Civil Judge, Bangalore in O.S. No. 3788/2014 dated 09.07.2014 is set aside.

(3) I.A. Nos. 3 and 4 filed by plaintiff is hereby dismissed.

(4) It is needless to state that by virtue of dismissal of the application, if first defendant were to put up construction in violation of building plan either in the ground floor or first floor, BBMP authorities would be at liberty to take action in accordance with law either suo motu or on same being brought to their notice by plaintiff.

(5) No costs.