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Judgment
Ashok B. Hinchigeri, J.—This appeal is directed against the judgment and decree, dated 20-7-2009 passed by the Court of the XXVII Additional City Civil Judge, Bangalore in O.S. No. 509 of 2003. The facts of the case in brief are that the appellant, on noticing the deviations in the buildings put up by the first respondent on the property in question, issued the notice and the provisional order, dated 8-1-2003 (Ex. P. 15) u/s 321(1) of the Karnataka Municipal Corporations Act, 1976 (''the K.M.C. Act'' for short). It required the first respondent to demolish the construction raised in violation of the sanctioned plan, building bye-laws, etc. This was followed by the confirmatory order, dated 16-1-2003 (Ex. P. 16) passed by the appellant in exercise of the power conferred by Section 321(3) of the K.M.C. Act. The respondent 1 filed the suit in O.S. No. 509 of 2003 seeking the relief of permanent injunction against the appellant and the second respondent. The said suit was clubbed with O.S. No. 4467 of 2002 filed by the respondent 2.
The Trial Court formulated the following issues:
(1) Whether the plaintiff proves that she has lawful possession over the suit schedule property on the date of the suit?
(2) Whether the plaintiff proves illegal interference and obstruction in her lawful possession of the suit schedule properly by the defendants?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for against the defendants?
(4) What order and relief?
The common enquiry was held. The respondent 2 was examined as P.W. 1, marking the documents at Exs. P. 1 to P. 32. On behalf of the first respondent, her general power of attorney holder Sri Mehboob Sheriff was examined as D.W. 1, marking 20 documents in Ex. D. series. While answering the contentious issues against the appellant, the Trial Court decreed O.S. No. 509 of 2003 permanently restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.
Aggrieved by the same, this appeal is preferred by the Commissioner, Corporation of the City of Bangalore.
Sri Gururaj Joshi, the learned Counsel for the appellant submits that the judgment and decree under appeal are without jurisdiction. He submits that the remedy that is made available by the K.M.C. Act to a party aggrieved by any order passed u/s 321 is filing the appeal before the Karnataka Appellate Tribunal (''K.A.T.'' for short) u/s 443A of the said Act. It reads as follows:
443-A. Appeal to Karnataka Appellate Tribunal or District Court.--(1) Any person aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under Sections 308, 309 and 321(3) may appeal.--
(i) to the Karnataka Appellate Tribunal in case of the Bruhat Bangalore Mahanagara Palike;
(ii).....................
Sri Joshi further submits that the written statement filed by the appellant in O.S. No. 4467 of 2002 that the first respondent has not committed any violation of the building plans is held against the appellant for all time to come. He submits that subsequent to the filing of the written statement in O.S. No. 4467 of 2002, the first respondent deviated from the sanctioned plan. He further submits that the first respondent has put up two bedrooms without there being the sanctioned plan for the same.
The learned Counsel takes serious exception to the first respondent seeking the relief of permanent injunction, as if it can be granted without challenging the orders passed u/s 321.
The learned Counsel submits that the judgment and decree under appeal is coming in the way of the appellant performing its statutory duties. The interference, if any, is only in the course of discharging the statutory duties by the appellant.
The submissions of the learned Counsel have received my thoughtful consideration. I have browsed through the lower Court records.
My perusal of the Trial Court''s judgment reveals that the Trial Court has decided the case against the appellant for two reasons:
(a) The appellant''s stand in O.S. No. 509 of 2003 is opposite to the/stand taken by the appellant in O.S. No: 4467 of 2002.
(b) The appellant has not entered the witness-box.
The first reason is not tenable. Just because the appellant-Corporation has admitted that the construction is in accordance with the sanctioned plan, it does not mean that the respondent 1 would not make any deviation in future. The appellant cannot be perpetually restrained from demolishing the constructions put up by the respondent-plaintiff, if, as and when it violates the sanctioned plan building bye-laws, etc. Further, it is a clear case of the appellant-Corporation that the first respondent had not put up any construction in violation of the sanctioned plan till 2002. But subsequent to the filing of the written statement, the first respondent has been putting up the construction in violation of the sanctioned plan and building bye-laws. There cannot be any restraint-order against the operation of the Statute. If any party puts up any construction without obtaining the sanctioned plan or in violation of the sanctioned plan or in violation of any statutory provision or the building bye-laws framed thereunder, the concerned authorities are bound to act to bring the structure in conformity with the sanctioned plan. Bringing the violators of law to the book is the power coupled with duty.
Exs. P. 14 and P. 15 are the notices and provisional orders requiring the first respondent to demolish the unauthorised construction. Ex. P. 16 is the final or confirmatory order. These notices and orders have not been considered in their proper perspective by the Trial Court. These notices and orders are to be considered in the light of what the first respondents general power of attorney holder deposed in the course of cross-examination. The relevant portions of the cross-examination are extracted hereinbelow:
.........We have not left any setback towards the rear side of the building. Towards left side we have not left any setback. Towards right side we have left 2 feet space as setback.........It is true that Bangalore Mahanagara Palike passed confirmation-order, dated 16-1-2003 and the same was served on us. I have no objection to demolish any deviated portion in our building......It is true that corporation authorities have not sanctioned plan permitting me to construct two bedrooms........It is true that in Ex. P. 33 a shop premises called as Metro Gents Parlor is seen. Witness volunteers to say that only board is there and no one is occupation in the same.
In the wake of the response extracted hereinabove in the course of cross-examination of the first respondent''s general power of attorney holder and in the light of the orders (Exs. P. 14, P. 15 and P. 16) issued u/s 321 of the K.M.C. Act, it cannot be concluded that the first respondent has not committed any violation of the sanctioned plan or building bye-laws.
For all the aforesaid reasons, I find that the first reason for decreeing the first respondent''s suit is not tenable.
As far as the second reason that the appellant not entering the witness-box is concerned, I have no hesitation in holding that the appellant ought to have entered the witness-box to support the written statement filed in the suit i.e., O.S. No. 509 of 2003. But that he has not entered the witness-box cannot lead to a situation where the first respondent''s suit is decreed mechanically.
It was open to the first respondent to challenge the order (Ex. P. 16) by way of an appeal before the K.A.T. invoking Section 443A of the said Act. Even assuming that the said order can be challenged by way of civil suit, the same has to be only by challenging the said order. If the coercive action pursuant to the order at Ex. P. 16 is to be avoided, it is only by raising the challenge to the said order and getting it declared as null and void. In a case of this nature, the relief of permanent injunction can only be consequential to the relief of declaration. In the absence of any challenge to the order at Ex. P. 16, the consequential relief of permanent injunction ought not to have been granted.
For all the aforesaid reasons, I allow this appeal by setting aside the judgment and decree under appeal. However, I deem it necessary and just to reserve the liberty to the first respondent to file the appeal invoking Section 443A of the said Act for the purpose of challenging the final order at Ex. P. 16. Needless to observe that the first respondent may explain the delay in filing the appeal with reference to Section 14 of the Limitation Act, 1963 that he was bona fidely pursuing the wrong remedies.
I also deem it necessary and just to direct the appellant not to resort to any coercive action for a period of one month from today. This part of the order is made to enable the first respondent to avail of the alternative and efficacious remedy of filing the appeal.
Now that the main matter itself is disposed of, nothing survives for consideration of Misc. Civil No. 18686 of 2009. It is dismissed as unnecessary. No order as to costs.