Bangalore District Court
M Varaprasad Reddy vs The Commissioner, Bbmp on 19 December, 2024
1 OS No.25566/2020
KABC0A0014162020
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE, AT MAYO HALL, BENGALURU (CCH.20)
P r e s e n t:
Smt.Sujata.M.Sambrani, B.Com. LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 19th day of December, 2024
O.S.No.25566/2020
Plaintiff:- Sri. M Varaprasad Reddy,
S/o Sri. Hanuma Reddy,
Aged about 44 years,
R/at No.102, Gangotri Enclave,
22nd Main Road, Raghavendra Layout,
Padmanabhanagara,
Bengaluru-560 070.
[By Sri. M. Ramakrishnareddy-Adv]
Vs.
Defendant:- The Commissioner,
Bhurhath Bangalore Mahanagara
Palike, (BBMP), Hudson Circle,
Bangalore-560 002.
[By NS - Adv]
2 OS No.25566/2020
Date of Institution of suit: 27.05.2020
Nature of the Suit (Suit for Permanent Injunction
Pronote, Suit for Declaration and
Possession, Suit for Injunction,
etc.):
Date of Commencement of 19.07.2022
recording of evidence:
Date on which the Judgment was 19.12.2024
pronounced:
Total Duration:
Years Months Days
04 06 22
(Sujata.M.Sambrani)
XXVI Addl. City Civil Judge, Mayo Hall,
Bangaluru.
J U D G M E N T
The plaintiff has filed this suit seeking for granting
perpetual injunction, restraining the defendant, his agents,
men or anybody under or through it from demolishing of
the suit property or in any way interfering with the
plaintiff’s lawful possession of the suit schedule property.
3 OS No.25566/2020
2. Brief facts of the plaint are as under:-
That the plaintiff is the developer by profession and he
entered into a Joint Development Agreement and GPA
dtd.11.09.2015 to develop the immovable property bearing
number eastern portion of the property No.23, (Old Sy
No.24, katha No.4/23), situated at Kadirenahalli Village,
Uttarahalli Hobli, Bangalore South taluk presently comes
within the limits of BBMP Padmanabhanagara Ward No.55,
measuring East to West (100+128)2 feet and North to South
(75+85)2 feet in all measuring 9120 sq.ft., and bounded on
the East by Road, West by Property No.6 and passage (or
Western portion of the same property), North by Property
of G. Chandru and South by Property of Lakkappa.
It is further submitted that, even before the Execution
of the JDA & GPA the owner by name Sri. D Sabhapathy
purchased the property under a Registered Sale Deed
dtd.07.02.1980. After the purchase, the katha has been
4 OS No.25566/2020transferred in their name. After execution of the registered
JDA & GPA, the plaintiff obtained the sanctioned plan in
the name of the owner to construct residential building
consisting of Basement, Ground, First, Second, Third floors
including the terrace floor and the plaintiff has constructed
the building, as per the plan issued by the defendant
authority. After completion of the building, the plaintiff is
in peaceful possession of the suit property. Very strangely
the officials of the defendant authority abruptly appeared
near the suit property during the first week of March 2020
and made vehement threats to demolish portions of the
schedule building and the plaintiff prevented the defendant
authority from causing any damage to building without
issuing prior notice to the plaintiffs under per Sec.321 of
the KMC Act, 1976. the plaintiff in all prudence caused a
legal notice to the defendant authority on 09.03.2020 as per
Sec.482(1) of the KMC Act, 1976. The defendant authority
5 OS No.25566/2020after receipt of the legal notice, kept quiet for some time,
but unfortunately without send any reply to the same, the
defendant authority again sent its officials near the suit
schedule property early morning on 16.05.2020 to damage
the suit building. The cause of action arose on 09.03.2020,
when the plaintiff caused a notice the defendant authority
as per Sec.482(1) of KMC Act, 1976. Hence the plaintiff
filed this present suit.
3. In response to the suit summons the defendant
appeared though its counsel and filed detailed written
statement. In the written statement the defendant states
that, the suit is not maintainable according to law. On
18.02.2020 the officials of the defendant inspected the
construction on the schedule property and found the
construction of the building by violating the sanctioned
plan. Immediately the notice under Sec.308 of KMC Act
6 OS No.25566/2020
dtd.18.02.2020 issued to the owner directing him to
produce the sanctioned plan and other documents. Since
the owner failed to produce the documents, the officials of
the defendant passed provisional order under Sec.321(1)
KMC Act on 03.03.2020 with the notice under Sec.321(2) of
KMC Act personally to the owner of the property. After
issuance of notice, the plaintiff failed to demolish the
violated portions and failed to give reply to the notice.
The officials of the defendant passed confirmation order
under Sec.321(3) of KMC Act on 11.03.2020 by confirming
the provisional order and the same was sent to the owner
Sabhapathi through RPAD on 16.03.2020, the same was
returned. Even after the confirmation order dtd.11.03.2020
the plaintiff failed to demolish the unauthorized violated
portions of the construction on the schedule property. The
defendant passed order under Sec.462 of KMC Act,
authorizing the Assistant Executive Engineer to take action
7 OS No.25566/2020
to demolish the violated portions of the constructions.
Further submitted that, the defendant authority have every
right to take action against the violation of the provisions
of KMC Act by following the procedure of the provisions of
KMC Act. On going through the plaint averments, the
plaintiff is the GPA holder of the owner of the schedule
property one Sabhapathi, but as per the cause title the
plaintiff filed this suit independently not as a GPA of
Sabhapathi. The plaintiff filed this suit by suppressing the
true facts with false allegations of the defendant officials
that threatening to damage the property without prior
notice under Sec.321 of KMC. Hence prayed to dismiss the
suit with costs.
4. In support of the plaintiff’s case, the GPA holder
of the plaintiff by name Sri. B Shekar got examined himself
as P.W.1 and got marked 14 documents as Exs.P.1 to
Ex.P.14.
8 OS No.25566/2020
The Assistant Executive Engineer of the defendant, got
himself examined as DW1 and got marked 30 documents, as
Ex.D1 to Ex.D30.
5. Heard and perused.
6. In view of the above following Issues arise for my
consideration:-
1. Whether the plaintiff has put up
construction in the suit property as per the
sanctioned plan?
2. Whether the plaintiff proves cause
of action for the suit?
3. Whether the suit is not
maintainable for the reasons mentioned in
para No.5 of the written statement and
also under the provisions of the Karnataka
Municipal Corporations Act?
4. Whether the plaintiff has complied
with Sec.482 of the Karnataka Municipal
Corporations Act?
9 OS No.25566/2020
5. Whether the plaintiff is entitled to
the reliefs sought for?
6. What order of decree?
7. For the reasons stated in the subsequent
paragraphs, I answer above issues as follows:-
Issue No.1: In the Negative
Issue No.2: In the Negative
Issue No.3: In the Affirmative
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.6: As per final order for the
followingR E A S O N S
8. Issue No.4:- The defendant being the statutory
authority i.e., the Commissioner, BBMP, Bengaluru has
contended that, the plaintiff has not complied the
mandatory provisions of Sec.482(1) of KMC Act. Hence
sought for dismissal of sui. The plaintiff specifically
contended that, on 09.03.2020 as per Sec.482(1) of the
KMC Act, 1976 has issued notice to the defendant. The
10 OS No.25566/2020said notice is received by the defendant authority on
10.03.2020 and they have produced the copy of the notice
and postal receipts and acknowledgment before the court.
But on perusal of the entire records, it appears that, list of
documents filed by the plaintiff on 21.05.2020 in Sl.No.8, it
is mentioned that, the copy of the legal notice sent to the
defendant under Sec.482(1) of the KMC Act alongwith its
acknowledgment is produced. But on perusal of the list of
documents produced on 21.05.2020 the copy of the legal
notice dtd.09.03.2020 is produced before the court, but
there is no postal receipt and the postal acknowledgment as
alleged by the plaintiff is not placed before the court to
show that, it has been issued to the defendant prior to
filing of the suit. In the absence of said postal receipts and
postal acknowledgment, it cannot be accepted that, the said
statutory notice has been issued and served upon the
defendant prior to filing of the suit. Hence, it cannot be
11 OS No.25566/2020
accept that the plaintiff not complied with the mandatory
provisions of Sec.482(1) of the KMC Act, 1976, prior to the
filing of the suit. Accordingly, Issue No.4 is answered in
the Negative.
9. Issue No.1:- According to plaintiff, he is developer
by profession and entered into JDA on 11.09.2015 through
GPA holder and taken up the suit schedule property for
construction, which is owned by the Sri. D Sabhapathy.
The Sri. D Sabhapathy purchased the suit schedule property
under the Registered Sale Deed dtd.07.02.1980 and
thereafter he has obtained the sanctioned plan for
constructing the residential building consisting of
Basement, Ground, First, Second, Third floors including the
terrace floor in LP No.Ad.Com/SUT/0757/15-16
dtd.14.01.2016 and the plaintiff being the developer has
constructed the building as per sanctioned plan issued by
the defendant authority. After completion of the building,
12 OS No.25566/2020
the plaintiff is in possession of the property and some of
the flats are already sold by the plaintiff to the prospective
purchasers. Thereby the plaintiff has contended that, he
has constructed the building as per the sanctioned plan,
issued by the defendant authority.
10. Insupport of the contentions, the GPA holder of
the plaintiff is examined as PW1, who has filed an affidavit
in the form of chief examination. In support of his chief
examination, he has produced 14 documents, which are
marked as Ex.P1 to Ex.P14.
11. The defendant authority admitted that, the owner
of the suit schedule property obtained the sanctioned plan
to construct the residential building consisting of Basement,
Ground, First, Second, Third floors including the terrace
floor in LP No.Ad.Com/SUT/0757/15-16 dtd.14.01.2016.
But the plaintiff has constructed the building by violating
13 OS No.25566/2020
the sanctioned plan. The defendant has issued mandatory
notice under Sec.321(1 to (3) of the KMC Act directing the
plaintiff to demolish the unauthorized construction. In this
regard, the plaintiff has produced sanctioned plan, which is
marked as Ex.P7. As per Ex.P7, the plaintiff is permitted
to construct Basement, Ground, First, Second and Third
floors including the terrace floor. During the course of
cross examination, the PW1 has clearly admitted that,
“It is true to suggest that, in the plaint we
had stated that we had obtained for stilt, ground
floor, first to third floor. We started constructing
the building in January 2016. The building was
constructed completely in the year 2019.”
“It is false to suggest that though we had
no permission to construct fourth floor, we had
constructed the fourth floor as shown in Ex.P8 to
Ex.P11. It is true to suggest that the fourth floor
is constructed as shown in Ex.P8 to Ex.P11.”
12. This version of PW1 clearly reveals that, the
plaintiff has constructed fourth floor on the suit schedule
property by violating the sanctioned plan. Thereby it is
14 OS No.25566/2020
held that, the plaintiff has put up construction in the suit
schedule property by violating the sanctioned plan by
constructing the fourth floor. Accordingly, Issue No.1 is
answered in the Negative.
13. Issue Nos.2, 3 and 5:- The plaintiff has specifically
contended that, the plaintiff is the developer by profession
and he has entered into JDA and GPA with the owner of
the suit schedule property by name Sri. D Sabhapathy
dtd.11.09.2015. The owner of the suit schedule property
Sri. D Sabhapathy has obtained sanctioned plan from the
defendant authority for construction of residential building
consisting of Basement, Ground, First, Second, Third floors
including the terrace floor in LP No.Ad.Com/SUT/0757/15-
16 dtd.14.01.2016, the plaintiff has constructed the building
as per plan issued by the defendant authority. After
completion of construction of building, the plaintiff is in
15 OS No.25566/2020
possession and enjoyment of the suit schedule property. In
the first week of March 2020, the defendant authority
abruptly threatened to demolish the portion of the suit
schedule property without any prior notice to the plaintiff
as required under Sec.321 of the KMC Act. Hence the
plaintiff has issued notice to the defendant authority on
09.03.2020 as per Sec.482(1) of the KMC Act, 1976 which
was received by the defendant authority on 10.03.2020.
Thereby the plaintiff has contended that, the defendant
authority has not issued prior notice to the plaintiff before
threatening to demolish of portion of the suit schedule
property.
14. On the other hand, the defendant authority, who
filed the written statement has specifically contended that,
On 18.02.2020 the officials of the defendant inspected the
construction on the schedule property and found the
construction of the building by violating the sanctioned
16 OS No.25566/2020
plan. Immediately the notice under Sec.308 of KMC Act
dtd.18.02.2020 issued to the owner directing him to
produce the sanctioned plan and other documents. Since
the owner failed to produce the documents, the officials of
the defendant passed provisional order under Sec.321(1)
KMC Act on 03.03.2020 and the notice under Sec.321(2) of
KMC Act personally to the owner of the property. After
issuance of notice, the plaintiff failed to demolish the
violated portions and failed to give reply to the notice. The
officials of the defendant passed confirmation order under
Sec.321(3) of KMC Act on 11.03.2020 by confirming the
provisional order and the same was sent to the owner
Sabhapathi through RPAD on 16.03.2020, the same was
returned. Even after the confirmation order dtd.11.03.2020
the plaintiff failed to demolish the unauthorized portions of
the construction on the schedule property.
17 OS No.25566/2020
15. Thereafter, the defendant passed order under
Sec.462 of KMC Act, authorizing the Assistant Executive
Engineer to take action to demolish the violated portions of
the constructions. The defendant authority have every right
to take action against the violation of the provisions of
KMC Act by following the procedure of the provisions of
KMC Act and as such the officials have taken action against
the construction constructed by violating the sanction plan
as per the provisions of KMC Act. Thereby the defendant
authority has contended that, the officials of the defendant
authority have taken legal action against the plaintiff for
violating of provision of KMC Act by the plaintiff, who has
constructed the building by violating the sanctioned plan.
16. In this regard, the defendant has produced copy
of the notice issued to owner of the suit schedule property
by name Sri. D Sabhapathi under Sec.321(1) of the KMC
18 OS No.25566/2020
Act, in which it was intimated to the owner of the property
who showcause about the violation of byelaws while
constructing the building in the suit schedule property. The
copy of the notice dtd.03.03.2020, under Sec.321(1) of KMC
Act issued to Mr. D Sabhapathi is also produced along with
copy of the notice dtd.03.03.2020 under Sec.321(2) of the
KMC Act. The defendant authority has also produced the
copy of confirmation order dtd.11.03.2020 issued under
Sec.321(3) of KMC Act to the owner of the suit schedule
property. These documents reveals that, the defendant
authority has issued notices to the owner of the property as
per Secs.321(1) to (3) of the KMC Act. Thereby the
contentions of the plaintiff with regard to non-issuance of
statutory notices under Sec.321 of the KMC Act cannot be
accepted.
19 OS No.25566/2020
17. Further, the provision of Sec. 248 of BBMP Act,
2020 reads about demolition or alternation of buildings or
well work unlawfully commenced, carried on or completed.
Therefore the Defendant/ BBMP authority are empowered to
demolish or alter the unauthorized construction or
deviations made by the citizen coming within the
jurisdiction of BBMP. Accordingly the BBMP has issued
notice to the plaintiff calling upon them to set right the
deviations of unauthorized constructions. But the plaintiff
has not complied with the said notices and filed this suit,
seeking the relief of injunction.
18. The plaintiff is the developer and Sri. D
Sabhapathi is the owner of the suit schedule property. It is
also not in dispute that the BBMP has changed the katha in
the name of the Sri. D Sabhapathi, the owner in respect of
the suit schedule property. The only controversy is with
regard to non-compliance of the statutory provisions of
20 OS No.25566/2020
Sec.321 of the KMC Act, by the defendant, when the
plaintiff has put up construction in the suit schedule
property. Sec.321 of the KMC Act is incumbent upon the
BBMP to issue and comply with the requirements prescribed
under the said provisions and notice has to be served upon
the owners of the building.
19. In this regard, the learned counsel for the plaintiff
specifically argued that, as per Sec.321(2) of the KMC, the
Commissioner shall serve a copy of the provisional order on
the owner or builder of the building of the suit schedule
property. But the said notices not served on the plaintiff.
20. In this regard, it is relied upon the decisions, in
the judgment of the Hon’ble High Court of Karnataka in
paras-7 and 8 has held as under:-
“7. Sub-Section (2) of Sec. 321 of KMC Act
reads thus:
“321(2): The Commissioner shall serve a copy of
the provisional order made under sub-section (1) on
21 OS No.25566/2020the 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”. A plain
reading of sub-section (2) of Section-321 mandates
the service on the petitioner, a copy of the
provisional order passed under sub-section(1)
together with a notice requiring him to show cause
within a reasonable time to be named in such notice
as to why order should not be confirmed. The
method of serving of notice under the Act, is set out
in Section 455 which reads thus: –
(a) By giving or tendering the said document
to such person; or
(b) If such person is not found, by leaving
such document at his last known place of
abode or business or by giving or tendering
the same to his agent, clerk or servant or
some adult member of his family; or
(c) If such person does not reside in the
city and his address elsewhere is known to the
Commissioner, by sending the same to him by
registered post; or
(d) If none of the means aforesaid be
available, by affixing the same in some
conspicuous part of such place of abode or
business.
Sec. 455 contemplates different methods of
service of notice and if none of the means
22 OS No.25566/2020
under clause (a) to (c) are available, subsection
(1)(d) comes into play, by which the notice is
to be affixed in some conspicuous part of such
place of abode of business.
8. In the instant case, the respondent BMP
admittedly did not exhaust the methods of (a) to (c)
of Sec.445 of the Act to serve the notice on the
petitioner, but straight away mailed a copy of the
notice by ‘certificate of post’ and thereafter affixed a
copy of the notice on the building and draw up a
mahazar. Though the method adopted was the main
ground of challenge in the appeal memorandum, filed
before the Karnataka Appellate Tribunal, the BMP did
not place material in opposition nor did the KAT
advert to the method of service of notice under
Sec.455 of the Act”
Therefore, the Hon’ble High Court has specifically
mentioned about the modes of service of notice upon the
plaintiff.
21. In another case of the Hon’ble High Court of
Karnataka in RFA No.234/2015 (INJ), in the matter of The
Commissioner of Corporation of the City of Bengaluru Vs.
23 OS No.25566/2020Kiran.S.Gole and another, DD 29.11.2019, has held as
under:-
“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 Sec. 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
24 OS No.25566/2020contravention 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
25 OS No.25566/2020complied 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
26 OS No.25566/2020
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 Sec.321 of the KMC Act and that the
notice has to be served to all owners of the
building.
22. In this regard, the learned counsel for the
defendant has produced the copy of the notice issued to the
plaintiff as per Ex.D5. The postal receipt is also affixed on
this notice. The address mentioned in this notice is similar
one to the address shown in the cause title of the plaint.
The learned counsel for the defendant also produced
another office copy of the notice dtd.18.02.2020 issued to
the plaintiff, which was duly received by the plaintiff, in
which the BBMP authority has recalled upon the plaintiff to
produce all the documents pertaining to the suit schedule
property alongwith the sanctioned plan. The Ex.D17 and
18 are the postal receipts, Ex.D20 to 22 are the
27 OS No.25566/2020
photographs and Ex.D23 is the mahazar drawn on
15.04.2020, when the notice was affixed on the building,
which was issued under Sec.321(1) to (3) of the KMC Act.
The Ex.D21 to Ex.D23 reveals that, the notice was duly
affixed on the suit schedule property, which can be held as
due service of notice.
23. During the course of arguments, the learned
counsel for the plaintiff vehemently argued that, the
defendant authority without following procedure directly
taken steps to affix the notice on the building. But the
evidence of PW1, in this regard place an important role.
During the course of cross examination, the PW1 has
clearly admitted that,
“It is true to suggest that D. Sabapathi is
residing in the address now shown to me in the
notice dated 03.03.2020 that is D. Sabapathi,
property No.4/23(24) Sunnadagooducompound,
Gowdana Palya, Padmanabanagar, Bengaluru. The
said document is marked as Ex.D1. It is true to
suggest that D. Sabapathi is residing in the address
28 OS No.25566/2020
now shown tome in the notice dated 11.03.2020
that is D. Sabapathi,property No.4/23(24)
Sunnadagoodu compound, Gowdana Palya,
Padmanabanagar, Bengaluru. The said document is
marked as Ex.D2.”
24. This version of PW1 reveals that, the notice issued
by the defendant under Sec.321 (1) to (3) of the KMC Act
were issued to the correct address of the owner of the suit
schedule property. As per Sec.27 of the General Clauses
Act, if the notice is issued to the correct postal address of
the parties, then it is held as deemed service. When the
notices have been issued to the owner of the suit schedule
property to the correct postal address, then the plaintiff
cannot contend that the notice was not served upon him.
25. In this regard, the learned counsel for the
defendant has relied upon the decision held by the Hon’ble
High Court of Karnataka in MFA No.8409 of 2019 C/w WP
No.19048/2019 held in between Sri. M Gadde Gowda V/s
29 OS No.25566/2020
Sri. Sudhakar Shastry and Ors., wherein it is held as
follows:-
“5. Insofar as the grant of injunction by the
impugned order by the civil Court, the learned
counsel for the respondent No.1 submits that the
respondent No.1 is constrained to file the suit
because there was a threat of demolition, but no
formal action was initiated and in such
circumstances, in the light of the decision by the
Hon’ble Supreme Court referred to by the Civil
Court, the suit would be maintainable. The
learned counsel further submits that the
respondent No.1 has not been served with the
preliminary order under Sec.321(3) of the KMC
Act or the subsequent orders. It is only during
pendency of the present proceedings that he has
been informed that the different orders have been
passed. The learned counsel for the respondent
No.1 further submits that, though the respondent
No.1 could avail alternative remedy under
Sec.443(A) of the KMC Act, a suit under Sec.9 of
CPC would not be barred and as such, not only
is the suit maintainable, but the grant of interim
order is also justified in the facts and
circumstances of the case.
6. However, it would suffice for the
disposal of the writ petition and the appeal, for
this Court to observe that once it is to the
knowledge of the respondent No.1, the
appropriate recourse would be to avail statutory
remedy under the KMC Act, and every ground
urged against the orders issued can be gone in
30 OS No.25566/2020such proceedings. If the interim order granted
by the civil Court were to prevail, even after the
proceedings are initiated under the KMC Act, the
effect of such orders stultified rendering the
statutory mechanism ineffective.”
26. Based on this decision, it can be held that, once
it is brought to the knowledge of the plaintiff about the
notice, it is appropriate recourse to plaintiff would be to
avail statutory remedy under the KMC Act. In this case the
defendant authority has issued notice to the owner of the
suit schedule property as per Sec.321(1) to (3) to his correct
address. Also served the notice through affixture. Hence,
it is held that, it is deemed that, the statutory notice is
served. Hence the contention of the plaintiff in this regard
not sustainable.
27. In the recent decision of the Hon’ble High Court
of Karnataka in the matter of Smt. Kavitha Jain and
another Vs. the Commissioner, BBMP and ors., WP
31 OS No.25566/2020
No.9934/2023(LB-BMP) DD 17.08.2023, the Hon’ble High
Court has held as under:-
“One other aspect which has come to light in
the above the matter is as regards the suit which
had been filed by the petitioner against the
corporation, when proceedings were to be initiated
by the Corporation under the BBMP Act. This
matter relating to a statutory performance of
obligation by the Corporation, no court including
the Civil Court would have jurisdiction to entertain
or pass any order in such proceedings. As such,
general instructions would also have to be issued
in this regard”.
28. The suit schedule property comes under the
BBMP, in which the BBMP has initiated proceedings u/s.248
of the BBMP Act, 2020. Therefore, this matter also
highlighted the statutory performance of obligation by the
Corporation. Hence this Court being the Civil Court has no
jurisdiction to entertain a suit or to pass any order.
Therefore the arguments of the learned counsel for the
32 OS No.25566/2020
plaintiff in this case is not tenable. Accordingly, Issue
Nos.2 and 5 are answered in the Negative & Issue No.3 is
answered in the Affirmative.
29. Issue No.6:- In view of the reasoning given above,
I proceed to pass the following:-
O R D E R
The suit of the plaintiff is dismissed with
cost.
Draw decree accordingly.
—
(Dictated to the Stenographer directly on the computer, typed and then
corrected and pronounced by me on this the 19th day of December 2024)
–
(Sujata.M.Sambrani)
XXVI Addl. City Civil Judge, Mayo Hall,
Bangaluru.
A N N E X U R E
1. List of witnesses examined for the plaintiff:
P.W.1 B. Shekar
33 OS No.25566/2020
2. List of witnesses examined for defendants:
D.W.1 Muralidhar
3. List of documents exhibited for the plaintiffs:
Ex.P.1 Certified copy of the Joint Development
Agreement dtd.11.09.2015Ex.P.2 GPA dtd.11.09.2015
Ex.P.3 Certified copy of the Sale Deed
dtd.07.02.1980.
Ex.P4 Katha certificate.
Ex.P5 Katha Extract.
Ex.P6 Tax paid receipts
Ex.P7 Sanction Plan.
Ex.P8 to 11 Four photographs.
Ex.12 CD
Ex.P13 Office copy of the Legal Notice
dtd.09.03.2020.
Ex.P14 Postal Acknowledgment.
34 OS No.25566/2020
4. List of documents exhibited for defendants:-
Ex.D.1 Copy of Notice dtd.03.03.2020.
Ex.D2 Copy of Notice dtd.11.03.2020.
Ex.D3 Original Authorization Letter.
Ex.D4 Office copy of the Notice under KMC Act.
Ex.D5 Postal Receipt.
Ex.D6 to 10 5 photographs.
Ex.D11 Original Complaint dtd.30.01.2020.
Ex.D12 to 16 5 photographs.
Ex.D17 & 18 Two postal receipts.
Ex.D19 to 22 Vijaya Karnataka Newspaper dtd.15.04.2020
with three photographs.
Ex.D23 Spot Mahazar dtd.15.04.2020
Ex.D24 & 25 Two Returned Postal Covers.
Ex.D26 to 29 4 photographs.
Ex.D30 CD.
(Sujata.M.Sambrani)
XXVI Addl. City Civil Judge, Mayo Hall,
Bangaluru.