A Sudhir Prasad Shetty vs The Corporation Of City
2022 Latest Caselaw 99 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF JANUARY, 2022

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

       REGULAR SECOND APPEAL NO.1053/2011 C/W
         REGULAR SECOND APPEAL NO.1054/2011


IN RSA.NO.1053/2011:

BETWEEN:

A SUDHIR PRASAD SHETTY,
S/O LATE BABU SHETTY,
AGED ABOUT 61 YEARS,
R/AT ANUGRAHA BEJAI,
MANGALORE-575 004.
                                   ...   APPELLANT

(BY SRI SANATH KUMAR SHETTY K., ADVOCATE)

AND:

1.     THE CORPORATION OF CITY
       OF MANGALORE,
       REPRESENTED BY ITS
       COMMISSIONER, LALBAGH
       MANGALORE-575 003.

2.     THE MANGALORE URBAN
       DEVELOPMENT AUTHORITY
       REPRESENTED BY ITS
       COMMISSIONER, KODIABAIL,
       MANGALORE-575 003.
                                 2


     3.     C H ABOOBAKKAR
            SINCE DEAD BY HIS LRS

          3A.   MR. U. MOHAMMED ALI
                S/O LATE UHAMABBA,
                AGED ABOUT 58 YEARS

          3B.   MRS. NASIRA ALI
                W/O. U. MOHAMMED ALI,
                AGED ABOUT 48 YEARS

          3C.   MRS. SHARIQ ALI AHMED
                S/O. U. MOHAMMED ALI
                AGED ABOUT 20 YEARS

4.        K. MOHAMMED ALI
          S/O. KUNI MOHIDDIN KUTTY,
          ADULT,
          BADKANJABALLI,
          CHEMMNADVILLAGE,
          KASARGOD TALUK,
          KERALA STATE.

5.        ZAINABI,
          D/O K MOHAMMED ALI,
          BADKANJABALLI,
          CHEMMNAD VILLAGE,
          KASARGOD TALUK,
          KERALA STATE                  ... RESPONDENTS

(BY SRI GIRISH D.V., ADV. FOR SRI VASANTHA A.K.,
ADVOCATE FOR R1; SRI M. VIJAY KRISHNA BHAT, ADV.
FOR R4 & R3(A-C); R2 SERVED; NOTICE TO R5 IS
DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SEC.100 AND RULE 1
OF THE ORDER XLII OF CPC., AGAINST THE JUDGMENT
AND    DECREE    DATED    18.11.2010  PASSED    IN
                            3


R.A.NO.124/2004 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
AND    DECREE    DATED   30.09.1997   PASSED    IN
O.S.NO.408/1994 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.), MANGALORE.

IN RSA.NO.1054/2011:

BETWEEN:

A SUDHIR PRASAD SHETTY,
S/O LATE BABU SHETTY,
AGED ABOUT 61 YEARS,
R/AT ANUGRAHA BEJAI,
MANGALORE-575 004.                   ...   APPELLANT

(BY SRI SANATH KUMAR SHETTY K., ADVOCATE)

AND:

1.     C H ABOOBAKKAR
       SINCE DEAD BY HIS LRS

       1A.   MR. U. MOHAMMED ALI
             S/O LATE U. HAMMABBA,
             AGED ABOUT 58 YEARS

       1B.   MRS. NASIRA ALI
             W/O. U. MOHAMMED ALI,
             AGED ABOUT 48 YEARS

       1C.   MRS. SHARIQ ALI AHMED
             S/O. U. MOHAMMED ALI
             AGED ABOUT 20 YEARS

2.     K. MOHAMMNED ALI
       S/O. KUNI MOHIDDIN KUTTY,
                           4


     ADULT,
     BADKANJABALLI CHEMMNAD VILLAGE,
     KASARGOD TALUK,
     KERALA STATE.

3.   ZAINABI,
     D/O K MOHAMMED ALI,
     BADKANJABALLI CHEMMNAD VILLAGE,
     KASARGOD TALUK,
     KERALA STATE

4.   THE CORPORATION OF CITY
     OF MANGALORE,
     REPRESENTED BY ITS
     COMMISSIONER, LALBAGH
     MANGALORE-575 003.
                               ... RESPONDENTS

(BY SRI M. VIJAY KRISHNA BHAT, ADV. FOR R1(A-C); R2
& R4 SERVED; NOTICE TO R3 IS DISPENSED WITH)


     THIS APPEAL IS FILED UNDER SEC.100 AND RULE 1
OF THE ORDER XLII OF CPC., AGAINST THE JUDGMENT
AND    DECREE    DATED    18.11.2010  PASSED    IN
R.A.NO.249/2004 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
AND    DECREE    DATED    30.09.1997  PASSED    IN
O.S.NO.841/1993 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.), MANGALORE.


     THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

This Regular Second Appeal is filed by the

plaintiff-appellant against the judgment and decree

dated 18.11.2010 passed in Regular Appeal

Nos.124/2004 and 249/2004 on the file of Principal

District Judge, Dakshina Kannada, Mangalore

(hereinafter referred to as the 'First Appellate Court'),

in and by which, the first appellate court while

dismissing the appeal filed by the plaintiff, confirmed

the judgment and decree dated 30.09.1997 passed in

O.S.Nos.408/1994 and 841/1993 on the file of

Principal Civil Judge (Jn.Dn.), Mangalore (hereinafter

referred to as the 'Trial Court').

2. Parties are hereinafter referred to as per their

original rankings before the trial court.

3. The appellant-plaintiff has filed suit in

O.S.No.408/1994 seeking relief of declaration that the

licence and sanctioned plan that has been issued by

the Defendant No.1 dated 16.04.1993 is opposed to

the provisions of Karnataka Municipal Corporation Act,

1976, the Zonal regulations, O.D.P and C.D.P and for

a mandatory injunction directing the first defendant to

cancel/revoke the said licence and sanctioned plan

and also for a permanent injunction restraining the

defendant Nos. 3 to 5 from constructing the first floor

above the existing ground floor on the strength of the

said licence and sanctioned plan. The plaintiff had

earlier filed a suit in O.S.No.841/1993 seeking relief of

a permanent injunction restraining the defendants

from putting up additional construction.

4. It is the case of the plaintiff that he is the

owner of the suit 'A' schedule property having

purchased the same under a registered deed of sale

dated 31.05.1979 and that he had constructed a

residential house on the said property and was

residing therein with his family. That the defendants 3

to 5 are in possession of immovable property

measuring about 5 cents adjacent to schedule 'A'

property on its southern side and it is at about 12 feet

in lower level than that of the schedule 'A' property.

That the defendants 3 to 5 had constructed a

commercial building comprising of ground floor

without valid license from the City Corporation. That

the roof slab level of said building was equivalent to

the ground level of the schedule 'A' property. That

building was constructed without leaving any set back

as required under the law. That the northern side of

the building almost touched the lower foundation of

schedule 'A' property. The same was in violation of the

building plan. That the defendant Nos.3 to 5 had

obtained building licence to erect additional floor on

the existing building from the defendant No.1 which

the plaintiff learnt only when the defendants 3 to 5

produced the same in the Court at the time of hearing

of application for temporary injunction. On enquiry the

plaintiff learnt that defendants 3 to 5 had even

obtained commencement certificate for construction of

a non-residential building while the licence obtained

from the defendant No.1 was for residential purpose.

Therefore, it was alleged that the defendant Nos.3 to

5 had obtained the licence by playing fraud and

misrepresentation. That defendant No.1 could not

have granted the licence to the defendants to

construct on the existing building as the same was

opposed to building rules and provisions of the

Karnataka Municipal Corporation Act, 1976. As

defendants 3 to 5 were trying to put up the additional

floor in the said building obtained through the

fraudulent method close to the southern boundaries of

the schedule 'A' property, the same was blocking the

light and air to the residential house of the plaintiff

especially to the kitchen which faces southwest

direction affecting the privacy of the plaintiff and his

family members constraining the plaintiff to approach

the Court by filing above said suits and seeking reliefs

as stated above.

5. Defendants, in written statement denying

the plaint averments further contended that Court has

no jurisdiction to entertain the suit as the plaintiff had

to exhaust the remedies available under the

Karnataka Municipal Corporation Act. The allegation of

fraud and misrepresentation in obtaining the plan has

been denied. The allegation of violation of right to free

light and air and right of privacy as contended in the

plaint is also denied. It is further contended that

defendants 3 to 5 had obtained valid license to build

first floor and said construction is being made as per

sanctioned plan by providing sufficient set backs.

Hence, sought for dismissal of the suit.

6. The Trial Court framed the following issues in

both suits.

Issues in O.S.No.408/1994

(1) Whether the plaintiff proves that the license and sanctioned plan issued by the first respondent are opposed to the provisions of Karnataka Municipal Corporation Act, Zonal regulations, O.D.P and C.D.P as contended?

(2) Whether the plaintiff is entitled to the relief of declaration, mandatory injunction and permanent injunction as prayed?

(3) What decree or order?

Issues framed in O.S.No.841/1993

(1) Whether the plaintiff proves that if the first floor were to be put up so close to the

southern boundary of 'A' schedule property by the defendants 1 and 2, the same will block the light and air to the residential house of the plaintiff?

(2) Whether the plaintiff proves that the defendants attempted to put up the first floor to the existing building, without valid license?

(3) Whether this court has no jurisdiction to entertain this suit as contended?

(4) What decree or order?

6. By its judgment and decree dated

30.09.1997 the trial Court dismissed both the suits in

O.S.Nos.841/1993 and 403/1994. Aggrieved by the

same, the plaintiff-appellant filed the Regular Appeal

Nos.124/2004 and 249/2004 before the First Appellate

Court. Considering the grounds raised in the appeals,

the First Appellate Court framed the following points

for consideration.

(1) Whether the appellants prove that the licence and sanction plan issued by defendant No.1 in Ref.No.E4/BA/174/92-93 dated 16.04.1993 Ka.ni.pa.aa./676/92-93 is illegal as it is opposed to the provisions of Karnataka Municipal Corporation Act, zonal regulations, ODP and CDP as alleged? <

(2) Whether the plaintiff proves that the construction of first floor and upper floors to existing ground floor by the defendants 3 to 5 on the strength of the above license is illegal and unauthorized and deviated from the original purpose for which it was granted?

(3) Whether the plaintiff proves that he has acquired easementary rights of light and air through the property of the defendants? (4) If so, whether the plaintiff proves that the proposed putting up of additional floors to existing ground floor affects his easementary rights of light and air?

(5) Whether the appellant proves that the impugned judgment and decree of the trial

court is illegal, contrary to the facts and probabilities of the case and as such they are liable to be set aside?

(6) What order?

and having appreciated the material evidence

produced therein, the First Appellate Court dismissed

the appeals. Aggrieved by the same, the appellant -

plaintiff is before this Court.

7. Sri. Sanath Kumar, learned counsel

appearing for the appellant-plaintiff reiterating the

grounds urged in the memorandum of appeal

submitted that:

a) The Courts below grossly erred in holding that

licence and sanctioned plan issued in favour of the

defendant Nos.3 to 5 was perfectly valid and in

accordance with provisions of Karnataka Municipal City

Corporation Act, Zonal Regulations, O.D.P and C.D.P.

That the Courts below failed to appreciate that the

licence sought to be challenged, granted in favour of

defendant Nos.3 to 5 was in respect of first floor and

even as per the case of the appellant the ground floor

was already constructed even prior to the respondents

purchasing the property. That the respondents had

failed to substantiate that they had obtained licence

for construction of ground floor and in the absence of

production of any material evidence with regard to

validity or otherwise in constructing the ground floor,

he submits that, the Courts below were in error in

presuming the construction of ground floor was in

accordance with law.

b) He further submits that Courts below have

not appreciated the pleadings and material evidence

produced by the appellant/plaintiff to the effect that

respondent Nos.3 to 5 had obtained commencement

certificate as per Ex.P.4 by practicing fraud and

misrepresentation on the strength of the

commencement certificate dated 16.04.1993, which

was obtained for the purpose of commercial building

while the licence was for residential building.

Therefore, he submits that First Appellate Court and

Trial Court grossly erred in not appreciating this

aspect of the matter which render the entire

construction is illegal.

c) He further submits that available land area

was about 5 cents and the construction was made in

excess of the permissible limit. Thereby defendants

had violated the building regulations.

d) That in view of the violations of building

regulations without leaving set backs the same has

affected the right to light as well as privacy of the

plaintiff requiring the relief of a mandatory injunction

for removal of the illegal construction.

e) Thus, he submits that substantial question

of law with regard to the validity of the licence and

sanctioned plan arises in the appeal requiring

consideration.

8. On the other hand, Sri.Girish.D.V, learned

counsel appearing for defendant No.1/respondent

No.1 and Sri.M.Vijay Krishna Bhat, learned counsel

appearing for defendant No.4/respondent No.4/3(a)

to 3(c) submit that issue with regard to the validity or

otherwise of sanctioned plan needs to be adjudicated

and dealt with in accordance with the provisions of the

Karnataka Municipal Corporation Act. Referring to

observation made by the First Appellate Court at

paragraph 52 of its Judgment to the effect that it is a

duty of the authorities to ensure compliance with the

sanctioned plan, it is submitted there is no room for

adjudication of any issue regarding the validity of

issuance of sanctioned plan and licence by the civil

Court in the matter. Thus it is submitted that no

substantial question of law arise in the matter for

consideration.

9. On the thoughtful consideration of the

submissions made by the learned counsel for the

parties and on perusal of records it is seen that the

only grievance of the appellant-plaintiff is with regard

to the construction of additional floor by the

defendants over the existing ground floor premises on

the property situated on the southern side of the

property belonging to the plaintiff. The defendants

have apparently obtained sanctioned plan, licence and

commencement certificate from defendant No.1

authority for construction of additional building over

the ground floor. Needless to mention that should

there be any violation of sanctioned plan and licence

by the Defendants 3 to 5 with regard to the process of

construction and violation of any building bye-laws, it

is the bounden duty of the defendant No.1 to ensure

compliance with provisions of relevant building laws

and to initiate action against Defendant Nos.3 to 5 in

accordance with law as provided thereunder. Since the

appellant -plaintiff except raising the issue with regard

to validity or otherwise of issuance of licence,

sanctioned plan and building plan, has not proved or

established violation of his other rights as rightly

appreciated by Trial Court and First Appellate Court

and also in view of the fact that First Appellate Court

has taken into consideration the duty and obligation of

the Defendant No.1 in ensuring the compliance of

sanctioned plan and building bye-law and to initiate

action for violation of if any, no substantial question of

law is involved in this matter requiring consideration.

Hence, appeals are dismissed.

Sd/-

JUDGE

RU/bnv