High Court dismissed two appeals challenging a decree for demolition of illegal construction and possession in a lease dispute, holding no prior municipal notice was needed for injunction and approving lower courts' findings.
Both appeals dismissed; findings of lower courts to retain; construction to be demolished.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
: 1 :
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 03RD DAY OF FEBRUARY, 2017
BEFORE
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. Nos. 2144/2005 C/W 2003/2005 (INJ)
IN R.S.A. No. 2144/2005
BETWEEN:
THE TOWN MUNICIPAL COUNCIL, CHIKKODI, TQ. CHIKKODI DIST: BELGAUM REPRESENTED BY ITS CHIEF OFFICER. PIN-591201. ... APPELLANT
(BY SRI. SHIVARAJ P. MUDHOL, ADV.)
AND
(BY SRI. RAVI S. BALIKAI, ADV. FOR R1. BY SRI. L. RAJU ADV. FOR R2. (ABSENT).)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DT.19.8.2005 PASSED IN R.A.NO.71/96 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
: 2 :
CHIKODI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DT.18.4.1996 PASSED IN O.S.NO.199/82 ON THE FILE OF THE PRL. MUNSIFF AND JMFC, CHIKODI.
IN RSA NO. 2003/2005
BETWEEN
SHRI. SHATHRUGHNA S/O BHIMRAO KARALE AGED 46 YRS, OCC KEROSENE DEALER R/OF INDIRANAGAR CHIKKODI TQ CHIKKODI DIST BELGAUM ... APPELLANT
(BY SRI.RAMESH B. ANEPPANAVAR, ADV. FOR APPLT. (ABSENT).)
AND
BELGAUM, TQ: DISTRICT: BELGAUM.
(BY SRI. RAVI S. BALEKAI, ADV. FOR R1. BY SRI. SHIVARAJ P. MUDHOL ADV. FOR R2.
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DT.19.8.2005 PASSED IN R.A.NO.58/96 ON THE FILE OF THE CIVIL JUDGE (SR.DN), CHIKODI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DT.18.4.1996 PASSED IN O.S.NO.199/82 ON THE FILE OF THE PRL. MUNSIFF AND JMFC, CHIKODI.
: 3 :
THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.2144/2005 was admitted on 6/12/2007 on
the following two substantial questions of law:
: 4 :
under Section 5 of the Limitation Act, for condoning the delay in making an application under Section 151 of CPC. But, the counsel for the appellant in this appeal is absent today. Anyway as disposal of RSA 2144/2005 results in disposal of RSA 2003/2005 also, delay in making application under Section 151 CPC for recalling the order dated 27/5/2013 is formally condoned and preemptory order recalled.
The plaintiff claims to be the lessee of suit property i.e., plot No.28, Gandhi Market, Chikodi, leased by the second defendant, i.e. Town Municipality, Chikodi. Measurement of the said plot is East-West 30ft. and NorthSouth 30ft. Suit property was leased to the plaintiff by the Municipality, by passing a resolution on 30/1/1979, by subjecting him to certain terms and conditions. The plaintiff was put in actual possession of the suit property. He was also depositing the yearly rent of Rs.200/-. Period of lease was 5 years.
: 5 :
: 6 :
way concerned with the plaintiff’s property. The second defendant Municipality in its written statement admitted that the suit property was leased to the plaintiff by resolution dated 30/1/1979, but, denied the plaintiff’s case that he was put in actual possession. According to the second defendant, the period of lease was only two years. Therefore, lease was not extended beyond 25/2/1981. It is another contention taken by the defendant No.2 that since it was necessary to amalgamate two plots No.28 and 29, they were amalgamated to enable the first defendant to run a kerosene depot of the Indian Oil Corporation. It is further contended that the suit is not maintainable in view of the provisions of Karnataka Municipalities Act.
: 7 :
the construction made by him and to hand over the possession of the suit property to the plaintiff.
: 8 :
the second defendant before the institution of the suit. It is true that according to Section 284(1) of the Karnataka Municipalities Act, prior notice of 60 days has to be given to the Municipality. But, according to sub section (2), if the only relief claimed in the suit is injunction, and if the object of the suit would be defeated by giving a notice, then there is no need to issue notice. Now in this case, as could be made out from the plaint, suit was brought for bare injunction in the initial stage. The second defendant is just a formal party. No relief is claimed against the second defendant. Even after amending the plaint, reliefs of mandatory injunction and possession were sought against the 1st defendant only. Therefore, in these circumstances, there was no need for the plaintiff to have issued a notice to the Municipality-second defendant according to section 284 of the Act. Therefore, the contention of the second defendant that the suit is bad without issuance of prior notice cannot be accepted. Accordingly, this question of law is answered in the negative.
: 9 :
case of the second defendant. If the plaintiff says that lease period was 5 years, but according to the second defendant, it was 2 years. Even if the lease period is taken as 2 years, the second defendant, if it is really aggrieved, should have placed cogent evidence before the Court to show that after expiry of 2 years, it evicted the plaintiff from the suit property according to due process of law. No such evidence is available.
: 10 :
demolished and possession handed over to the plaintiff. So, I do not find that these findings of both the courts should be interfered with and therefore, second substantial question of law is also answered in affirmative.
In view of the above reasons, it is to be concluded that these two appeals should fail. Accordingly, they are dismissed.
Sd/JUDGE
Vmb/Yan/Sd
2 issues framed by the court
Whether prior notice under Section 284 of the Karnataka Municipalities Act was required before instituting the suit for injunction.
Whether the courts below were justified in directing the defendant to demolish the construction and hand over possession of the suit property.
4 provisions across 3 enactments
The Town Municipal Council, Chikodi
Dr. Subhas S/o Neelakantappa Halabahavi
Sri. Shatrugna S/o Bhimarao Karale
Sreenivas Harish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
