Dismissed

A Sudhir Prasad Shetty v. the Corporation of City

Karnataka HC4 Jan 2022RSA/1053/2011

Case brief

AI extract

What is this about?

This judgment dismisses the regular second appeals filed by the appellant-plaintiff against the decisions of the First Appellate Court and Trial Court. The Court held that no substantial question of law arises as the issue of sanction plan validity belongs to the competent authority. The appellant failed to establish violation of rights or building bye-laws.

What did the court decide?

The appeals were dismissed; the judgment and decree of the First Appellate Court and the Trial Court were confirmed.

A Sudhir Prasad Shetty Vs the Corporation of City — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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

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IN RSA.NO.1053/2011:

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BETWEEN:

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

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… APPELLANT

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(BY SRI SANATH KUMAR SHETTY K., ADVOCATE)

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AND:

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

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

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C H ABOOBAKKAR SINCE DEAD BY HIS LRS

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

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

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

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

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

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(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)

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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

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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.

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IN RSA.NO.1054/2011:

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BETWEEN:

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

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(BY SRI SANATH KUMAR SHETTY K., ADVOCATE)

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AND:

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C H ABOOBAKKAR SINCE DEAD BY HIS LRS

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

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

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

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

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

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

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

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… RESPONDENTS

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

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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.

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

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JUDGMENT

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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’).

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Parties are hereinafter referred to as per their original rankings before the trial court.

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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.

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It is the case of the plaintiff that he is the owner of the suit 'A' schedule property having

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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

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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

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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.

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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

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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.

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The Trial Court framed the following issues in

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both suits.

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Issues in O.S.No.408/1994

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(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?

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

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(3) What decree or order?

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

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

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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?

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

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

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(4) What decree or order?

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By its judgment and decree dated

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30.09.1997 the trial Court dismissed both the suits in O.S.Nos.841/1993 and 403/1994. Aggrieved by the

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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.

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(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?

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(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?

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(3) Whether the plaintiff proves that he has acquired easementary rights of light and air through the property of the defendants?

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(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?

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

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

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(6) What order?

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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.

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Sri. Sanath Kumar, learned counsel appearing for the appellant-plaintiff reiterating the grounds urged in the memorandum of appeal submitted that:

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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.

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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.

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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

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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.

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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.

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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

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plaintiff requiring the relief of a mandatory injunction for removal of the illegal construction.

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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.

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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

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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.

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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

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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

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law is involved in this matter requiring consideration. Hence, appeals are dismissed.

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Sd/JUDGE

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RU/bnv

A Sudhir Prasad Shetty v. the Corporation of City

Case brief

What is this about?

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A Sudhir Prasad Shetty v. the Corporation of City

Case brief

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