Sri. K M Rajendra Vs Bruhat Bengaluru Mahanagara Palike (Bbmp)

EMERALD HAVEN REALTY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT ISPAHANI CENTRE, 4^TH FLOOR DOOR NO.123 AND 124 NUNGAMBAKKAM HIGH ROAD CHENNAI - 600 034, TAMIL NADU REPRESENTED BY ITS CHIEF FINANCIAL OFFICER MR. P. VISHAL ANAND …RESPONDENTS

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(BY SMT. LAVANYA H.B, ADVOCATE FOR R1; SRI. UDAY HOLLA, SENIOR COUNSEL FOR SRI. GEORGE JOSEPH, ADVOCATE FOR C/R2)

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NC: 2025:KHC:24066 MFA No. 3101 of 2025

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HC-KAR

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 06.02.2025 PASSED ON IA NOS.1 AND 2 IN O.S.NO.636/2025 ON THE FILE OF THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-26, REJECTING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ALLOWING THE IA.NO. II FILED UNDER ORDER 39 RULE 4 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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This appeal is filed under Order XLIII Rule 1(r) of Code of Civil Procedure, 1908, (for short, "CPC") is filed by the appellant/plaintiff, being aggrieved and dissatisfied by the order dated 06.02.2025 passed by the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) in O.S.No.636/2025, whereby I.A.No. I filed by the appellant

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under Order XXXIX Rule 1 and 2 of CPC seeking temporary injunction was rejected, and I.A.No. II filed by the second respondent under Order XXXIX Rule 4 of CPC seeking vacation of the interim injunction was allowed.

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HC-KAR

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The facts of the case are that, the appellant is

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the owner and resident of the property situated adjacent to the suit schedule property. He claims to have been residing in the said premises for over 25 years. The suit property, according to him, is a part of a single contiguous monolithic boulder spanning several acres, upon which various residential and commercial structures including his residence are constructed. The second respondent is a Real Estate Development Company that purchased this suit schedule property under registered Sale Deed dated 23.11.2022. The second respondent initiated excavation activities on the said property with the intention of constructing a multi-storied residential complex. The excavation involved digging into the massive boulder rock to the depth of 40 feet, using heavy machinery and drilling equipment, causing substantial dust, noise and structural vibrations. According to the appellant, a pit of 10 feet had already been excavated as on the date of the filing of the suit.

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NC: 2025:KHC:24066 MFA No. 3101 of 2025

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HC-KAR

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The appellant specifically contends that, such

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deep excavation possess a serious risk to the structural integrity of his own property as well as to the entire boulder mass which supports the neighboring structures. It is alleged that, a pneumatic drilling has resulted in cracks and deterioration of the foundational rock, and that the noise levels exceed 100 decibels. The air, according to him, is laden with particulate matter and dust, making it impossible to reside peacefully. The appellant, who is a senior citizen with a cardiac history and migraines, claims to have suffered health complications due to the environmental and structural impact of the construction activities.

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The appellant further asserts that the construction is illegal, as it is being carried out without a sanctioned building plan, without permission from the Pollution Control Board, and in violation of the National Building Code of India (NBC), 2016. He states that upon enquiry, the BBMP issued endorsements on 19.10.2024

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HC-KAR

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and 22.07.2024 confirming that, no building plan had been sanctioned. Despite repeated representations to BBMP and other Authorities, no remedial action was taken. Aggrieved by this, the appellant filed a civil suit in O.S.No. 636/2025 seeking a mandatory injunction restraining further excavation and construction and also filed I.A.No.I seeking temporary injunction.

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The second respondent contested the suit and application by filing written objections. It is contended that all necessary approvals had been obtained, including a building license issued by BBMP on 10.09.2024, environmental clearance from the State Environment Impact Assessment Authority (SEIAA) dated 01.06.2023 and consent from the Karnataka State Pollution Control Board dated 13.06.2023.

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The second respondent also relied on the findings of a report submitted by the Faculty of Engineering, UVCE, pursuant to an order in W.P.No.

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NC: 2025:KHC:24066 MFA No. 3101 of 2025

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HC-KAR

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32088/2024 before this Court, which permitted excavation

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and construction to proceed under periodic supervision of the said Institution. The report according to the respondent, affirmed that the excavation was being conducted as per sound engineering practices.

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The learned trial Court, after considering these materials on record and appreciating the arguments of both the sides, dismissed the appellant's I.A.No. I and allowed I.A.No. II. The learned trial Court found that the appellant had not made out a prima facie case for grant of temporary injunction. It observed that while the sanction

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plan was not produced, the issuance of the building license by BBMP implied that proper sanction had been granted. It further held that Regulation 11.2 of the NBC requiring notice to neighbours prior to excavation is not mandatory in all circumstances. But only when the person undertaking excavation reasonably apprehends danger to adjacent properties. Since the UVCE report found no such danger, the trial Court refused to grant injunction.

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NC: 2025:KHC:24066 MFA No. 3101 of 2025

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HC-KAR

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The trial Court also declined to entertain arguments relating to the Mines and Minerals (Development and Regulation) Act, 1957 and the Karnataka Minor Mineral Concession Rules, noting that such claims were neither pleaded in the plaint nor supported by any prior representation to the Competent Authority. Similarly, the alleged nuisance of air and noise pollution was held to be a matter falling within the jurisdiction of the Karnataka State Pollution Control Board, and not for judicial assessment in a civil suit.

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In this appeal, the learned counsel for the appellant reiterated the factual contentions made before the trial Court and further emphasized that, there is a violation of the statutory norms by the respondents. It was argued that, the trial Court failed to draw adverse inference from the non-production of the Sanction Act and improperly relied on reports prepared behind the appellant's back. The learned counsel for the appellant submitted that, the excavation affects the appellant's civil

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NC: 2025:KHC:24066 MFA No. 3101 of 2025

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HC-KAR

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rights and that the trial Court erred in treating these as administrative issues rather than legal norms.

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Per contra , Sri Uday Holla, the learned Senior

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counsel for the respondents supported the findings of the trial Court and contended that, there is no proof of any illegal construction activities. The learned Senior counsel relied upon the judgment of this Court in W.P.No. 32088/2024, which had permitted the very same excavation activity to continue under technical supervision. It was further submitted that the appellant's claims are speculative and unsupported by credible technical or legal evidence.

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Having heard the arguments of both the sides and on the perusal of the impugned order, pleadings and annexure, I am of the view that, the trial Court has correctly appreciated the facts and law. The appellant has not established any conclusive prove that the excavation is inherently dangerous or illegal. The presence of licenses

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HC-KAR

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and approvals from BBMP, SEIAA, and the Pollution Control Board rebuts the claim that, the construction is unauthorized. The contention that the NBC was violated is not sustainable, as Regulation No.11.2 requires notice only where safety of neighbouring property is likely to be affected, which was not demonstrated in this case.

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The appellants' reliance on environmental and mining law, while relevant, cannot be adjudicated at this interlocutory stage, without pleadings and appropriate evidence. As rightly held by the trial Court any grievances in this regards may be raised before the concerned statutory authorities. Likewise, the claim of nuisance from noise or air pollution cannot be judicially quantified without technical assessment by pollution control bodies.

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It is a settled principle of law that, interim injunction cannot be granted merely on apprehensions, unless supported by strong prima facie case and demonstrable irreparable harm. The balance of

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HC-KAR

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convenience also tilts in favour of the respondent, which has already invested substantial resources and stands to suffer economic loss if construction is halted. On the other hand, the appellant's claim of harm is not backed by convincing evidence. While passing the impugned order, the learned trial Court has categorically observed as under:

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"However, it is made clear that if the second defendant has violated/violates any of the legal requirements in carrying out the excavation work and construction, the plaintiff is at liberty to submit suitable representation to the concerned authorities including the Karnataka State Pollution Control Board or Department of Mines and Geology and pursue the matter in accordance with."

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There is a direction issued by the learned trial Court directing the appellant to make suitable representation to the concerned authorities including Karnataka State Pollution Control Board and Department of Mines and Geology, unless the appellant/plaintiff complies this direction, he cannot maintain the present

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NC: 2025:KHC:24066 MFA No. 3101 of 2025

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HC-KAR

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appeal. Therefore, I find no perversity, illegality or

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misapplication of the law in the reasoning adopted by the trial Court. There is no merit in this appeal and it is liable to be dismissed. However, the rights of the parties are

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kept open to be agitated before the trial Court in a fullfledged trial.

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Resultantly, I pass the following:

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ORDER

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(i) The appeal is dismissed .

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(ii) The order dated 06.02.2025 passed by the learned X Additional City Civil and Sessions Judge, Bangalore (CCH-26) in O.S.No.636/2025 is hereby affirmed.

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(iii) All the rights of the parties to the suit are kept open.

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(iii) Costs made easy.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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AM List No.: 1 Sl No.: 27

Sri. K M Rajendra v. Bruhat Bengaluru Mahanagara Palike (Bbmp)

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Sri. K M Rajendra v. Bruhat Bengaluru Mahanagara Palike (Bbmp)

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