Sri .M. Lalith Kumar Vs the Chief Commissioner

THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF CPC., 1908, PRAYING TO CALL FOR RECORDS IN O.S.NO.26425/2022 FROM THE HON'BLE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE (CCH-75) AND ALLOW THE FIRST APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 18.07.2023 PASSED BY THE HON'BLE LXXIV ADDITIONAL CITY CIVIL AND SESSION JUDGE, MAYO HALL UNIT, BANGALORE (CCH-75) IN O.S.NO.26425/2022 IN THE INTEREST OF JUSTICE AND EQUITY.

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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 MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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The present appeal is directed against the judgment

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and decree dated 18.07.2023 in O.S.No.26425/2022 on the file of the LXXIV Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (hereinafter referred to as 'the Trial Court', for short). By the judgment and decree, the Trial Court dismissed the suit of the plaintiffs seeking permanent injunction.

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HC-KAR

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.

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The brief facts of the case are as follows:

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Suit is one for permanent injunction restraining the defendant-BBMP from demolishing or damaging the residential building constructed over the suit schedule property. It is averred that the plaintiffs are the absolute owners in actual possession and enjoyment of the suit property, having purchased under a sale deed dated 23.06.2012. After securing the sanctioned plan from the defendant under the licence dated 31.12.2020, constructed a residential building in accordance with law. The BBMP officials attempted to interfere and demolish the structure, without notice. Hence, plaintiffs filed suit for permanent injunction against BBMP.

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The defendant appeared and filed its written statement inter alia contending that the suit is not

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HC-KAR

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maintainable. The defendant specifically asserted that the defendant had issued notice to the plaintiffs under Section 313 of the Bruhat Bangalore Mahanagara Palike Act, 2020 (‘BBMP Act’ for short). When no reply was received from the plaintiffs, the BBMP issued the provisional order under Sections 248(1) and 248(2) of the BBMP Act and a confirmation order under Section 248(3) of the BBMP Act were duly passed against the plaintiffs for unauthorized construction.

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The Trial Court, upon consideration of the oral and documentary evidence, held that the plaintiffs have failed to prove construction as per sanctioned plan. Further held that a permanent injunction against a statutory authority like BBMP is not maintainable and dismissed the suit.

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Learned counsel appearing for the appellants submits that the Trial Court erred in discarding Ex.P4, the sanctioned plan, which clearly authorized construction of the residential building. It is argued that the plaintiffs

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have placed on record Ex.P1 to P6, which established ownership and sanctioned plan. The defendant, despite contesting the suit, failed to lead any evidence or produce documents to rebut the case of the plaintiffs. Hence, in the absence of rebuttal evidence, the Trial Court ought to have decreed the suit for permanent injunction, since the plaintiffs had demonstrated lawful possession and ongoing construction as per sanctioned plan.

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Per contra , the learned counsel for the respondent-BBMP submits that suit was not maintainable in view of the statutory mechanisms under the BBMP Act. The BBMP has issued a notice dated 24.06.2022 under Section 313 of the BBMP Act, followed by provisional order under Sections 248(1) and (2) on 18.08.2022 and a confirmation order under Section 248(3) on 02.09.2022. By way of a memo, learned counsel for the respondent produces the notices issued to the plaintiffs. It is submitted that the defendant has specifically taken this ground in the written statement, the notices were not

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HC-KAR

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produced before the Trial Court. The plaintiffs, instead of availing the appellate remedy under the statute, chose to file a civil suit for injunction, which was impermissible. It is further contended that once the competent authority initiates proceedings under the BBMP Act, the Civil Court cannot restrain statutory functions by granting injunction.

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Having heard the learned counsel appearing for the parties, the point that arises for consideration is:

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"Whether the judgment and decree of the Trial Court warrants any interference in the present facts and circumstances of this case?"

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The Trial Court framed Issue No.2 which reads as

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follows:

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"2. Whether the defendant proves that in view of he has initiated proceedings against plaintiffs u/s 248 (1)(2) & (3) of BBMP Act, the instant suit is not maintainable ?"

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The Trial Court answered the said issue in the negative, since no documents were produced. However,

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HC-KAR

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from the records and notices now placed, it is evident that

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BBMP had issued notices culminating in a confirmation order under Section 248(3) of the BBMP Act. The present appeal being one under Section 96 CPC, this Court, as a First Appellate Court, is empowered to re-appreciate both oral and documentary evidence and to arrive at its own conclusion. It is trite that the Appellate Court is not bound to adopt the reasoning of the Trial Court, and can substitute its own reasons for either affirming or reversing the judgment. Even if the decree is to be affirmed, this Court can rest its decisions on independent reasoning based on the material on record. The law is well settled that when a statutory authority is empowered to act under statutory obligation, Courts cannot grant an injunction to strifle such statutory actions unless a clear lack of jurisdiction or mala fide is demonstrated. Thus, whenever the powers are exercised under Sections 248(1) and (2) of the BBMP Act, the Civil Court would not have jurisdiction to exercise in such matters. The co-ordinate bench of this

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HC-KAR

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Court in Kavita Jain and Another Vs. The

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Commissioner, BBMP And Others¹ (Kavita Jain) has issued the following directions:

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"iv. Respondent No.1 is directed to instruct all officers of the corporation that it is the Zonal Commissioner alone who can exercise powers under Section 248 and no other officer could exercise powers thereunder.

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v. The Registrar (General) is directed to forward a copy of this order to all District Judges Exercising jurisdiction in the city of Bangalore, informing them that whenever the powers are exercised under Section 248 (1) and (2) of the BBMP Act, the said Court would not have jurisdiction to exercise in such matter, since, it is only the writ court which can exercise jurisdiction in those matters."

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Pursuant to which circular has been issued in

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R.J. No.2/2024 dated 11.01.2024 as under:

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"Hence, as directed, the District Judges exercising jurisdiction in the City of Bengaluru are directed to note that whenever powers are exercised under Section 248(1) and (2) of the

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1 W.P.No.9934/2023

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HC-KAR

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BBMP Act, the said Courts would not have jurisdiction to exercise in such matters, since it is only the Writ Court which can exercise jurisdiction in those matters. All the concerned Courts in Bengaluru shall follow the above directions scrupulously."

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Thus the Trial Court was justified in dismissing

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the suit, the appellant's remedy lies in invoking the appellate mechanism under the BBMP Act and the point for consideration is answered accordingly and this court pass the following:

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ORDER

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i. The Regular First Appeal is hereby

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dismissed .

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ii. The judgment and decree dated 18.07.2023 passed in O.S.No.26425/2022 on the file of the Court of the LXXIV Addl. City Civil and Sessions Judge, Mayo hall Unit, Bengaluru stands confirmed .

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