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2013 DIGILAW 623 (KAR)

Bangalore Mahanagara Palike v. R. Siddananjappa

2013-06-03

K.N.KESHAVANARAYANA

body2013
JUDGMENT K.N. Keshavanarayana, J.—This appeal by the defendants in O.S. No. 6558/98 on the file of XXVII Additional City Civil Judge, Bangalore is directed against the judgment and decree dated 12.8.2009 passed therein decreeing the suit filed by the respondent-plaintiff seeking relief of permanent injunction. During the course of this judgment, for the sake of convenience, the parties herein would be referred with reference to their ranking in the court below. 2. The plaintiffs filed a suit seeking relief of permanent injunction restraining the defendant-Corporation and its functionaries from interfering with their peaceful possession and enjoyment of the suit schedule property, in any manner; for the invalidation of the provisional order dated 17.2.2008 as not relating to the suit schedule property and further to direct the defendants not to take any action against them in pursuance of the provisional order issued under Section 321 of the Karnataka Municipal Corporations Act, 1976. The subject matter of the property is a cinema theater constructed on property bearing Khata Nos. 382/49 and 383/50 situated in Koramangala Village, Begur Hobli, Bangalore South Taluk. 3. According to the plaintiffs, they obtained lease of the suit schedule property for construction of cinema theater from its owner and after obtaining necessary permission from the competent authority viz., the District Magistrate, cinema theater was constructed and subsequently pursuant to the licence, cinema is being screened in the said theater. They further stated that a neighbour by name Abaiah Reddy opposed the construction of the cinema theater and he managed to get the notice issued from the Bangalore Development Authority within whose jurisdiction lands were located and the said notice was challenged before this Court by filing writ petition and the said writ petition came to be allowed, which order was affirmed in the writ appeal and also by the Apex Court in SLP. Not satisfied with the same, BDA also filed a suit against the plaintiff, which subsequently came to be withdrawn. There were proceedings before the District Magistrate, wherein the allegation of the violation of the plan issued and that while constructing the theater plaintiffs have encroached on to the neighbouring land bearing No. 184/3, which, according to the BDA was also acquired. As directed by this Court in the writ petition an enquiry was held and ultimately the District Magistrate opined that there was no encroachment on to the BDA land. As directed by this Court in the writ petition an enquiry was held and ultimately the District Magistrate opined that there was no encroachment on to the BDA land. Subsequently, the area was transferred to the jurisdiction of the Corporation and thereafter the aforesaid Abaiah Reddy once again instigated the officials of the Corporation to issue notice and consequently, the defendants have issued notices under Section 321 of Karnataka Municipal Corporations Act, 1976 alleging encroachment on to the public property while constructing the cinema theater. Issuance of these notices, according to the plaintiffs necessitated them to file the suit. Therefore, they sought for relief as noted above. 4. The defendants on their appearance filed written statement justifying the issue of notice. The Trial Court framed issues, thereafter, the plaintiff led evidence and produced documentary evidence. On the other hand, the defendant neither led any oral evidence nor produced any documentary evidence. 5. The learned Trial Judge on hearing both the sides and on appreciation of both the oral and documentary evidence by the judgment under appeal decreed the suit and granted the relief of permanent injunction as sought for in the suit. Aggrieved by the said judgment and decree the defendants have presented this appeal. 6. I have heard both the sides. Perused the judgment under appeal and other materials made available. 7. Having heard the learned counsel for the appellant, I do not find any good ground to entertain this appeal, having regard to the long drawn litigation on the earlier occasions. 8. Admittedly, the plaintiffs constructed cinema theater on the suit property in the year 1988-89, at which point of time the land was within the jurisdiction of the Bangalore Development Authority. Subsequently, the area was transferred to the jurisdiction of the defendant-Corporation. There is no dispute that for the purpose of construction of the cinema theater necessary permissions have obtained from the competent authority viz., District Magistrate etc., and pursuant to such permission, theater was constructed. 9. As observed by the learned Trial Judge, the BDA issued notices to the plaintiffs alleging that while constructing cinema theater, plaintiffs have encroached on to the neighbouring land bearing Sy. No. 184/3, which is acquired by the BDA. The notice issued by the BDA was assailed before this Court in a writ petition, in which this Court directed the District Magistrate to consider the objections raised by the BDA. No. 184/3, which is acquired by the BDA. The notice issued by the BDA was assailed before this Court in a writ petition, in which this Court directed the District Magistrate to consider the objections raised by the BDA. As could be seen from Ex. P16 a copy of which is made available for perusal, the District Magistrate during the enquiry issued notice to the Commissioner, BDA to furnish its reply. As could be seen from Ex. P16 though at the initial stage BDA was asserting that there was encroachment on to the land bearing Sy. No. 184/3, subsequently, when the notices were issued to the Commissioner of BDA, a reply was sent to District Magistrate stating that there was no encroachment on to the land bearing Sy. Nos. 184/3 and that BDA has no objection for issue of licence. In that view of the matter, the District Magistrate by order dated 25.2.1991 over-ruled the objections raised by BDA and directed issue of licence under Rule 111-Q of the Karnataka Cinema (Regulation) Rules, 1971. It is also noticed by the learned Trial Judge that BDA had filed a Civil Suit against the plaintiffs in respect of the very subject matter and however, subsequently withdrew the said suit. The defendant-Corporation being the successor in interest of BDA in respect of this area, as rightly held by the learned Trial Judge, cannot re-agitate the matter just because the area was subsequently came within the jurisdiction of the defendant-Corporation. The Trial Court referring to several decisions of this Court has held that the Karnataka Cinema Regulations (Act 1964) has overriding effect on the Karnataka Town and Country Planning Act as well as Karnataka Municipal Corporations Act, 1976 as such the Corporation has no jurisdiction to issue such notices in respect of Cinema Theater. It is also noticed that the defendant-Corporation has not led any evidence to justify the action taken by it. The oral and documentary evidence produced by the plaintiff clearly indicates that the predecessor in interest of the defendant having issued similar notices and having failed in their attempt, the defendant-Corporation could not have initiated similar action against the plaintiff at the behest of some third parties. In this view of the matter, the learned Trial Judge, in my considered opinion has not committed any error in decreeing the suit of the plaintiff and granting permanent injunction. In this view of the matter, the learned Trial Judge, in my considered opinion has not committed any error in decreeing the suit of the plaintiff and granting permanent injunction. The judgment under appeal does not suffer from any illegality or irregularity so as to warrant interference by this Court. In this view of the matter, appeal stands dismissed.