H.T. Janakamma vs The Commissioner Bangalore Development Authority and Others

B.S. Patil, J—This appeal is by the plaintiff in O.S. No. 7578/2009 challenging the order dated 30.09.2013 passed by the Court below vacating the ex parte order of temporary injunction granted and dismissing the application filed under Order XXXIX Rules 1 & 2 CPC by the plaintiff.

The suit has been filed for a judgment and decree to restrain defendant No. 2 - Bruhat Bengaluru Mahanagara Palike (BBMP) from demolishing the apartment known as Terrace Gardens'' described in ''C schedule stated to have been constructed in ''A'' schedule property. It is the case of the plaintiff that she has been residing in ''C schedule; construction of the apartment building had been completed in the year 1992 and 1st defendant - Bengaluru Development Authority issued occupancy certificates on 24.09.1992 and 14.09.1993; though the apartment building was constructed in accordance with the sanctioned plan, building bye-laws and the rules in force way back in the year 1992-93, officials of defendant No. 2 proposed to take action for expansion of the drain -rajakaluve; as the plaintiff apprehended threat of dispossession and demolition of the apartment constructed several years ago, she had approached this Court by filing writ petitions; writ petitions were dismissed observing that plaintiff herein could institute suit before the Civil Court. Accordingly, after issuing legal notice to the defendants, plaintiff has instituted the suit seeking permanent injunction.

Defendants resisted the suit contending inter alia that rajakaluve/storm water drain was in existence in the survey number belonging to the Terrace Gardens and suppressing material fact regarding existence of said rajakaluve, developers had obtained permission to construct residential apartments on rajakaluve. They also contended that as per the Village Map and Survey Sketch prepared by the authority, existence of rajakaluve was apparent and clear. Hence, they sought for dismissal of the suit.

Along with the suit, an application was filed for temporary injunction. Plaintiff asserted that the apartments constructed way back in the year 1992 were required to be protected from the alleged illegal and threatened action of demolition by defendant No. 2. The said application was resisted. The Trial Court has dismissed the application. It has held that the Village Map and the Survey Sketch as also the report of the Court Commissioner, appointed for the purpose of visiting the spot and measuring the property, disclosed that rajakaluve had been encroached and the width of rajakaluve had been reduced due to construction of the apartment and the compound wall. The Court below has therefore, held that free flow of rain water could not be blocked and that as an apprehension was expressed by defendant No. 2 - BBMP that in case of flood, the area in the vicinity might get damaged, no case has been made out for grant of temporary injunction.

Learned Senior Counsel appearing for the appellant strongly contends that rajakaluve has not been shown in the revised Master Plan for the year 2015 and the Court below was in serious error in proceeding only on the basis of the Village Map. He has placed reliance on the judgment of this Court in W.P. No. 44277/2007 & connected matter disposed of on 10.02.2012 to contend that in the absence of any rajakaluve, drain or pathway shown in the Master Plan, only on the basis of the Village Map or the Survey Sketch, the authorities could not have come to the conclusion that any portion of rajakaluve had been encroached while putting up construction that too way back in the year 1992. He has invited the attention of the Court to the construction of various provisions of the Karnataka Town and Country Planning Act in paragraphs 20 to 23 of the said judgment.

Prima facie, I find substance in the contention urged by the learned Senior Counsel appearing for the appellant. At this stage, it is not necessary to go into this question because before the Court below the revised Master Plan for the year 2015 was not produced and the parties did not have an opportunity to address their arguments with reference to the Master Plan which is now produced for the perusal of this court.

It is submitted by the counsel for the appellant that there is no danger of storm water entering into other nearby residential or other area as the Terrace Gardens'' have maintained the area and there is vacant land belonging to Terrace Gardens measuring 20'' X 30'' abutting the existing drain. The counsel for the respondents submits that in case of heavy rain, the nearby area is likely to be affected and therefore, encroachment has to be cleared.

Having heard the learned counsel for both parties, I find that question whether there was in existence rajakaluve measuring 10 meters in width is a matter that has to be decided after trial. As rightly contended by the appellant location of rajakaluve as shown in various public documents including the revised Master Plan has to be examined by the Court below. If, during the pendency of the suit, the apartment constructed way back in the year 1992 is demolished by the 2nd defendant, it will result in irreparable injury, which cannot be compensated. On the other hand, if there is any damage that is likely to be caused due to floods, since the plaintiff has stated that there is vacant area abutting the drain, it would be for the authorities to make use of the same to prevent the damage that may temporarily be caused on account of heavy rain. In fact, the appellant does not have any objection for the same. Therefore, ends of justice would be met, if both parties are directed to maintain status-quo.

In the result and for the foregoing, this appeal is disposed of modifying the order of the Court below directing both parties to maintain status-quo till the disposal of the suit. The Court below is directed to dispose of the suit as expeditiously as possible, at any rate, within a period of 1 1/2 year from the date of receipt of a copy of this judgment. Both parties shall co-operate in expeditious disposal of the suit. Observations made in the order under challenge and the order now passed by this Court are confined to the consideration of the interim injunction and shall not influence the final adjudication of the matter.