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Judgment
B. Veerappa, J.—These two regular second appeals filed by the 1st defendant - Corporation against the judgment and decree dated 5.10.2010 made in R.A. Nos. 112 & 113/2003 on the file of the III Addl. Senior Civil Judge, Hubli, confirming the judgment and decree dated 18.2.2003 made in O.S. Nos. 455 & 456/2001 on the file of the I Addl. Civil Judge (Junior Division) Hubli, decreeing the suit of the plaintiffs -respondents declaring that the permission granted by the 1st defendant - appellant herein under its HDC/EEZ/541/BLD/2001 in respect of CTS No. 3609D and permission bearing No. HDC/EE/Z/540/BLD/2001 in respect of CTS No. 3603B Vidyanagar, Hubli, dated 16.05.2001 granted in favour of the plaintiffs in both the suits is legal and valid and also restrained that the defendant No. 1 or anybody claiming through them in both the suits from causing any obstruction in the construction work of plaintiffs as per the approved plan and permission referred to above in the suit property.
For the sake of convenience the parties herein are referred to as per their ranking before the Trial Court.
Respondents filed two suits in O.S. No. 455 & 456/2001 against the appellant-defendant contending that the suit property in O.S. No. 455/2001 is a open site bearing CTS No. 3609D measuring 375 5/9 Sq.Yards situated at opposite B.V. Bhoomaraddi Engineering College, P.B Road, Vidyanagar, Hubli and in O.S. No. 456/2001 is an open site bearing CTS No. 3603B measuring 135 4/9 Sq.Yards situated at opposite to B.V. Bhoomaraddi Engineering College, P.B Road, Vidyanagar, Hubli, and the said properties are adjacent to each other. The relief claimed by the plaintiffs against the defendants is one and the same. Therefore, the Trial Court has clubbed both the matters and common evidence was recorded in O.S. No. 455/2001.
It is the further case of the plaintiffs that they are permanent residents of Hubli having their own sites which are suit properties. In order to construct building on suit sites, the plaintiffs have obtained permission from Hubli Dharwad Municipal Corporation (for short ''the HDMC) Hubli, along with the blue print map, which is prepared as per the regulations governed under the Karnataka Municipal Corporation Act, 1976, (Hereinafter referred to as ''the Act'' for short) and the blue print map in respect of the proposed construction is already approved by the Hubli Dharwad Development Authority. It is the further case of the plaintiffs that when the plaintiffs started construction work on suit sites which are kept for residential purposes, the 1st defendant issued notice suspending the permission granted by the HDMC for construction of building on the ground that the suit property bearing CTS No. 3609D should be kept vacant land adjacent to the Puna Bangalore National Highway No. 4 and the CTS No. 3603B is adjacent to the suit property mentioned in O.S. No. 455/2001 and defendants started obstruction to the construction work taken on suit properties on the ground the plaintiffs have to leave 42 meters vacant portion from the central point of National Highway No. 4 up to building line. Therefore, the plaintiffs were constrained to file the suit.
The appellant-defendant - Corporation filed written statement and denied the allegations made by the plaintiffs in both the suits and contended that the suit filed by the plaintiffs is not maintainable without exhausting the alternative remedy of appeal under the provisions of Karnataka Municipal Corporations Act, 1976 and also contended that the Court has no jurisdiction to grant any relief sought for by the plaintiffs and the Hubli Dharwad Development Authorities has not granted permission if any as per the norms. It is also stated that one Mr. Ratnakar Associates (P) is the owner of CTS No. 3604 Extension Ward has applied for permission for the grant of construction of the house. His property is situated by the side of suit property. As per the norms of Hubli-Dharwad Development Authority, Mr. Ratnakar has left 45 meters open site from the center of National Highway No. 4 and he has executed the deed to that effect and as per the norms of National Highway Rules, etc. The suit properties also attract the same principle as the suit property is adjacent property of Mr. Ratnakar. Hubli Dharwad Development Authority is expected to follow its own norms, which has not been properly followed while granting permission to the plaintiffs and the plaintiffs have also suppressed the fact which has been brought to the notice of the defendant - Corporation recently and also contended that the plaintiffs are not making construction of building as per the approved plan and violated the set back rules and trying to construct cellar, which is not at all permitted and further contended that suit open space is under green belt area. The plaintiff is expected to keep open space to the extent of 45 meters from the Centre of National Highway No. 4 and the proposed construction is coming under the said open space, which is not permissible under law. Therefore, the plaintiffs cannot act under the permission granted to them etc., therefore, prayed for dismissal of the suit.
Based on the pleadings, the Trial Court framed the following issues:--
"ISSUES IN O.S.NO.455/2001
Whether plaintiffs prove that, the permission granted by defendant bearing No. HDC/EEZ/541/BLD/2001. Vidyanagar, Hubli dated 16-05-2001 is legal and valid?
Whether plaintiffs prove that, the defendant is illegally causing obstruction for the construction in suit property by the plaintiffs?
Whether defendants prove that, the suit itself is not maintainable?
Whether defendants prove that, this Court has no jurisdiction to try the suit?
Whether defendants prove that, the plaintiffs have obtained the impugned permission from the defendant without disclosing the material facts?
Whether plaintiffs are entitled for the reliefs sought for?
What order or decree?
ADDITIONAL ISSUES
Whether defendants No. 2 to 5 prove that, the suit is hit by Sections 79 and 80C.P.C.?
Whether defendants No. 2 to 4 prove that, the approval made by Chief engineer, National Highway, Bangalore, vide its letter No. CEN/NH4/House/2000-2001 dated 17-07-2001 is in accordance with the rules of Highway Act, as alleged in para 4 of written statement of defendant No. 4?
ISSUES IN O.S.NO.456/2001
Whether plaintiff proves that, the permission granted by defendant bearing No. HDC/EEZ/540/BLD/2001 Vidyanagar, Hubli dated 16-05-2001 is legal and valid?
Whether plaintiff proves that, the defendant is illegally causing obstruction for the construction in suit property by the plaintiffs?
Whether defendants prove that, the suit itself is not maintainable?
Whether defendants prove that, this Court has no jurisdiction to try the suit?
Whether defendants prove that, the plaintiffs have obtained the impugned permission from the defendant without disclosing the material facts?
Whether plaintiff is entitled for the reliefs sought for?
What order or decree?
ADDITIONAL ISSUES
Whether defendants No. 2 to 5 prove that, the suit is hit by Sections 79 and 80 of C.P.C.?
Whether defendants No. 2 to 4 prove that, the approval made by Chief Engineer, National Highway, Bangalore, vide its letter No. CEN/NH4/House/2000-2001 dated 17.07.2001 is in accordance with the rules of Highway Act, as alleged in Para 4 of written statement of defendant No. 4?"
In order to establish their case the plaintiffs examined power of attorney as PW.1 and marked documents Exs. P1 to P22 and the defendant - Corporation examined as DW. 1 and witness as DW.2 and marked documents Ex. D1 to D3. Based on the pleadings and oral and documentary evidence on record the Trial Court recorded a finding that in both the suits the plaintiffs have proved that the permission granted by the defendant dated 16.5.2001 is legal and valid and also held that the plaintiffs proved that the defendant is illegally causing obstruction for the construction of the suit properties by the plaintiffs and further held that the defendants have not proved that the suit filed by the plaintiffs are not maintainable and Court has no jurisdiction and also held that the defendant failed to prove that the plaintiffs have obtained the impugned permission from the defendant without disclosing the material facts and therefore they are entitled to permanent injunction as prayed for. Aggrieved by the judgment and decree the defendant -appellant filed R.A. Nos. 112 and 113/2003 before the III Addl. Civil Judge (Sr.Dn.), Hubli. After hearing both the parties by the impugned judgment and decree dated 5.10.2010 the Lower Appellate Court has dismissed both the appeals confirming the judgment and decree of the Trial Court, against the said concurrent finding of fact, the present appeals are filed by the appellant - Corporation.
I have heard the learned counsel for the parties to the lis.
Sri. Gurudev I Gachchinamath, learned counsel for the appellant in both the cases contended that both the Courts below have not assigned any valid reasons while passing the impugned judgment and decree in favour of the plaintiffs ignoring the fact that the permission was granted against the Municipality Rules and subsequently the said permission was suspended by an order dated 31.7.2001 and also contended that the property belongs to the appellant and therefore he sought to set aside the impugned judgment and decree passed by the Courts below.
Per contra Sri V.M. Sheelvant, learned counsel for the respondents in both the appeals sought to justify the impugned judgment and decree of the Courts below and contended in the entire written statement nowhere it is stated by the defendants that the suit properties belong to them and the alleged suspension order dated 31.07.2001 is the subject matter of these two appeals and contended that in pursuance of the order passed by this Court in PIL W.P. No. 2142/2007 (GM-RES-PIL) dated 12.11.2009 the Division Bench of this Court directed the authorities to take action after giving notice and hearing to the present respondents and in pursuance of the same it is brought to notice of the Court that the ADLR passed the order which is subject matter of W.P. No. 65585/2012 and the same is pending for adjudication between the parties.
I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the material on record.
The specific case of the plaintiffs before the Trial Court is that in terms of the permission granted by the appellant dated 16.5.2001 the plaintiffs have already started construction and completed the construction. It is not in dispute that the suit properties in both the suits are adjacent to each other. Plaintiffs have produced Exs. P1 and P2 - the original Power of Attorney executed in both the suits in favour of PW. 1 who is none other than the father of the plaintiffs. Exs. P3, 4, 5, 6 and 7 are CTS extracts in respect of the suit schedule properties and the said documents are not at all disputed by the defendant before the Trial Court, but Sri Gurudev I Gachchinamath, learned counsel for the appellant stated that the said documents have been disputed and set aside by the JDLR which is the subject matter of the dispute before this Court. The plaintiffs have produced Exs. P8, 9, 10 and 11, 12 to 15 which clearly indicates that permission has been granted by the 1st defendant in respect of the suit schedule properties and such land is due for payment of the amount by the plaintiffs to the 1st defendant - Corporation in respect of the said land which is not disputed by the defendant, but they have contended that the plaintiffs have obtained permission suppressing the material facts. The grievance of the plaintiffs that they have obtained permission for the construction work on the suit schedule properties from the competent authority, in addition, the plaintiffs have obtained no objection certificate from Chief Engineer, National Highway Department, Bengaluru, as per the Highway Act and submitted the same before HDMC. It is further contended that the Commissioner, HDMC after perusing no objection certificate issued by National Highway Department granted permission as per Exs. P.8 to P. 11 and no objection certificate has been submitted by the plaintiffs was approved. The plaintiffs also started construction in suit properties by leaving 22 meters from the Central point of Puna - Bangalore National Highway No. 4 but the defendant issued notice on 31.7.2001 to cause obstruction of construction in the suit properties by the plaintiffs. It is a fact that DW2 who is an official of HDUDA admits that once CDP is prepared the layout plan concerning to that area, which is included in CDP looses its importance and thereafter for all the purpose CDP is a proper document to show the existing situation of the property which is surrounded by roads, parks etc., and also recorded a finding that by a perusal of Ex. D3 the layout approved plan concerning to Survey No. 29/3 prepared and approved plan of Government. By a perusal of the evidence it can be seen that, now Ex. D3 has no value in view of Ex. P.19 i.e., CDP plan approved by Government in the year 2001. The Trial Court also recorded a finding that plaintiffs have obtained no objection certificate from National Highway as per Exs. P15 and 16. Exs. P.8 to P. 11 are admitted in the written statement of defendant No. 1 that the plaintiffs have obtained the building permission and approved plan for construction of building on suit properties. If at all there is general rules and regulation and set back rules of Highway Corporation, Corporation is at liberty to take action against the persons, who have made construction of buildings in violation of the Act. Considering the entire material evidence on record, the Trial Court has recorded a finding that the officials of defendant No. 1 and HDUDA they have knowledge that, the plaintiffs have to leave only 21 meters from the Central point of NH 4 up to building line of suit properties and further the plaintiffs have also produced Ex. P22, the Xerox copy of the notice dated 4.9.2011 certified by notary and issued by the HDMC in favour of one Mahantesh Mahabaleshwarappa Khodanpur, who is the owner of CTS 3502/1F. By issuing notice under Ex. P.21 it shows that defendant No. 1 has knowledge that, the plaintiffs have to leave 21 meters from central point of NH-4 up to the building line of the plaintiffs property. Considering the entire material on record the Trial Court decreed the suit. On re-appreciating the entire material on record, the Lower Appellate Court confirmed the findings recorded by the Trial Court and recorded that the suspension of building permission dated 31.07.2001 (Ex. P21) is unilateral one. Defendant No. 1 being the statutory authority is bound to be fair and reasonable in all its dealings. It ought to have been heard the plaintiffs before passing of such an order as it directly affects their interest. Hence defendant No. 1 has not observed the principles of natural justice i.e., Audi Alteram Partem. Therefore, Ex. P.21 is against the principles of natural justice and therefore, it is void. DW 1 in his cross-examination has categorically admitted that National Highway Authority is only competent regarding regulating the buildings constructed abutting to the National Highway. Therefore, defendant No. 4 is competent authority in this matter. Defendant No. 4 has filed written statement and has admitted that the plaintiffs have obtained requisite permission from the Chief Engineer, National Highway as per Ex. P15 and also Ex. P.16. The said authority has accorded permission to the plaintiffs by taking undertaking to leave 22 meters from the centre point on the National Highway. Therefore it can be safely held that defendant No. 1 has given permission as per Exs. P8 and 10 to the plaintiffs to construct the buildings after going through the necessary documents. Now defendant No. 1 is estopped from contending contrary to Exs. P.8 and 10 already granted in favour of the plaintiffs. Therefore the contention of the defendant No. 1 regarding leaving set back is without any basis and moreover the CDP (Ex. P19) in the year 2001 wherein suit sites are indicated with letter ''R'' means residential. Besides it has been admitted by DW. 1 in his cross-examination. Admittedly the Government of Karnataka changed the land user of the suit sites from residential to commercial by a Government Order dated 11.08.2003. Accordingly on 18.12.2003 the plaintiffs have paid change of land user cess of Rs. 6,133/-. Therefore, the contention of defendant No. 1 regarding user as vacant space cannot be acceptable. 1st defendant being instrumentality of the State cannot go beyond the Government Order. The Appellate Court held that in spite of the judgment under appeal the defendant No. 1 is at liberty to initiate action against the plaintiffs under the Karnataka Municipality Corporation Act, 1976. Accordingly, the Appellate Court dismissed the appeal.
Therefore, in view of the concurrent finding of fact based on co-gent legal evidence recorded the contention of the learned counsel for the appellant that the property belongs to the defendant Corporation cannot be accepted. However, the Lower Appellate Court has rightly observed that the appellant is at liberty to initiate action against the plaintiffs under the provisions of Karnataka Municipal Corporation Act, 1976, and in accordance with law. The appellant has not made out any substantial question of law so as to interfere with the concurrent finding of fact recorded by both the Courts below, therefore, the appeals are dismissed. However, it is needless to observe that it is always open for the appellant to initiate action against the plaintiffs in accordance with law and in accordance with the provisions of Karnataka Municipality Corporation Act, 1976.
In view of disposal of the appeals on merits. Consideration of I.A. 1/2014 for production of additional documents, which came into existence after the judgment and decree of the Courts below and some of the documents are subject matter of the pending writ petition between the parties. Therefore, at this stage, they are in no way helpful to the appellant to decide the case on merits. Accordingly I.A.1 is disposed of.