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IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 28th day of July, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: O.S. NO. 713/2012 :
PLAINTIFF : Karnataka State Pollution Control Board,
By its Member-Secretary,
'Parisara Bhavana'
No.49, Church Street,
Bangalore - 560 001.
(By Sri. TGS / KRN, Advocate)
-V/S-
DEFENDANTS : 1. The Chief Engineer,
Bruhath Bangalore Mahanagara Palike,
Hudson Circle,
Bangalore.
2. Bruhat Bangalore Mahanagara Palike,
By its Commissioner,
Hudson Circle,
Bangalore.
(By Sri. S.N.Prashanth Chandra, Advocate)
Date of institution of the suit: 23.01.2012
2 O.S.No.713/2012
Nature of the suit:
Permanent Injunction
Date of commencement of 25.07.2013
recording of evidence:
Date on which Judgment was 28.07.2015
pronounced:
Duration:
Days Months Years
5 6 3
: JUDGMENT :
This suit is filed by the plaintiff for permanent injunction against the defendants restraining them from interfering with the work undertaken by the plaintiff for development of park / garden in the suit schedule property and such other reliefs with costs. (Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the plaintiff is a Statutory Board established under Water (Prevention and Control of Pollution) Act, 1974 and the defendants are also Statutory Body established under the Karnataka Municipal Corporation Act, 1976. The Government of Karnataka by its order dated 22.09.1992 granted Sy.No.120 of Saneguruvanahalli Village, Yeshwanthapura Hobli, 3 O.S.No.713/2012 Bangalore North Taluk, to an extent of area measuring 4.00 acres of land in favour of KSRTC for construction of Bus Depot on collection of 50% of the market value i.e., Rs.17,59,340/- per acre plus conversion fine and other levies as per rules. Another extent of area measuring 4.00 acres of land in the said survey number was granted by the Government of Karnataka as per order dated 22.09.1992 in favour of Karnataka State Pollution Control Board i.e., plaintiff, for its office building and laboratory on collecting 50% of market value i.e., 17,59,340/- per acre plus conversion fine and other levies as per rules. The sanction was also accorded for transfer of 4 acre 1 gunta of land in Sy.No.120 of Saneguruvanahalli, Yeshwanthapura Hobli, Bangalore North Taluk, in favour of Revenue Department for construction of official quarters to its employees in terms of Government Order dated 20.05.1971. The Government of Karnataka issued a corrigendum dated 10.11.1992, stating that in the order portion of the Government Order dated 22.09.1992, substituting the contents of sub-paras 1 & 2 in connection with the market value and conversion fine, etc. After completion of all required formalities as per the Government order, the possession of the said land was 4 O.S.No.713/2012 taken by the plaintiff from the Tahsildar, Bangalore North Taluk, Bangalore, on 29.10.1993, and possession of other areas of land in the said survey number, was also delivered to the KSRTC and Revenue Department of Government of Karnataka. One Ramachandra, S/o. Late Hanumanthappa had filed Public Interest Litigation (PIL) in respect of the suit schedule land before the Hon'ble High Court of Karnataka in W.P.No.24185/1997 (GM-PIL). After hearing the matter, said Writ Petition was disposed of on 23.02.2001 issuing the directions and as per directions issued in the said Writ Petition, the Principal Secretary to the Department of Revenue called a meeting on 10.04.2001 and it was resolved in the meeting that the KSRTC should retain an extent of 3.00 acres of land, Karnataka State Pollution Control Board (plaintiff) should retain an extent of 2.00 acres of land and Revenue Department should retain 3 acres 1 gunta of land. The area measuring 4.00 acres of land so contributed by the plaintiff and the other two authorities described in the schedule to be handed over to the Karnataka State Pollution Control Board (plaintiff) for developing the park / garden. However, the right and title of the said park / garden should be with 5 O.S.No.713/2012 the Government of Karnataka. Accordingly, as per Government Order dated 14.05.2001, the plaintiff authorities contributed the land for developing the said park by drawing a detailed plan and possession was also given to the plaintiff. The matter was deliberated in the office of Chief Engineer of the defendants in the presence of Ministers of the Government of Karnataka and the concerned members of the defendants. The Chief Engineer of the defendants as per direction of 2nd defendant, by his letter dated 18.10.2011, with reference to the direction of the Hon'ble High Court of Karnataka about the Writ Petition as referred to, informed the plaintiff-Board to develop the park / garden in the suit schedule property. Thus, the things stood as stated above, the officials of defendants came to the suit schedule land where the plaintiff was developing the park / garden and obstructed the work undertaken by the plaintiff, high-handed and illegally in the 3rd week of December 2011 and blocked the North-Eastern main entrance / gate of the plaintiff to the building constructed by it on the retained land of the plaintiff wherein the Regional Office and Central Environmental Laboratory was established in the year 2007. The 6 O.S.No.713/2012 defendants started putting up the footpath, around the schedule property obstructing the main entrance of the plaintiff, which affects the plaintiff's access to the building through the existing narrow entrance. The plaintiff has laid 11 K.V. cable underneath the said North-Eastern approach road which was blocked by the defendants and its officers and it has made difficult to attend the repairs and periodical maintenance work. The officers have also blocked the right round corridor road left by the plaintiff for the purpose of attending any fire mishap. Thus, the defendants' officers have committed illegalities having no manner of right, title and interest over the suit schedule property, thereby created the hurdle in developmental work undertaken for the purpose of park / garden in the suit schedule property. There was urgency in the matter, hence the application is filed separately seeking dispensation of notice under section 482(1-A) of KMC Act, stating the cause of action arose in the 3rd week of December 2011, as the defendants and their officials tried to enter the suit schedule property and trying to disturb the work undertaken by the plaintiff and hence the plaintiff has constrained to file the suit. Accordingly, it is prayed to decree it. 7 O.S.No.713/2012
3. On issuance of suit summons to the defendants after registering the case, they appeared through their counsel and written statement has been filed for defendants No.1 & 2 through Head of the Legal Cell, BBMP, Bangalore. The contents of the written statement, are hereby narrated in brief that the suit for bare injunction is not maintainable, as it is without seeking declaratory and mandatory injunction relief and the suit is not maintainable either in law or on facts and it is misconceived and there is no cause of action to file the suit and it has become in fructuous and denied on the material allegations pleaded in the plaint. The matters pleaded in plaint para Nos.2 to 4 do not require specific denial as they are matters of record and it has culminated in an order passed in W.P.No.24185/1997 passed by the Hon'ble High Court of Karnataka. 4 acres of land reserved for developing the park and as per direction of Hon'ble Minister and Local Corporator, spot inspection was made on 24.05.2011 and direction issued to the BBMP to form a forest-cum-park. Accordingly, BBMP took up the development work by levelling the area, sanctioning the estimate and issuing work order on 08.11.2011 in favour of the Karnataka 8 O.S.No.713/2012 Rural Infrastructure Development Ltd., Mahadevanagar, for providing pathway to small forest and cost was estimated for Rs.55 lakhs and another work order dated 11.08.2011 for construction of compound wall to small forest-cum-park estimating it for Rs.45 lakhs and specifying the date of commencement by 10.11.2011 and completion should be on 09.02.2011 / 11.02.2012. Accordingly, the work was undertaken and completed in all respects much before presenting the suit in January 2012. The building of plaintiff was located abutting to the South portion of suit property Sy.No.120, measuring 4 acres. The building of the plaintiff has two separate access roads 25 feet each in width i.e., 7th 'A' Main & 7th 'B' Main Road, which are joining Thimmaiah Road, situated to the East of schedule property. But the plaintiff demanding additional road from North-Eastern side to connect the North-Eastern side of the said property. BBMP has developed park / forest and hence the suit of the plaintiff, is not maintainable. Apart from this, it has provided maximum space in the layout or in the process the additional stretch demanded by the plaintiff, is already developed by BBMP as a portion of park-cum-forest. The development by BBMP regarding 9 O.S.No.713/2012 the park / forest is in the larger interest of public and provided separate area for children to play and planted mixed variety of fruit bearing trees and other trees, which has widely appreciated by all. The deviation against the layout plan providing for the link road as demanded by the plaintiff, make the area congest and reducing the space and removal of already grown saplings from the park-cum- forest. Hence granting of permanent injunction to result in injustice to the public at large and affect the environmental disturbance and create hazardous condition. The defendants have undertaken the developmental work and completed it in the month of January 2012. There is no cause of action to file the suit. Hence, it is prayed as such to dismiss it with exemplary costs.
4. On the basis of the pleadings of the parties, the learned IX Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 18.01.2014.
(1) Whether plaintiff proves its lawful
possession over the schedule property?
(2) Does plaintiff prove the alleged
obstruction?
(3) Does he entitle for the relief sought for?
(4) What decree or order?
10 O.S.No.713/2012
5. The plaintiff has adduced its evidence through
B.H.Sannappa, who is Assistant Executive Engineer as PW.1 and relied upon the documents at Exs.P.1 to P.14. On the other hand, the defendants have adduced its evidence through Shanthe Gowda, who is Assistant Executive Engineer as DW.1 and relied upon the documents at Exs.D.1 to D.15.
6. Heard the arguments of the learned counsels for the plaintiff and defendants.
7. Perused the pleadings of the parties, evidence and record on hand.
8. My findings on the above issues are as under:
(1) Issue No.1 .. In the negative
(2) Issue No.2 .. In the negative
(3) Issue No.3 .. In the negative
(4) Issue No.4 .. As per final order for the
following:
R E A S O N S
9. Issue Nos.1 to 3 :- These issues are interlinked with each other and it needs common consideration and discussion. Hence to avoid repetition of facts and circumstances of the case, they are taken for common consideration.
10. The plaintiff to prove its case has adduced evidence of B.H.Sannappa, who is Assistant Executive Engineer as PW.1. He deposed by way of affidavit evidence reiterating the plaint averments 11 O.S.No.713/2012 and relied upon the documents at Exs.P.1 to P.14. Exs.P.1 & P.2 are the Government orders dated 22.09.1992 & 10.11.1992 respectively; Ex.P.3 is the possession record received from Tahsildar dated 29.10.1993; Ex.P.4 is the certified copy of order passed by the Hon'ble High Court of Karnataka in W.P.No.24185/1997, dated 23.02.2001; Ex.P.5 is the Government order dated 14.05.2001; Ex.P.6 is the detail plan; Ex.P.7 is the notice given by Advocate General; Ex.P.8 is the Government order dated 20.05.1971; Ex.P.9 is the decision taken as per the Writ order; Ex.P.10 is the copy of complaint given to Police Commissioner; Ex.P.11 is the copy of complaint given to the Police Inspector, Basaveshwaranagar Police Station; Ex.P.12 is the endorsement of police and Exs.P.13 & P.14 are the photographs marked through D.W.1. On the other hand, the defendants have adduced its evidence through Shanthe Gowda, who is Assistant Executive Engineer as DW.1 and placed reliance on the documents in respect of the case i.e., Exs.D.1 to D.15. Ex.D.1 is the rough sketch; Exs.D.2 to D.13 are the photographs; Ex.D.13(a) is the C.D and Exs.D.14 & D.15 are the work orders.
12 O.S.No.713/2012
11. On perusal of evidence of PW.1 and DW.1 and the documents referred by both the parties, it is revealed that the Government of Karnataka by its order No. 109 LGB 92 Bangalore, dated 22.09.1992 had granted Sy.No.120 of Saneguruvanahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, to an extent of area measuring 4.00 acres of land in favour of KSRTC for construction of Bus Depot on collection of 50% of the market value i.e., Rs.17,59,340/- per acre plus conversion fine and other levies as per rules. Another extent of area measuring 4.00 acres of land in the said survey number was granted by the Government of Karnataka as per order dated 22.09.1992, in favour of Karnataka State Pollution Control Board i.e., plaintiff, for its office building and laboratory on collecting 50% of market value i.e., 17,59,340/- per acre plus conversion fine and other levies as per rules. The sanction was also accorded for transfer of 4 acre 1 gunta of land in Sy.No.120 of Saneguruvanahalli, Yeshwanthapura Hobli, Bangalore North Taluk, in favour of Revenue Department for construction of official quarters to its employees in terms of Government Order dated 20.05.1971. The Government of Karnataka issued a corrigendum dated 10.11.1992, 13 O.S.No.713/2012 stating that in the order portion of the Government Order dated 22.09.1992, substituting the contents of sub-paras 1 & 2 in connection with the market value and conversion fine, etc. After completion of all required formalities as per the Government order, the possession of the said land was taken by the plaintiff from the Tahsildar, Bangalore North Taluk, Bangalore, on 29.10.1993, and possession of other areas of land in the said survey number, was also delivered to the KSRTC and Revenue Department of Government of Karnataka.
12. One Ramachandra, S/o. Late Hanumanthappa had filed Public Interest Litigation (PIL) in respect of the suit schedule land before the Hon'ble High Court of Karnataka in W.P.No.24185/1997 (GM-PIL). After hearing the matter, said Writ Petition was disposed of on 23.02.2001, issuing the directions and as per directions issued in the said Writ Petition, the Principal Secretary to the Department of Revenue called a meeting on 10.04.2001 and it was resolved in the meeting that the KSRTC should retain an extent of 3.00 acres of land, Karnataka State Pollution Control Board (plaintiff) should retain an extent of 2.00 acres of land and Revenue Department should retain 3 14 O.S.No.713/2012 acres 1 gunta of land. The area measuring 4.00 acres of land so contributed by the plaintiff and the other two authorities described in the schedule to be handed over to the Karnataka State Pollution Control Board (plaintiff) for developing the park/garden. However, the right and title of the said park/garden should be with the Government of Karnataka. Accordingly, as per Government Order dated 14.05.2001, the plaintiff authorities contributed the land for developing the said park by drawing a detailed plan and possession was also given to the plaintiff. The matter was deliberated in the office of Chief Engineer of the defendants in the presence of Ministers of the Government of Karnataka and the concerned members of the defendants. The Chief Engineer of the defendants as per direction of 2nd defendant, by his letter dated 18.10.2011, with reference to the direction of the Hon'ble High Court of Karnataka about the Writ Petition as referred to, informed the plaintiff-Board to develop the park/garden in the suit schedule property.
13. Thus, stating so, it is further contended that, the plaintiff was in lawful possession over the suit property, is proved by the plaintiff through the evidence of P.W.1 and the said concerned 15 O.S.No.713/2012 records; specifically the resolution passed by the government calling upon the meeting dated 10-4-2001, in pursuance of the direction in WP. No.24185/1997 and Government order No.RD 109 LGB 92 (P) dated 14-5-2001. The detailed plan was drawn and the possession was given by the said two departments to the plaintiff and thus the suit property measuring 4 acres of land was to be developed as per direction and order of the government and that, after the deliberations Chief Engineer of the defendants who was directed by the defendant No.2, has informed the plaintiff by his letter dated 18- 10-2011, that the plaintiff board has to carry out the said work of development. Thus stating so, the plaintiff has asserted the possessory right over the suit property for the said work. The material dispute is that defendants are obstructing the work undertaken by the plaintiff.
14. It is specific case of the defendants brought on record through DW.1, referring the sketch, photo and work orders, for having completed the alleged development of park-cum-forest; There is no cause of action to file the suit and it has become in fructuous; 4 acres of land reserved for developing the park and it has to be 16 O.S.No.713/2012 carried out. These are not in dispute at all. But it is specific case of this defendant and deposed by DW1 that, as per direction of Hon'ble Minister and Local Corporator, spot inspection was made on 24.05.2011 and direction issued to the BBMP to form a forest-cum- park; Accordingly, BBMP took up the development work by levelling the area, sanctioning the estimate and issuing work order on 08.11.2011, in favour of the Karnataka Rural Infrastructure Development Ltd., Mahadevanagar, for providing pathway to small forest and cost was estimated for Rs.55 lakhs. Another work order dated 11.08.2011, for construction of compound wall to small forest- cum-park estimating it for Rs.45 lakhs and specifying the date of commencement by 10.11.2011. The completion should be on 09.02.2011/11.02.2012. Accordingly, the work was undertaken and completed in all respects much prior to filing of this suit in the month of January 2012. D.W.1 has further stated reiterating the contents of written statement supporting the defendants that the building of plaintiff was located abutting to the South portion of suit property Sy.No.120, measuring 4 acres i.e. preserved for garden purpose. It is notable point that the prayer for decreeing the suit is permanent 17 O.S.No.713/2012 injunction to restrain the defendants from interfering with the plaintiff's work undertaken in the property shown in schedule to the plaint for the alleged purpose. The plaintiff has claimed the right to sue accrued. But this suit is only against the statutory authority established under Karnataka Municipal Corporation Act.(in short taken as KMC Act) i.e. BBMP represented by its authorities - defendants. It is also with out impleading the necessary parties, who have alleged to be created such right to develop the park, by granting lands infavour of plaintiff and other two government departments, under impugned government order. Because the plaintiff has stated that the ownership shall be with the government. These defendants at the most, representing the government have to act as per the direction and order of the government which are in pursuance of the direction issued in the said W.P. Whether the work of or alleged obstruction is justifiable or otherwise are the matters to be decided as against the alleged right of the plaintiff to develop the garden.
15. The specific grievance of the plaintiff is that, the defendants are blocking the access to official building of the plaintiff 18 O.S.No.713/2012 by admitting that defendants have undertaken the development of the park. The plaintiff has tried to make out the cause of action that, the things stood as stated above, the officials of defendants came to the suit schedule land, where the plaintiff was developing the park/garden and obstructed the work undertaken by the plaintiff, in the 3rd week of December 2011, with high-handedness and it was illegal. They blocked the North-Eastern main entrance/gate of the plaintiff's building constructed by it, on the retained land, wherein the Regional Office and Central Environmental Laboratory were established, in the year 2007. The defendants started putting up the footpath, around the schedule property obstructing the main entrance of the plaintiff, which affects the plaintiff's access to the building through the existing narrow entrance. The plaintiff has laid 11 K.V. cable underneath the said North-Eastern approach road which was blocked by the defendants and its officers. It has made difficult to attend the repairs and periodical maintenance work. The officers have also blocked the right to use the 'round corridor road' left by the plaintiff for the purpose of attending any fire mishap. Thus, the defendants' officers have committed illegal acts having no 19 O.S.No.713/2012 manner of right, title and interest over the suit schedule property, thereby created the hurdle in developmental work undertaken for the purpose of park / garden in the suit schedule property. What was that work undertaken by the plaintiff has not been made it clear and that the materials to prove the same are also not placed on record by the plaintiff except the version of PW1, whose evidence without any material documents dose not support the plaintiff's case to believe that, the alleged work of the plaintiff was going on with due process and it has right to resist the entry of the defendants into the suit property. Ex. P1 to 3 and 8 are of the year 1992 and 1993 and Ex.P5 dated 14-5-2001 is immediately after the order passed in WP. No. 24185/1997 (dte. 23-2-2001). Ex. P. 6 the detailed plan was valid from 13-5-2003 up to 12-5-2005. Ex.P. 7 is the letter of Advocate General representing the State Government, dated 23-2-2001 directing the representatives of said three departments within two months etc. to take steps regarding said direction. Ex. P.9 is copy of resolution in that regard. Ex. P 10 to 12 are the recent notices and endorsement prior to filing of the suit, and they are pertaining to taking legal action. Thus non of these documents are showing any 20 O.S.No.713/2012 work undertaken by the plaintiff under what authority when the sanction plain was valid up to 2005 i.e. for a period of only two years. No pleading and no proof of the same. If such process was undertaken by the plaintiff Board it ought to have placed the relevant and authenticated materials. But not done and only inference that can be drawn is that the plaintiff has no such authority or such power might be withdrawn. So suppression of the materials is fatal to the plaintiff's case to believe the case that it has right and was proceeded to do the alleged work on the suit property and hence the defendants' entry thereupon was illegal. On this count it is failure of the plaintiff to prove the alleged right and it has under taken the work with due process. Over all reading it is main grievance of the plaintiff is that the defendants have undertaken illegal activities on the suit property and blocking the passage to the official building area i.e. the entrance gate abutting to the building.
16. Per contra, it is contended by the defendants deposed through DW.1 that, the official building of the plaintiff has two separate access roads 25 feet each in width i.e., 7th 'A' Main & 7th 'B' Main Road, which are joining Thimmaiah Road, situated to the East 21 O.S.No.713/2012 of schedule property; but the plaintiff was demanding additional road from North-Eastern side to connect the North-Eastern side of the said property; BBMP has developed park-cum-forest already and hence the suit of the plaintiff, is not maintainable; and that apart from this, it has provided maximum space in the layout or in the process the additional stretch demanded by the plaintiff. That it is already developed by BBMP as a portion of park-cum-forest, which is in the larger interest of public; and that, it has provided separate area for children to play and planted mixed variety of fruit bearing trees and other trees, which has widely appreciated by all. The action and process of the government, which were for implementation of scheme of the park/garden, are not challenged as illegal. But the plaintiff it is basing only on the said plan and government orders which were prevailing only up to 2001-2002 and the plan upto 1005. So, the defendants' case has to be evaluated whether they are justified in resisting the suit or not.
17. It is specifically argued by the learned counsel for the defendants referring their defence put for the through DW.1 that, the deviation against the layout plan providing for the link road as 22 O.S.No.713/2012 demanded by the plaintiff, make the area congest and reducing the space and removal of already grown saplings from the park-cum- forest; Hence granting of permanent injunction would result in failure of justice and it affects to the public at large. So also it affects the environmental condition and creates disturbance and hazardous condition. The defendants have undertaken the developmental work and completed it in the month of January 2012. Thus, the plaintiff has contended that the plaintiff was undertaking the development of park/garden and in the IIIrd week of December 2011. But the defendant came to the schedule property and obstructed it, i.e. the defendants virtually started to put up foot path around the schedule property, obstructed the entrance of retained property. When the plan was for two years upto 2005, then how could be the plaintiff do the alleged work without due sanction plan approved by the competent authority i.e. BBMP Bangalore. So the plaintiff shall fail in proving the alleged right to develop the park.
18. At this stage it is relevant to refer the order passed by the Hon'ble High court in the said W.P. whether it has directed the plaintiff holding it his exclusive right to undertake the development of 23 O.S.No.713/2012 park /garden as contended by the plaintiff in that regard in respect of the property allotted to the plaintiff Board. The relevant portion at Ex.P.4 is hereby reproduced:
In these circumstances, it would be inexpedient and inappropriate to grant the larger relief sought for by the petitioner. We are, however, of the view that sufficient greenery and lung space should be provided for the residents of the areas and the wholesale diversion of the land for the purpose other than the park should not be permitted. Taking a pragmatic view of the matter and balancing the considerations of environment and public interest and also taking into account the representations made by the learned counsel for the respondents, the following order is passed:
1. The Karnataka State Pollution Control Board should set apart an extent of 2 acres of land for the purpose of development the same in to park/garden. A memo to this effect has been filed today on behalf of the Board.
2. ......................
3. ......................
The park/garden so developed shall be accessible to public. We further direct that the representatives of the three authorities namely, Pollution Control Board, KSRTC and the revenue Department as well as the Bangalore Mahanagara Palike and the Forest Department should meet within two months from the date of receipt of this order and explore the possibility of setting apart the aforementioned land in contiguity. With these directions, the writ petition is disposed of.
Thus, from the order it is reveled that the writ petition filed by the public i.e. one Ramachandra has been disposed of and directed the concerned departments to have the park, by taking the important aspect and balancing the conditions of environment and public 24 O.S.No.713/2012 interest and representations made by the learned counsel for the respondents in the said petition. It has specifically directed to set apart the specific extent of area for the purpose of developing it into park and garden and it shall be accessible to public. To the representatives of the three authorities namely, Pollution Control Board, KSRTC and the revenue Department as well as the Bangalore Mahanagara Palike and the Forest Department, specifically it is directed to meet within two months from the date of receipt of this order and explore the project i.e. park development process. Thus, there is no any specific right pressed upon infavour of the plaintiff to develop the park. But it is also duty casted upon the defendants the direct authorities. It is the joint venture of said five government and statutory authorities. Therefore, it is the bounden duty of the plaintiff, other departments and the defendants to see that the said park in the land specified to be developed as park/garden with the assistance of forest department.
19. Ex.P.1 dated 14.5.2001 the government order bearing No.RD109/2GB92(P), passed by the government to implement the order passed in the said writ petition dated 23.2.2001 by conducting meet (Ex.P.9) on 9.4.2001. Thereby 4 acres of land to be entrusted to the plaintiff for formation of park and the ownership was to be with the government. Thus as per the government order as the 25 O.S.No.713/2012 plaintiff has to undertake the formation of park in 4 acres of land i.e. 2 acres of land out of 4 acres given to the plaintiff-Board and each one acre of land out of granted extent of land to KSRTC and revenue department in view of the government order dated 14.5.2001. But now as on 28.11.2011 after lapse of 10 years the plaintiff came with the grievance by submitting complaint to the Police Commissioner (Ex.P.10) requesting to take legal action against the B.B.M.P. as it has been encroaching upon the land measuring 2 acres, preserved for plaintiff-Board, for formation of park. Thus, it is contended that B.B.M.P. authorities have undertaken to form the park by encroaching upon the area of 2 acres of plaintiff's property preserved for park. After Ex.P.10 this suit was filed. It does not sustain, because it is without supporting materials that development work was carried on by the plaintiff Board.
20. Now what is revealed from the moth of P.W.1 during cross-examination that he is recently working in the plaintiff-Board as Asst. Executive Engineer. He was not aware about the proceedings those were taken place prior to taking his charge in the plaintiff- Board specifically during the year 2011. Thus, he has no personal 26 O.S.No.713/2012 knowledge about the transaction and proceedings pertaining to formation of park measuring 4 acres of land in pursuance of the order passed by the Hon'ble High Court of Karnataka in the said W.P. and the orders passed by the government and the proceedings thereunder, those were taken place in the presence of then the officials of the plaintiff-Board, B.B.M.P., forest department and other concerned government departments. Therefore, his evidence on this count for want of knowledge, is not worth to believe. Apart from this he has pleaded ignorance about the proceedings and the orders passed by the Government of Karnataka during relevant of pint of time between 2001 to 2011. It is not specifically pleaded by the plaintiff that what steps has been taken with due process, in order to implement and to comply the direction of Hon'ble High Court of Karnataka. Apart from this, it is agreed by the plaintiff and other departments in connection with the property preserved for formation of park, that its ownership shall be with the government. The said direction as referred above, (Ex.P.4), it does not state anything that such absolute right to form the park has been created in favour of the plaintiff-Board. Even the plaintiff has not put forth any materials 27 O.S.No.713/2012 with specific pleading that the plaintiff-Board has such a exclusive right to form and develop the park and that the order under Ex.P.4 does not create any such right, but it is the specific order of the government which was passed with due procedure.
21. It is the specific case of the defendant that as the plaintiff Board has not implemented the work entrusted in connection with development of park in the area measuring 4 acres and hence the defendant Nos.1 and 2 have undertaken the work as per entrustment of work by the government i.e. the direction issued to form a forest cum park and it has taken up the development work in the area kept for said purpose in view of the order passed in W.P.NO. 24185/1997 and as per the sanctioned plan and estimation defendant-Corporation has undertaken the work, which was to be completed on 11.2.2012 and that the said work was completed, much prior to filing of the suit i.e. in the month of January, 2012.
22. The plaintiff has to stand on his own case and he cannot depend on the weakness of the defendant. DW.1 has stated about the implementation of the encrusted work, but PW.1 has admitted 28 O.S.No.713/2012 almost the defence taken by the defendant and it is relevant, to consider the same which reads thus:
"JgÀqÀÄ JPÀgÉ ¥ÀæzÉñÀz° À è ¥ÁPïð ªÀiÁqÀ¨ÉÃPÀÄ CAvÀ ºÉÊPÉÆÃnð£À DzÉñÀ EvÀÄÛ ¤d. ¤UÀ¢vÀ ªÉüÉAiÀÄ°è ¨ÉÆÃrð£ÀªÀgÀÄ ¥ÁPïð ªÀiÁqÀzÀ PÁgÀt ªÀiÁ£ÀåªÀÄAwæU¼À ÀÄ, PÀ«ÄõÀ£Àgï ªÀÄvÀÄÛ PÁ¥ÉÇðgÉÃlgï ¸ÀzÀj eÁUÉAiÀÄ°è ¥ÁPïð ªÀiÁqÀ¨ÉÃPÀÄ CAvÀ gɸ® À ƵÀ£ï ªÀiÁrzÀgÀÄ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ £ÁªÀÅ ¥ÁPïð ªÀiÁqÀ®Ä ¸ÀzÁ ¹zÀÝgÁVzÀÝgÀÆ ©©JA¦ ¥ÁPïð ªÀiÁqÀ®Ä ©qÀ°®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¥ÁPïð ªÀiÁqÀ®Ä PÀ«ÄõÀ£Àgï DzÉñÀ ªÀiÁrzÀÄÝ £À£ÀUÉ UÉÆwÛ®è. ¢B8_11_2011 gÀ°è PÀ£ÁðlPÀ gÀÆgÀ¯ï E£ï¥üÁæ¸ÀÖPç ÀÑgï qɪ® À ö¥ïªÉÄAmï °«ÄmÉqïögÀªÀjUÉ «Ä¤ ¥üÁgɸïöÖ, PÁA¥ËAqï ªÁ¯ï ªÀÄvÀÄÛ ¥ÁvïªÉà gÀÆ.55 ®PÀë ªÉZÀöÑ zÀ°è ¢B10_11_2011 jAzÀ 9_2_2012gÀ M¼ÀUÀqÉ ¥ÀÇtðUÉƽ¸À®Ä ªÀPïð DqÀðgï PÀÆqÁ PÉÆnÖzÀÄÝ £À£ÀUÉ UÉÆwÛ®è."
"zÁªÉ ºÁPÀĪÀ ¢£ÀPÉÌ ªÉÆzÀ¯Éà ªÀPïð DqÀðgï£ÀAvÉ «Ä¤ ¥üÁgɸïöÖ ªÀÄvÀÄÛ ¥ÁvïªÉà ªÀÄÄPÁÛAiÀÄUÉÆArvÀÄÛ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ PÉÆÃnð£À AiÀÄxÁ¹Üw DzÉñÀ EzÁÝUÀÆå PÀÆqÁ CªÀgÀÄ ªÀiÁrzÁÝgÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
"FUÀ®Æ PÀÆqÁ £ÀªÀÄä ¨ÉÆÃrðUÉ ºÉÆÃUÀ®Ä ªÀÄvÀÄÛ §gÀ®Ä gÉÆÃqï EzÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ aPÀÌzÁVzÉ CAzÀgÉ 20 Cr CUÀ®zÀ gÀ¸ÉÛAiÀiÁVzÀÄÝ CzÀgÀ°è ºÉ« læPïì §gÀ®Ä DUÀĪÀÅ¢®è. £ÀªÀÄä ¨ÉÆÃrðUÉ 25 Cr CUÀ®zÀ 7J ªÀÄvÀÄÛ 7© gÉÆÃqïUÀ¼ÀÄ §AzÀÄ ¸ÉÃgÀÄvÀª Û É JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ CªÀÅ 25 Cr CUÀ® EzÉ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è DzÀgÉ 7J ªÀiÁvÀæ §AzÀÄ ¸ÉÃgÀÄvÀÛzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. F zÁªÉAiÀÄ°è GvÀÛgÀ ¥ÀǪÀð ¨sÁUÀzÀ°è gÉÆÃqï ¨ÉÃPÀÄ CAvÀ ºÉýözÉÃÝ ªÉ."
"FUÁUÀ¯Éà «Ä¤ ¥üÁgɸïÖ ªÀÄvÀÄÛ ¥ÁvïªÉà ¥ÀÇtð DVªÉ JA§ ¥Àæ±ÉßUÉ AiÀÄxÁ¹Üw DzÉñÀ EzÁÝUÀÆå ªÀiÁrzÁÝgÉ JAzÀÄ £ÀÄrAiÀÄĪÀgÀÄ. FUÁUÀ¯Éà «Ä¤ ¥üÁgɸïöÖ ªÀÄvÀÄÛ ¥ÁvïªÉà ¸ÁªÀðd¤PÀgÀÄ G¥ÀAiÉÆÃV¸ÀÄwÛzÁÝgÉ ¤d. FUÁUÀ¯Éà «Ä¤ ¥ÁgɸïÖ ªÀÄvÀÄÛ ¥ÁvïªÉà ªÀÆrgÀĪÀÅzÀjAzÀ MAzÀÄ ªÉÃ¼É £ÁªÀÅ PÉýzÀAvÉ C°è gÉÆÃqï ªÀiÁrzÀgÉ ¸ÁöªÀðd¤PÀjUÉ vÉÆAzÀgÉ DUÀÄvÀÛzÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è." 29 O.S.No.713/2012
23. In the complaint submitted to the Commissioner of Police prior to filing of the suit Ex.P.10 and the complaint submitted to the PI of Basaveshwararanagar as per Ex.P.11 the only grievance revealed that the defendants are forming the park in the preserved areas measuring 2 acres. The plaintiff-Board is not claiming the alleged right to develop the park in pursuance of the government order and the directions issued in the W.P., i.e. to the extent of the area measuring 4 acres jointly reserved lands allotted to three departments. It is not the case of the plaintiff-Board that the work undertaken by the defendant is in contravention of the alleged right given to the plaintiff-Board, but under the complaint what is claimed is only the alleged right over 2 acres of land. But in this connection, how the plaintiff-Board has got such exclusive right to form the park only over 2 acres of land etc, is defective and it has also not proved which of the right accrued to it. The government order and the directions issued under Ex.P.4 there is no specification pertaining to the alleged road to be left for the use of concerned persons of plaintiff-Board, as PW.1 has contended that because of installing of gate and formation of the park by the B.B.M.P., it has created hurdle 30 O.S.No.713/2012 to have access to the building constructed in the area preserved for said purpose. No documents are produced by the plaintiff that it has right to develop the park and it was still existing to enforce it, even after laps of date of sanction plan.
24. Therefore, from these documents and the plaint averments, it is clear that no such right has been given to the plaintiff either by the government or under the direction as per Ex.P.4. It seems that the plaintiff has failed to implement the scheme/work entrusted to it as per undertaking to do the said work by the authorized person of plaintiff Board and such work to it to be commenced and complete it as per the proceedings and orders of the government. Therefore the State government has taken steps and entrusted the work to the defendants-B.B.M.P. which is the ultimate and authorized wing of the government, through which the forest cum park has been formed with due process of law. The plaintiff has not at all challenged the action taken and the order passed by the State government before the appropriate forum with due process of law. Without doing so, the plaintiff straight away approached the Civil Court only against the authority who has entrusted with the 31 O.S.No.713/2012 work to implement the scheme, i.e. B.B.M.P. without impleading the necessary parties, who are alleged to be affected the alleged right of the plaintiff. Apart from this, any of the documents referred to by the plaintiff does not confer any exclusive right to develop the park.
25. With reference to the compliance under Sec. 482 of KMC Act learned counsel for the plaintiff argued that, there was urgency in the matter, hence the application is filed separately seeking dispensation of notice under section 482(1-A) of KMC Act, stating the cause of action arose in the 3rd week of December 2011, as the defendants and their officials tried to enter the suit schedule property and trying to disturb the work undertaken by the plaintiff. But in view of non production of materials it is held that plaintiff has not proved the alleged right to undertake the development of Park. It has not challenged the subsequent orders and proceedings of the government entrusting the work to BBMP Bangalore, this suit for mere injunction against the defendants do not indicate that there was emergency to get any interim order by dispensing the statutory notice. So the suit filed with out such notice, is held to be noncompliance of the statutory notice and suit is not maintainable. 32 O.S.No.713/2012
26. No doubt the order under Ex.P.4 is prevailing, but it has made it clear how the plaintiff does not get and alleged right against the defendants. It is only direction to implement the scheme to protect the environment and to protect the interest of the public at large to have a healthy environment in the locality by having such Park-cum-forest to be developed on the government land preserved for it. It is within the jurisdiction and purview of the powers of the government. So the plaintiff cannot claim the direction issued to the competent authority of the government to proceed with the same, as of right. It is not enforceable right against the defendants before this civil court. Thus, the plaintiff has utterly failed to prove the lawful possession over the suit schedule property, since it has claimed the alleged right over the property preserved for developing it as a park. Hence, when the plaintiff has not proved the lawful possession, and alleged right to develop the park/garden, then question of interference of defendants does not arise. However it has not proved the obstruction with cogent evidence. So, the plaintiff is not entitled for any relief as prayed for. Therefore, Issue Nos.1 to 3 are answer in negative.
33 O.S.No.713/2012
27. Issue No.4:- In view of the above discussion and conclusion arrived at, it is proceeded to pass the following;
O R D E R The suit of the plaintiff is hereby dismissed.
Parties are directed to bear their own costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then signed and pronounced by me in the open court on this the 28th day of July 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 B.H. Sannappa
List of the documents marked for the plaintiff:
Exs.P.1 & P.2 Government orders dated 22.09.1992 & 10.11.1992.
Ex.P.3 Possession record received from Tahsildar dated
29.10.1993.
Ex.P.4 Certified copy of order passed by the Hon'ble
High Court of Karnataka in W.P.No.24185/1997,
dated 23.02.2001.
Ex.P.5 Government order dated 14.05.2001.
Ex.P.6 Detail plan.
Ex.P.7 Notice given by Advocate General.
34 O.S.No.713/2012
Ex.P.8 Government order dated 20.05.1971.
Ex.P.9 Decision taken as per the Writ order.
Ex.P.10 Copy of complaint given to Police Commissioner.
Ex.P.11 Copy of complaint given to the Police Inspector,
Basaveshwaranagar Police Station.
Ex.P.12 Endorsement of police.
Exs.P.13 & P.14 Photographs marked through D.W.1. List of the witnesses examined for the defendants:
D.W.1 Shanthe Gowda List of the documents marked for the defendants:
Ex.D.1 Rough sketch.
Exs.D.2 to D.13 Photographs.
Ex.D.13(a) C.D.
Exs.D.14 & D.15 Work orders.
(Yadav Vanamala Anandrao)
LII Addl. City Civil & Sessions Judge,
(CCH-53), Bengaluru.
35 O.S.No.713/2012
Judgment pronounced in the open Court
(vide separately)
ORDER
The suit of the plaintiff is hereby dismissed.
Parties are directed to bear their own costs.
Draw up the decree accordingly.
(Yadav Vanamala Anandrao)
LII Addl. City Civil & Sessions Judge,
(CCH-53), Bengaluru.
36 O.S.No.713/2012
37 O.S.No.713/2012
38 O.S.No.713/2012