Maszid -E-Umar-Trust vs Brindavan Layout Resident Welfare … on 23 February, 2024

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Karnataka High Court

Maszid -E-Umar-Trust vs Brindavan Layout Resident Welfare … on 23 February, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A. NO.5627/2015 (CPC)
BETWEEN:

1.     MASZID-E-UMAR-TRUST
       REP. BY ITS PRESIDENT
       JANAB MOHAMMED HANEEF,
       AGED ABOUT 48 YEARS,
       AND BY ITS GENERAL SECRETARY
       AKBAR, AGED ABOUT 44 YEARS,
       SITE NO:95, KHATA NO:1234,
       IN PROPERTY NO:1/3, AND 47/5,
       BBMP SL. NO:1414,
       SONNATHAMMANAHALLI @
       T.C. PALYA, K.R. PURAM HOBLI,
       BENGALURU EAST TALUK,
       PIN: 563 036.                         ... APPELLANT

            (BY SRI MEHTER M. AZZAM, ADVOCATE)
AND:

1.     BRINDAVAN LAYOUT RESIDENT WELFARE
       ASSOCIATION, REP. BY ITS SECRETARY,
       MR. SHIVASHANKAR REDDY,
       S/O THIRUPATHII REDDY V,
       AGED ABOTU 41 YEARS,
       R/AT NO :99, 3RD CROSS,
       BRINDAVAN LAYOUT,
       T.C. PALYA, K.R. PURAM HOBLI,
       BENGALURU-560 036.
                                   2



2.      THE COMMISSIONER
        BRUHATH BANGALURU MAHANAGARA
        PALIKE, N.R. SQUARE,
        BENGALURU-560 002.

3.      THE ASSISTANT EXECUTIVE ENGINEER
        BRUHATH BENGALURU MAHANAGARA PALIKE,
        K.R. PURAM SUB-DIVISION,
        BENGALURU-560 036.

4.      INSPECTOR OF POLICE
        (LAW AND ORDER)
        K.R. PURAM POLICE STATION,
        K.R. PURAM,
        BENGALURU-560 036.                     ... RESPONDENTS

     (BY SRI C.H.RAMACHANDRA REDDY, ADVOCATE FOR C/R1;
             SRI KEMPANNA, ADVOCATE FOR R2 & R3;
                  SMT. M.V.ADHITI, AGA FOR R4)

        THIS M.F.A. IS FILED U/O 43, RULE 1(r) OF CPC, AGAINST
THE     ORDER   DATED   2.5.2015      PASSED   ON    IA    NO.4   IN
O.S.NO.2388/2015 ON THE FILE OF THE 40TH ADDITIONAL CITY
CIVIL     AND   SESSIONS    JUDGE,       (CCH-41),   BENGALURU,
ALLOWING IA NO.4 FILED U/O 39, RULE S 1 & 2, R/W SECTION
151 OF CPC.


        THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT        ON   09.02.2024       THIS   DAY,    THE     COURT
PRONOUNCED THE FOLLOWING:
                                   3



                          JUDGMENT

Heard the learned counsel appearing for the appellant and

learned counsel appearing for the respondents.

2. This Miscellaneous First Appeal is filed praying this

court to set aside the order dated 02.05.2015 passed on

I.A.No.4 in O.S.No.2388/2015 allowing the application filed

under Order XXXIX Rule 1 and 2 read with Section 151 of Code

of Civil Procedure, 1908 restraining the defendant No.4 from

proceeding with any further construction on the suit schedule

property till the disposal of the suit.

3. The factual matrix of the case of the plaintiffs before

the Trial Court is that the plaintiff is an Association and while

filing the suit against the defendant No.4 for mandatory and

permanent injunction, it is contended that the Brindavan Layout

is formed with sole object of constructing only residential

building in 195 sites formed in it and all the site owners have

formed the plaintiffs association with an object of preserving the

layout not being misused by any of the site owners. The

defendant No.4 claims to have purchased the suit schedule
4

property under the registered sale deed dated 21.11.2011 with

an intention to put up construction of only residential building.

Any owner of the site in Brindavan Layout is entitled to put up

building residential unit and not to put up any structure such as,

such as religious building, such as masjid, temple or church. This

being the position, defendant No.4 has started the construction

work in the schedule property without any sanction plan or

licence.

4. The plaintiff – Association questioned the

construction activity and defendant No.4 informed to conduct

family function he has taken up the same and only asbestos

sheet roof will be provided to the roof with the help of bamboos.

This has been objected by the association. Thereafter, on

01.03.2015, the defendant No.4 has started putting up

compound wall around the schedule property on the ground that

suit schedule property will be used as a Masjid, which has been

objected by the association and neighbours, immediately he has

lodged the complaint on 02.03.2015 to the defendant No.2

requesting to stop the construction work. After visiting the spot,
5

warning was issued by defendant No.2 to defendant No.4 to stop

the construction work and also issued noticed dated 04.03.2015

directing the defendant No.4 not to put up any construction on

the suit schedule property. However, the defendant No.4

continued with his illegal construction with the help of local

politician and defendant No.3. He also lodged a complaint to the

police on 07.03.2015 and contacted defendant No.3 and brought

to notice the illegal construction, but the same went in vain.

None of the complaints did fetch any result and defendant No.4

continued with illegal and unauthorized construction of the

masjid on the schedule property inspite of oppose and resistance

by the site owners and members of the association. Inspite of

all efforts made by the plaintiffs not to put up any construction,

defendant No.3 refused to take action and directed the plaintiffs

to approach the civil court and hence, they filed a suit. They

have also sought for an interim order contending that the bye-

laws or provisions of KMC Act have not been adhered to and the

very construction is also without any sanction plan and they are

causing nuisance and hence, defendant No.4 has to be

restrained from construction of Masjid.

6

5. The defendant No.4-Trust has filed an application for

rejection of the plaint and also contended that the very suit itself

is not maintainable in the name of the Association. The

defendant No.3 is the official of Government of Karnataka and

defendant No.4 is a public trust governed by Indian Trust Act,

1882. All the trustees are not made as parties to the suit. The

suit is not maintainable on the ground of misjoinder and non-

joinder of necessary parties. The Zonal regulations permit to put

up public place of worship in residential zone. The contention of

the Association that construction of Masjid leads to nuisance,

noise etc are all ill founded having no basis. If the application is

allowed the defendant – Trust will be put to great hardship and

inconvenience.

5. The Trial Court having taken note of the pleadings of

the parties formulated the following points for consideration:

(i) Whether the 4th defendant has shown
reasonable grounds to reject the plaint?

(ii) Whether the plaintiff association has made out
a prima facie case in its favour?

(iii) In whose favour balance of convenience lies?
7

(iv) To whom irreparable loss or injury would be
caused if temporary injunction is refused?

(v) What order?

6. Now the question is only with regard to allowing of

the application filed under Order XXXIX Rule 1 and 2 of CPC i.e.,

I.A.No.4. Though common order has been passed by the Trial

Court on I.A.No.8 and I.A.No.4, but the challenge is only in

respect of I.A.No.4.

7. The contention of the learned counsel for the

appellant before this court is that it is the duty cast on the

Bruhat Bangalore Mahanagara Palike and not on the plaintiff and

civil court also has no jurisdiction to entertain this suit. The

learned counsel would also vehemently contend that there is no

bar to construct the Masjid even in a residential site. He would

also contend that civil suit cannot be entertained in view of

Section 84 of the Karnataka Municipal Corporations Act, 1976

(hereinafter referred to as ‘the Act’ for short) and the property

being a Wakf property, a suit could not have been filed before

the civil court as it has no jurisdiction. He would further contend
8

that since, the BBMP Act, 2020 is applicable, plaintiffs can seek

relief before the Wakf tribunal and not before the City Civil Court

and that the suit itself is not maintainable and hence, they

cannot seek any relief. In support of his submissions, reliance is

placed on decision of the Hon’ble Supreme Court in RASHID

WALI BEG VS. PARID PINDARI AND OTHERS’, (2022) 4

SCC 414 and draws the attention of this court to para No.69,

wherein the Apex court has held that in the case on hand, the

property is admitted to be a Wakf property. Therefore, to allow

the plaintiffs to ignore mandate of Sections 83 and 85 which

speak of any dispute, question or other matter relating to a waqf

or a waqf property. There is also one more issue. In the written

statement, defendant No.1 has admitted the existence of the

Waqf and also admitted that father of the plaintiff by name Riyaz

Ahmed is a Mutawalli. But the claim of the plaintiff that he is the

beneficiary of the Waqf has been denied. Therefore, the

question as to the nature of the Waqf and whether the plaintiff is

the beneficiary of the Waqf, has also arisen in this case.

Therefore, this question has necessarily to be decided by the

Tribunal and not the civil court.

9

8. The learned counsel for the appellant also brought to

the notice of this court, the reasoning given by the Trial Court in

its order in para 13, wherein, the Trial Court comes to the

conclusion that defendant No.4 denied the alleged illegal

construction and inter alia contends that there was already a

construction on the schedule property and the same is being

used by the members of the Trust. It has also observed that the

defendant – Trust denied the alleged illegal construction and

inter alia contended that it being the owner of the property, has

right to put up construction. The defendant No.4 contends that

there was a existing building in the year 2011 and the same is

being used by the members of the Trust, and carrying out only

repair work. The plaintiff – association contends that defendant

No.4 is putting up construction illegally and in the application

has prayed for temporary injunction restraining defendant No.4

from putting up further construction. The defendant No.4 has not

stated anything about the existing building was constructed with

the sanctioned plan or licence from the competent authority. The

Trial Court comes to the conclusion that defendant No.4 – Trust

having taken contention there was already an existing building,
10

as such, it is restrained from putting up further construction, no

prejudice will be caused to the Trust. The plaintiffs have also

produced copies of the representation submitted to the

concerned authorities in the matter and alleged illegal

construction. The trial court has further observed that at this

stage, it cannot go into the root of the matter as the suit is still

in the initial stage. The counsel referring to para 13 of the order

passed by the trial court would contend that the very approach

of the Trial Court is erroneous and hence, it requires

interference.

9. Per contra, learned counsel for the respondents

would contend that though it is contended that no new

construction is being put up and that it is only a renovation, the

very contention of the appellant that they have not taken up any

construction cannot be accepted now as they are continuing with

further construction. The learned counsel would vehemently

contend that admittedly it is a residential layout and without any

permission, they cannot construct the Masjid and they should

obtain the plan from the Bruhat Bangalore Mahanagara Palike
11

who is the authority to grant permission and no such permission

is obtained by the defendants. In the absence of any permission,

they cannot go ahead with the construction. The learned counsel

also contends that when the site was purchased, half of the site

was sold and the same is also for residential purpose and a

residential house is also constructed by the third party and in the

remaining half portion, they have started the construction of the

Masjid. He would also contend that in the written statement they

contend that only with an intention to put up door, they are

making renovation, but they are putting up construction of the

building. He would further contend that no plan is sanctioned

and the Trial Court has passed a well reasoned order and it does

not require any interference.

10. Having heard the learned counsel for the appellant

as well as the learned counsel for the respondents, the court has

to take note of the relief sought in the suit wherein they have

sought the relief of mandatory injunction and permanent

injunction and other reliefs. The main contention of the plaintiffs

is that they are the residents of Brindavan layout and they have
12

formed Brindavan Layout Residence Welfare Association and that

the said layout is a residential layout. The same is not disputed

by the defendants that the same is not a residential layout. It is

the contention of the plaintiffs that defendant No.4 has started

illegal construction without obtaining any plan and also making

use of the same for religious purpose. The intention of the

plaintiffs is to construct only residential building in 195 sites

formed in the said layout and not to make any construction such

as religious building even for Masjid, Temple or Church. It is also

the allegation that defendant No.4 started the construction, but

when they have started construction, the same is questioned

and they informed that they are going to conduct only family

function and they have put up asbestos sheet roof. It is also

their contention that already there was a building and they are

only renovating. Having considered the sequence of incidents

stated in the plaint, it is their case that on 01.03.2015 the

defendant No.4 has started putting up a wall around the

schedule property and the property will be used as Masjid and

immediately, the Association objected the same and have given

a complaint on 02.03.2015 itself. The police also visited the spot
13

and warned not to put up any construction and stopped the

construction and also they have given a complaint to the

Assistant Executive Engineer, Bruhat Bangalore Mahanagara

Palike who also instructed the defendant No.4 to stop the

construction and also issued a notice dated 04.03.2015 directing

defendant No.4 not to put up any construction in the suit

schedule property. The said fact has not been disputed by the

defendant. However, the defendant No.4 has continued with the

construction and hence, they have lodged a complaint with the

police also and the illegal construction was also brought to the

notice of defendant No.3 viz., the Inspector Of Police who did not

take any action and hence, without any alternative they have

approached the court since defendant No.3 informed the

plaintiffs to approach the civil court.

11. The main contention of the learned counsel for the

appellant is that the trial court ought not to have entertained the

suit as there is a bar and the very allegation in the plaint that

they have not taken any permission to put up the construction.

No doubt, the defendants have purchased the property in 2011,
14

but they contend that they purchased the property with an

intention to put up construction of only residential building, but

now admittedly, they claim that the same is for the Masjid. It is

the contention of the plaintiffs that if defendant No.4 proceeds

with the illegal construction, it will cause nuisance and noise that

too in a residential layout. Admittedly, the construction is started

by the defendant No.4, but no plan is obtained from the Bruhat

Bangalore Mahanagara Palike. The specific case of the plaintiffs

is that defendant No.2 i.e., the Assistant Executive Engineer

visited the spot and instructed defendant No.4 not to put up any

construction. It is not the case of the defendant No.4 that they

have obtained the plan and they are constructing the building

based on an approved plan. When the construction is undertaken

without obtaining any permission or sanction plan, the question

of allowing the defendant No.4 to put up the construction does

not arise. The trial court has also taken note of the fact that

defendant Nos.1 and 2 have not whispered anything about the

construction undertaken by the defendant No.4. The defendant

No.4 contends that they have not violated any of the zonal

regulations. When they have not taken any plan and not
15

constructed the building with an approved plan, the contention

that they have not violated any of the zonal regulations cannot

be accepted.

12. The learned counsel appearing for the appellant

would also contend that none of the members of the plaintiffs-

association have obtained any plan or license to put up the

construction on the residential premises, the same is not

questioned before the court and merely a general statement of

counsel appearing for the appellant cannot be considered. It is

the contention of the defendant No.4 that construction is in

respect of the Jamaat khaana and prayer hall in the suit

schedule property is already built in the year 2011 and the same

is being used by its members. In order to prove that the same

was constructed in the year 2011 itself, they have not placed

any material before the court and in respect of the contention

that the construction is not against the zonal regulation, no

material is placed before the court. The trial court having

considered the application filed by the defendant No.4 under

order 7 Rule 11(d) read with Section 151 of CPC comes to the
16

conclusion that no grounds are made out and the same is

dismissed.

13. Insofar as the contention of the defendant that the

plaintiffs are not having any public interest and the contention of

the appellant also that the suit is barred under Section 85 of the

Waqf Act and that the dispute is not in respect of the Waqf

issues, but the dispute is in respect of using of the alleged

construction for the purpose of Masjid, I have already pointed

out that no permission is sought and also no plan is obtained to

continue to put up the construction is against the bylaws as well

as the zonal regulations. The trial court has also taken into

consideration the said fact in paragraph No.3 of its order where

it has discussed with regard to the contention of the appellant

that already there was a building and before this court also

counsel would submit that they are only going to install the door

since the door is not in a habitable condition and this court

directed the counsel for the appellant to substantiate the same

by producing documents, but nothing is placed on record to

show that the door is not in order. In order to prove the fact that
17

already the building was existing in the year 2011 and they have

started renovation work also, no material is placed before the

court and construction undertaken by defendant No.4 is also not

in conformity with the Bruhat Bangalore Mahanagara Palike

Rules and Regulations and construction is also an illegal

construction and no permission is sought and also no sanction is

obtained from the competent authority i.e., the Bruhat

Bangalore Mahanagara Palike and the said factors are also

taken note of by the trial court. When such being the case, an

illegal construction cannot be protected by granting an interim

order and exercising the equity in favour of them and hence, the

trial court has rightly come to the conclusion that they cannot be

permitted to continue with construction as against the

law without any permission and plan and hence, comes to the

conclusion that plaintiffs have made out a prima facie case and

balance of convenience.

14. Insofar as the contention that the issue between the

parties is in respect of Wakf issues and it is a violation of right of

private persons who are residents of the particular layout, the
18

judgment relied upon by the appellant counsel referred to supra

with regard to Section 83 and 85 of the Wakf Act is very clear

that any dispute, question or other matter relating to waqf or a

waqf property then tribunal can exercise the same, but in the

case on hand the relief is sought for mandatory injunction and

permanent injunction and court can grant the mandatory

injunction as well as the permanent injunction in respect of civil

rights of the parties and not the issue of Waqf property and the

tribunal cannot exercise the jurisdiction of granting of permanent

injunction and mandatory injunction and hence, the same is not

applicable to the facts of the case on hand.

15. Having considered the reasoning assigned by the

trial court, I do not find any error committed by the trial court

and while granting the interim relief the court has to exercise its

discretion. Having considered the fact that no material is placed

by the defendant to show that they have undertaken the

construction after obtaining the permission and also the sanction

plan, I do not find any error committed by the trial court in

allowing I.A.No.4 and hence, there is no merit in the appeal to
19

come to other conclusion that the order impugned suffers from

any illegality. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal stands dismissed.

Sd/-

JUDGE

ss

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