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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
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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.
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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:
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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
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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,
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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.
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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?
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(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
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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.
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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,
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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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