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2024 Supreme(Kar) 370
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SURAJ GOVINDARAJ, J.
Nazeer Ahmed, S/o. Hussain Sharief - Appellant
Versus
Tumakuru Urban Development Authority, Represented By Its Commissioner – Respondent
Regular Second Appeal No. 1060 Of 2015 (INJ)
Decided On : 06-06-2024
For the Appellant : Sri. Gangadharappa A.V., Adv.
For the Respondent: Sri. T.P. Vivekananda., Adv.
IMPORTANT POINT
The court clarified that notice under Section 64 of the KUDA is not required if the action is not pursuant to the Act, allowing for judicial discretion in urgent cases.
Headnote:
Mandatory - Injunction - Karnataka Urban Development Authorities Act, 1987 - Sections 64, 74 - The court interpreted Section 64 as requiring prior notice for suits against the Authority, but clarified that no notice is needed if the action is not under the Act. Section 74 provides for recovery of unauthorized occupation.
Fact of the Case:
The appellant sought an injunction against the TUDA to prevent interference with their property, which was under threat of demolition. The trial court initially granted the injunction, but the appellate court reversed this decision, citing a lack of notice under Section 64 of the KUDA, 1987.
Finding of the Court:
The court found that the appellate court erred in requiring notice under Section 64, as the action taken by TUDA was not in accordance with the Act. The trial court had the discretion to exempt notice under Section 80 of the CPC, which was not challenged by TUDA.
Issues: Whether a notice under Section 64 of the Karnataka Urban Development Authorities Act, 1987 is mandatory before filing a suit for injunction against the Urban Development Authority.
Ratio Decidendi: The court held that while Section 64 mandates notice for suits against the Authority, it does not apply if the action is not in accordance with the Act. The trial court can exempt notice if justified by urgency.
Result: The appellate court's judgment was set aside, restoring the trial court's injunction order.
JUDGMENT :
(Suraj Govindaraj, J.)
1. The appellant is before this Court seeking the following relief;
Allow the appeal, set aside judgment and decree dated 20.03.2015 passed by the Court of the 1st Addl. Senior Civil Judge and ACJM at Tumakuru in R.A.No.40/2011 and restore the judgment and decree dated 9.6.2011 passed by the Court of the 2nd Addl. Civil Judge & JMFC at Tumakuru in O.S.No.743/2008, with costs throughout, in the interest of justice and equity.
2. The appellant had filed OS No.743/2008 seeking an order of injunction restraining the Defendant - The Commissioner, Tumakuru Urban Development Authority (hereinafter referred to as “TUDA”) from interfering with the plaintiff’s peaceful possession and enjoyment. The said suit came to be decreed by the trial Court vide its judgment dated 9.6.2011. The TUDA took up the same in an appeal in RA No.40/2011 before the I Addl. Senior Civil Judge and ACJM at Tumakuru, who vide its judgment dated 20.3.2015, set aside the judgment and decree passed by the trial Court and rejected the plaint. It is challenging the divergent finding of the Appellate Court, that the plaintiff is before this Court.
3. Sri.A.V.Gangadharappa., learned counsel appearing for the appellant-plaintiff, would submit that;
3.1. The plaintiff’s property being under threat of demolition by the TUDA on account of certain JCB’s being brought near the property of the plaintiff, the plaintiff was constrained to approach the trial Court seeking for the aforesaid order of injunction.
3.2. The plaintiff had made an application under Sub-section (2) of Section 80 of the Code of Civil Procedure for permission to institute the suit without notice. The said application came to be allowed by the trial Court, and it was only thereafter that the said suit was taken up for consideration, interim order of status quo was ordered on IA No.1 filed under Order 39 Rule 1 and 2.
3.3. Notice having been issued, the defendant-TUDA entered appearance, the suit was contested, and finally decreed in favour of the plaintiff. In such circumstances, the First Appellate Court could not have gone beyond the order of the trial Court and thereafter held that without issuing notice under Section 64 of the Karnataka Urban Development Authorities Act, 1987 (hereinafter referred as KUDA, 1987) the suit could not have been proceeded with and it was duty on part of the trial Court to have rejected the plaint under Rule (11) of Order 7 of the Code of Civil Procedure.
3.4. Once the suit was taken on record by way of a judicial order passed by a trial Court and exemption was granted from issuance of any such notice, the said order not having been challenged by TUDA, the First Appellate Court ought not to have held that due to the absence of a notice under Section 64, the suit was not maintainable and thereafter reject the plaint and set aside the decree.
4. Sri.T.P.Vivekananda., learned counsel appearing for TUDA- defendant submits that;
4.1. Any plaintiff is required to issue a notice under Section 64 of the KUDA, 1987; without issuing such notice, no suit is maintainable. Section 64 stands on a different footing than Section 80 of the CPC. Subsection (2) of Section 80 provides a discretion for the trial Court to consider exemption of notice under Subsection (1) of Section 80 in certain circumstances; that discretion is not provided under Section 64.
4.2. The proviso to Sub-section (2) to Section 80 provides for the trial Court to consider whether the suit has to be accepted by exempting the notice to the State Government or the Central Government as the case may be and in the event of the trial Court coming to a conclusion that there is no urgency the plaint itself could be returned.
4.3. That kind of power is not conferred on the Court while dealing with a suit filed against the Urban Development Authority; in such circumstances, Section 64 of the KUDA, 1987 would apply, and as such, he supports the judgment of the First Appellate Court in RA No.40/2011.
5. Havin
