CAV JUDGMENT

1. This is an appeal filed under Section 100 of the Code of Civil Procedure, praying to set aside the judgment and decree dated 24.02.2010 passed in R.A.No.161/2001 on the file of the I Additional Civil Judge (Sr.Dn.), Hubballi (hereinafter referred to as ‘the First Appellate Court’, for short) as well as the judgment and decree dated 21.08.2001 passed in O.S.No.235/2000 on the file of the I Additional Civil Judge (Jr.Dn.), Hubballi (hereinafter referred to as ‘the Trial Court’, for short).

2. The parties would be referred with the ranks as they were before the Trial Court for the sake of convenience and clarity.

3. Plaintiff has filed the suit praying for declaration that the resolution dated 28.05.1999 bearing Resolution No.716, passed by defendant No.1, is illegal, null and void ab initio, and not binding on the plaintiff and defendants Nos.2 and 3; consequently prayed for the relief of permanent injunction restraining defendant No.1 and its officials from putting up any construction on the suit schedule property pursuant to the alleged illegal resolution bearing No.716 dated 28.05.1999 and for such other reliefs.

4. The case of the plaintiff before the Trial Court, in nutshell is that:

4.1. Plaintiff and defendant No.3 are co-owners of properties bearing CTS Nos.3026/2B, 3023/3, 3024 and 3026/1, situated in CTS Ward No.1 of Hubballi City, popularly known as Gouliwada. Defendant No.2 is also a co-owner along with plaintiff and defendant No.3 in some of the suit schedule properties. As defendants Nos.2 and 3 were not available to sign the plaint, they were arrayed as defendants. Defendant No.1 is the Commissioner of the Corporation of the City of Hubballi-Dharwad. The suit schedule property is an open space.

4.2. By Resolution No.716 dated 28.05.1999, defendant No.1 resolved to construct a Community Hall on the suit schedule property at an estimated cost of ₹2,40,500/-.

4.3. Plaintiff contends that defendant No.1 has no right, title, or interest in or over the suit schedule property and has not acquired it in accordance with the provisions of the Land Acquisition Act, 1894. Thus, without any right, title or interest, defendant No.1 passed the resolution to put up construction in the suit property, which is illegal. Defendant No.1 is squandering away public funds in furtherance of the said illegal resolution and it is void ab initio.

4.4. The suit schedule property was declared as a ‘Slum Clearance Area’ under Section 11(1) of the Karnataka Slum Areas (Improvement and Clearance) Act of 1973 (hereinafter referred to as ‘the Act of 1973’, for short), by notification dated 01.10.1977. Despite such notification, Karnataka Slum Clearance Board (‘the Board’, for short) did not take any steps for its implementation. The plaintiff, along with defendants Nos.2 and 3, as owners of suit schedule property, have put up claim with the Board for redevelopment of the property.

4.5. The plaintiff for himself and also on behalf of defendant Nos.2 & 3 have made repeated representations to defendant No.1 to stop the alleged illegal construction; however, defendant No.1 continued the construction and permitted others to put up illegal constructions in the suit schedule property. Hence plaintiff has filed the suit for appropriate reliefs.

4.6. During pendency of the suit, plaintiff amended the plaint by adding paragraph 6(A) and additional prayer (B-1), stating that defendant No.1 had put up construction of Community Hall in the suit property during pendency of the suit by taking undue advantage of the summer vacation and non-functioning of courts due to advocates’ agitation. Defendant No.1 has completed the construction of Community Hall and hence prayed for additional relief of mandatory injunction directing defendant No.1 and its officials to demolish the illegal construction of Community Hall put up in the suit schedule property.

4.7. After service of summons, defendant No.1, represented by its counsel, filed written statement den